aw Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http ://www. arch i ve . o rg/detai Is/cu31 924076560477 REPORTS OF CASES DECIDED IN THE Court of Oyer and Terminer AND THE Court of General Sessions of the Peace and Jail Delivery OF THE STATE OF DELAWARE BY JOHN W. HOUSTON, Associate Judge. VOL. L WILMINGTON, DELAWARE : The James & Webb Printing and Stationery Company. 1880. TABLE OF CASES. D. H. paqe: ,* PAGE. Adams & Aiken, State v . 36|. ■pavis, State v. . ■ 13 Anderson, State v. . 38- Donovan', State z^. • 43 1 ^owriham\ State v. • 45 B. Draper, State v. . . 291 Draper, State-W. . ■ 531 Boice, State v. ■ 355 Dugan, State v. . . 563 Bowen, State v. . • 91 Bradley, State v. . 165 E, Brister, State v. . . ISO Brown, State v. . • 539 Evans, State v, . ■ 97 Buchanan, State v. • 79 Burrows, State v. • 74 F, Burton, State v. . • 363 Floyd, State v. . . no C. Frazier, State v. . . 176 Carpenter, State v. • 367 G. Carter, ^/ a/., States/. . . 402 Costen, State v. . • 340 Gardner, State v. . 146 Crocker, State v. ■ 434 Goldsborough, State v. . 302 Crutch, State v. . 204 Green, State v. . . 217 Danby, State v. . . 166 Hamilton, State v. . lOI Darnell, State v. . 321 Hamilton, State v. . 281 Darrah, State v. . . 112 Hill, State v. . 420 IV TABLE OF CASES. PAGE. PAGE. Hill. State v. . 421 Riggs, State v. . . 120 Hollis,.State7/. . . 24 Russell, State v. 122 Hooper, State v. . 17 s. Horskins, State v. . 116 Hurley, State v. . . 28 Seymour, State v. 508 J- Sloanaker, State v. 63 Smith, State v, . 107 Jackson et al., State v. Jones, State v. . Jones ^/«/., State'w. . . s6i 21 • 317 State It V. Adams & Aiken, . " Anderson, " Boice, . " Bo wen, . 361 38 355 91 L. te " Bradley, 16s (t " Brister, . ISO Lee, State v. • 33S it " Brown, . 539 List, State v. • 133 11 " Buchanan, 79 Livingston, State v. . • 71 ii " Burrows, 74 Livingston, State v. , . 109 ct " Burton, . 363 Lowber, State v. • 324 it " Carpenter, 367 t( " Carter et al., 402 M. It " Costen, 340 Manluff, State v. McDaniel, State v. Morris, State v. . . 208 . 506 . 124 tt 11 (C " Crocker, " Crutch, . " Danby, . " Darnell, 434 204 166 331 N. it ii " Darrah, " Davis, . 112 13 Newcomb, State v. . 66 ii " Donovan, 43 Nichols, State v. . 114 ii " Downham, 45 ii " Draper, 291 0. .( " Draper, 531 O'Neal ^/ a/., State w. - 58 ii " Dugan, " Evans, . 563 97 O'Niel, State v. .' . 468 it " Floyd, . no Owens, State v. . • 72 11 ii " Frazier, . " Gardner, . 176 146 P. ii " Goldsborough, 302 Parker, State v. . Pratt, State v. . 9 • 249 a ii " Green, . ' . " Hamilton, " Hamilton, . 217 . lOI 281 R. ii " Hill, 420 ii " Hill, 421 Rash, State v. . . 271 ii " Hollis, . . 24 Rhodes, State v. • 476 ii " Hooper, • 17 TABLE OF CASES. State V. Horskins, " " Hurley, . " " Jackson et al. " " Jones, . " " Jones et al. " " Lee, " " List, " " Livingston, " " Livingston, " " Lowber, " •■ Manluflf, " " McDaniel, " " Morris, . " " Newcomb, " " Nichols, " " O'Neal etal. " " O'Niel. . " " Owens, . " " Parker, . " " Pratt, . " " Rash, . " " Rhodes, " " Riggs, . " " Russell, . " " Seymour, " " Sloanaker, " " Smith, . " " Taylor, . PAGE. ii6 28 561 21 317 335 133 71 109 324 208 506 124 66 114 S8 468 72 9 249 271 476 120 122 508 63 107 436 State V. Thomas, " " Till " " Townsend, " " Townsend, " " Turner, . " " Vincent, " " Vines, . " " West, . «•■ " Williamson, " " Woodward, T. PAGE. 333 10 337 76 II 424 371 IS5 4SS Taylor, State v. . ■ 436 Thomas, State v. • 5" Till, State v. • 233 Townsend, State v. . 10 Townsend, State v. • 337 Turner, State v. . 76 V. Vincent, State v. II Vines, State v. . • 424 W. West, State v. . • 371 Williamson, State v. . • 15s Woodward, State v. . • 4SS The following Judges composed the Court of Oyer and Terminer and the Court of General Sessions of the Peace and Jail Delivery of the State, during the period embraced in this volume of Reports : Hon. Samuel M. Harrington, Chief Justice ; appointed April 3, 1855. Hon. Edward W. Gilpin, Chief Justice; appointed May 6, 1857. Hon. Joseph P. Comegys, Chief Justice; appointed May 18, 1876. Hon. John J. Milligan, Associate Judge ; appointed September 19, 1839. Hon, Edward Wooten, Associate Judge ; appointed September 16, 1847. Hon. John W. Houston, Associate Judge; appointed May 4, 1855. Hon. Leonard E. Wales, Associate Judge ; appointed September 22, 1864, vice Judge Milligan resigned. George P. Fisher, Esq., Attorney General; appointed March 28, 1855. Alfred WOOTTEN, Esq., Attorney General; appointed March 28, i860. Jacob Moore, Esq., Attorney General ; appointed September 3, 1864, on the death of Mr. Wootten. Charles B. Lore, Esq., Attorney General; appointed September 26, 1869. John B. Penington, Esq., Attorney General; appointed October 3, 1874. George Gray, Esq., Attorney General; appointed October 3, 1879. For the information of those who may not be familiar with the con- stitution and jurisdiction of the criminal courts whose decisions are re- ported in this volume, the author deems it proper to state that the Court of Oyer and Terminer when called consists of the Chief Justice and the three Associate Judges of the State, but any three of them constitute a quorum for the trial of cases, and which has sole and exclusive juris- diction of the following crimes : treason against the State, murder, man- slaughter, rape, arson and burglary when it is perpetrated with intent to commit murder, rape, or arson, whether such intent be executed or not ; and all of which are capital 'crimes with the exception of man- slaughter, and murder of the second degree. The Court of General Sessions of the Peace and Jail Delivery consists of the Chief Justice and two of the Associate Judges when full and in session for the trans- action of business and the trial of cases, the Associate Judge not con- stituting a member of it in vthe county in which he is appointed, and in which he is required to reside, but any two of the Judges which compose it constitute a quorum for the trial of cases in it, and which has the sole and exclusive jurisdiction of all other indictable offenses un- der the constitution and laws of the State ; for no appeal lies from either of these courts to any other judicial tribunal established by the State, nor does a writ of error, or any process equivalent .to a writ of error, lie to either of them from any other tribunal established by it. COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY, The State v. Josephine Parker. The property in gold or silver coin must be alleged to be of the money, and not of the goods and chattels, of the party from whom it was stolen, in an indictment for larceny. Sussex County, Court of General Sessions, &c., April Term, 1856. The indictment in the case was for larceny and alleged the property stolen to be one piece of gold coin of the value of one dollar, four pieces of silver coin commonly called quarter dollars, of the value of twenty- five cents each, and one ten dollar bank note of the Marine Bank of Baltimore of the value of ten dollars, "of the goods and chattels of Sally Lynch." There was no proof as to what bank the note was of, and the objection was taken that no conviction could be had for the taking of the coin, because it should have been alleged in the 2 lo COURT OF GENERAL SESSIONS, &c. indictment that it was of " the money," instead of " the goods and chattels " of the party who owned it. And of this opinion was the Court. The statute on which the indictment was founded, recognizing and mak- ing a distinction between coin or specie and other per- sonal property, denominating the former as money, and the latter as goods and chattels, and it therefore directed the prisoner to be acquitted. The State v. George M. Townsend. A prisoner indicted for larceny under the laws of the State and returned by the Sheriff cepi corpus and in his custody, will be tried for the offense, notwithstanding he is also in his custody as the deputy of U. S. Marshal of the district, and in the jail of the county under the statute of the State allowing the use of its jails in such cases, for robbing the U. S. Mail. N. C. County, Court of General Sessions, &c., May Term, 1856. The defendant was indicted for larceny and upon his case being called, Gordon, his counsel, objected to the Court's proceeding to try it, because the prisoner had been arrested by the U. S. Marshal of the district for robbing the mail, and was then in the custody of the Sheriff as his deputy and in the jail of the county under the act of the Legislature allowing the use of the jails of the State for such purposes, and referred to the provisions of our habeas corpus act, which excepts persons in custody for offenses under the laws of the United States from the operation of that act. THE STATE v. VINCENT. ii But the Court overruled the objection and remarked that the sheriff had made return to the capias issued out of this Court for his arrest on this indictment, cepi corpus, and the prisoner was now in the dock. That the Court had no sufficient evidence of the facts stated by the coun- sel for the prisoner, and even if it had, it would appear that for the offense alleged against the laws of the United States, he was in the custody of the sheriff and the public jail of the county by the courtesy of the State, and there was no rule or principle of comity which required this Court for the reasons assigned to decline to try the pris- oner for his alleged offense against the laws of this State. The State v. Levin Vincent. In criminal confessions the Court will presume that the magistrate has performed the duty enjoined upon him by law, and reduced the ad- mission or statement to writing, but not that it was assented to or signed by the accused after having been read over to him, and with- out proof of such fact, parol evidence of it is admissible. Sussex County, Court of General Sessions, &c., April Term, 1857. Theindictment was for larceny and the prose- cuting witness was proceeding to speak of a confession made by the prisoner before the committing magistrate at the time of the hearing, when he was stopped by his coun- sel with the enquiry, if it was reduced to writing by that officer, to which he replied that he did not know, that he wrote something on his docket during the time the pris- oner was making his' statement, but whether it was that, or not, he could not say, upon which the objection was made that it was to be presumed the magistrate duly performed his legal duty on the occasion and reduced it to writing, and without the production of it, or proof of the loss of it, no parol evidence of the statement and confes- sion by any witness present at the time was admissible. 12 COURT OF GENERAL SESSIONS, &c. Fisher, Attorney General, in reply to the objection, cited State V. Eaton, 3 Harr. 554, and State v. Johnson, 5 Harr. 507. The Court after considering the question, recognized and reaffirmed the distinction ruled in the cases cited, and in conformity with the general principle stated in 2 Russ. on Crimes, Zjf), and said the Court would presume that the magistrate had done his duty in the premises, and as the statute expressly required him to examine the accused, taking his voluntary declarations, and to reduce his ex- amination to writing and read and tender it to him for his approval and his signature, as thus reduced to writing, the Court would assume that he had done all whichthe statute required of him to do in the case. But as the statement when thus reduced to writing and tendered by him to the accused, could have no sanction or effect as his confession without his signature, or his assent to the correctness of it, it could not be evidence yvithout proof of that fact, or the Court's further presuming also that the latter had signed, or assented to it, but which it was neither requir- ed to do, nor warranted in doing. For in the latter par- ticular our statute went further than the English statute in similar cases, which only required the magistrate to reduce the confession to writing, but not to read or ten- der it to the accused, as ours does, for his signature, or approbation. The objection was therefore overruled, and the testimony was admitted. COURT OF OYER AND TERMINER. The State v. David Davis. If a fight suddenly springs up between the prisoner and another on the one side, and the deceased on the other, in the course of which he receives a sudden blow on the head with a stick of which he dies the next day, with no other evidence of premeditation or delibera- tion, it will constitute the crime of manslaughter only ; and it matters not which of the two struck the blow, if the prisoner and his com- panion were engaged together at the time in the fight with the deceased. New Castle County, May Term, 1857. At a Court of Oyer and Terminer held at this term, David Davis, alias James Saunders, was indicted and tried for the murder in the first degree of David Carr. The prisoner and another called at the tavern of the deceased in Brandywine hundreiS for breakfast about eleven o'clock on the mcfrning of the 5th of December, 1856, which was furnished them. Both of them, and the prisoner particularly, used much profane language whilst they were at the breakfast table in the presence of the woman wait- ing upon it. After breakfast they returned to the bar room and remained there until about half-past 3 o'clock 14 COURT OF OYER AND TERMINER. in the afternoon, the prisoner tallying quite loud to every- one who came in, and at other times apparently asleep with his companion in the room. In passing by the bar room door about that hour, the waiting woman before re- ferred to, observed the prisoner and his companion stand- ing before the bar disputing with each other about a quar- ter of a dollar, and the landlord, David Carr, leaning over the bar and looking at them, but saying nothing ; and immediately after ascending the stairs on her way by the bar room door, she heard a scuffle below in it, and a cry in a loud voice which she distinctly recognized as that of the prisoner, "God damn him, kill him !" She then heard a fall as of a body on the floor below, and hurrying down stairs, saw David Carr lying on the passage floor just out- side of the bar room, and the prisoner and his compan- ion standing one on either side of him, when they imme- diately fled and ran off towards the railroad. Carr died the next day of a fracture five inches in length on the. right side of the scull produced by a blow with a club or heavy walking stick, and was also severely kicked with a heavy boot. The prisoner was arrested that evening in Chester, Pennsylvania, and when taking into custody the next morning by an officer from this State and his attend- ant, his first inquiry of the latter as soon as he saw him was, "how is the old man ?" And when informed by him, " that he was alive, and that was all," the prisoner replied " that it was an awful case." The prisoner in reply proved by a number of very respectable witnesses who had known his character very well, that it had before been good for peace, amiability and industry. Fisher, Attorney General, defined the crime of murder at common law. \ Black. Com. 195. And express malice at common law. 4 Black. Com. 198. But if the State had failed to prove that the killing had been committed with such deliberation as to constitute express malice as THE STATE v. DAVIS. 15 so defined, the prisoner should be convicted of murder with implied malice and in the second degree, provided the jury should be satisfied from the evidence that it was done by the prisoner with any degree of deliberation, however slight, and without any assault or attack made upon him by Carr, or any mutual combat before com- menced between him and the deceased. For unless he had been assailed or attacked by Carr, and an actual combat had ensued between them before the fatal blow was inflicted, there could be no ground for reducing the crime to the grade of manslaughter. David Paul Brown, for the prisoner. Unless the State had proved to the satisfaction of, the jury that the pris- oner struck the fatal blow, they could not convict him of murder in either degree, or of manslaughter. But even, if he struck the fatal blow, it was not murder of the first degree, because the circumstances proved negatived the existence of express malice ; and the gross state of intoxi- cation he was in at the time, would itself reduce the crime to murder in the second degree under the statute. Whart. Law of Homicide, 369. But in addition to that it had been proved that these two drunken men fell by the ears and got into a scuffle and battle when the mortal blow was suddenly given, by which of them is not known, with a stick at hand, as suddenly seized up without pre- meditation, or pausing for an instant to procure it ; and which could at furthest only constitute it manslaughter. Fisher, Attorney General, replied. The Court, Gilpin, C. J., charged the jury. That the Court did not deem it necessary under the facts proved to enter into any consideration of the question of murder in the first or second degree, but if from the evidence it appeared to the satisfaction of the jury that a fight sud- denly sprung up between the prisoner and his companion and David Carr, the landlord, at the time and place i6 COURT OF OYER AND TERMINER. stated, in the course of which the deceased received a vio- lent blow with a stick on the head of which he died the next day, and there was no other evidence of premedi- tation or deliberate intention to do him a severe bodily injury, or to kill him, than the sudden act itself simply afforded, it would constitute the crime of manslaughter, and not murder in either degree in contemplation of law. And in that view it mattered hot which of the two struck the blow, if the prisoner and his companion were acting together and were both engaged at that time in the fight or combat with the deceased. Verdict — Guilty of manslaughter. COURT OF GENERAL SESSIONS or THE PEACE AND JAIL DELIVERY. The State v. Draper Hooper and Annie Hooper. In a case of binding under the third section of the statute, it is sufficient if the approval of the justices appears anywhere in or upon the in- denture. It is only the money stipulated to be paid to the parent, and not to the servant indentured on the expiration of the service, that is required to be paid in instalments ; and although the sum was fifteen, instead of ten dollars, it was no ground of exception to the indenture, for the statute leaves it to the discretion of the justices to designate the amount to be paid to a colored child in lieu of education. On an indictment for harboring such an indentured servant, the record of the indenture will be admissible in evidence, although the origi- nal was not delivered by the justices to the Recorder of Deeds for the county, within the time prescribed by the statute. Nor can the indentured servant avoid it for that reason by leaving the service. Sussex County, Court of General Sessions, &c., October Term, 1857. Indictment of the defendants for harboring an indentured servant. 1 8 COURT OF GENERAL SESSIONS, &c. Fisher, Attorney General, offered in evidence the public record of the indenture executed before two justices of the peace, under section 3, chapter 79 of the Revised Statutes 245, which contained no certificate of approval by the justices, and which was dated June 3d, 1856, but was not delivered by them to the Recorder of Deeds for the county, until September 2d, 1856. E. D. Cullen, for the defendants, on these grounds ob- jected to the admissibility of the record, and contended that it was, therefore, absolutely void, as it was not in conformity with the provisions of the statute ; for although it had been decided by the Court in the case of Luby v. Cox, 2 Harr. that it was not void, but only voidable for that reason, and if not avoided by the apprentice, would be binding upon the master, in the present case the in- dentured party had done that, had renounced and repu- diated it by leaving the service of the master, as the Court would judicially take notice, and which was implied and admitted on his part by this criminal complaint and pro- ceeding in the case. Luby v. Cox, 2 Harr. 184. 4 Taunt. 877. iAnstru.2C,6. Piatt on Cov. 2, Law Libr.2'^y. ii,Pick. 572. 2 Kent's Com. 22)6. 2 Pick, 332. Bingh. on Infancy, 6^). Fisher, Attorney General, replied. By the Court : Under the present statute no formal cer- tificate of approval by the justices is now required, as un- der the former act on the subject. In a case of binding under the provisions of the third section of the act as it now stands, it was sufficient if their approval appeared any where in or upon the indenture, and in this case it ap- peared in the body of it, and it could not appear or be otherwise from the fact that they executed it and bound the servant to the master. As to the second objection, it was only the money to be stipulated in the indenture to be paid to the parent, instead of to the party bound on the expiration of the term of service, that is required to be THE STATE v. HOOPER. 19 paid in instalments, and although the sum was fifteen in- stead of ten dollars, it was no ground of exception to the indenture, for the statute leaves it to the discretion of the justices to designate the amount to be paid to a colored child in lieu of education. In regard to the third and last objection that the indenture was not delivered by the justices to the Recorder within the time required by law, the act in this case differs from the act for the recording of i^eeds, which expressly provides that the record in the latter case shall only be evidence upon the deed's being recorded within one. year after its execution. But the act in relation to apprentices contains no such provision, for it does not even expressly say that the indenture when deposited in the office shall be recorded, or even that the record of it shall be evidence, as it does in case of an assignment of the indenture. But as the act requires it to be delivered to that officer, it is evidently for the purpose of being recorded with a view to preserve the evidence of it, whilst the provision in relation to the assignment of it, in terms requires that it shall be recorded with the original. Still the act not prescribing the time within which the original shall be recorded, but simply making it the duty of the justices under a penalty of five dollars to deliver it within sixty days to the recorder, we do not think it a sufficient ground for excluding the record offered in evidence, that the original was not delivered to that officer until ninety days after it was executed. And we are of the opinion that there is nothing in the exceptions taken to show that it was not in conformity v/ith the pro- visions of the existing statute on the subject. But if it were otherwise, and there was anything to show that it is not in conformity with them, and was, therefore, voidable in law, inasmuch as the statute expressly provides a spe- cific remedy and mode of relief in such a case for the indentured party, we do not think he can lawfully avoid it by leaving and abandoning the service of his master at his own will and pleasure, or that a third person in a collateral proceeding like this, in which the validity of the 20 COURT OF GENERAL SESSIONS, &c. indenture is involved incidentally and indirectly only, can be allowed to avail himself of such an objection to it as any defence against an indictment for harboring the ap- prentice or servant after leaving the service of the master. Cullen. But the binding in this case was under the third section of the statute, whilst the proviso contained in the sixteenth section of it, which gives the apprentice his redress by petition to the Court, or a judge in vacation, provides that such tribunal shall not enquire into any mat- ter of objection to the indenture, but cruelty, ill-usage, or treatment not conformable to the terms of the binding. Gilpin, C. J. Well, if that be so, then for a stronger reason this Court cannot enquire into the matter of your objection in an entirely collateral proceeding at the suit of the State on an indictment against a third person for harboring the apprentice after he has forsaken the service. In this particular case the statute may be a very hard one towards the apprentice; but this "is wholly a statutory matter, and we can only take the law as we find it. The record was admitted in evidence. COURT OF OYER AND TERMINER. The State v. James Jones. The Statute has introduced no essential change or alteration in the crime of murder as it exists at common law in respect to the malice which constitutes the offence, although it divides it into two degrees for the purpose of discriminating in the punishment and penalties imposed by it according to the proof and kind of malice with which it is committed. Kent County, October Term, 1857. At a Court of Oyer and Terminer held at this term, James Jones was indicted and tried for the murder in the first degree of Henry C. Ralston. Both parties together with four other colored men, were at the time when the murder was alleged to have been committed, in the employ and living at the house of Mr. S. Fisher, a farmer of the county. On the night of the occurrence while they were all up stairs, a quarrel arose between the prisoner and the deceased, about a lamp, during which the deceased cursed him and made some remarks to him when he replied that he would not get up and go down stairs and say that to him. The deceased said he would and jumped up and they all went down stairs into the yard, when the prisoner and the deceased at once commenced fighting, but Mr. Fisher soon stopped it, when they all went out into the public road where they renewed their fight, and when Mr. Fisher again went to 22 COURT OF OYER AND TERMINER. them to stop it, he found the prisoner down with the deceased on him, and pulled him off and separated them. As soon as that was done the deceased said he was badly stabbed. There were three wounds inflicted with a sharp pointed blade of a Barlow knife, two on his back and another between the eighth and ninth ribs on the left side about two inches in length and penetrating the stomach, and of which he died the next afternoon. The knife was taken from the pocket of the prisoner and was admitted by him to be the one with which he had inflicted the wounds. He also said in the morning after it was done, that he had cut him with a small knife and wished that he had killed him; that Henry was always imposing on him and would not let him alone. His general good character was put in evidence and was proved by respectable wit- nesses and was not disputed. For the State it was contended that there was sufficient proof of antecedent malice and of a premeditated design to kill or, at least, dangerously to cut and stab the deceased in the combat, to constitute a case of murder with express malice aforethought and in the first degree under the statute. For the prisoner it was contended that it could not be deemed or held to be under the facts and circumstances proved, any offence above the grade of manslaughter. The Court, Gilpin C.J., charged the jury. At common law the crime of murder consists in the killing of a human being with malice aforethought, either express or implied, and is of but one degree, and the same constitutes the crime of murder in this State under the present statute, for it has introduced no essential change or alteration in that respect in the offence as it exists at common law, although it divides and defines it in two degrees for the purpose of discriminating in the punish- ment and penalties imposed by it according to the proof and the kind of malice with which the crime is committed. When the crime is committed with express malice THE STATE v. JONES. 23 aforethought, or in perpetrating, or attempting to perpe- trate any crime punishable with death, that is to say in general, when it is committed with a sedate, deliberate mind and formed design to take the life of, or to do some great or serious bodily injury to, the person killed, and which deliberate intent is usually indicated by other and attending facts or circumstances, such as previous threats, former enmity and menaces, lying in wait, or in the prep- aration of means to effect the purpose, or intent, it is murder with express malice aforethought at common law and of the first degree under the statute ; but when the crime is committed without any such sedate, cool or deliberate purpose, and without any such attending facts or circumstances, and also- without any great or consider- able provocation on the part of the person slain, and in the sudden heat of blood and passion thereby produced on the part of the accused, to mitigate or alleviate the offence, and thus to reduce the offence to a still lower grade of homicide, it is murder with malice implied by law, as it is termed, and of the second degree under the statute. Any unlawful killing of a human being without malice such as we have just defined, is manslaughter at common law and under the statute ; and whenever one person is killed by another, unless it be under sentence of the law, it is presumed in law to be unlawful and to have been done with mahce aforethought, until the contrary appears. The jury must therefore be satisfied by the proof in the case that the prisoner in killing the deceased, was actuated by express malice aforethought, or by implied malice as before defined, in order to convict him of murder in the first or second degree, according as the one or the other grade or degree of malice may have been shown or estab- lished by it to their satisfaction. If upon a sudden brawl, two persons come to blows and in the sudden heat of passion produced by it, the one gives the other a mortal blow, or a fatal wound with a knife or weapon seized at the moment, without any pre- 24 COURT OF OYER AND TERMINER. vious design, premeditation or preparation for it, although such an act is prompted by hatred, enmity, ill-will and desire to injure the other, yet out of the consideration and indulgence which the law has for the infirmities of human nature, under such circumstances of aggravation and pro- vocation, it will not constitute murder at common law, or in either degree under the statute, but only the crime of manslaughter. But if on the contrary, the jury are satisfied from the evidence in the case that at the time when the altercation arose between the prisoner and the deceased, the prisoner was then actuated by malice against th6 deceased and invited him out to fight, either in the yard or afterward in the public road, for the purpose and with the design then formed in his mind, to stab him in the fight with the knife which he then had about him, the killing would in such case constitute not the crime of manslaughter merely, nor even of murder in the second, but in the first degree under the statute. The Court, however, will take occasion to say that this must not be a matter of supposition or conjecture merely on the part of the jury, but must be proved like any other fact or ingredient -necessary to constitute such a crime ; and without proof of it to their satisfaction, it would not amount to murder in either degree under the statute, but to the crime of manslaughter only. Verdict — Guilty of manslaughter. The State v. Silas Hollis. Neither fear, nor apprehension of death, or of great bodily harm will totally excuse one person for killing another ; but to have that effect in law the danger must be imminent and impending at the instant, and real, and not imaginary. He must also have declined the com- bat, and retreated from his assailant, as far as he could have done so consistent with his own safety, or it will amount to manslaughter. Sussex County, April Term. 1858. At a Court of Oyer and Terminer held at this term, Silas Hollis was indicted THE STATE v. MOLLIS. 25 and tried for the murder in the first degree, of Robert Morris on the 21st day of August 1857, at St. Johnstown in Sussex County. The evidence disclosed a deep-seated hostility on the part of the deceased against the prisoner, and" repeated declarations of a determination to either whip or to kill him, or be killed by him, and of which the prisoner had been apprised by others prior to the day of the killing. A witness testified that he was at St. Johns- town on the day of the occurrence, when the deceased drove up and stopped and invited him to take a seat in his carriage with him, and that soon after he had done so the prisoner drove up in his carriage and getting out of it, sat down on a log within hearing of him, but before that, and as he drove up the deceased remarked to him "there's Silas Hollis, applying a very vulgar and opprobrious epithet to him, and adding" that he intended to sluff him before he left the place." That he endeavored to dissuade him from his purpose and from getting out of his carriage, but he only seemed to take offence at his efforts, got out of the carriage and went up to where the prisoner was sitting and said something to him, when they sat down together and entered into conversation with each other ; and very soon afterward he saw the prisoner offer his hand to the deceased and heard him say to him "let us drop all these matters and make up," but the deceased refused to take his hand and cursed it. Very soon after- ward he heard the deceased say to him that he had "a d d worthless bitch of a wife," to which the prisoner in- stantly replied that he did not wish to hear anything more on that subject and when both sprang to their feet, face to face, the deceased shaking his fists with great vio- lence in the face of the prisoner and abusing and cursing him in the coarsest terms all the while, the prisoner for a time rfemaining entirely passive and silent in his position. This continuing, however, after a short time he said to the deceased, he did not want him to strike his fists too long about his head, to which he replied that he could strike his fists about his head as long as he pleased, and damn 3 26 COURT OF OYER AND TERMINER. him, he could whip him besides. Pretty soon after that they closed for a fight, but persons in the surrounding crowd in- terposed on either side and separated them, the prisoner's face being severely scratched in the collision. The prisoner then seized and picked up a stave from the ground, but on the application of a by-stander, surrendered it to him, and subsided again into comparative silence and inactivity, the deceased struggling with great fury and violence to escape from those who were detaining him, and to rush again towards the prisoner, Finally he effected his escape from those detaining him, and suddenly snatched up from the ground lying near him, a green persimmon stick or pole two or three inches in diameter, and just as he had re- covered his erect position and drawn it back in both hands to strike, the prisoner rushed at him and struck him with a stave on the head and felled him to the earth. He was never able to rise or stand afterward without assistance, and soon became unconscious and died on the following day. The stave was four or five feet long, three or four inches wide and about an inch thick. The blow struck with it was on the parietal bones of the head, producing a wound of the skull three inches in length and a half an inch in depth, and the post mortem examination disclosed a fracture of the skull beneath it between two and three inches in length, and about five ounces of coagulated blood upon the brain. Fisher, Attorney General, contended that it constituted a case of murder in the second degree. C. S. Layton, (W. Saulsbury with him,) for the prisoner, contended that the killing was in self-defence, and that it was a case of excusable homicide. Archb. Crim. Law 391. I Russ. on Crimes 660, 662, n. The Court, Gilpin C. J., charged the jury. The killing of one person by another being proved, it is presumed to be felonious and malicious and murder at common law, THE STATE v. HOLLIS. 27 because malice is at least implied from the act of killing, until it otherwise appears, and circumstances of allevia- tion or mitigation must be shown, or must appear in the proof on the trial, to rebut that presumption. It has been conceded, however, by the prosecution in this case that the facts and circumstances proved do not afford evidence of that degree of malice which is denominated express mal- ice in law. and that it is not, therefore, a case of murder in the first degree under our statute. And we will go fur- ther, and say to you now that we do not think that this constitutes a clear case of murder, even of the second degree under it ; and we say so because we do not think the facts proved, warrant or justify such a conclusion, and if such a verdict should be rendered, with our view of the application of the law to the facts and circumstances in proof before us in the case, we should feel constrained to arrest the judgment. But neither fear, nor apprehension of death, or of great bodily harm, will totally excuse one person for killing another ; but to have that effect in law, the danger must be imminent and impending at the in- stant, and it must also be real and not imaginary. He must also have declined the combat and retreated from his assailant as far as he could do so consistent with his own safety, and the hazard to his life or person must be so great, so pressing and immediate as to admit of no further retreat on his part to avoid the necessity of killing his assailant, without imminent danger to his own life or person, or affording some great advantage to him in the crisis impending between them. He would, in con- clusion, say to the jury that if they believed the evidence, it was in the opinion of the Court a case of manslaughter. Verdict accordingly. 28 COURT OF OYER AND TERMINER. The State v. Clement Hurley. Malice is the essential ingredient of murder, and is known to the com- mon law as ot two kinds, express malice and malice implied by law. At common law and under our statute, express malice exists when the killing is done with a sedate, deliberate mind and formed design, evi- denced by external circumstances, such as lying in wait, antecsdeut menaces, former grudges, and concerted schemes to do the party some great bodily harm. And malice is implied by law when the killing is done without such a sedate, deliberate mind and formed design, and there is no such fact or circumstance attending it which indicates cool- ness,deliberation, premeditation, or such preconceived design or pur- pose. When,however,it is suddenly done in the heat of blood or vio- lent passion,and on an adequate and sufficient provocation to produce it in comtemplation of law, the implication of malice is repelled and rebutted, and it constitutes the crime of manslaughter. Drunkenness is no excuse for murder, or any other crime ; but a less provocation of the kind before referred to may suddenly heat and blind a man with angry passion in that condition than a sober man under the same provocation, and may be considered by the jury in determining the sufficiency of it to rebut the implication of malice and reduce the killing from murder in the second degree under the statute to manslaughter. And when antecedent menaces or threats, or revengeful expressions have been uttered by one in that condition, it is fortho jury to consider and determine whether they were the idle and unmeaning declarations of a drunken man merely, or in-.iicated actual malice and an intention to do what he threatened ; for the law considers a drunken man capable of entertaining express malice. But as mania a potu is the secondary effect of intemperance, and is a species of insanity, it is a defence against any of these crimes when proved to the satisfaction of the jury. If the jury after maturely considering all the evidence for and against the prisoner have a reasonable doubt that he killed the daceased, they should give him the benefit of such doubt ; but such is not the rule in relation to the defence of insanity. Sussex County, April Term, 1858-. At a Court of Oyer and Terminer held this term, Clement Hurley was indicted and tried for the murder in the first degree of Elizabeth Hurley, his wife. In consequence of his extreme intern- THE STATE v. HURLEY. 29 perance and cruel treatment of her when intoxicated, she had temporarily separated from him, and being at the house of a son of hers by a former husband, on Friday preceding her death, he went to see her and asked her when she was coming home, to which she replied, when the weather got better, and on the following Monday before her death he went to see her again and made the same inquiry of her and then said to her that he had a pint of whiskey and that day he thought they would be married, to which she replied that she had married him once to her sorrow, and she did not expect to live with him again until he got to be a sober man. He then said he wanted her to come home to him, and she would not be home three days before she was in hell. He was intoxicated at that time. On the Friday following she went home to him, and on the following Sunday morning her dead body was there found lying diagonally across the bed in which it was found, and entirely covered up and concealed from sight, on entering the room, in the bed clothes of it Her throat and neck on both sides of it were bruised and were blue and swollen. The darkest part of the bruise, which was of the width of a man's hand, was on the right side, and there were prints or appearances of the pressure of fingers on the left side of the throat. Her left eye was also bruised and discolored, her left arm and shoulder had been severely bitten, the left thumb nearly off, and there was blood on the bed clothes, and on the wall near the head of the body, which looked as if it had been made by a bloody finger pressed against it. The body was also scratched in several places ; and in the opinion of the physician who examined it, her death had been produced by choking and suffocation. When the constable and the party which accompanied him arrived at the house to arrest the prisoner, they found him lying on the bed on which the dead body of the deceased lay, and when apprised by the officer of his object, he denied that he had killed her, but afterward admitted it both to him and to others. He was not then 30 COURT OF OYER AND TERMINER. drunk, but walked straight and talked rationally ; he had, however, been drinking very hard for three weeks pre- vious to the occurrence. For the defence it was proved, by one of the witnesses, that on Wednesday after his com- mitment to prison he had mania a potu, and by physicians, that a crime committed by a person in that condition, may have the effect, by emotional influences, to restore his reason. And also that he was a man of weak mind, but when sober that he was peaceable and inoffensive in his temper and disposition. Robinson, for the prisoner, contended that the facts proved, and particularly the character of the wounds on the body of the deceased and the manner in which she had been killed, as no weapon, or implement of any kind whatever, it was evident, had been used on the occasion, furnished strong presumptive evidence that it was the result of a fierce and mortal conflict at the time between the parties ; or, if it was not, that then it must have been the work of a husband for the time being bereft of his reason, and utterly unconscious of what he was doing. If it was the result of a quarrel and collision suddenly springing up between them, and was without any pre- meditation or malice on the part of the prisoner, it could not be murder of the first, or even second degree, but only manslaughter ; and the presumption was not only strong, but even violent, that such was the case from the fact that no weapon, implement or instru- ment of any kind, not even so much as a penknife, had been used in the struggle which evidently attended it ; and also from the fact that there was not the slightest trace whatever to be discovered of any premeditation or preparation on his part for the purpose, because those who have their reason and intend to kill or murder their fellow beings, do not generally go about it with their teeth and hands only. He would therefore repeat that if the killing was the result of such a quarrel and collision between them, begun without any premeditation or design THE STATE v. HURLEY. 31 on his part to take her life before it occurred between them, it could not constitute murder of either degree, but manslaughter merely. But if the jury should be satisfied from the facts and circumstances proved that the act committed by the prisoner was occasioned by his long continued and excessive drinking of intoxicating liquors, and he was thereby so far deprived of his reason, reflection and apprehension, as not to be conscious at the time that he was killing his wife, then he was not criminally respon- sible for the act, and could not be convicted of any offense in the case. And he requested the Court to instruct the jury that if they should entertain a reasonable doubt in regard to that matter, the prisoner would be entitled to the benefit of it. Fisher, Attorney General, replied that the facts proved, the threat at the house of her son only a few days before her return home, and the way in which the act was com- mitted, as well as the fact that she had been compelled by his intemperance and cruel treatment to leave him, and the deep offense which she had given him by leaving him, showed alike the antecedent menace, former grudge and the express malice of the prisoner against her ; and as there was not a particle of proof of any quarrel, colli- sion or fight between them in which the killing, as it had been suggested on the other side might have happened, if the case was to rest or to depend on presumptions merely, it would be much more" reasonable to presume after all that had actually occurred and been proved in the case, that his desire to get her home again was prompted solely by enmity and malice against her, and that his only msh then to get her home was for the premeditated purpose of killing her, particularly as it was done by him so soon after her return theVe. As to the matter of a reasonable doubt entertained by the jury, it could prop- erly have no reference to the point raised or the question propounded in the present case, but could have relation only to the factum of the offense in any case. 32 COURT OF OYER AND TERMINER. The Court, Gilpin C. J., charged the jury. That malice was the essential ingredient and characteristic of the crime of murder, and was known to the common law as of two kinds, express malice aforethought and malice implied by law, as it is termed. In its legal sense malice had a broader and more comprehensive meaning than in its ordinary acceptation. In its latter sense it was under- stood to import simply hatred or , ill-will entertained by one person against another, but in its former or legal sense, its meaning was broader and signified a wicked and depraved spirit or disposition regardless of social duty and fatally bent on mischief According to the common law and our statute, express malice aforethought exists when the killing is done with a sedate, deliberate mind and formed design, evidenced by external circumstances, such as lying in wait for the purpose, antecedent menaces, former grudges, or in concerted schemes to do the party some great bodily harm. But these were only some of such external or attending circumstances which indicate the inward intention and serve to show the sedate and de- liberate purpose or design to kill, or to do some act which necessarily results in death, and are therefore evidence of actual, positive, or as the law terms it, express malice. But when the act of killing is committed without such a sedate and deliberate mind and formed design to do it, and, there is no such act, or circumstances attending it which indicates coolness, deliberation, premeditation, or such a preconceived design and purpose, it is in contra- distinction to the description or degree of malice before stated, implied malice, or malice implied by law ; because although it is not proved, by such direct and conclusive evidence of actual malice and deliberate intent to kill, as in the preceding case, yet the facts and circumstances attending on the commission of the deed and the manner and the motive in and \yith which it is done, with enough of that calm and deliberate depravity and malignity of a bad heart which constitutes in all cases of murder the essen- tial element or ingredient of the crime, and which the law THE STATE v. HURLEY. 33 denominates malice, is sufficient to justify the presump- tion and to warrant the belief and conviction that it was committed with such a degree of deliberation as we have last mentioned, and therefore in such a case, the law pre- sumes or implies that it was committed with malice. But at common law the crime is one and the same, whether committed with express or implied malice, and it is in either case murder of the same degree and punish- able with death. When, however, the act is suddenly committed in the heat of blood or violent passion, upon an adequate and sufficient provocation given at the time, and without premeditation indicating coolness and design as before stated, and without time to cool, inas- much as these conditions and circumstances are consid- ered to rebut and repel any presumption or implication of malice whatever in such a case, it constitutes in contem- plation of law the crime of manslaughter ; and as every unlawful killing of one person by another is upon the proof of the act presumed in law to have been done with malice, and is prima facie murder, the law requires in every such case that the accused shall show to the satis- faction of the jury upon his trial, or that it shall so appear from the evidence on the part of the State, that it was done, not only without express malice aforethought, but also without implied malice, or in other words, that the act was com.mitted under such attending circumstances and conditions as before stated, as will have the legal operation and effect to negative and rebut the presump- tion or implication of any such malice on his part at the time when it was done. There are two instances given in the books which will serve to illustrate and explain more clearly the apparently nice distinction in the law on this point. The first is the case of a fight or combat between two persons, in which one in the heat of blood and passion produced by it, suddenly but without any previous preparation for it, such as providing himself beforehand with a dangerous or deadly weapon for the purpose, kills the other, in which case the circumstances 34 COURT OF OYER AND TERMINER. attending it, and the absence of any further proof to the contrary, negatives both in point of law and in point of fact any express malice aforethought, and also any pre- sumption or implication of malice such as we have before described in defining the crime of murder with implied malice, and the crime is therefore manslaughter merely. But even in such a case as we have just stated, if the mortal blow is not struck, or the wound be not given during the conflict, nor until the party has afterward had time to cool and for reflection, it will not be manslaughter, but murder in either the first or second degree under the statute, according to the premeditation and deliberation with which the act may afterward be done, and the time which he may afterward have to cool and recover from the transport of passion occasioned by it. The other is the instance when one party is assailed by the other, in a way and without any means to seriously endanger his life or personal safety at the moment, and he suddenly and coolly kills him with a deadly weapon, without any neces- sity for resorting to such means to repel the attack or to save his life or person from great and imminent peril impending at the moment, and without any other provoca- tion than the assault merely, it will not be manslaughter ; but with no express malice aforethought in the case against him, and no other provocation than such an assault only, it will constitute, in contemplation of law, implied malice, and murder in the second degree under the statute. It had been hypothetically suggested by the counsel for the prisoner that the facts and circumstances proved in this case, particularly as there was no proof, nor any indications whatever, that any other means than his hands and his teeth were used in killing the deceased, it furnished a strong and even violent presumption that it was the result of a sudden quarrel and fight between them, and that it was done in a sudden transport of rage and passion on his part produced by it, and without any pre- meditation or previous design to do it, such as would show THE STATE v. HURLEY. 35 express malice aforethought, or even warrant or sustain the presumption that it was done with implied malice. He had also suggested and contended that the facts and circumstances proved warranted the opinion and belief that he must at the time have been utterly unconscious of what he was doing in consequence of his excessive and protracted indulgence in the use of intoxicating liquors for three weeks prior to it, and the secondary effects pro- duced by it, resulting in a species of temporary insanity or madness termed mania a potu. As to both of these suggestions the Court would sim- ply remark and repeat what had before been said that when the unlawful killing has been proved in any case to the satisfaction of the jury, the law presumes or infers that it was done with malice, and that it is murder, until it is made to appear to the contrary from the evidence on the trial, and whatever the defence under the facts and circumstances proved may be, whether it is not guilty of murder, or not guilty at all, it is alike the duty of the accused to prove and establish to the satisfaction of the jury the particular defence on which he relies, unless it so appears from the evidence on the part of the Slate ; and if he fails in this, it is the duty of the jiiry to return such a verdict as the facts and circumstances proved in the case and the law applicable to it requires. The facts and circumstances proved were all before the jury, the unhappy domestic relations subsisting between them as husband and wife, and the cause of them, the previous threat of the prisoner uttered a few days before the occurrence when in a state intoxication, the return of the deceased in a short time thereafter to him and her home, with the sad and shocking condition in which her lifeless body was there found in two or three days there- after, were all before the jury and they were the sole judges after calmly and dispassionately reviewing and maturely considering all of them, what should be the verdict in accordance with the evidence and the law which had been announced to them by the Court in the 36 COURT OF OYER AND TERMINER. case. It would be proper and necessary for the Court, however, further to notice and instruct them in regard to another matter of defence suggested by the counsel for the prisoner, and which was that if the jury were satisfied from the evidence that he was drunk when he committed the act that the law in that case, repudiates and nega- tives the idea, or possibility that it could have been com- mitted with express malice aforethought, and that conse- quently he cannot be convicted of the crime of murder in the first degree, or of any greater crime than murder in the second . degree under the statute. But we are obliged to say to you that as a general rule in regard to such a defence, drunkenness is no excuse for murder or any other crime whatever, and there are but two cases in which it can have the effect to mitigate or extenuate the crime for which the prisoner stands indicted, one of which is when it is proved to the satisfaction of the jury that it was committed by the accused in a state of intoxica- tion or drunkenness and upon a certain provocation given him by the party killed, and when a smaller provocation may be allowed to alleviate the offense, and reduce it from murder in the first to murder in the second degree under the statute, owing to the well-known fact that a person in that condition is more liable to be suddenly heated and blinded to a higher degree by angry passions than a sober man would be under the same, or a similar provocation. The other is when antecedent threats, menaces or mali- cious and revengeful expressions are proved to have been uttered by the accused when drunk or intoxicated, and when it always becomes a legitimate matter for the grave consideration of the jury whether they are but the idle and unmeaning declarations and denunciations of an angry and drunken man merely, or are properly to be regarded as of graver and more serious and sober import, denoting an actual intent to do what he threatens ; for the law presumes a drunken man to be capable of conceiving and entertaining even express malice aforethought and perpetrating with premeditation and design murder in the first degree under the statute. THE STATE v. HURLEY. 37 And this brings us to what was said by the counsel for the prisoner in regard to his defence on the ground of mania a poiu, and on that subject the Court would say to the jury that if they were satisfied and believed from the evidence whi^ch they had heard, that the prisoner was at the time he committed the act affected with and laboring under an attack of that disease or malady and a brief and temporary madness or insanity, the result of protracted hard drinking of spirituous liquor for several weeks imme- diately preceding the commission of the act, and that he was thereby rendered positively unconscious of what he was doing and incapable of distinguishing between right and wrong with reference to the act he was then com- mitting, it would constitute in law a complete and entire defence to the whole prosecution, and he should be abso- lutely acquitted. But that was a matter of defence not to be presumed, but must be proved like any other matter of defence in this case to the satisfaction of the jury, for otherwise it could be of no avail to the prisoner. There is but one more matter which the Court feels called upon to notice in the case, and that was the con- cluding request of the counsel for the prisoner that we should instruct you that if after a mature consideration of all the evidence in it, you should have any reasonable doubt on this last point as to the mental capacity and criminal responsibility of the prisoner for the act in ques- tion, you should give him the benefit of such doubt in making up your verdict. But the Court does not consider the rule of law so to be in relation to the plea or defence of insanity when the act of killing is conceded, admitted, or positively proved by the evidence. For every such homi- cide is presumed in law to be murder until the contrary appears, and every person is presumed to be of sound mind until the reverse is shown, and as insanity must be shown by the party who alleges or sets it up as a defence, it is incumbent and obligatory upon him to establish it as a fact in the case to the satisfaction of the jury. The rule alluded to as we understand it, has relation solely to 38 COURT OF OYER AND TERMINER. the corpus delicti, or to the act of killing in the case simply, and if the jury in any case of homicide, after maturely considering and weighing all the evidence for and against the accused, entertain any reasonable doubt as to that fact, it is their duty to give him the benefit of it. Although the indictment is for murder in the first degree only, it is competent for the jury to return and render a verdict of guilty of murder in the first or second degree, or of manslaughter, or of not guilty simply, as the law and the evidence in the case after mature delib- eration may in their best judgment seem to warrant and require. Should, however, their conclusion be that the prisoner is not guilty of either offense by reason of insan- ity, their verdict should so state. Verdict — Guilty. The State v. Wesley Anderson. If death is produced by a deadly weapon, great must be the provoca- cation to reduce the homicide from the grade of murder to the grade of manslaughter. If two go out to fight, and after one has struck the other a blow with his fist merely, the other recovers his position and draws a knife, or has one drawn to the knowledge of his antagonist, and is near enough at the time to strike him with it, and makes any assault upon him with it, or any motion indicating an intention to strike him with it, and the other in a transport of passion suddenly draws his knife and deals him a mortal blow with it, the provocation will be sufficient to reduce the homicide under such circumstance to man- slaughter. But if he did not strike the other at all, or after drawing the knife, he did not strike, or attempt to strike him with it, the provocation will not be sufficient to reduce it to manslaughter, but it will be murder of the second degree. Kent County, April Term, 1858. At a Court of Oyer and Terminer held at this term, Wesley Anderson, negro, was indicted and tried for the murder in the first degree of James T. Emory, negro, in the month of August pre- THE STATE v. ANDERSON. 39 ceding. They had met at the camp-meeting near Cam- den, and having had a quarrel, Anderson told Emory that if he would follow him off the camp ground he would give him satisfaction, on which they started and walked about a hundred yards from it, when Anderson turned to him and asked him if he had come out there to fight, to which he rephed no, but if he had to fight he could do it, when Anderson immediately struck him with his fist and stag- gered him back some little, but he recovered and stepped up towards Anderson with both his hands behind him and with a pocket knife in one of them, of which a bystander just then gave notice to Anderson, who exclaimed, putting his hand at the same instant in his pocket, " damn you, if that is what you want, I am ready for you," and draw- ing a pocket knife from it, made a pass at him with it, but missed him ; he then repeated the effort and struck him with the blade of it, inflicting a cut or gash in his left side extending an inch and a half in length. An effort to re- peat the blow was arrested by some one seizing hold of his arm, and others interposing they were at once sepa- rated. Anderson had his coat off when they left the camp ground, and Emory was drawing his when the knife was first seen in his hand, and just as Anderson struck him with his fist. But the witnesses all concurred in the state- ment, that Emory did not strike him at all, and that when the cry was uttered that he had a knife, he threw up both his hands and arms before him, and there was no knife then in either of them, and that it was while his hands and arms were so raised before him, he received the cut from Anderson's knife. He walked a mile from there, and was then obliged to lie down under a tree on the road side ; a physician was summoned to attend him and for several days found the symptoms of the wound quite fa- vorable, but in about the usual time tetanus ensued of which he died the twentieth day thereafter. Spruance, Deputy Attorney General, after reviewing the evidence, contended that it would not dp to hold that, in 40 COURT OF OYER AND TERMINER. every case of a fight in which one of the parties is killed outright, or mortally wounded, the other must be ac- quitted entirely, or convicted of manslaughter only. If it be the result of violent and uncontrollable passion under a great and gross provocation, it may be so ; but such were not the facts in this case, and it was therefore a case of murder of the second degree under the statute. Arch. 388. 389. 392- Ridgely, (N. B, Smitkers with him.) It was a clear case of mutual combat, a mutual agreement to fight, where both parties were equally in the wrong in the eye of the law, and who met on entirely equal terms, except that the deceased was the first to draw a deadly weapon, although both were but ordinary pocket knives such as they and all other men were in the habit of carrying constantly about their persons. It fell therefore clearly withirf the princi- ple so well ruled and settled in such cases, and was man- slaughter only. Fisher, Attorney General. To reduce the homicide from murder of the second degree to manslaughter, sudden pas- sion, violent anger and excitement, and great provocation to palliate it, must all be proved to the satisfaction of the Court and jury. And in the light of all the facts and cir- cumstances proved before them, what was the provocation in this case to palliate the killing of the deceased .' The Court, Gilpin C. J., charged the Jury. It is con- ceded by the Attorney General that this is not a case of murder j'n the first degree, and it is admitted by the coun- sel for the prisoner that it is a case of manslaughter, and they contend that it is nothing more. The Attorney General, on the other hand, insists that it is murder in the second degree. If the death is produced by the use of a deadly weapon, great indeed must be the provocation to reduce the offense from the grade of murder to the grade of manslaughter. Arch. 324. This whole case, therefore, turns on the ques- THE STATE v. ANDERSON. 41 tion of provocation. If you are satisfied from the evi- dence before you, that the prisoner and the deceased left the camp ground and went to the place mentioned, to fight, and that after they reached the point beyond the bridge, and the; prisoner had struck the deceased a blow with his fist merely, the latter recovered his position and drew a knife, or had an open knife in his hand, by his side, or behind his back, which the prisoner either saw or knew he had from the admonition of others on the spot, and the deceased was near enough at the time to the prisoner to strike him with it, and made any assault upon him with it, or any motion or movement indicating an intention to strike the prisoner with it, and that the prisoner in a transport of passion suddenly drew his knife and dealt the deceased the mortal blow with it, of which he afterward died, then, in the opinion of the Court, it was a sufficient provocation under the attendant circumstances, about which there is little or no contrariety of evidence, to re- duce the offense to the crime of manslaughter, and it would be nothing more. But if, on the other hand, the jury should be satisfied that after the parties went out to fight and reached the place spoken of by all the witnesses, the deceased declined the fight, or did not strike or attempt to strike the prisoner, even after he had received a blow with the fist from him, and although he might have drawn a knife, or had an open knife in his hand, down by his side, or behind his back, and either put it up or dropped it on the ground when the prisoner was apprized of the fact that he had a knife ; and either threw up his hands, or otherwise dis- closed to him that he no longer had a knife, and made no assault upon the prisoner, and no attempt or effort to use it, or at any time to strike or stick the prisoner with it, and the- accused then drew a knife and afterward gave him the cut or stab which caused his death, we are of the opinion that such a state of facts would not constitute a sufficient provocation, under all the circumstances proved, to reduce the offense to the grade of manslaughter ; for 4 42 COURT OF OYER AND TERMINER. where the death is produced by a deadly weapon, as in this instance, the provocation must be great to mitigate the offense so far as to reduce the homicide to man- slaughter. As the parties, however, went out to fight and the deceased consented to fight, when they reached the place spoken, of, although the jury may be satisfied that he was not eager for it, or as much so as the prisoner, and did not, even after he had received the first blow from the prisoner, strike, or offer to strike him, either with his fist or a knife, or otherwise attempted to injure him, still if he came up to his position again after he had received the first blow which staggered him, or assumed or maintained his attitude as a combatant, we think this state of facts would constitute some provocation for the act of the prisoner, which would be sufficient to negative the legal idea of express malice, and to reduce the offense to the crime of murder in the second degree. In other words, it is the opinion of the Court, that if you find the state of facts to be as we have in the first place supposed them, it would amount to a violent and sufficient provocation, to reduce the killing to manslaughter ; but if the facts be as we have in the second place assumed them, then there was some provocation under the circumstances proved, and the angry passions engendered on the occasion, of a nature sufficient to extenuate the homicide to murder in the second degree, but not sufficiently great or violent to further alleviate the killing and reduce it to the offense of manslaughter. Verdict — " Guilty of murder in the second degree." COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. James DoNOVAist. In an indictment for stealin g shad it is not necessary to allege that they were dead when stolen, for where a fish or an animal is called by the same name, either dead or alive, it is competent to prove the steal- ing of it in the dead state without alleging it. Kent County, Court of General Sessions, &c., April Term, 1858. James Donovan was indicted for stealing two fishes, commonly called shad, of the goods and chat- tels of John Smith. The proof was that they were dead shad and had been stolen from the fish-cart of the owner who was vending shad from it in town. C . L. Layton, for the prisoner, objected that on this evi- dence the indictment could not be sustained, because the fish alleged to be stolen in it were not alleged to be dead 44 COURT OF GENERAL SESSIONS, &c. fish, and without that averment the law would import that they were live fish ; and yet fish in a river, though not so in a private pond, like animals ferce naturee, are not sub- jects of larceny. And if not alleged in the indictment to be otherwise, the presumption of law is that they were in their natural state, The Court stopped the Attorney General, and Gilpin, C. J., remarked that there were three decisions on the point in the English reports, the last of which had ruled that where the animal is called by the same name, either dead or alive, it is competent under such an indictment as this to prove the stealing of them in a dead state ; and shad, he believed, had but that one name whether dead or alive. COURT OF OYER AND TERMIJSER. The State v. Joseph Downham. On the trial of a white man for murder his confession of the crime may be proved by a negro witness. If the jury beUeve and are satisfied beyond a reasonable doubt from the evidence that the prisoner killed the deceased as alleged by the State, then conceding all that had been alleged and proved by way of justification, excuse, or palliation of that killing on the other side, it could not show and establish a sufficient provocation in law to re- duce it to the grade of manslaughter ; for however unreasonable and unlawful the conduct of the deceased had been in refusing to appear at Court according to the tenor of his recognizance, and un- fair and unjust as it undoubtedly was to his bail in that recognizance, the prisoner at the bar, and however violent might have been his threats to resist the rightful and lawful authority of his bail, the pris- oner, to arrest him and take him to Court on the bail piece which he had taken out of it for that purpose, and whatever attempt he might have made upon the life of the prisoner in shooting at him in his carriage on the road the night before the killing, neither of them, nor all of them combined, could have the effect in law to miti- gate and reduce it to the crime of manslaughter, if the act of shoot- ing the deceased was committed by him with a sedate, deliberate mind and formed design, evidenced by his arrfling himself for the purpose and lying in wait for him, and after nearly, if not quite twelve hours had elapsed since the circumstance last adverted to, the attempt had been made upon his life by the deceased ; because such sedate deliberation, formed design and determination to kill another as that, would furnish in itself the strongest evidence of express malice aforethought, and of the crime of murder in law. 46 COURT OF OYER AND TERMINER. Kent County, April Term, 1858. At a Court of Oyer and Terminer, held at this term, Joseph Downham was tried on a bill of indictment found against him at a preced- ing term of the Court, for the murder of a negro man named Caesar Lewis in the forest of Murderkill hundred, on the 27th day of October, in the year 1852. He had emigrated from the State and settled in the State of In- diana, not long after the alleged murder, the secret of which had remained unknown to all except two or three persons until very recently, and on the finding of the bill of indictment against him, he had been arrested and sur- rendered in that and brought to this State on the requisi- tion of the Governor, The indictment was under the statute then in force against the crime of murder, and which was before it had been modified and divided into two degrees in this State. The first witness called/ was James Andrews, who testified that a man by the name of John Scott and him- self were at work for the prisoner, mauling rails in the Owl's Nest Woods back of his house one morning between seven and nine o'clock, six years ago next October, and during the fall term of the Court here, when he passed right on by them with a gun in his hand into the woods in an easterly direction and disappeard from their view as he proceeded on into the woods. He came back between eleven and twelve o'clock with the gun still in his hand, and going towards his house, and as he passed by them he said to them, " a man has a right to shoot a squirrel in the woods wherever he can find it, aint he ?" But he heard no report of a gun while he was gone, and saw him no more after that until about dark that day. He ate dinner at his house about noon, but did not see him then, as he had gone to Dover, so he was informed by some one at the house. It was after supper and he was sitting in his house, and they sat together there and talked some time. After awhile the prisoner said to him that he wanted him to take a walk with him, but he told him he could not, for his wife was sick and he must go home, but the pris- STATE V. DOWNHAM. 47 oner said he must go, and he became alarmed and assent- ed to his demand. After he sat awhile longer he stepped into an adjoining room and brought out two guns and said to Pompey Tribbet and to him, " come, I want you to go," and handed him one of the guns to carry as he came out of the house, and he carried it all the way in his hand just as he ordered him, for he was scared from the start by his manner. The prisoner went ahead and they close to him and next Mary Lizzie, the house-keeper, who carried a lantern with her, but not lighted. They went back of the place where they had been at work that morning into the Owl's Nest Woods and stopped within fifteen or twenty yards n the road leading from Whitehall to Berrytown, and within twenty-five yards of Csesar Lewis' home. They all stopped there. They then went in an easterly direction into the Owl's Nest Woods, the woman still carrying the lantern, no: very far, when the prisoner said to him, " hand me that gun," and reached out his hand and took it from him, and then pointing his finger ahead said to him and Pompey to go there and see what that woman can find. They refused to go. He said go on ; but they still refused to go, and after he found, they would not go, he went ahead himself a short distance and then stopped and said "there is the body of Csesar Lewis. I want you to take it up and bury it." Pompey said, " I can't until I see who it is before I do." The prisoner said " light the lantern Mary Lizzie, and let him see for him- self." She lit it, and Pompey said yes, it is Caesar Lewis, at the same time looking him right in the face. His body was lying on its back. The prisoner then said take it up and follow him, and they then took hold of it and found it so heavy they could not carry it. He saw his face, but he did not know Caesar. He and Pompey then got two poles and laid his body across them and carried it, Pom- pey ahead and he behind, in a southerly direction about one hundred and fifty yards into the swamp, and until they gave out, when the prisoner said he guessed that would do, and that was far enough. The spade was then 48 COURT OF OYER AND TERMINER. given to Pompey and he was told by the prisoner to dig a hole, which he did until he got tired, and then he took hold but soon got tired, when Pompey said don't dig any more, the hole is deep enough. The prisoner sat a few yards off with the gun between his knees, and said put him in the hole and cover him up. He had all his clothes on except his hat. Pompey then covered him up. It was "then about ten o'clock. The prisoner then said there is one enemy laid low, and the first one who tells of this may expect to go the same road. He then turned round and started home and they all went back to his house. On cross-examination he further stated that he did not tell Thomas Jester that he laid in the woods himself wait- ing for Caesar Lewis, but told him that he was left in the woods to wait for him about three-quarters of a mile from his house, but that he did not watch for him. He told him he was left to watch for him and lay down by the fence and fell asleep— that was the day before. What he told Jester was that when the sheriff came down there he and the prisoner went along the road and told him to stay there and watch for Czesar, and he thought he must obey the sheriff's orders, and after awhile he leaned the gun against a bush and lay down and fell asleep and slept till daylight awoke him. The prisoner said Caesar had shot at him a night or two before and tried to kill him. He said he was afraid to risk his life so long as such a man run at large. He said he had been to Dover and Caesar watched for him by a large cherry tree, and shot at him in his carriage as he passed, and the shot struck both his hat and the top of his carriage, and it was for that the sheriff was seeking to find him and arrest him. There were shot in both his hat and the carriage-top. They were shot in the night, for he saw them about sunrise the next morning, the morning the prisoner went by them when they were out mauling rails in the Owl's Nest Woods. Pompey Tribbet was then called and sworn as a witness, and when asked by the Attorney General if the prisoner STATE V. DOWNHAM. , 49 had ever told him any thing, and if so, what about the killing of Caesar Lewis ? W. Sauhbury, for the prisoner, objected to the answer, because the witness being a mulatto was not competent under the law of this State to give such testimony against the prisoner, who was a white man. By the law of the State as it stood up to the year 1799, "o negro or mu- latto, whether free or a slave, was competent to testify as a witness in any criminal prosecution against a white man ; but in that year the statute was enacted which enabled such a witness, when otherwise competent, to testify in criminal cases against white men where no white person was present at the time when the act charged was alleged to have been committed. That is the extent of the act, and by the obvious import of its terms it restricts the ability conferred by it to testify to the commission of the offense only when no white person was present at that time, and did not extend it to any other matter or thing relating to the charge, such as a confession for instance, made afterwards by the accused to him. 3 Harr. 576, 549. 571- Fisher, Attorney General. It is an enabling statute in brief, but very broad and general terms, and a free and voluntary confession of the crime made to such a person would come within the spirit and policy, if not the letter of it, as much so undoubtedly, as if he had been the only person present at the commission of it. N. B. Smithers, for the prisoner, replied. The Court overruled the objection. The practice had long been settled to admit such testimony. The demands of public justice required the enabling statute to be passed, and it has always received a liberal interpretation in furtherance of that object ; and when a crime has been committed in the absence of any witness, and a voluntary 50 COURT OF OYER AND TERMINER. confession has afterwards been made of it, the necessity for the admission of it in the due administration of public justice, is quite as great as proof of the factum of the of- fence itself when it can be had. Besides, if no white per- son was present when the homicide was committed, we consider the words of the statute broad enough without any forced construction in view of the object of it, to admit the testimony under the terms of it. The witness then proceeded and stated that four or five years ago last fall, while the Court was in session here, he rode with the prisoner in his carriage from his house to Dover, and that it was after one o'clock in the afternoon when they started, and sometime after they had got on the road leading by White Hall, the prisoner said to him that he had something to tell him — that he had shot the hawk certain. He then asked him what kind of a hawk .■" He said Caesar Lewis. He then asked him where .' He said partly opposite the house where he lived, and then said he had been sitting for some time in the bushes on the other side of the road waiting for him to come along, and after awhile he saw him coming up the road, and when he got up to near where he was, he rose up in the bushes with his gun in his hands, raised it to his shoulder and levelled it at him in his face, when Caesar threw up both of his arms and cried out what's the matter .' Mr. Downham what's the matter.' He said he replied "a good deal's the matter, you love to shoot at white people's heads !" and fired hitting him between and just above his eyes, and he fell dead in the road, and that he then went out into the road and drug him into the bushes and there left him. He said he could not drag him far because he was so heavy. The next day and after Cesar's body had been buried, he showed him where he was standing in the road when he shot him. It was on the road from White Hall to Berry- town, nearly in front of Caesar's house, and he then said he was sorry after he fired the gun, and if he had had time THE STATE v. DOWNHAM. 51 to reflect, he would not have fired it. He then saw blood in the road where he said he shot him, and some in the bushes where his body had been lying. Sand had been swept over that in the road. As they were going back to his house from Dover that afternoon he told him he wanted him to go and help bury him, but he told him he did not want to do it. He asked him why, and he told him he did not want to have anything to do with it. He then said to him it could not hurt him in any way to do that ; and he said he had told Mary Lizzie to tell Mr. Andrews to remain there till he got home, for he wanted to see him. He knew Caesar Lewis well, and it was his dead body cer- tain they saw and buried that night in the swamp. On cross-examination he further stated that two days before he shot him he rode down to his house with his gun in his carriage, and when he saw it he asked what was the mat- ter. At first he said nothing, but afterwards told him that Caesar Lewis had shot at him in his carriage on the road, and blew his hat out of the carriage, and when he got out of it he saw him run off with his gun behind the carriage into the bushes, that he saw it was Caesar Lewis, and then cried to him as he ran off that that crack should cost him his life. The preceding witness, Andrews, was then recalled by the prosecution, and stated that when the prisoner first asked him to take a .walk with him that night, his manner was about as usual, but when he said to him he could not go, his manner changed instantly^ and the way in which he then said " you must go," both startled and cowed him, and he then stood in fear of him. When the prisoner was afterwanls speaking to him of the shooting of Caesar Lewis, he told him he had been waiting some time in the bushes along the road side not far from his house for him to come along, and when he came along and got near enough, he rose up with his gun to his shoulder and lev- elled it at Caesar's head and face, who threw up his arms and cried " Mr. Downham, what have I done !" to which 52 COURT OF OYER AND TERMINER. he said " you have done enough !" and shot him between the eyes. He saw his dead body the night they buried him. It was shot between the eyes and in the forehead just above them, and he saw that night a few shot sticking around the hole which the main load of the gun had made in his forehead. The skull here shown him was taken from the hole where he was buried, and the hole now in the forehead of it is where the wound was the night he was buried. He had on but one boot when he was buried, and but one boot was found in the hole when it was opened by the order of the coroner and the inquest was held over it. There was further evidence produced establishing the identity of the remains disinterred with the dead body of Caesar Lewis beyond all question. P. R. Kirby testified that he met the prisoner one day some five or six years ago, when he showed him his car- riage and his hat where Caesar Lewis, as he said, had shot at him, and which looked at the time as if they had been shot, and who then said to him that he intended to shoot him on sight. And that was about the time it was said that the prisoner had been shot at. John Scott was also called and examined as a witness on the part of the prosecution, and stated that he was at work for the prisoner with the witness, Andrews, five years ago last October, the time spoken of by him, and remembered the fact mentioned by him that the prisoner passed by them where they were at work, with a double- barrelled gun on his shoulder, into the woods beyond them between eight and nine o'clock in the morning ; and he also recollected of his coming back by about ten o'clock, and his asking as he passed by them the question, a man has a right to shoot a squirrel in the woods wherever he can find it .■' But he noticed at the time that he had no squirrel, and he was the more struck with it because he was a good shot, and generally got more game than anybody else in the neighborhood when he went gunning. But he had not been gone more than an hour and a half. THE STATE v. DOWNHAM. 53 A morning or two before that he had seen where the pris- oner's carriage-top had been shot into the night' before on the road, as he said, and that same night about ten o'clock he heard a horse and carriage pass by his house and over the bridge towards the prisoner's house, and he thought at the time he knew the carriage by the rattle of it, and said to some of his family there goes Mr. Downham he thought by the sound of his carriage. The horse and "carriage were going quite fast, and very soon after they crossed the bridge he heard a gun fired in that direction, and he thinks it must have been near the big cherry tree in Mr. Downham's field. The bridge is about two hundred yards from Mr. Downham's house and about three hundred from his. He saw the carriage the next morning, and it was shqt through the side of the top of it about as high as the head of a man of common size when seated in it, and seemed to have been fired into just as the carriage had passed the person who fired into it. The shot went out on the other side of the carriage- top higher than they entered it on the opposite side of it. Edward Reed, the coroner of the county, testified that on the Sunday before the remains were disinterred he took the witness, Andrews, out with him to show him the place where the body had been buried, and when he had done that, he broke a few bushes by it to mark the spot ; and on the Tuesday following he took Pompey Tribbett out there to do the same, and when they had reached the broken bushes he at once enquired who had broken them, and asked with some alarm, "but what, ii the body has been taken away, and is not to be found here now ?" He then told him he had broken them and when, and if the body was not there it should not compromise him. He then said well, it is near the place, and they afterwards found the remains within a few yards of it. The scull was the first part of them unearthed, and in it were found several squirrel shot. Joseph B. Nlckerson testified that five years ago last fall 54 COURT OF OYER AND TERMINER. he was acting as a deputy for sheriff Kersey, and during that term of the Court the prisoner called on him to go and arrest Caesar Lewis, for whom he was bail at that term of the Court. The sheriff could not go and he came for him. He told him he would go, if he would give him five dollars, but as he was his bail for his appearance at that term, he had a right to arrest him and bring him himself, and as he would not give him the five dollars, he did not go. He showed him his hat which had been shot, and which he said had been done by Caesar Lewis he believed. It was a black silk hat, and it was shot in the back part of it, the shot inclining upward and the lowest shot in it which he measured with his finger, seemed to have en- tered it about two inches and a half above the rim. Some of the shot passed out towards the top of the hat, and some out through the top of it. He said Caesar Lewis shot at him and did it the night before that, as he was driving home from Dover. The counsel for the prisoner then opened their defense, and put in evidence the record of an indictment found at the April Term, 1852, of the Court of General Sessions for the county, against Cassar Lewis for cutting trees, and respited until the following October Term, with Joseph Downham as his bail for his appearance at that term. Henry Todd was then sworn and testified that he re- membered that the prisoner came to him as Clerk of the Peace at the October Term, 1852, for a bail piece for the purpose of arresting and surrendering Caesar Lewis, for whom he was bail on the. indictment referred to, and who had failed to appear at that term, and he gave him a duly certified copy of the recognizance of bail, and he heard Chief Justice Booth tell him after he had delivered it to him, that it would authorize him as his bail to take him and bring him into Court. He had not been shot at then, but he came back the next day in the afternoon, and he then exhibited his hat.which he saw had been shot through, and stated that it was done by Cassar Lewis. His recol- THE STATE v. DOWNHAM. 55 lection was that he got the bail-piece during the forenoon pf Tuesday and was back again in the afternoon of the next day. William Harrington was next sworn and testified that he was a Justice of the Peace, residing in that section of the county during the year 1852, and that during the fall term of the Court here in that year Caesar Lewis came to his house one night and wanted a State warrant against Joseph Downham and also a State warrant against one Thomas Cook, and his complaint was that they had laid violent hands on him and attempted to tie him. He was aware of the nature of the case, and at once told him he could not issue them, because he ought to have gone to Court, as he was bound by his recognizance to do, and that he had advised Mr. Downham to do as he had done, as he was his bail and surety for his appearance at Court. He was very much dissatisfied and then said if he could not protect him, he would have to defend himself, and it must be life for life, and that he would not be taken to Dover alive. He said they hacl been trying to tie him to carry him to Dover to be tried, and that he had just got away from them. It was the night of the first or the second day of Court, and it was about one o'clock when he came to his house, and remained about an hour. He saw the prisoner the next or the second day after that, and he seemed to be alarmed, but did not remember whether he informed him of the threats he had made or not. Thomas Winner also testified that Cssar Lewis told him on the Saturday evening before the meeting of Court that he would not go to Court. He told him he ought to, for his surety by entering his bail, had kept him out of jail. He said he would suffer death, and that he would shoot him dead before he would go ; and in a few days a,fterwards he heard that they had their fuss. Thomas Cook testified that the same night the prisoner Vfas shot at, he went with him early in the evening to S6 COURT OF OYER AND TERMINER. Caesar Lewis' house to persuade him to go to Court the next day if they could, and if not, to arrest him and take him Ihere if they could, but as soon as they entered his house his wife opened the back door and told him to run, which he immediately did, but they pursued him, and as he fell down over a stump, they overtook him and got hold of him, but his wife cam-e out with a stick, when the prisoner went to take it from her, and Caesar broke away from him and escaped from them. He went there with the prisoner in his carriage, hitching the horse some dis- tance from the house. He had no gun in the carriage with him. He then rode back in the carriage with him as far as Mr. Bell's, where he got out, and the prisoner drove on towards his home. After they had separated and before the prisoner had had time to reach home, he heard a gun fired. It was abcKit three-quarters of a mile from the White Hall road to Caesar's house, and he had run down the road in the direction of that road. The counsel for the prisoner, in conclusion, called a large number of the most respectable citizens who had been well acquainted with him for many years, all of whom represented his reputation for peace and good order as having been uniformly unexceptionable. The case was fully and ably tried on behalf of the State by Spruance, Deputy Attorney, and Fisher, Attor- ney General, and on behalf of the prisoner by W. Sauls- bury and N. B. Smithers. The Court, Gilpin C. J., charged the jury with equal fullness and ability on the law of the case, defining the law of self-defence, and the three several grades of felonious homicide, that is to say, murder with express malice afore- thought, murder with malice aforethought implied bylaw, and manslaughter ; and in effect that if they believed and were satisfied beyond a reasonable doubt from the evidence that the prisoner killed the deceased, the negro THE STATE v. DOWNHAM. 57 man, Caesar Lewis, in the mode and manner alleged and contended for by the. State, then conceding all that had been alleged and proved by way ot justification, excuse or palliation of that killing on the other side, it could not show and establish a sufficient provocation in law to reduce it to the grade of manslaughter ; for however unreasonable and unlawful the conduct of the deceased had been, in refusing to appear at Court according to the tenor of his recognizance, and unfair and unjust, as it un- doubtedly was, to his bail in that recognizance, the pris- oner at the bar, and however violent might have been his threats to resist the rightful and lawful authority of his bail, the prisoner, to arrest him and take him to Court on a bail-piece which he had taken out of it for that pur- pose, and whatever attempt he might have made upon the life of the prisoner by shooting at him in his carriage on the road the night before the killing, neither of them, nor all of them combined, could have the effect in law to miti- gate and reduce it to the crime of manslaughter, if the act of shooting the deceased was committed by him with a sedate, deliberate mind and formed design, evidenced by arming himself for the purpose, and by lying in wait for him, and after nearly, if not quite twelve hours had elapsed since the circumstance last adverted tOj the attempt had been made upon his life by the deceased ; because such sedate deliberation, forpied design and determination to kill another as that, would furnish in itself the strongest evidence of express malice aforethought, and of the crime of murder in law. Verdict—" Not Guilty." 58 COURT OF OYER AND TERMINER. The State v. Martin O'Neal, George Campbell, James Cusick and Edward Brady. In a fight between two persons, the use by one of a billet, a formidable implement heavily loaded with lead in the end, will constitute such a provocation as will excuse the other in drawing a knife and stab- bing him fatally with it, and will reduce the killing to manslaughter. Where several were engaged in the assault upon the deceased, it is sufficient to prove that any one of them inflicted the fatal wound, al- though it is alleged in the indictment that the one named inflicted it. New Castle County, May Term, 1858. At a Court of Oyer and Terminer held at this term, the prisoners were indicted and tried for the murder of Jesse Jones in the first degree. On the 25thof February preceding, the night on which the homicide was committed, there had been a serenade at a late hour on Third Street, in the City of Wilmington, after which the prisoners and the deceased were together in the house of James Cusick, one of the prisoners, which was near that of the deceased on Orange Street, when the deceased who was intoxicated, though not very drunk at the time,was ordered out of it by Cusick, to which the deceased replied that they ought not to im- pose on him more than any of the rest, and that there were not men enough in the house to put him out of it. Al- though a very stout and athletic man, he was then pushed out of it upon the pavement and into the street, after which the parties were all again met in the house, when O'Neal was heard to inquire "where is the knife," or to say " here is the knife." Soon after a fight was heard on the street between the houses of Cusick and the deceased, and when the witnesses of it arrived on the scene, the deceased was in a stooping position, with his body bent forward and his head against the stomach of Brady, who had hold of him, while O'Neal was behind him with his left hand upon his back and was seen with a knife glittering in his right, to stab him three times in the back part of his body as he stood behind him. Campbell also at the time was participating in the assault with them upon the deceased, whilst Cusick was standing on the pavement fifteen or THE STATE v. O'NEAL AND OTHERS. 59 twenty feet from them. As they were leaving the deceased he exclaimed that he was stabbed, and taking a few totter- ing steps towards his door, fell heavily upon the pavement and spolfe no more. He had in his right hand when the fight was terminated, a billet six inches long with a half- pound of lead in the head, covered with blood and which was found firmly grasped in his hand ten minutes after his death. There were four penetrating wounds inflicted with a sharp pointed weapon or instrument, found on examina- tion of his body, one in the lower part of his back and three in his left thigh, of the depth of five inches, one of which had divided several branches of the internal artery of it, whilst several of the branches of the arteria profun- da were also entirely severed by the one in the lower part of his back, which were proved to have been sufficient to -produce his death in so short a time. The parties were all white men except the deceased, and had been drink- ing to excess during the night. The Court, Gilpin C. J., charged the jury. That they had been relieved in the consideration of the case to some extent, by the admission of the Attorney General that it could not, under all the facts and circumstances proved, constitute on the part of any of the prisoners at the bar, the crime of murder in the first degree under the statute ; and after-defining express and implied malice and murder in the first and second degree, added that where the homicide, or killing, as charged in the indictment is proved, the law presumes that it was committed with rnalice, until the contrary appears upon the proof pro- duced on the trial, but it goes no further than to imply mahce, and therefore the legal presumption goes no furth- er in such a case, than that it is murder in the second degree under our statute. He next proceeded to define the crime of manslaughter and to distinguish it from mur- der in the second degree under the statute, and that it would be for them to determine, from the evidence before them, what provocation, if any, the deceased had given 6o COURT OF OYER AND TERMINER. the prisoners, or any of them, for the violent attack made and the mortal wounds inflicted upon him by them, or any of them, as detailed in the evidence. For the prisoner, Cusick, in order to remove the deceased from his house, had no right after ordering him to go out of it, as was proved on the occasion, to resort to any greater force than was actual- ly necessary for the purpose of putting him out, and if the other prisoners were aiding and assisting him in the effort, they would have no other right or power than he had for that purpose, and therefore they would not be justified in using any force, or in making any assault upon him after he was removed from it ; but if they did so, the killing under such circumstances, would be murder in the second degree under the statute, unless they were satisfied by the evidence that there was great provocation given to them by the deceased, in which case it would be but man- slaughter at common law and in contemplation of the statute. Great provocation, however, must be proved in such a case, as the fatal wounds were inflicted with a deadly weapon. There was some proof before them that the deceased had a billet on the occasion, a formidable implement heavily loaded with lead in one end of it ; and if there was proof to their satisfaction that he used or employed it in the fight against them, and thus gave the accused, or any of them, a provocation and an excuse for drawing and using in the combat a .knife upon him, it would under such circumstances, constitute such a provo- cation and excuse, as would mitigate and reduce the crime to that of manslaughter. That, however, should be shown to their satisfaction, or it would be murder in the second degree in each and all of them who were at the time the mortal wounds were Inflicted, involved and engaged in the fight and were aiding and assisting in it the party who inflicted them. For although the indictment alleges that O'Neal inflicted the wounds, and the other prisoners were his accomplices in the homicide, if the jury were satisfied that any one of them inflicted them, it was sufficient for the conviction of all who were aiding and assisting him in THE STATE v. O'NEAL AND OTHERS. 6i the combat, because in contemplation of law it became the act of all and every one who were engaged and par- ticipating with him in the perpetration of the crime com- mitted on the occasion. Any one or more of the prison- ers may be convicted, and the others acquitted under it, according as the evidence may justify and warrant it in the judgment of the jury. Verdict — O'Neal and Brady guilty of murder in the second degree, Campbell guilty of manslaughter, and Cusick not guilty. Fisher, Attorney General. Booth, for the Prisoners. . COURT OF GENERAL SESSIONS OF THE PEiiCE AND JAIL DELIVERY. The State v. Benjamin F. Sloanaker. If a party wantonly and recklessly discharges a loaded pistol into a crowd or group of persons casually collected on the arrival of a train at a railroad station, regardless of whom he may wound or kill by it, and wound one entirely unknown to him, on an indictment for an assault with intent to kill such person, he will be presumed in law to have intended the probable consequences of his own act under such circumstances, and will be guilty of an assault upon him, but not of the intent to kill him without proof of such felonious inten- tion like any other material fact in the case. New Castle County, Court of General Sessions, &c., May Term, 1858. The indictment was for an assault and battery committed by the prisoner on James Brown with intent to kill him. On the evening of the 25th of Au- gust preceding, upon the arrival of the train on the rail- road at Claymont Station, Mr. Brown had just left the THE STATE v. SLOANAKER. 63 train and taken his seat in his carriage, when a pistol was discharged from the platform of one of the cars, the ball from which hit and penetrated the right side of his face, from which it was afterward extracted, but inflicting a wound which was at one time considered to be dangerous to his life. There were some twenty persons on the plat- form of the station when the prisoner, who had just before been seen standing with another young man on the plat- form of a car with a pistol in his hand apparently ex- amining it as the train was starting and had partly passed Mr. Brown's carriage, suddenly brought his arm and hand with the pistol in it, around in that direction and dis- charged it. They were both strangers to Mr. Brown, and were on their journey together from Philadelphia to Dover, to work at their trade as carpenters for a person who had employed them there. The companion of the prisoner was the owner of the pistol, and in packing his chest in the city had forgotten it until it was too late to be packed, and on leaving had put it in his pocket, and had informed the prisoner of it about the time the train reached the station, and told him he did not like to be carrying a pis- tol in his pocket, when the latter expressed a desire to see it, and he handed it to him for that purpose, as they went out on the platform of the car. He further testified that the prisoner was examiniug it when he accidentally and unintentionally discharged it, and that the prisoner did not know that it was loaded until it went off. When a gentleman on the train, who had no acquaintance with the prisoner, went to him soon afterward and told him that it was rumored on the train that a man had been shot by him, he replied insolently to him and said, if he had done it, he did not know that it was any of his busi- ness ; and after the train had reached Wilmington, he again spoke to him about it, when he replied that he did fire a pistol in that direction, but if any one said he fired at anybody, or tried to shoot anybody, he was a liar and he would whip him, although he was not a fighting man. They were followed by officers to Dover the same night 64 COURT OF GENERAL SESSIONS, &C. and when arrested together in the same bed, they both- said to the officers arresting them, they had got hold of the wrong parties, and when asked for the pistol, denied that they had any, but on turning back the bed clothes and pillows, they found one under them. The pris- oner had since called on Mr. Brown in Philadelphia and said to him that he was the man who did it, and that he was sorry for it. Spruance, Deputy Attorney General, asked the Court to charge the jury that if they were satisfied from the evi- dence that the pistol was recklessly discharged by the prisoner into the crowd of people then and there assem- bled, and particularly in such a place, regardless of its effects, or whom he might wound or kill, it was a case of malice generally against all of them, and was sufficient to sustain the felonious intent alleged in the indictment to kill the person wouhded by it, although he might have been an entire stranger to the prisoner at the time, and the latter might have had no individual or actual malice against him. Gordon, for the Prisoner. The felonious intent to kill must be proved in this, as in every other case, like any other material fact in it,, and it was incumbent upon the State to establish it. But if the pistol was accidentally or unintentionally discharged by the prisoner on the occa- sion, it was a case of misadventure in contemplation of law, and would be a good defence even to the misdemean- or or the assault simply, although it would be no de- fence in such a case in a civil action for the trespass. The Court, Gilpin, C. J,, charged the jury. That if they were satisfied that the pistol was fired by the prisoner unintentionally and by accident merely, however impru- dent, or improper it may have been for him to be handling or examining it loaded in such a place and at such a time, he ought not to be convicted of either the misdemeanor. THE STATE v. SLOANAKER. 65 or the felonious intention alleged in the indictment. But if, oh the contrary, they were satisfied by the proof that he discharged it intentionally and wantonly or recklessly into the crowd of persons assembled about the place at the time, or in the direction of the carriage of the prose- cuting witness, indifferent as to whom he might shoot, or what the mischief or injury might be, or where or on whom it might fall, such conduct would manifest such a wicked and depraved inclination and disposition on his part, that it might well be presumed by them that he intended at the time to shoot some one, upon the principle that every one is presumed to intend the probable consequence of his own act ; and if that was so in the opinion and belief of the jury, the prisoner was guilty, at least of the assault alleged in the indictment. But the felonious intention al- leged in it to kill the prosecuting witness, Mr. Brown, was not a matter to be made out by inference, or presumption merely, but must be proved like any other fact material in the case, in order to convict him of the felony, or felonious intention alleged in it, and the point had been several times so ruled and decided in this court. It was compe- tent under the statute, however, for the jury to convict him upon the indictment of the misdemeanor, or assault merely. But as to the felony, or intent to kill the prose- cuting witness, it would have been a very different case both in law and fact, if he had died of the wound within a year. Verdict— Not Guilty, COURT OF OYER AND TERMINER. The State v. Reuben Newcomb. In order to reduce homicide in self-defense to such a degree as to ren- der it entirely excusable or justifiable in law, the jury must be satis- fied from all the evidence in the case, that the prisoner was in im- minent and manifest danger of losing his own life or of suffering great bodily harm at the hands of the deceased. Even in such cases the law requires the party assailed to retreat as far as he conveniently or safely can to avoid the violence of the assault, before he resorts to such extremities, or as far as the fierceness of the assault will permit him, for it may be so fierce and so imminent as not to allow him to yield a step without manifest danger of losing his life or of suffering great bodily harm, and then he may kill his assailant instantly. Kent County, October Term, 1858. At a court of Oyer and Terminer held at this term, Reuben Newcomb was indicted for the murder in the first degree of Ezekiel C. Cook, and was tried in the said court on the 28th day of December following. The deceased had been an adjoining neighbor of the prisoner and having become very much offended with him had several times declared to others his intention to whip him, and his desire to kill him, to which the prisoner had rejoined on the same being communicated to him by others, that he would defend himself, if he was attacked by him, and that he would consider it as proper to kill such a man if attacked by him, as to kill a mad dog under THE STATE V. NEWCOMB. 67 the like circumstances, and from that time carried a six barrel revolver about his person. The deceased on the day of the homicide was in his store at Blackiston's Cross Roads, about the hour of sunset when he was seen by the only other person then in it to go around to a drawer under the counter and take a pistol from it and put it in his pocket, and said he was going to shut up his store, and closed the windows, the prisoner at the time standing in his front yard some forty feet from him, at whom he look- ed and then said to the person still in the store, but who was in the act of leaving it, that he would " kill that man, if he was the last man in the world, and a d — d nigger too." Just then the prisoner passed the store, walking down the street,, and soon afterward the deceased closed his store and walked rapidly in the same direction on the opposite side of it, until after he had overtaken and passed him, with a pistol in his hand when he crossed over to the same side in advance of him, and quickly turning stood face to face a few yards in front of him. Both halt- ed, and the deceased was immediately seen to throw up his right arm and hand towards the prisoner, and a pistol cap was both seen and heard to explode between them. The prisoner then discharged four barrels of his revolver in quick succession at the deceased who after taking a few steps tottered and fell in the street, and as the prisoner passed him in the act of falling he was heard to say to him, " I told you, you would catch it !" A single barrelled pistol was found on the ground by the side of " the deceased when he was taken from the street, and he died within fifteen minutes after he was removed from it to his house. One bullet passed through his body from the right to his left side. Fisher, Attorney General, contended that it was a case of manslaughter, at least, for the testimony clearly showed that there was enmity and malice on both sides., and although the prisoner had not sought or courted the conflict, both his previous declarations and his conduct 68 COURT OF OYER AND TERMINER. had shown no temper or disposition to shun or avoid it, or to recede or retreat a step from it when he saw and knew that it was approaching. His declarations almost war- ranted the belief that he was not only ready to avail him- self of the first hostile approach towards him to discharge the contents of his pistol into the body of the deceased, but that he was even coolly and carefully waiting for the very first opportunity or a plausible pretext for shooting and killing him. The cruel and exulting taunt with which the prisoner insulted the deceased as he fell exhibited the animus with which he shot him. But the, jury should be satisfied from the evidence that it was not to gratify any feeling of enmity, hatred, animosity or revenge against the deceased that the prisoner killed him, but solely in defense of his own Hie, or to save himself from some great bodily harm which he could not have escaped or avoided in any other manner, or they would be bound to convict him of the crime of manslaughter. N. B. Smitkers, for the prisoner, admitted that the jury must be satisfied that the prisoner killed the deceased in self-defense, and that under the circumstances it was rea- sonably necessary for him to do what he did in order to save his own Hfe or person from the imminent peril in which it was then placed by the deliberate and deadly attack of the prisoner. But inno event could it be made out a case of murder at common law, or of either degree under the statute. He would cite but one authority on that point, which would be sufficient on that question. If A chal- lenges B to fight, and B declines the challenge, but tells A that he will not be beaten, and if attacked, will defend himself and afterwards A attacks B and in the assault kills him, it will be murder in A. But if B had killed A in the assault, and could not have otherwise escaped, it will be excusable homicide, but if he could have escaped and did not, it will be manslaughter merely, i Russ. on Crimes, 662. This was but a stronger case for the reason that there was no challenge given, for the attack and de- THE STATE v. NEWCOMB. 69 sign to kill though often threatened and long contem- plated, was not accompanied with any such formal notice to the prisoner to be prepared for it. It was not neces- sary to recapitulate the evidense for it was all fresh in the minds of the jury, particularly as to the place and the character of the attack, suddenly confronted on the public highway, without the ability to shun or avoid him, to re- cede or retreat from him, no wall, no house, no means whatever of escape from him, with his right arm uplifted and his pistol in hand levelled and once already snapped directly at him, the prisoner was unquestionably in the most imminent peril of being instantly shot down by him, and evidently the- only resource left him to save his life under such circumstances was to shoot him down as speedily as possible. The Attorney General replied. The Court, Gilpin C. J., charged the jury. It was not contended on behalf of the prosecution that the case could constitute in contemplation of law on the facts proved any offense above ,the grade of manslaughter, while it is insisted by the counsel for the prisoner that it is a case of excusable homicide, or of killing in self-defense. In this case there had been no previous combat or fight between the prisoner and deceased, but it seems a deliberate and violent assault was made by the deceased upon the pris- oner on the public highway with a deadly weapon, or a pistol, and that the latter at once resorted to a similar weapon to repel the attack and to defend his life, as he alleges, and shot and killed the deceased. In order to reduce homicide in self-defense to such a degree as to render it entirely excusable or justifiable in law, the jury must be satisfied after considering all the evidence in this case, that unless the prisoner had killed or shot down Ezekiel C. Cook, as he did in this case, he was in immi- nent and manifest danger of losing his own life, or of suf- fering great bodily harm at his hands, and that it was ^o COURT OF OYER AND TERMINER. done not of malice, but of necessity by him for that pur- pose. Even in such cases the law requires the party assailed to retreat as far as he conveniently or safely can to avoid the violence of thfe assault before he resorts to such extremities, or as far as the fierceness of the assault will permit him, for it may be so fierce and so imminent as not to allow him to yield a step without manifest dan- ger of life or gneat bodily harm, and then in his defense, he may kill his assailant instantly. The jury must be satisfied from the evidence that the shooting of the de- ceased was necessary under the circumstances to protect the prisoner's life, or to protect him from such serious bodily harm as would give him ground for a reasonable apprehension that his life was in immediate danger, or it would be their duty to find him guilty of manslaughter. Verdict — Not guilty. COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State z/. William Livingston. On an indictment for stealing a clock Irom the trustees of a church incorporated according to the provisions of the general statute, and so proved on the trial, it is sufficient to prove who were the trustees of it at the time of the larceny without producing the record of any other than the original election of trustees under it. Court of General Sessions, &c.,_ Sussex County, April Term, 1859. At this term, William Livingston was indict- ed and tried for stealing a clock of the trustees of Zoar Church, which was duly and formally proved to have been incorporated in the year of 18 10, by the election, certify- ing and recording of seven trustees thereof pursuant to the provisions of the general statute for the incorpora- tion of religious societies or congregations of christians, by the election of trustees to hold all the real and personal property of such societies. There was no proof on the trial, however, of any election subsequent to that time to 72 COURT OF GENERAL SESSIONS, &c. supply the places of any of the seven trustees originally elected and who had in the meantime died, or otherwise vacated their offices, although the fact was proved that there were seven trustees of the church in office, and who constituted the seven at the time when the clock was stolen from the church. Objection was taken at the trial that as the best evi- dence the records of the church and of the trustees should have been produced to prove the regular election and suc- cession of the trustees of the church since 1810, and par- ticularly of the election of those in office when the clock was stolen. The Court, Gilpin C.J. .charged the jury. That the act of Assembly in the case only required the original elec- tion of the trustees in 18 lo, to be certified and recorded in the public office of the Recorder of Deeds for the coun- . ty, and that having been proved by the production of the record, the Court considered the evidence from the wit- nesses at .the stand that the persons named were the seven trustees of the church, and were acting as such at the time when the larceny was committed, was sufficient to sustain the indictment in the absence of any proof to the contrary. The State v. Mary Owens. On an indictment for aiding the escape of an indentured servant from her master, the omission to insert her name in the binding clause of the indenture, will not be fatal, if it appears in the habendum, and other parts of the indenture. Court of General Sessions &c., Kent County, April Term, 1859. At this term Mary Owens (n.) was indicted for aiding the escape of an indentured servant girl from her master. She was the mother of the girl and had bound her to the master by an indenture of servitude executed THE STATE v. MARY OWENS. 73 in the presence and with the approbation of a Justice of the Peace ; but on the production of the record it appeared that the name of the servant had been omitted and left in blank in the binding clause of it, although it was inserted and appeared in the habendum and other parts of the indenture. And on that ground it was objected that the indenture was invalid and a nullity, and that the defendant could not be convicted. The Court, Gilpin C. J., charged the jury, That the accidental omission of the name of the servant in that clause of the indenture, was not a fatal- defect and was sufficiently understood and supplied in the habendum, and all other parts of it in which it appeared, and that it was not a defense against the indictment, which was a misde- meanor merely. COURT OF OYER AND TERMINER. State v. Mary E. Burrows. On the trial of an indictment for arson the legal title to the premises is not in issue, and therefore the production of the deed for them is. not required as the best evidence of the ownership of them, it being sufficient to prove that the dwelling house burnt was occupied at the time by the person whose dwelling house it is alleged to have been in the indictment. Kent County, April Term, 1859. At a Court of Oyer and Terminer held at this term, Mary E. Burrows, negro, was indicted and tried for arson in setting fire to the dwelling house of Naomi Burrows, negro, in Murderkill hundred, who was the step-mother of the prisoner, and the first witness examined, and who after stating that she owned the house and the lot on which it stood, and then lived in it, she was asked the question by the counsel for the prisoner if she had a deed for it, to which she replied that she had. Comegys, for the prisoner, then objected to the admissi- bility of her evidence on that point, because the deed should be produced as the best evidence of her ownership of the premises. The Court. The legal title to the premises or the house burnt is not in issue in the case, but it is sufficient to THE STATE v. BURROWS. f5 prove that it was occupied at the time as the dwelling house of the person whose dwelling house it is alleged to have been in the indictment. The objection is there- fore overruled. She then resumed and stated that the prisoner did not live with her, but that she came to her house that day, and she told her that she could not stay there, and she saw by her manner that she did not like what she had said to her, but she did not then leave there. After that she told her she was going to Stephen Jackson's to stay all night, and when she had fastened up the house they both went out to the road together and they there parted, she going toward Jackson's, and the prisoner another way. She staid there all night, and returned next morn- ing when she found her house burnt down. It was then proved that the house had been broken open, set on fire and burnt down that night. A Justice of the Peace then testified that the prisoner had been arrested and brought before him on the charge of having feloniously set fire to and burnt the house, and on the hearing made a voluntary confession before him, which he reduced to writing at the time, read over to her, and which she voluntarily signed, that she and a mulatto man named John broke open the house and stole the old woman's clothes, and that he then told her to set fire to the house, but she told him she was afraid, and did not like to do it ; that he then told her it would be better for her to do it, and she then took fire from the fire-place and set fire to it. And another wit- ness testified that he afterward heard her make the same confession voluntarily to another person. For the prisoner, however, it was proved by .several witnesses who had known her from her early childhood, that she had always been of a very weak and imbecile mind and intellect, and on one occasion had confessed the stealing of seventy-five cents she was charged with which in a few moments afterward it was discovered had not 76: COURT OF OYER AND TERMINER. been stolen at all ; and although there was testimony to the contrary, as to her mental capacity and intelli- gence afterward produced in reply on behalf of the State, the Court left the question raised by it to the jury who returned a verdict of not guilty. The State v. Samuel Turner. In a trial for rape the prosecuting witness cannot be asked the question if she had not had sexual connection with another person prior to the commission of the alleged offense in question. Nor is one who had been convicted upon her testimony at the preced- ing term of the Court of a rape committed upon her at the same time in company with the prisoner, a competent witness for the prisoner on the trial of his case, although she has acknowledged that she com- mitted perjury as a witness in the preceding trial. New Castle County, May Term, 1859. At this term Samuel Turner was indicted in the Court of Oyer and Terminer for rape on Jane Norris, and upon her examina- tion as a witness for the State, Rodney, for the prisoner, asked her the question whether she had not had sexual connection with Alexander Rob- inson previous to the time when the alleged crime in ques- tion was committed upon her. Fisher, Attorney General, objected to the question, be- cause it was both immaterial and inadmissible. N. B. Smithers, for the prisoner, contended that the question was admissible and the evidence designed to be obtained by it was both pertinent and material in such a case. Ros. Cr. Ev. 96. People v. Abbott, 19 Wend. 192. We propound it not for the purpose of impeaching her general character for veracity, but with the view to contradict her as to this fact, and because, if it was so, it goes to the THE STATE v. TURNER. 77 very gist of the matter now in question, since it is not so likely that a lewd woman or a prostitute would refuse her assent to such intercourse, as a woman of undoubted vir- tue would. The Court sustained the objection and excluded the question. The correct rule in regard to the matter, and which has been uniformly recognized in this State, and so far as we are informed in every other, except in New York and North Carolina, and some doubt, which may have been suggested against the propriety of it perhaps, in a recent case in England, will be found stated in 3 Greenl. Ev. Sec. 214. The witness was then asked the question whether she had not said in the course of her examination aS a witness for the State on the trial of Alexander Robinson for a rape alleged to have been committed upon her at the same time this rape was alleged to have been also committed upon her by the prisoner, that she had never had sexual intercourse with any man, or with Alexander Robinson, previous to the time of the rape which, as she alleged, was committed by him upon her in company with Turner. The witness answered that she had made such a state- ment when under oath and examination as a witness in that case, but what she had then said was not true, she added, however, that she had been informed before that trial that she was not bound to say anything about that matter upon that trial, but only to tell what had occurred on the night of the rape, Rodney, in the next place, proposed to call Alexander Robinson who had been indicted, tried and convicted at the preceding term, for a rape committed at the same time in company with the prisoner upon the witness, and to examine him as a witness for the prisoner in the pres- ent case. 78 COURT OF OYER AND TERMINER. Fisher, Attorney General, objected to his competency as a witness in the case. He was prepared to admit that the late statute had removed the objection to his compe- tency on the score of infamy consequent upon his convic- tion of the crime in the case referred to. But there was another and still subsisting ground of objection to it, not removed or affected by the enabling statute to which he had referred, which was that he was an accomplice, or a particeps criminis with the prisoner in the commission of the crime for which he was now on trial. ■ The Court held the latter objection to be good and on that ground rejected the witness. The case afterward went to the jury and the prisoner was convicted. The Counsel for the prisoner afterward during the term and within the time prescribed by the rule, moved for a new trial, first, on the ground that Jane Norris was the only witness that proved the commission of the alleged offense, and had since acknowledged that she had com- mitted perjury on the previous trial of Robinson for a like crime alleged to have been committed upon her by him at the same time, and secondly, on the ground that the prisoner should have been allowed to produce Robinson as a competent witness in the case, and that he was improperly excluded from testifying by the Court, but which motion the Court after a hearing overruled. THE STATE v. BUCHANAN. jg The State v. Gkorge W. Buchanan. The Court is, and always should be, cautious in admitting what are term- ed dying declarations in evidence, and will not admit them without being satisfied that they were not made, until after all hope of ulti- mate recovery had been abandoned by the deceased. Inasmuch as the recent statute in relation to murder and manslaughter employs familiar terms with reference to them, of fixed legal import at common law without any definition or qualification of their mean, ing. it must be understood to use them in the same sense in wh ich they are employed at common law. , And therefore express malice aforethought which constitutes the essen- tial ingredient of murder in the first degree, as provided for in the statute, means express malice aforethought at common law, and as it was recognized and understood in this state prior to the passage of the act. And although it further provides that every person who shall commit the crime of murder "other than with express malice afore- thought, or in perpetrating, or attempting to perpetrate any crime punishable with death," shall be deemed guilty of murder of the second degree, without the use of any terms to define or ascertain the meaning of the provision, except "otherwise" than with express malice aforethought &c., as before mentioned, it must be understood to mean with malice aforethought implied by law in contradistinc- tion to express malice aforethought, as the crime of murder cannot be committed at common law without either express malice afore- thought, or malice aforethought implied by law. The two kinds of malice aforethought, and the distinction betwee n them at common law, and between murder of the first and murder of the second degree under the statute, and between them and the crime of voluntary manslaughter defined. A mortal wound suddenly inflicted by a briar scythe in the hands of the accused upon the party killed in an angry and personal collision between them, if done intentionally without sufficient provocation to reduce the killing to voluntary manslaughter, will constitute the crime of murder committed with malice aforethought implied by law, and murder of the second degree under the statute ; but if not done by him intentionally, it will constitute no offense under the statute. New Castle County, May Term, 1859. At a Court of Oyer and Terminer held at this term, George W. Buchanan, was indicted and tried for the murder of David 8o COURT OF OYER AND TERMINER. S. Casperson in the first degree. The prisoner and the deceased owned and resided on adjoining farms in Appo- quinimink hundred, a portion of the divisional boundary of which was in dispute between them. On the 1 5th day of April preceding the prisoner had several men employed in erecting a fence upon it, and was himself engaged with a briar scythe in cutting briars near the line on his side of it, when the deceased came across his land up to the fence, where they were at work, and in a rude and excited manner asked the prispner what he was putting up the fence there for, and said to him that if he put it up, he would take it away ; to which the prisoner replied that if he did, he would put it up again. Further words ensued between- them in regard to the matter, characterized by anger and profanity on the part of the deceased, when the prisoner told him to go away and to go home, as he did not want to have any thing to do with him, and re- suming the use of his scythe upon the briars, forewarned him against coming on his premises, on which the deceas- ed jumped over the fence and said to him, "damn your premises, here I am, and you can't help yourself.'" The prisoner who was then from twenty to thirty feet from him, stepped rapidly towards him with the scythe in his right hand and the blade of it just above the ground, while the deceased made one or two steps toward him, and as they came together face to iace, the prisoner gave a quick short jerk to the scythe inflicting a deep cut in the calf of his right leg and severing two of the main nerves, and the small bone of it. The latter then seized hold of him and the handle of the scythe when the pris- oner gave it another short jerk higher above the ground, which inilicted another severe cut in the left thigh and groin of the deceased, who then gave way and fell to the ground across and upon the blade of the scythe. He was soon afterwards removed to his home, and a physician sent for who testified that he reached his house about nine o'clock that morning, and found that he had lost a great deal of blood and was almost pulseless, and that he com- THE STATE v. BUCHANAN. 8i plained of a great deal of pain in the groin He describ- .ed the two wounds, the only ones received, and expressed the opinion that the cut in the calf of his leg was a mor- tal wound, and the cause of his death, and would have produced it, if he had not received the other. The cut in the thigh and groin was not a mortal wound of itself, although he considered and believed that it contributed with the other by the shock to his nervous system which accompanied it, the irritation which it excited, and the mortification which followed the wounds in the calf of the leg and could not be prevented, to produce his death. Another physician testified that he was called to see him two days afterwards, and found him very much prostrated, and his right leg from the knee down in a state of morti- fication, and thought from that time he would die, and that there was scarcely a hope of his recovery. All was done for him that could have been done in the medical science to save his life, and he knew of nothing that could have saved his life ; amputation could not have done it. His whole appearance then was cadaverous and death-like, and he was suffering from great prostration. In addition to the preceding evidence it was proved that although he lingered and did not expire until several days afterwards, the deceased had from the first day ex- pressed his belief that he must die of the wounds receiv- ed ; but it was also proved that three or four days after he had been wounded he enquired of a friend on a visit to him what he thought of his condition, and who told him he must die, and that up to that time his attending phy- sician, of whom a similar enquiry had in the mean while several times been made by him, had encouraged the hope of recovery on his part, but on being asked the ques- tion after that time by him, made no reply to it. And on this proof being made the state proposed to put in evidence certain declarations subsequently made by the deceased that the wounds were inflicted upon him by the prisoner, and the manner in which he did it, but which was objected to by the counsel for the prisoner. 82 COURT OF OYER AND TERMINER. The Court, Gilpin, C. J. The Court had been and should always be cautious in admitting what were termed dying declarations in evidence, as such declarations were often made in critical danger of death, and in a state of apprehension and despondency, before all hope or expec- tation of ultimate recovery had been entirely abandoned by the person making them, but as far as the testimony had -gone on this subject, the Court did not feel satisfied on that point, and ipust therefore exclude the evidence offered. The defense then proceeded and proved that the fence which the prisoner was at the time having erected, was on the boundary line between the two farms, on which a division fence had previously stood for more than twenty years, and that the deceased had only a short time before taken down and carried away the rails of a former fence erected by him in the same place, and that the deceased had declared with an oath that he would kill Buchanan, or Buchanan should kill him before a fence went up there to stand, and had sent a message to him by a neighbor that if he did not quit aggravating him about that little piece of land, he would kill him. The defense also proved by numerous witnesses the good character and peaceable disposition of the prisoner. The only question of fact involved in the case was whether either of the wounds was inflicted by the pris- oner directly, and if so, whether intentionally, and whether the fatal wound in the calf of the leg was not produced by the fall of the deceased upon and across the blade of the scythe ; whilst the only question of law was whether the killing under the circumstances amounted to the crime of murder in the second degree or manslaugh- ter. It was contended, however, by the counsel for the prisoner that as none of the witnesses saw the scythe blade actually inflict either of the wounds, and as that in the calf of the leg was so much more severe than the other, and was alone mortal in its character, he must have in- THE STATE v. BUCHANAN. 83 stantly fallen had it been inflicted before the other in the thigh, and whilst he was yet standing, and therefore if in the struggle between them, and after the cut in the thigh the deceased fell upon the scythe blade, and received the mortal wound in the calf of his leg in the fall, it was the result of accident, and the killing in that case would not amount even to manslaughter. It was so held and ruled under like circumstances in the case of Regina v. Smith, 34 E. C. L. Rep. 334, Regina v. Kirhane 34 E. C. L. Rep. 318. And although the briar sycthe was a deadly weapon, and both wounds were directly and intentionally inflicted by the prisoner, yet if the jury should believe from the evidence that he did not use it with intent to kill, or to do great bodily harm to the deceased, as they might well infer from the short jerk and the slight force with which he used it, the offense could only amount to manslaughter. Ros. Cr. Ev. 729, 2 Cowp. 830, 2 Perk. Cr. Rep. 637. And furthermore under all the facts proved the case could not, even in the worst aspect in which it could be viewed, rise above the grade of manslaughter. The Court, Gilpin, C. J., charged the jury, that inas- much as our statute in relation to murder and manslaugh- ter employs familiar terms with reference to them, of fixed legal import at common law, without any definition or qualification of their meanmg, it must, of course, be understood to use them in the same sense in which they are employed and understood at common law, and the di- vision which it makes of murder into two degrees must be understood to be made with reference to the two kinds of malice aforethought, one or the other of which was always essential to constitute the crime of murder at common law, and which was of but one degree in this State prior to the passage of the act and the recent codification of our stat- utes. What, therefore, was murder or manslaughter at common law, still continued murder or manslaughter under the statute in this state ; the one or the other of the two descriptions of malice aforethought required to 84 COURT OF OYER AND TERMINER- constitute the crime of murder at common law, being respectively denominated express malice aforethought, and malice aforethought implied by law, although the crime is the same when committed with either, and is alike punishablf with death at the common law. In view of this distinction the statute in terms provides that when it is committed with express malice aforethought or in perpetrating or attempting to perpetrate any crime punishable with death by our laws, it shall be murder of the first degree, and punishable with death ; but without employing the other and correlative terms of the common law, to define and distinguish from it malice implied by law, it simply provides that when it is committed other- wise than has been just stated with reference to express malice, it shall be murder of the second degree. It is manifest however, that this means merely that when it is committed with malice aforethought implied by law, it shall be murder of the second degree under the statute, and punishable with whipping, pillory and imprisonment for life. The only object of the distinction being to dis- criminate in the penalties prescribed in the two degrees into which murder is now divided by the statute. According to the definition of the crime of murder at common law, it is committed with express malice afore- thought when the killing is done with a sedate deliberate mind and formed design, which is evidenced by external circumstances discovering or disclosing the inward inten- tion, such as lying in wait, antecedent menaces, former grudges and concerted schemes to do the party killed some great bodily harm ; and only when it is so committed can it constitute murder of the first degree under the statute. In such cases when the killing is done with a sedate deliberate mind and formed design, it is a conclu- sion of law that it was done with actual malice, or with express malice aforethought in the legal sense and mean- ing of those terms. But to make it so, it was not neces- sary that it should have been uttered or expressed in words, or that the design to do it should have been formed THE STATE v. BUCHANAN. 85, for any length of time before the killing, if done in cool blood and with a sedate deliberate mind and formed design. And malice aforethought is implied by law from any delib- erate cruel act committed by one person against another, however sudden ; thus where a man kills another suddenly, without any, or without a considerable provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. Such is the definition and illustration of malice aforethought implied by law, as recognized at common law ; and .even when the cruel act is committed however suddenly, without any, or without a considerable provocation, it must be a deliberate, as well as a cruel act to complete and constitute what is regarded and denomi- nated at common law, as malice aforethought implied by law. But in the absence of such evidence or indications of express malice aforethought, as we have before mentioned, the law will imply that it was committed with malice aforethought, when the killing is done, or the mortal wound is inflicted with a deadly weapon and without suffi- cient provocation and heat of blood, such as occurs in mutual combat or a fight, to reduce it to the crime of voluntary manslaughter in contemplation of law, for this is what is implied in the use of the terms, " a considera- ble provocation," in the definition of malice aforethought implied by law as just stated. And in such case it will be murder with implied malice aforethought, as it is termed at common law, and will only amount to the crime of murder in the second degree under our statute ; but with- out such provocation the voluntary killing of a human being with such means cannot be reduced to the crime of manslaughter at common law, or under the statute. He would not refer to, or attempt to state the facts proved in the case, except so far as it might be necessary to do so in order to announce the rules or principles of the law applicable to them. The facts and circumstances of the case and all the questions which had been raised 86 COURT OF OYER AND TERMINER. with regard to them,, or any of them, were to be carefully considered and determined by the jury upon all the evidence which had been produced before them in the trial ; and if they should be satisfied from it, that David S. Casperson died of the wounds described in the evidence and received by him in the attack made upon him by the prisoner at the time and place, and in the manner stated in the evidence, and that those wounds were intentionally inflicted upon him by the prisoner, with the blade of the scythe, with which he was cutting briars when Casperson jumped over the fence and entered his premises against his order and admonition immediately before given him, and which he carried in his right hand as he hurried rapidly up to him, neither the trespass on his premises by Cas'person, even under such circumstances, or any defiance which he may have given him when he did so, or any angry or insulting language which he had previously ad- dressed to him, or any former removal of the fence by him, or any menaces or threats before made by him to kill the prisoner, could either separately or collectively, justify or excuse in law, such an attack by the prisoner upon him. And although assuming such to have been the case, and that both of the wounds were intentionally inflicted by the prisoner, there was in the opinion of the Court enough in the facts and circumstances proved and not disputed in the case, to negative and disprove the crime alleged in the indictment, that it was committed with express malice aforethought, and was consequently murder of the first degree under the statute. As we have before remarked, however, in all cases of the unlawful and voluntary killing of one person by another without express malice aforethought, but without sufficient provocation in contemplation of law to extenuate andreduce it to the crime of manslaughter, the law itself will imply that it was done with malice aforethought, and it therefore becomes murder of the second degree under our statute. At common law there being but one degree of murder, and the crime being one and the same, and alike punishable with THE STATE V. BUCHANAN. 87 death, whether committed with express or implied malice aforethought, we have no such general and established definition of the latter as of the former in the books and adjudged cases on this subject at common law ; and there- fore where the killing was a crime the only practical and substantial question involved at common law, was whether it was committed with either express- or implied malice aforethought, or under such circumstances of provocation and alleviation as will suffice in law to negative the existence of malice aforethought, either express or implied, but not to justify or excuse it entirely, or in other words, whether it was murder or manslaughter at com- mon law. And accordingly at common law where the killing was voluntary and unjustifiable or inexcusable, but without express malice aforethought, as before defined, and was also without .such provocation or alle- viation as would suffice to negative the existence of malice aforethought entirely, and thus to reduce it to the crime of manslaughter, it constituted murder com- mitted with malice aforethought implied by law ; because malice aforethought, either express or implied by law, has ever constituted the essential ingredient and character- istic of the crime of jnurder at common law. But if the jury should be satisfied from the evidence in the case that the cut in the calf of the right leg of Casperson was the only mortal wound which he received in the attack made upon him by the prisoner, and that it was voluntarily and intentionally inflicted upon him by the prisoner with the blade of the scythe with which he was then cutting briars, and which he carried and held in his right hand, as he hurried rapidly up to him over a space of twenty or thirty feet, and that wound was the sole, or principal cause of Casperson's death, then we are bound to instruct you that we do not con- sider that the unlawful and wrongful act, the violent menaces and threats and the angry, insulting and defiant language of Casperson before referred to, and more par- ticularly specified by us, however aggravating they may 88 COURT OF OYER AND TERMINER. have been to the prisoner, could under all the facts and circumstances proved in the case, and not controverted, constitute such a provocation in contemplation of law as could reduce the killing of him to the crime of man-, slaughter, or negative the existence of such malice afore- thought as the law itself necessarily implies in such a case. For it is well settled that no mere threats, however vio- , lent, no mere words however insulting or offensive, and no mere entry or trespass on the lands and premises of another against his admonition or commands, however wrongful it may be, can justify or excuse a resort in the first instance to such force and violence and the use of such a deadly instrument as the briar scythe proved and produced before you, to repel the intrusion or trespass on his premises, or the sudden assault and attack which he made upon him with it. And in such a case the pro- vocation not being sufficient in law to mitigate and reduce it to manslaughter, the law will imply that the killing was with malice aforethought, and which constitutes murder of the second degree under our statute. According to the testimony of the several persons who were present on the occasion and employed in erect- ing the fence, as soon as the prisoner had reached the position of Casperson, and was face to face with him, and with the blade of his scythe near the ground, and partly behind the legs of Casperson, they saw the prisoner give the scythe a short jerk near the ground towards Casper- son and himself, but they could not see whether the blade of it touched any part of Casperson's person or not, he then made, however, no outcry or exclamation of any kind to lead them to think that he was either cut or hurt by it, but they saw him immediately after that seize hold of the handle of it, and of the prisoner, when the latter gave it another short jerk, but considerably higher above the ground, again however, without their seeing the blade of it touch any part of Casperson's person, but they soon afterwards saw him fall to the ground, partly across the blade of the scythe, and then heard him cry out to them: THE STATE v. BUCHANAN. 89 not to let the prisoner kill him, and on one of them hurrying up to them and laying hold of the handle of it still in the hands of the prisoner, he said to him " take care John, I do not intend to strike him any more !" And on this evidence the learned counsel for the prisoner have contended that it is not proved that he inflicted either of the wounds, or if he did, that he did not inflict either of them intentionally, and they have furthermore contended that as Casperson exhibited no sign or symptom of having been cut or hurt on the first short jerk of the scythe when the blade of it was nearest the ground behind him, and did not fall until after the second short jerk of it was made by the prisoner considerably higher above the ground, he could not have been cut in the calf of his right leg by the first jerk of the scythe, and before he had been cut in his right thigh and groin, inasmuch as the cut in the calf of his leg, according to the testimony of the physicians, was far more severe and disabling than the cut in the thigh and groin, and was in their opinion the only necessarily fatal wound of itself which he received, and that he therefore must have received that wound, if not the other also, in his fall on the blade of the scythe ; and in this view of the matter as presented by them, they have asked the Court to charge you that if neither of the wounds described were in fact inflicted by the prisoner, and intentionally by him, and particularly, if the wound in the calf of the leg was not so inflicted by him, but was accidentally received by Casperson in his fall on the blade of the scythe, then it was the result of accident, and the prisoner did not inflict it, and could not be held responsible for it, or guilty even of manslaughter. But all that matter is purely a queatiort of fact which the jury are to consider and decide from all the evidence in the case, without any comment or instruction from the Court as to what is, or is not proved by it on either of those points, or questions of facts raised in the case. If, how- ever, the jury should not be satisfied beyond any reason- able doubt after carefully considering and weighing all 7 9p COURT OF OYER AND TERMINER. tHe facts and circumstances proved in the case that Cas- person's death was the result of the two wounds received by him and described, and that they were voluntarily and intentionally inflicted by the prisoner by cutting him with the scythe in the attack stated and described, or, in par- ticular, that the cut in the calf of his right leg was the only mortal wound he then and there received, and that it was voluntarily and intentionally inflicted upon him by the prisoner by cutting him with the scythe, as before stated, it would be their duty to acquit him of any offense whatever, and to return a verdict of not guilty under the indictment ; for although he stood indicted for murder of the first degree solely, it was competent for the jury by virtue of the statute to find him guilty of murder of the first, or of the second degree, or of manslaughter, or to acquit him entirely under it, according as the evidence in the case and the law applicable to it should warrant and require at their hands. Spruance, Depty. Atty. Genl., and William. H. Rogers, for the State. Causey, N. B. Smithers, G. B. Rodney and J. A . Bayard, for the prisoner. Verdict — Guilty of murder of the second degree. THE STATE v. BOWEN. 91 The State v John J. Bowen. The Court having left the question to the jury on all the evidence in the case, will not after trial and conviction of murder of the first de- gree, set aside the verdict and grant a new trial, because they did not charge them, as requested by the counsel for the prisoner, that if they believed that at the time of committing the act he was so much intoxicated as to produce a state of mind unfavorable to de- liberation or premeditation, it would reduce the grade of the offense from murder of the first to murder of the second degree under the statute. New Castle County, November Term, T859. At a Court of Oyer and Terminer held at this term, John J. Bowen was indicted and tried for the murder of John W Dulin, of the first degree. It appeared from the evidence on be- half of the State, that on the night of the 13th of August preceding, a brother-in-law of the prisoner had quarreled with the deceased and challenged him to fight, and while the latter was endeavoring to avoid it, and just as the prisoner joined them, said it was an old grudge of eight months' standing, when the prisoner said to the deceased if it was so, he would take it up, and at once struck him a blow with his fist, which the latter immediately returned knocking him down, and then jumped on him and asked him if he had enough, to which he replied that he had, when the deceased arose and ran off up the street, on which it had occurred in Delaware City, with a threat ut- tered by the prisoner as he started that he would cut his heart out, and who was soon after pursued and overtaken by him, near a store in front of which several boxes and barrels were standing, around which he dodged as the prisoner came up, but was at once seized by the hair and stabbed by him in the left breast with a pocket knife, the sharp pointed blade with which it was done being about three inches in length. The deceased again soon got away from him and started up the street; but had not pro- ceeded far before he exclaimed that he was stabbed and cr^^ RVWder, when the prisoner again said he would cut 92 COURT OF OYER AND TERMINER. the heart out of him ; but he pursued him no further. The testimony of the physician who was called that night to see him was that the wound in the breast indicated a. puncture of the lungs, and he at once deemed it a mortal wound, and that there were three or four other wounds oh his body, one or two of which were not serious in their character, but the cuts in his clothes as well as the wounds themselves were evidently made with a very sharp instru- ment. The deceased died the following day. From the evidence on the part of the. prisoner it further appeared that he had recently returned to the place after a three years' cruise in a naval ship of the United States, and by the invitation of the deceased that he had gone with him that night to a saloon on the same street where they met with the brother-in-law of the prisoner, John Pustill, and where they remained together playing baga- telle and drinking three or four times at the bar, until about 1 1 o'clock, and until they were about to leave it, when the prisoner wanted Dulin, the deceased, to go home and stay all night with him, but which Pustillopposed and wanted him to go home and stay all night with him, until Dulin finally said to the latter to go away, he did not want to have anything to do with him, for he had had an old grudge against him for eight months. They were then out on the street, and Pustill invited and challenged Du- lin to go down on the wharf and have a iight with him, . but Dulin would not go and then the prisoner came up to them, and said to Dulin if it was an old grudge of eight months' standing he would take it up, and struck DuHn with his iist which blow Dulin returned with his fist and knocked him down. As to what followed immediately and soon afterwards between the prisoner and the de- ceased the testimony did not vary substantially from the evidence produced on the part of the State. On the part of the prisoner, however, it was further proved by several witnesses that he was very drunk at the time, that they had never known or considered him to be, either a quar- relsome or a violent man, or to carry about his person any THE STATE v. BOWEN. . 93 weapon or instrument more deadly or dangerous than an ordinary sized pocket knife ; while in reply, on behalf of the prosecution, it was proved by an equal number of witnesses that though he had been drinking some that night, he was not drunk, but walked straight and talked rationally and sensibly both immediately before and immediately after the occurrence ; and that he was both a quarrelsome and a violent man when but slightly stimulated or excited with intoxicating liquor. Causey, Deputy Attorney General, contended that the coolness and deliberation with which the prisoner had volunteered in the first instance to espouse the quarrel of Pustill, his brother-in-law, and to force a fight on Dulin which he. evidently sought to shun and avoid with either of them as long as he possibly could, and particularly the deliberation and revenge with which he afterwards pur- sued the deceased as he was fleeing from him, and with which he dealt the fatal and repeated stabs in his breast as soon as he overtook him, clearly constituted in law a case of killing with express malice aforethought, and con- sequently the crime of murder of the first degree under . our statute. George B. Rodney, (David Paul Brown with him,) con- tended that according to the evidence and the precedents in the books, it constituted a case of no uncommon occur- rence, a case of mutual combat between two men who but a moment before had been on the best and most friendly terms, and that the mortal wound had not only been in- flicted in a sudden and violent transport of passion pro- duced by it, before the blood had time to cool, but it had been inflicted with an ordinary pocket knife carried daily by the prisoner about his person without any intention or expectation of making any imprudent or improper use of it on any occasion ; and that too, in a state of intoxica- tion and drunkenness on the part of the prisoner border- ing on mania a potu, if they might judge from the symp- 94 COURT OF OYER AND TERMINER. toms of madness, or insane violence which seemed from the evidence to characterize his conduct on the occasion. It could therefore amount to no higher grade of homicide than manslaughter ; because in a case of mutual combat, if one party kills the other in thfe heat of blood enkindled by it, and without taking any undue advantage of him, it is but manslaughter, notwithstanding the party killing may have commenced the combat by striking the first blow. Drunkenness, it is true, does not incapacitate a man to commit a crime, either in point of fact, or in con- templation of law. But as it beclouds the understanding and excites and inflames passion, it may evidence passion only, and not that express malice or that coolness and deliberation which is absolutely essential in all cases to constitute murder of the first degree ; and therefore this case could not under the facts proved possibly amount to more than murder of the second degree. 2 Stark. Ev, 524, 525. Amer. Law of Homicide 369, 370, 371. Mason's Case, Foster 72. Fisher, Attorney General, replied, that undue advantage had been taken by the prisoner of the deceased in assail- ing and stabbing and killing him with such a dangerous and deadly weapon as the knife with which he did it, after the deceased had voluntarily declined the combat, and had fled some distance up the street from him for the purpose of avoiding any renewal or repetition of it ; and that the interval which elapsed before he started in pursuit of him with the threat that he would cut his heart out, and the distance he pursued him before he overtook him and stabbed him with that fatal knife,, indicated such delibera- tion and determination to kill him if he could, as evi- denced express malice aforethought, and made the kill- ing under such circumstances murder of the first degree under the statute. For he had ample time in the mean- while to draw his knife from his pocket and to open and prepare it for his purpose, and to form a deliberate design and intention in his mind to kill him with it if he could THE STATE v. BOWEN. 95 the instant he came up with him ; and in no case of mu- tual combat such as this was, with fists merely on both sides, and one of the parties after declining it, has been pursued and slain by the other with a deadly weapon, or with an instrument likely to produce death, had it ever been held to constitute the crime of manslaughter merely. The Court, Gilpin, C. J., -charged the jury on the facts and the questions of law presented in the case, who after- wards returned a verdict of " guilty of murder of the first degree ;" and thereupon Mr. Rodney within the time pre- scribed by the rule for that purpose, submitted a motioin to the Court to set aside the verdict and grant the pris- oner a new trial, and filed the following reasons therefor : 1. That the Court should have instructed the jury, that if they believed the prisoner to have beten intoxicated at the time the offense was committed, that such fact would reduce the grade of the offense from murder of the first degree to murder of the second degree. 2. That the Court instructed the jury if they were sat- isfied that a deliberate intention to kill existed in the mind of the prisoner at the time, it would warrant a verdict of murder in the first degree, without charging them that such deliberate intention to kill must be ascertained from evidence in the cause, and not as inference from the act of killing. 3. That the Court should have instructed the jury, if they found the fatt of the intoxication of the prisoner at the time when the offense was committed, to be such as to produce a state of mind unfavorable to deliberation or premeditation, then in such case it would reduce the grade of the offense from murder of the first degree to murder of the second degree. George B. Rodney. The great question in the case is that which relates to drunkenness. If the prisoner was so much intoxicated at the time he committed the offense, as to be incapable of forming a deliberate purpose to kill the deceased, then it was murder of the second degree 96 COURT OF OYER AND TERMINER. only, and could not have been more than that. But the Court did not so instruct the jury, though there are de- cisions to this effect in other States of the Union, i Bish. on Crim. Law, Sections 298, 301. For if the prisoner was so drunk as to be incapable of forming the specific intent or the deliberate design to kill, it w.as only murder in the second degree under our statute which has changed the common law on this subject. . Whart. 369. Turtle v. The State, 9 Humph. 663. What we object to in this case is that the Court did not say to the jury that if they were convinced from the evidence in the case that the prisoner by reason of drunkenness was in such^ a state of mind as to be incapable of forming such a deliberate and specific purpose to kill the deceased, then it was murder in the second degree merely, and not murder of the first degree under the statute, although this was the main ground of our defense, and the Court was expressly asked by us to instruct the jury to that effect. The Court, without hearing the State in reply, overruled the motion for a new trial, Gilpin, C. J., remarking that the question as to the degree of the prisoner's intoxication at the time, as well as the condition of his mind and his mental capacity from that cause to form a specific intent or a deliberate design to kill pr stab the deceased with the knife, was distinctly left to the jury to be decided by them on all the evidence before them on that subject, with the instruction that they must be satisfied from that evi- dence that he had that capacity and had formed that in- tention in order to convict him of murder of the first de- gree ; and on such a question of fact, and with the con- flicting and contradictory testimony before them on that point, the Court could go no further than that in this or any other case like it. The Court also substantially in- structed the jury that such specific or deliberate intent must be ascertained by them from all the evidence bear- ing on that question in the case, but not that it could be inferred by them from the act itself COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. Christopher R. Evans. To send a threatening letter to another for the purpose of extorting money from him, and menacing him with personal violence or injury in case of his refusal to comply with the demand, of such a char- acter as would be calculated to induce a firm and prudent man to part with his money and submit to it, is an indictable offense at com- mon law, and under the general statutory provision of this State in regard to common law offenses not expressly provided for by statute, notwithstanding the party menaced may not have yielded to the threat. Court of General Sessions, &c., Kent County, April Term i860. At this term of the Court, Christopher R. Evans was indicted and tried for sending a threatening letter to Daniel Cummins to extort money from him. It bore date March 4th i860 without the place or residence of the writer of it, but was mailed at the post office in Dover, addressed to him at Smyrna, and was received by him at the post ofifice there on the day following, and was as follows : 98 COURT OF GENERAL SESSIONS, &c. Daniel Cummins : Sir, on receipt of this you will deposit, or cause to be deposited in the Bank of Smyrna, five hundred dollars, and fill up a check on said Bank for said amount made payable to R. S. Durand or order, then sign your name to it and have the cashier of said Bank to mark it "good when endorsed " and sign his name to it. You will theft forward said check to Mr. C. R. Durand, Wilmington, Delaware, enclose it in an envelope directed as above. If you value your life you will obey this to the letter. Of course you will say nothing about this to any one, nor inform any person of it by letter or otherwise, neither will you show this letter to any person whatever. You will number the check properly and send it on at once. If you inform any bank officer in this or any other state that you have been compelled to make this check, or if you show this to any person or take any means of informing any person that you have received it, or take any steps to lead to the detection of the authors of this letter, you shall surely die. If you neglect to obey this, your life shall be the forfeit. You have wronged them, and must make it right, or die. You will be closely watched from this date, until the sixth of this month, and if you do not quietly do as you are bidden in this, and burn this letter, you shall not live. Finally, if, after you have done what we here bid you, it ever becomes known that you have done it, or that you have received this, remember that you shall die. Any effort on your part to evade this will certainly result in death to you. It is impossible for you to know who we are, as the gentleman named in this is only an agent for us, and received letters for us without knowing what they contain, and as he never receives any letters of his own, we have ours directed to him. SEVEN BROTHERS. The evidence against the accused was wholly cir- cumstantial in its character and consisted of another letter received on the gth of March, and dated on that day and bearing the same signature, by Mr. Cummins by THE STATE v. EVANS. 99 mail from Philadelphia, repeating the demand and threats, and another also of the same date received by mail from that city by the postmaster at Wilmington on that day, purporting to have been written by R. S. Durand and directing any letter coming to his office for him, should be. forwarded to him at the post office at Leipsic Station on the Delaware Railroad, and which were proved by experts to have been written in a feigned hand and by the same person. That he boarded at Keith's Cross Roads in Little Creek Hundred, Kent County, but was in Dover several hours on Sunday, the 4th of March. On the 6th of the month the postmaster at Wilmington and his clerks had been notified of the occurrence and requested by Mr. Cummins to watch for and have arrested any one who might enquire at that office for a letter addressed to R. S. Durand, by one of whom he was particularly noticed and identified as the person who enquired at that office for a letter so addressed on the Thursday following, the 8th of March, when the other clerks were absent from it at dinner ; and that on his arrest and hearing before the Justice of the Peace for the offense, he admitted that he had enquired at the post office in Wilmington for a letter addressed to R. S. Durand, but received none, and then went to Philadelphia where he spent the night and came home again down the railroad the next day. To rebut this it was proved by persons familiar with his hand-writ- ing that the letters were not in his hand-writing, and that his character had always been unusually good and irre- proachable. For the State it was contended that it was an offense indictable at common law, notwithstanding the letter had failed to extort money from Mr. Cummins, if the Court and the Jury should be of opinion that it was of such a character with the atrocious threats contained in it, to intimidate and constrain a firm and discreet man to com- ply with the demand made in it. Rev. Code 475, Wkart. Am. Cr. Law 2. 3. 4. 5. State v. Benedict, 11 Verm. 336, U. S. V. Ravalla, 2 Dall. 297. lOo COURT OF GENERAL SESSIONS, &c. On the other hand for the defendant it was contended that unless the state had proved a case of duress, or the money had been extorted by the threatening letter sent, it was not an indictable offense at common law ; and as there is no statute in this state on the subject, the indict- ment would not lie in this ca.se. Rex v. Sutherton, 6 East 126, 2 Russ. on Crimes 706, i Hawk. 585, stated the rule differently and referred to Hale's P C. 567, but which did not support him ; on the contrary, it was in accord with the authorites before cited. In the form of indict- ment at common law prescribed in 3 East 842, it was, among other things, averred that the money was extorted by the threatening letter sent ; andsuchhadbeen the doc- trine recognized and ruled in the state of New York. People V. Griffin, 2 Barb. 430. The Court, Gilpin, C. J., charged the jury, that the .offense alleged in the indictment was the sending of a threatening letter with a view to extort money, and on the part of the defendant it was contended that this is not an offense indictable at common law,»or under the laws of this state, as we have no statute expressly on the subject. But it has been decided in England that it is an offense at common law, and indictable as such, independently of the statutes in that country on the subject. This we under- stand to have been recognized and ruled in the case cited by the counsel for the defendant of Rex. v. Sutherton, 6 East, 126, and that too without extorting the money demanded in it ; for if it threaten personal violence or injury to the party menaced, and the threat is of such a character as would be calculated to induce a firm and prudent man to part with his money and submit to the demand, it is an indictable offense at common law, and under the general statutory provision of this state in regard to common law offenses not expressly provided for by statute, notwithstanding the party threatened may not have yielded to the threat. Verdict not Guilty. COURT OF OYER AND TERMINER. The State v. John R. Hamilton. The statute in relation to the crimes of murder and manslaughter were not intended to make any change in the general criterion and characteristic of either of them as they existed at common law, and in this state before it was enacted, except to divide murder into two separate and distinct degrees, and modify and mitigate the common law penalty in the second and subordinate degree, as established by the statute. If the evidence is suflficient to satisfy the jury beyond a reasonable doubt that the wife of the prisoner came to her death by congestion and compression of the brain produced by blows inflicted on the side of her head by the prisoner with his fist, neither the insults or reproaches of the wife charging him with infidelity, whether true or false, and however offensive and provoking they might have been, nor the intoxication with which he in turn charged her, if such was then her condition, could justify or excuse such a violent assault and battery upon her by him, although it was committed, and all the blows inflicted were made with his clinched fist simply ; because the provocation could not negative and rebut the presumption which arises in such a case that'the act was committed with malice afore- thought impUed by law under the facts and circumstances proved in the case. Manslaughter in contemplation of law can only occur in an assault and battery when both parties are combatants in it, or have been, and one of them in the heat of blood or a transport of passion pro- duced by it, deals the other a fatal blow, or suddenly seizes, without deliberation or premeditation, and before he has had time to cool, a deadly weapon or instrument likely to produce death and kills him with it. Kent County, October Term, i860. At a Court of Oyer and Terminer held at this term, John R. Hamilton was indicted and tried for the murder of Sarah Hamil- 102 COURT OF OYER AND TERMINER. ton, his wife, in the first degree. The principal evidence of the State was that of Owen Tomlison who testified that on Thursday night about the middle of August pre- ceding, he went to the prisoner's house ih Smyrna, and learned from his wife that he was away in Philadelphia, and that she appeared to be uneasy about him. Was there when he returned that night, and while the prisoner was showing him some presents which he had received in Philadelphia, his wife said to him " things can be pre- sented to you, but nothing is ever presented to me," to which he replied " you do not know what I have for you, " she then said he had been off to the city and left her all by herself for a week, and spending his money in places where he ought not to go, and asked him about a certain woman there, and if he had given her five dollars. He then cursed her and threatened to kick her out of doors, and struck her a blow on the left side of her head, when she went out of the room and sat down in the kitchen, but the prisoner and himself remained for some time afterwards in the front room and took several drinks of whiskey together in the mean while, and that during the intervals he passed several times from that room to the kitchen to repeat the blow, and that he struck her in all seven or eight blows with his clinched fist on the leit side of her head ; that she held her left hand to the side of her head to protect it, and that he hit very hard several, times with his fist, and that there was a lump swelled up on the back of that hand as large as a hen's egg. He then said damn her, she was drunk, and ordered her up stairs to bed, which order she obeyed. He thought she had been hurt but not dangerously. While cursing her, he threatened to kill her, and told her that she ought to have been dead long ago. The wife was apparently as well as usual during the three succeeding days, but on Monday morning her con- dition required the attendance of a physician who testified that she complained of a pain in the left side of her head, and he saw the contusion on the back of her left hand, THE STATE v. HAMILTON. 103 and examined for, but found none on the left side of her head. She had a convulsion, however, before he left, and died on the following Wednesday morning, and a post- mortem examination made by him and two other physi- cians disclosed the following facts according to their evidence. The first thing they observed was a contusion on the back part of her left hand, and on the left side of her head in the region of the temple they found a good deal of congested blood between the scalp and the skull, and on opening the skull they also found a good deal of con- gested blood on the left side of it in the same region. They found in the larger extremity of the stomach indi- cations of chronic inflammation, such as some times occur in cases of dyspepsia, and also some indications in the stomach of habits of intemperance. Congestion of the brain produced by excessive indulgence in intoxicating liquors would be general, but in this case it was partial and local, and the greatest or principal point of the con- gestion corresponded with the external bruise. And for these reasons they were of opinion that her death was caused by congestion and compression of the brain pro- duced by external force or violence. The Court, Gilpin, C. J., charged the jury that if they were satisfied beyond a reasonable doubt by the evi- dence in the case that the deceased came to her death by congestion and compression of the brain produced by blows inflicted by the prisoner with his fist on the left side of her head, it would be for them to consider and determine what crime, or description of felonious homi- cide he was guilty of under our statutes and the manner and form in which he was indicted. Those statutes were not intended or understood to make any change in the general criterion and characteristic of the crime of mur- der or the crime of manslaughter as they existed at com- mon Jaw, and in this state before they were enacted, except to divide the former into two separate and distinct degrees, and to modify and mitigate the common law I04 COURT OF OYER AND TERMINER. penalty of it in the second and subordinate degree, as established by the statute. If the jury were satisfied from the evidence that she came to her death as he had before stated, of what crime he was guilty in the eye of the law, would depend on the facts and circumstances proved in the case. Neither the insult and reproach of his wife, consistingf of a gross charge of infidelity, whether true or false, and however offensive and provoking they might have been, nor the intoxication with which he charged her in turn, if such was then her condition, could justify or excuse the commission of such a violent assault and battery upon her by him, as had been proved by one unimpeached witness in the case, although it was com- mitted and all the blows inflicted and several times renew- ed and repeated by him, were dealt with his clinched fist simply in the manner stated by him. Nor could such aggravation or provocation on her part have the effect in law to negative the implication of malice aforethought with which it was committed on his part, and to mitigate and reduce the killing to the crime of manslaughter under the facts and circumstances proved in the case. Manslaughter in contemplation of law can only occur in an assault and battery when both are combatants in it, or have been, and one of them in the heat of blood or transport of passion produced by it, deals the other a fatal blow, or suddenly seizes without deliberation or pre- meditation, and before he has had time to cool, a deadly weapon or dangerous instrument and inflicts a mortal wound with it upon him ; but not when the other, and particularly, when a woman and the wife of the assailant, is but the passive and unresisting recipient and victim of the blows fiom the other party; for under 'such circum- stances the law out of its tender regard for the common infirmity of our nature, negatives, even the implication oi malice and presumes that the act was committed without any malice aforethought whatever. But to constitute the crime of murder of the first degree under our statute, and to convict the prisoner of STATE V. HAMILTON. 105 that offense, the greatest known to it, the jury must be further satisfied beyond a reasonable doubt from the evi- dence that the deceased was killed with express malice aforethought by the prisoner. And to find that it was done with this kind or degree of malice aforethought, that is to say, with express malice aforethought, accord- ing to the legal definition of it, they must also be in like manner satisfied that he did it with a sedate deliberate mind and formed design, which formed design according to the rule of law on the subject, is evidenced by external circumstances showing the inward intention, such as lying in wait, antecedent menaces, former grudges, and con- certed schemes to do the party some bodily harm. These are the external indications or the evidence laid down at the common law which clearly show the inward intention with which the act or acts were done, and that when they, or any of them show to the satisfiction of the jury beyond a reasonable doubt that the killing was done with a sedate deliberate mind and formed design, it would in such case be with express malice aforethought at common law, and murder of the first degree under our statute. The evidence that the killing was done with a sedate deliberate mind and formed design, should in all cases, however, be clear and entirely satisfactory to show and establish the fact that it was committed with express malice aforethought in contemplation of law. But, if the jury were satisfied from the evidence that during the time the prisoner was drinking whisky with the witness, Owen Tomlinson, in the front room, he sev- eral times passed from it into the kitchen where his wife then was, and at several different times inflicted violent and repeated blows with his clinched fist on the left side of her head and her left hand with which she endeavored to cover and protect it, as stated by the witness, and that those blows produced a congestion and compression of the brain of which she died in a few days afterwards, it would indicate such cruelty and deliberation on his part under such circumstances as would, at least, imply malice 8 io6 COURT OF OYER AND TERMINER. aforethought in contemplation of law, and would consti- tute the killing of her in that manner and under such circnmstances, the crime of murder with implied malice aforethought, and of murder of the second degree under our statute. For this constitutes the characteristic ele- ment or ingredient of murder of the second degree under it. The jury must, however, be satisfied from the evi- dence beyond a reasonable doubt, that the death of his wife was caused by the repeated blows inflicted upon her by the prisoner as before. stated, for if it resulted from any other cause, and not from the repeated blows so inflicted upon her, and as stated in the evidence, he should be entirely acquitted. Verdict guilty of murder of the second degree. Fisher, Attorney General. Reed, for the prisoner. COURT OF GENERAL SESSIONS or THE PEACE AND JAIL DELIVERY. James L. Smith v. The State. On the trial of an appeal in bastardy, the father of the mother of the child is a competent witness for the State, although the mother was a minor, and was living in his family at its birth. A bastard child begotten in another but born in this State, after the removal of the mother into it, acquires by its birth here a legal set- tlement in it, and in the county in which it is born. Court of General Sessions, &c., New Castle County, November Term, i860. This case was an appeal in bas- tardy. The causes of appeal filed were first, that Mary Morris, the mother of the bastard, was the minor daugh- ter of one Noah Morris, who at the time of the begetting and birth of the child, resided in the State of Maryland ; secondly, that it is not, and never was chargeable for its support and maintenance to this county ; and third- ly, that the party appellant denies the paternity of it. The evidence was that the mother was eighteen years of age and resided in the family of her father at Gunpow- 108 COURT OF GENERAL SESSIONS, &c. der Bridge, in the State of Maryland, where the child was begotten by the appellant, and that she removed thence with her father and his family in the spring of the present year to the town of Newport in this county, where the child was born on the 27th day of July last. Noah Morris was called as a witness for the State, and was objected to on the other side. Gordon, for the appellant. He is the father of Mary Morris, the mother of the child, and is interested^ in the result of this case, for he is to gain or lose by it, for the lying-in expenses of the mother in case the order of affil- iation is sustained by this Court, are due and payable to him. Otherwise he loses that amount. He was there- fore incompetent as a witnss. But the Court overruled the objection. This is a quasi criminal proceeding and solely cognizable in this, a Court of criminal jurisdiction, in which the State is the party complainant, and not a civil suit between the individuals concerned in it ; and for which reason the father was a competent witness for the State. The case was afterwards submitted without argument to the jury, subject to the charge of the Court, on the question presented whether under the facts proved the bastard child in question had or had not a legal settle- ment in this State and county. The Court, Gilpin, C. J., charged the jury. The proof had not been contradicted that the child was born at New- port in this county, and the first provision of our statute on the subject referred to, is "the birth place of a person shall be the place of his legal settlement." Rev. Code, 132. And if they were satisfied from the evidence that the ap- pellant was the father of it, they should so find and return a verdict against him. THE STATE v. LIVINGSTON. 109 State v. James Livingston. A county tax assessed against the land of a father, and so continued for several years after his death without a will, if paid by one of his sons and heirs-at-law still owning it in fee and coparcenary, within the times respectively prescribed for the assessment and payment of such a tax in the constitution, will entitle any other son and copar- cener to vote, so far as the payment of a county tax is required to qualify him for it. Court of General Sessions, &c., New Castle County, May Term, 1861. At this term James Livingston was in- dicted and tried for the offense of having illegally voted at the last general election in Pencader hundred in this county, without having paid a county tax preceding his said voting, assessed and collected within the time limited and prescribed therefor by the laws and the constitution of the State. The evidence on the part of the prosecu- tion was that he voted at that election in Pencader hun- dred, and that he had never been assessed, and had never paid any such tax, although he was then over the age of twenty-two years. For the defendant the evidence was that he was a son and one of the heirs-at-law of James Livingston, Sr., de- ceased, who died several years before that time, intestate, leaving his widow and several other children surviving him, and seized in fee simple of a tract of sixty acres of land in that hundred, which on his death descended to them in coparceny subject to his widow's, and their moth- • er's, right of dower in it ; that she had since his death continued to reside on the land, but not as tenant in dow- er, or as a tenant otherwise, as no dower had ever been assigned her in any portion of it ; and that since his death the land had continued to be assessed in the name of James Livingston, Sr., and was so assessed the last year, and the tax of that year upon it was paid in full by a brother of the defendant to the collector of the hundred before the last election. no COURT OF GENERAL SESSIONS, &c. The Court, Gilpin, C. J , charged the jury, that it was not necessary that a poll tax, or a tax on the head or the body of an individual should be assessed and paid to entitle him to vote at such an election, for if the defendant had paid a county tax of any kind assessed and paid within the times respectively prescribed therefor in the consti- tution, that is to say, having within two years next before the election, paid any such tax, which had been assessed at least six months before it, he was lawfully entitled to vote at the election in question, so far as any tax qualifi- cation was required for it. In this case all the county tax- es which have been assessed since the death of the father have in effect been assessed against the land owned by the defendant and his other children and heirs-at-law, as coparceners, although during that time it has stood on the assessment lists as the land of James Livingston, Sr.,and cases of a similar character have not been unfrequent in this as well as in the other counties. But being a tax on the land, it was also in effect a tax on the then legal owners of it, who since his death have been the heirs and coparceners before referred to, of whom the defendant is one, and his brother having paid the whole amount of it to the tax collector, and for which they were all equally liable, it was virtually a payment by the defendant of his proportion of it through his brother acting as his agent for that purpose. The defendant was acquitted. The State v. Jesse L. Floyd. The records of a Justice of the Peace are not records of a Court of Record in the true import and legal signification of that term, and a forgery of such a record by a Justice of the Peace is not within the provision of the statute, which makes the forging of the record of a Court of Record an indictable offense. Court of General Sessions, &c., New Cas'tle County, November Term, 1861. At this term, Jesse L. Floyd, STATE V. FLOYD. in who was a Justice of the Peace of the county, was indicted and tried for forging the record of a suit before him as such. The indictment contained two counts, alleg- ing that he was at the time a duly constituted Justice of the Peace of the county, the first of which alleged the offense by setting out a full copy of what purported to be his docket entry in an action of assumpsit tried before him at the suit of Ferdinand Hiller against Robert Wagner for $15.00, commenced on the 8th day of November i860, of the issue, service and return of process on the 13th of that month, and of the appearance of the defendant, and of the entry of judgment by confession against him on that day for the amount and 56 cents costs, with this further entry immediately following that of the judgment* to wit : On the 13th day of November A. D. i860, James Montgomery becomes surety that this judgment shall be fully satisfied. And that he feloniously forged the said record with intent to defraud the said Robert Wagner. The second count set out the same, but alleged that he forged the said record with the intent to defraud the said James Montgomery. On the trial it appeared in evidence that the only false and fraudulent entry in it was the last, which stated that James Montgomery had become security for the payment of the judgment, and that he never signed or sanctioned it, or knew of it until about nine months afterwards. T. F. Bayard, (Patterson, with him,) for the prisoner. The indictment was under the statute, Chap. 129, Sec. 5, Rev. Code 482, but the tribunal of a Justice of the Peace was not a Court, nor has it a record within the meaning of that provision of the statute. The indictment was also fatally defective because it failed to allege in what par- ticular respect the record, as it was termed, was forged| counterfeited, or falsely altered, for in the main as set out, it had been proved and was admitted to be correct and genuine, the only false entry shown or alleged being the 112 COURT OF GENERAL SESSIONS, &c. entry of the surety to the judgment, and that as it stood, was utterly nugatory and void in law, because it did not even purport to have been signed by the surety named in it. The Court, Gilpin, C. J., charged the jury. Any judi- cial tribunal in England having the power to fine and im- prison, was said to be in contemplation of law a Court of Record, but there was little or no analogy between Justi- ces of the Peace in that country and in this State. The court of a 'Justice of the Peace in this State had never been considered or held to be a Court of Record, in the true import and legal signification of that term, although in ordinary parlance the docket entries which Justices of the Peace were required to make and keep in suits before them, were called records, but they were always called records of Justices of the Peace, and not records of a Court of Record ; and such docket entries not being within the purview of the section of the statute referred to, and under which the indictment had been framed, it could not be sustained. The State v. William E. Darrah. All felonies in this state are expressly and specially made so in all cases by statute, and, therefore, there are none here at common law ; and as the offense of bigamy is but a misdemeanor, and not a felony in this state, to allege in an indictment that it was feloniously and unlawfully committed will be fatal to it. Court of General Sessions, &c., Kent County, April Term, 1862. At this term William E. Darrah was indict- ed and tried for bigamy, and the offense was proved, but it appeared that the indictment alleged that he did felon- iously and unlawfully marry and take wife, &c. The objection taken to his conviction was that the offense was merely a misdemeanor and not a felony under our statute, and therefore he could not be convicted on an indictment which alleged that it had been feloniously committed by him. THE STATE v. DARRAH. 113 For the state it was contended that it was also alleged in the indictment that he did unlawfully marry &c., and the term feloniously 'being entirely unnecessary and out of place in it, that allegation might, and should be, rejected as superfluous and surplusage merely. Whart. Amer. Cr. Law, sec. 622. Commonwealth v. Squire, 2 Mete. 259. The Court, Gilpin, C. ^., charged the jury. There was no such thing as a common law felony known or rec- ognized under the laws of this state, for all felonies in this state were expressly and specially made so in all cases by statute, and which expressly prescribed the pen- alty for them respectively. And all criminal offenses in this state were divided into two general classes respect- ively denominated felonies and misdemeanors, and it is provided by statute that such offenses as are not made felonies by it, and are indictable at common law, but are not specially provided for in it, shall be misdemeanors, and shall be punishable as such. The objection taken to the indictment was fatal, because by the statute the offense ' of bigamy was a misdemeanor, and not a felony, and if convicted on this indictment, the Court could not pro- nounce any judgment on the defendant, because he was indicted for a felony in this case, and we have no law authorizing the Court tp pronounce sentence on him for a felony in such a case. The case cited from 2 Mete. 259, turned on a recent statute in Massachusetts allowing a conviction of a misdemeanor on an indictment charging a felony ; and so in this state we have a similar statutory provision allowing the same to be done in certain cases specifically provided for in it. In the case of Black v. The State of Maryland, 2 Md. Rep. 2,76, the Court of Errors in that state held in a case like this, that where a misdemeanor was alleged in the indictment to have been feloniously committed, and the accused was so convicted under it, no valid judgment could be entered on it. S, M. Harrington and Wootten Atty. Genl., for the State. Eli Saulsbury, for the defendant. 114 COURT OF GENERAL SESSIONS, &c. The State v. David P. S.Nichols. A false and fraudulent representation made by the defendant to the prosecuting witness, that he was about to loan a sum of money to a person named by him and known to the prosecuting witness to be of good credit, and if he would let him have one-half of the amount, he would repay it to him in twelve days with one-half of the profits, imported among other fallacious repr:sentations, a false and fraudu- lent pr< tension of a present and inimedinte purpose on his part to loan the amount of money mentioned to the person named, and he was therefore indictable for obtaining the money thereupon loaned him by the prosecuting witness under such a false and fraudulent pretense. Court of General Sessions, &c., New Castle County, May Term, 1862. At this term, David P. S. Nichols was indicted and tried for obtaining money under false pretenses from one William McReynolds. The indict- ment and proof was that he falsely pretended to him that he was about to lend to one Emmor Pierson $438, but had not that amount, and if he would loan him one- half of it, $219, for that purpose, he should equally share with him in the profit of the loan, and he would refund the $219 to him in twelve days thereafter, and thereby deceitfully obtained the sum of $219 from him, and which he had never repaid to him. Pierson was a man of ample means and high credit, and but for the representation of the defendant that he was to lend the money to him, McReynolds would not have loaned it to him. On cross-ex- amination he stated that prior to that time the defendant had frequently borrowed money of his business firm on his own check, and when he let him have the money he took his check for it at twelve days, and had sufficient confi- dence in him to believe his representation that he was going to lend it to Pierson was true. He knew he was prompt in the payment of all his demands, and he loaned the amount to the defendant on the credit of both of them, and expected he would repay it as soon as Pierson paid him. THE STATE v. NICHOLS. 115 The Court, Gilpin, C. J , charged the jury , That there were three distinct allegations of false pretenses contain- ed in the indictment ; first, that the defendant falsely re- presented and pretended to the prosecuting witness, Mc- Reynolds, that he was about to loan $438, to Emmor Pier- son ; second, that if he would let him have half of the amount, he should share with him equally in the profit of the loan ; third, that if he would let him have it for the purpose stated, he would refund it to him in twelve days thereafter. And although any number of false pretenses may be laid or alleged in an indictment of this kind, it is sufficient to prove any one of them, provided it is mater- ial and of such a character as will sustain the prosecution. The only false pretense, however, alleged in this indict- ment which is sufficient for that purpose, provided it is proved to the satisfaction of the jury, was the first, or the allegation that the defendant falsely represented and pre- tended to the witness that he was about to loan Pierson $438, and obtained from him one-half of the sum, $219, to make up the amount of the loan he falsely pretended he was about to make to him, and which properly imported that he was then and at that time going to make him the loan stated, and not that he was going to do it at some subsequent period. It was, therefore, if false and fallacious, a pretense of an existing fact, or a'present and immediate purpose to loan him the money as stated, and did not fall within the case of a- mere promise of future conduct, or of a trust on credit at all, as a pretense to pay for goods on delivery, but which the party did not mean to do when he bargained for them. But if the jury were satisfied from the evidence that this particular and alleged pretense was false and that Pierson was induced by it to loan him the $219, mentioned, and that the defendant obtained it from him with the deceitful intent at the time so to cheat and defraud him out of it, they should convict him, otherwise he should be acquitted. COURT OF OYER AND TERMIJ^ER. The State v. Thomas I. Horskin. Express malice exists when one person kills another with a sedate deliberate mind and formed design, the formed design being evi- denced by external circumstances showing the inward intention, such as lymg in wait, antecedent menaces, former grudges, or concerted schemes to do the party some bodily harm ; and whenever it is com- mitted with express malice aforethought, it is murder of the first degree under the statute. Malice aforthought is implied by law from any deliberate, cruel act however sudden ; as where one person kills another suddenly, with- out any, or without a considerable provocation, for no one, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent cause ; and when it is sp committed, that is to say, with malice aforethought implied by law, and not with that sedate deliberate mind and formed design which evinces express malice aforethought, it will be murder of the second degree under the statute. A man's house is his castle ; and when an attempt is made to commit arson or burglary in the dwelling-house of another, the owner or any member of his family, or even a lodger may kill the offender to prevent it ; but he is not authorized to fire a gun or pistol, or to use a deadly weapon upon every invasion or breaking into his dwelling-, house which may be forcibly made in the night time, for a trespass merely at any time will not warrant a resort to the last extremity in a sudden fit of anger and passion, and in such a case the provoca- tion cannot reduce the 'killing to manslaughter. But when he is seeking to break in, in the night time with intent to commit a felony, the owner may as soon as that reasonably appears, resort to the last extremity in repelling it, and the killing will be justifiable. Kent County, October Term 1862. At a Court of Oyer and Terminer held at this term, Thomas I. Horskin was indicted for the murder of John Bennett in the first de- THE STATE v. HORSKIN. 117 gree, and was tried at an adjourned session thereof on the lOth day of December 1862. The evidence was that on the night of the 22d of Septennber preceding, a num- ber of young men who were in the habit of resorting to the home of the prisoner in the town of Milford, finding it closed and the family had gone to bed, in wanton mis- chief merely, commenced and continued for some time to make loud noises outside of the door and about the street in front of it, and after throwing pebbles and small sticks against it, Would run off round the corner, and soon return and repeat the same thing, the prisoner in the mean while cursing them aloud in his house and threatening to shoot them with his gun, and several times making his way to his front door with it and opening it, as if for that pur- pose. Soon after they had ceased their mischief and left, however, the deceased who was intoxicated and noisy, went to the door to get into the house when the prisoner shot him from it with his gun in the abdomen, inflicting a wound of which he died in a few hours. There was no witness to the act, but the prisoner had from the first admitted the shooting and killing of the deceased, and that he knew at the time that the person whom he shot was John Bennett, but he at the same time had always declared that he was then trying to break into his house with a piece of scantling four inches thick and from four to five feet in length, and had forced the door open with it when he shot him. But this was not seen or confirmed by any one who was in bed in the house at the time, who • heard all that precededit, as before stated, and the shoot- ing of the gun in the bouse, and also the exclamations of the deceased when he was shot by it just outside of the door, though two of them were examined as witnesses in the case. The character of the prisoner as a peaceable and quiet man was proved by several witnesses called in reply. For the prisoner it was contended that the killing under the circumstances could not amount to murder of the ii8 COURT OF OYER AND TERMINER. first degree, as there was provocation of no slight degree, and also a want of all those indications of deliberation and design to kill the deceased or to do him any personal injury which can alone constitute the badge of express malice ; nor could it amount under the circumstances even to murder of the second degree under the statute. And, if the jury should be satisfied from the evidence that the deceased was endeavoring to break into the prisoner's house when he shot him, on the authority of Cook's case, Cro. Car. 537, the offense would only be manslaughter ; or if he shot him under a reasonable apprehension that the deceased was about to commit a felony, it would be manslaughter merely. But if he did it under the belief that his life, or the life of his wife, or his family or his house was in danger, and it was committed in defence of either, it was neither murder or manslaughter, but excus- able homicide. Whart. Am. Cr. Law, sec. 1026. The State cited Commonwealth v. Drew et al., 4 Mass. 391- The Court, Gilpin C.J., charged the jury . There was no question in this case that the prisoner killed the deceased, John Bennett, and such being the case the law presumes that it was criminally and maliciously done, until the contrary appears from the evidence in the case ; and any fact in it which showed a formed design and a sedate deliberate purpose to shoot him, that shooting having resulted in his death very soon afterwards, was evidence of express malice aforethought, and of murder of the first degree under the statute. Malice aforethought is implied by law from any deliberate, cruel act committed; by one person against another however sudden ; as where one person kills another suddenly without any, or without a considerable provocation, for no one, unless of an aban- doned heart, would be guilty of such an act upon a slight or no apparent cause ; and when it is so committed, that is to say, with malice aforethought implied by law, and THE STATE v. HORSKIN. 119 not with that sedate deliberate mind and formed design which evinces express malice aforethought, it will be murder of the second degree under the statute. It is true to a certain extent, that a man's house is his castle, but Cook's case which had been cited should be limited to the peculiar class of cases of which it consti- tuted a leading precedent ; for it is now generally admit- ted to have gone quite as far as it should have gone, even in such a case. When an attempt is made to commit arson or burglary in the dwelling-house of another, the owner or any member of his family, or even a lodger may kill the offender to prevent the intended mischief. But an owner is not authorized to fire a gun or pistol, or to use a deadly weapon upon every invasion of, or breaking into his dwelling-house which may be forcibly made in the night time. He should, if he has a reasonable oppor- tunity, endeavor to remove the trespasser without having recourse to the last extremity, for a civil trespass will not excuse the firing of a. gun at the trespasser in a sudden fit of anger and passion. When a person, however, is trying to break into the dwelling-house of another in the night time with the intent to commit a felony, the owner may at once kill him, for in such a case he may at once resort to the last extremity in resisting and repelling such an 'invasion of his dwelling, and yet in such a case it should reasonably appear that the object of such breaking, or effort to break into it, was to commit a felony ; and if in such a case the offender be slain, it is excusable or justi- fiable homicide. A man may repel force by force in defence of his person, his habitation or his property, against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either. If the jury were satisfied from the evidence that the deceased made a forcible effort to break into the house of the prisoner on the night he was killed by him, they should be further satisfied that he did it with an intent to com- mit a felony in it, or they could not return a verdict of 120 COURT Oti" OYER AND TERMINER. not guilty on that ground. The evidence, however, was before them and it was for them alone to decide what were the facts and circumstances proved in the case. If there had been no effort on the part ot the deceased to break into his house, as alleged by the prisoner, there could be no ground whatever for considering it a case of manslaughter merely ; and then whether it amounted to the crime of murder of the first or second degree, would depend on the coolness and deliberation with which it was done by the prisoner in their judgment. They should give the prisoner however, the benefit of any reasonable doubt they might have in the case. Verdict — Guilty of murder of the first degree. McColley, Depty. Atty. Genl., & Wootten, Atty. Genl., for the State. Eli Saulsbury & Fisher, for the prisoner. The State v. Abel Riggs. The Court will not set aside the verdict of the jury and grant a new trial because they were instructed in the charge that "when the fact appears that connection has been had against the consent of the woman, the law implies force,' and further, "the two facts for your consideration are the fact of connection and the fact of consent or no," instead of defining and stating it, in the language of the books, as follows: "rape is the having carnal knowledge of a woman by force and against her will." New Castle County, November Term 1862. At a Court of Oyer and Terminer held at this term, Abel Riggs had been indicted, tried and convicted of the crime of rape, and thereupon the counsel for the prisoner sub- mitted a motion in due form for a new trial on the ground that the Court in its charge to the jury in the case had misinstructed them as follows : "When the fact appears that connection has been had against the consent of the THE STATE v. RIGGS. 121 woman, the law implies force ;" and further, "The two facts for your consideration are the fact of the deed of connection and the fact of consent or no." 7*. F. Bayard for the prisoner. Such was not the phra- seology in which the crime was defined in the books, for though it was perhaps, as equally terse, it meant, he thought, much more. That definition was "rape is the hav- ing carnal knowledge of a woman by force and against her will." i Russ. on Crimes 526, ^$6 m. 1 Hawk., 169. 2 Archb. on Crimes, 304, 306, in notes. It must appear that the offense was committed with force and with the utmost reluctance on the part of the prosecutrix. Whart. Am. Cr. Law 437, note a. Regina v. Chase, i Eng. Rep. 544. Regina v. Stanton, 37 E. C. L. R., 414. Regina v. Hallet, 38 £. C.L.R., 318. Regina v. Sanders, 34 E. C. L. R., 383. Regina v. Williams, 34 E. C. L. R., 292. Regina v. Clark, 29 E. C. L. R., 542. McColley, Deputy Attorney General. It was neither usu- al, nor was it necessary for the Court in charging to em- ploy the precise and technical terms employed in the books, or by the Attorney General in framing a bill of in- dictment. The terms noted and dbjected to were not the only terms employed by the Court in describing the essen- tial requisites of the offense in the charge to the jury, and it was so clear and full as to the force required that no juror could have misunderstood the legal meaning and import of it on that point. But how would it be with the rigid and literal definition laid down on the other side in the case of an idiot, or one without sufficient mind and will to consent, or where chloroform had been adminis- tered to the prosecutrix } Could it be literally and strict- ly said to have been accomplished either by force, or against her will in such a case } The Court declined to grant a new trial. COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. Joseph Russell. It is not only the right, but the duty of a constable and police officer of Wilmington on his beat at a late hour of the night, if a noise or disturbance occurs under his own observation, to arrest at his own instance and without warrant, especially charged as he is with the preservation of the peace, good order and quiet of the city, any one disturbing it whenever the circumstances require it. Court of General Sessions &c., N. C. County, Novem- ber Term 1862. At this term of the Court Joseph Russell was indicted and tried for an assault and battery commit- ted on David Wingate, a constable and police officer of the City of Wilmington, with intent to murder him. The prisoner with one Fleming and two or three other persons in a state of intoxication met on the side walk of one of the streets of the city between eleven and twelve o'clock at night, and after loud and noisy, but not angry talking, started up the side walk marching in military order and THE STATE v. RUSSELL. 123 marking time, the prisoner as file leader calling the time and repeating at regular intervals the word " left" in a voice sufficiently loud to be heard a square off, and as they proceeded by a door-step on which Wingate and Reagan, another police officer of the city were seated, the latter admonished them to keep order, or they might find themselves in the city hall prison, to which Russell replied that it would take a d — d strong man to do that, when Win- gate arose and remarking to Reagan that he considered that a defiance, proceeded up to Russell and was about to arrest him, when Fleming who was next to him, inter- posed to prevent it, and a combat ensued between them in which Wingate was stabbed in the side with a knife by Rleming. In the mean while Reagan had joined Win- gate and was contending with Russell who broke away -from him and rushed to the relief of Fleming and struck several times at Wingate, but without hitting him. They were both, however, soon overpowered and arrested, and were each indicted at this term for an assault and battery on Wingate with intent to murder. McC alley, Deputy Attorney General, after the testimony had closed, waived the felonious charge against Russel, T. F. Bayard, for the defendant, contended that he should be entirely acquitted, because it clearly appeared from the evidence that the attempt to arrest either of them was wholly without cause and wrongful from the beginning on the part of the officers, and made them tres- passers ab initio throughout the whole transaction. The defendant was guilty of no affray, no breach of the peace, or of anything having a tendency to a breach of the peace, or of any unlawful act whatever, when he was first rudely and violently set upon and forcibly arrested by these offiqers, who had themselves been guilty of the first affray and breach of the peace, in their unwarrantable attempt to arrest the defendant under the circumstances. 124 COURT OF GENERAL SESSIONS, &c. The Court, Gilpin C. j^., charged the jury. The prose- cuting witness, Wingate, was at the time one of the con- stables and police officers of the City of Wilmington, a populous community which finds it necessary to maintain a night watch or police to preserve the peace, order and quiet of the city, and it is in proof that he was on his beat and in the regalar discharge of his official duty, at a late hour of the night, between eleven and twelve o'clock, when this noise and disturbance occurred under his imme- diate :ew and observation. And on such an occasion such an officer has not only the right, but it is his duty to arrest at his own instance, and without warrant, especially charged as he is with the public peace, good order and quiet of the city, any one disturbing it whenever the cir- cumstances require it. The State v. John A. Morris. As the office of Attorney General is a constitutional office, and the mode of filling it established by the constitu tion is by Executive ap- pointment for the term of five years, it is not in the power of the Legislature to enact that unless he submit an indictment for certain misdemeanors specified in an Act of Assembly to the grand jury with- in the first three days of the next term of the Court of General Ses- sions in New Castle County, that two other members of the bar named and appointed in it for the purpose, shall be thereby author- ized and empowered to prepare and sign with their names, as Attor- neys in that behalf for the State, proper bill or bills of indictment in such cases, and submit them to th« grand jury, and if found, to pro- ceed to try them, with all the powers usually exercised by the Attor- ney General in the trial of criminal cases. Court of General Sessions, &c.. New Castle County, May Term, 1863. At this term, John A. Morris was in^ dieted under an Act of the Legislature passed at the last session, for unlawfully drawing lotteries in the State with- out special license and authority therefor, and by which THE STATE v. MORRIS. 125 two members of the bar, Eli Saulsbury and Joseph P. Comegys, Esquires, were appointed, authorized and em- powered to prepare bills of indictment in behalf of the State, to sign them with their names as Attorneys in that behalf for the State, and submit them to the grand jury, and to summon witnesses in the name of the State to sustain the charges contained in them before the grand jury, and if found, to proceed to try them,, and that they should have for the purpose of such indictment and trial all the powers usually exercised by the Attorney General in the trial of criminal cases, against all and every person or persons who since the passage of the act of the Gen- eral Assembly of this State (Volume 12, Chapter 196) had presumed, or might thereafter presume to draw lotteries in the State contrary to the provisions of the first section of that act and of the Revised Statutes of the State, un- less the Attorney General should submit indictment or indictments as above contemplated against the violators of that act and the Revised Statutes as aforesaid, to the grand jury of New Castle County within the first three days of the then next ensuing May Term of the Court of General Sessions in that county. Del. Laws. Vol. 12, Chap. 321, Sec. 3. T. F. Bayard, for the defendant, now submitted a mo- tion to quash the indictment ; first, because the Legislature had no constitutional authority or power to appoint the gentlemen named, or any other person or persons to pre- pare and prosecute the indictment presented in the case ; and furthermore, because they had not proceeded in the indictment and prosecution under the act in accordance with the provisions of it. Comegys, for the State. There was a preliminary ques- tion to be presented and disposed of in the case. The defendant had been formally indicted by_ the grand jury for the offense alleged, but he had neither been arrested, nor had he voluntarily alppeared and submitted himself to 126 COURT OF GENERAL SESSIONS, &C. the jurisdiction of the Court, and therefore at that stage of the case, that and no other motion adverse to it on his behalf could be entertained by the Court. It was no or- dinary case, although but a misdemeanor, for it was pun- ishable with imprisonment absolutely, and conditionally on the non-payment of the fine imposed for the commission of the offense merely. Would the Court then in a case of such grave importance entertain a motion to quash the indictment while he was out of the State; as was well known, and evaded or had failed as yet, to submit himself to its process or jurisdiction. Saulsbury, for the State. The defendant was in con- tempt. And when a party was in contempt, the Court would not even admit him to appear by attorney, but would require him to appear in person and purge himself of the contempt, before they would hear any motion on his behalf, or as coming from him even by attorney, i Com. Dig 74^1, 746. Lev. 146. 3 Djyer 346 d. Rex v. Morris, i Barnarddistoii s Rep. 44. T. F. Bayard. The practice of the Courts in this State had always been otherwise, and in a very recent case, that of the State v. Broadbent, indicted for perjury^ and who was out of the State and had never lived in it, the Court quashed the indictment on motion made by Mr. Fisher who stated that he was his counsel, before appear- ance, or the issue of process against him. The Court overruled the objection, and the argument proceeded on the motion to quash the indictment. T.F. Bayard. The Attorney General is an officer of the State by virtue of an express provision of the constitu- tion and is recognized as such by other provisions of it, and by virtue of another provision of it he is required to be sworn or qualified to maintain the constitution of the United States, the constitution of the State, and to per- THE STATE v. MORRIS. 127 form the duties of the office with fidelity ; and those du- ties comprise, of course, the powers of it also. And to ascertain what those duties and powers are, we must have recourse to the laws and institutions of the country from which we have derived the great body of our law and legal institutions, and to the uniform and long-established usages, functions and practice of the office in connection with the Courts, and chief among these is the exclusive power vested in, and of course, the correlative duty exclu- sively devolved upon him, of instituting by indictment un- der his sanction and authority of all criminal prosecutions for indictable -offenses and prosecuting them in the Court ; and this is pre-eminently his appropriate constitutional function as a State officer. And under the constitution it can be filled by the appointment of the Governor only. And such being the case, the Legislature has no power whatever under the constitution to oust or remove the incumbent from it, or to supplant him in it even tempo- rarily by appointing others, or by substituting another or other members of the bar to perform the duties, or exercise the power of the office in any case, or to del- egate his official duty, authority and discretion to another in the prosecution of any indictable offense. But the in- dictment itself as drawn was essentially defective, be- cause it contains no averment that the drawing of the al- leged lottery by the defendant was contrary to the pro- visions of the act of cesser, Del. Laws, Vol. 12, Chap. 196, and of the general act in the Rev. Code, Chap. 132 ; and no averment that no indictment for the alleged offense in question had been submitted by the Attorney General to the grand jury of this county within the first three days of the present term of this Court, and which was indis- pensably necessary to be alleged in the indictment, inas- much as it is made by the express terms of the statute appointing them, the condition on which the power and authority of the counsel for the State-in the case to sub- mit it to the grand jury and to prosecute it in this Court, entirely depends. 128 COURT OF GENERAL SESSIONS, &c. Eli Saulsbury. In England the Solicitor General may- prosecute in the name of the crown and on behalf of the King, as well as the Attorney General, and although in general informations ex-officio are filed by the latter alone, it is holden that in case of a vacancy in that office, they may be properly filed by the former, and without its being necessary to suggest on the record the cause of the vari- ance from the usual proceeding. And it appears that in case of the illness of the Attorney General, or his interest in the subject matter, or for other sufficient reason, th^ King may appoint another to sue for justice in his name. I Ch. Cr, Law, 844. But the motion to quash is addressed to the discretion of the Court, and it would be error to do it in a case like this, because the Court will only quash for matter appearing in the body or the caption of the indictment, and not formatter extrinsic to it. Amer. Critn. Law, Sec. 520. 10 Sm. & Mars. Rep. 192. 4 Black. loi. 26 Ala. 58. 22 Ala. 17. 5 Ark. 453. Comegys. We have a statute which provides that if the Attorney General neglects to attend the Courts and per- form his duties, he shall be fined and the Court shall appoint another person to perform them. Del. Laws, Vol. \, p. 57. And the Legislature has the power to abolish the office, for it might appoint a Solicitor General to per- form all the functions and discharge all the duties of his office, or it may by law delegate all the powers of it to any one else. But the Courts usually refuse a motion to quash, for a defect apparent even on the face of the in- dictment when the offense is grave or serious, and will leave the party to his demurrer, or motion in arrest of judgment, or writ of error, i Ch. Cr. Law 300. As to the other objections the Court would observe that there were two sets of counts in the indictment, in both of which it is alleged that the drawing of the lottery by the defendant is contrary to the acts of the General Assembly in such case made and provided, and which, of course, embraced every act which prohibited it. The THE STATE v. MORRIS. 129 other averment insisted on as essential was not necessary, as it was wholly independent of, and had nothing to do with, the offense set forth in the indictment, but was an extrinsic fact to be proved on the trial of it merely in or- der to sustain it. But it is 'the settled practice of the Courts not to quash indictments, except for errors gross and apparent on the face of them. James A. Bayard, for the defendant. The act involves a usurpation of power on the part of the Legislature to appoint in a mode not known to the constitution, persons to perform duties devolved by it on the Attorney General in criminal prosecutions. He is the public prosecutor of the administration of criminal justice in the State, and if not the only, is the highest, law-officer in it. And the of- fice is as clearly established by the constitution for the prosecution of criminal cases when by indictment, as the Judges are who constitute the Courts which hear and de- cide them, and their respective offices are filled in like manner by the appointment and commission of the Gov- ernor solely, the Judges during good behavior, and the Attorney General for the term of five years, if he shall behave himself well so long in said office, and if he does not, the constitution further provides for his removal from it ; and neither his duties or his powers for this purpose can be transferred by the Legislature to another in any case whatever, nor can the office be abolished without amendment and alteration of the constitution in the sev- eral distinct provisions in which it is expressly recognized as a State office existing under it. In every indictment founded on a statute, all that is essential to constitute the offense under the statute must appear in the indict- ment by the necessary averments, and if any such aver- ment is wanting in it, it is a good ground for a motion to quash it. The gentlemen who appear as public prosecu- tors in the place of the Attorney General in this case, are but temporary agents of the Legislature acting under a special authority, and if it were valid, would they not be 130 COURT OF GENERAL SESSIONS, &C. bound to show affirmatively that they were proceeding in all material respects, in strict conformity with it ? Now, all the powers purporting to be conferred upon them are purely conditional by the express terms of the act, the first of which is the power to prepare in their own names in behalf of the State, a bill of indictment and to submit it to the grand jury of this county in every such case as they allege this to be, while that condition on which it entire- ly depended was, unless such indictment or indictments should be submitted by the Attorney General to the same grand jury within the first three days of the then next en- suing term of the Court of General Sessions in this coun- ty, and which is the present term of this Court. The in-, dictment before us shows that it was prepared by them, signed with their names, instead of with the name of the Attorney General, and was submitted by them to the grand jury, and that it has been found and returned to this Court by that body, but not a word is alleged in it in regard to the express condition on which their power to draw, sign and submit it to the grand jury, absolutely de- pended. And under the special authority thus condi- tionally conferred upon them, was it not on the plain- est principle of logic, as well as pleading, just as necessary that the occurrence of that condition pre- cedent should be alleged in the indictment, as that it should be alleged or appear on the face of it, that they prepared, signed and submitted it to the grand jury.'' On the other point our position is this. Under the act of the last session, no one, neither this defendant, nor nor any one else, can be indicted for drawing a lottery, unless it affirmatively and satisfactorily appears that he drew the same under a pretended right claimed by him under the lottery act and grant of the Legislature in 1859, and which had been declared forfeited by the act of the Legislature in 1862, contrary to the provisions of the act last referred to, and the provisions of the general stat- ute on the subject contained in the Revised Code. Be- cause the power conferred on these agents to indict and THE STATE v. MORRIS. 131 prosecute is not only a special and specific power, but the offense to which it Applies is special and specific, while the jurisdiction of the Court under the act of 1862 is also special and specific, for by the terms of these acts it is ex- pressly restricted and confined to the offense of drawing a lottery only when it is committed by any one under a pretended right claimed under the act of 1859, and which, as he had before remarked, the Legislature had declared forfeited by the act of 1862. And yet, nowhere is it al- leged in the indictment that the drawing of the lottery for which the defendant is indicted, was made by him un- der such a pretended right or claim ; nor is the particular character of the offense, or the special and specific offense for which alone he could have been indicted under this special act, any where alleged or defined in the indict- ment. The ofifice of Attorney General in this State was derived with the body of our law, criminal as well as civil, from the mother country, where he is a great ofificer under the King and appointed by him to prosecute for the crown in matters criminal especially, and is clothed with a high ofificial discretion, and is the sole judge as to the necessity and propriety on the law and the facts involved in such cases of instituting indictments in them ; and here he is a high constitutional ofificer of the State appointed by the Executive to prosecute for and in the name of the State by indictment in criminal cases here, and is clothed with a like ofificial discretion and judgment in regard to the necessity and propriety of instituting such prosecu- tions. And it had been judicially decided in the State of New York that when the Legislature assumes the power to take from a constitutional ofificer the substance of the ofifice itself, and to transfer it to another who is to be ap- pointed in a dififerent manner and is to hold it by a differ- ent tenure than that provided for by the constitution, it is not a legitimate exercise of the right of the Legislature to regulate the duties or emoluments of the ofifice, but ah infringement upon the constitutional mode of appoint- ment. Warner V. The People, 2 Denio2Zi. 132 COURT OF GENERAL SESSIONS, &C. The Court, a majority of whom held that as the office of Attorney General in this State is provided for and rec- ognized in several clauses of the constitution, it is a con- stitutional office of the State, and as the mode of filling it established by the constitution is by executive appoint- ment without the approval or concurrence of either branch of the Legislature, and tenure of it is for a term of five years, it was not within the constitutional power and au- thority of the Legislature to enact the provisions of the statute specially referred and objected to in this case, and that of itself constituted a good and sufficient ground for quashing the indictment ; and ordered it to be quashed, Gilpin, Chief Justice, dissenting. COURT OF OYER AND TERMINER. The State v. Lewis List. If a constable or a police officer is publicly assaulted and fired at with a pistol by one who had a previous grudge against him, and returns the fire and the latter then turns and flees and is pursued by the officer to his own dweUing-house, but before he can get the door entirely closed against him, and whilst he is struggling with all his strength to do so, the officer violently forces it open and rushes in with his pistol cocked in his hand, and is instantly shot and killed in the house by the latter, the killing will not be justifiable homicide or murder of the first or second degree, but as it was intentional it will be voluntary manslaughter ; for if the officer's purpose was simply to arrest him for the offense just before committed in firing at him, the anger, passion and violence with which he forced his entrance into the house with a cocked pistol in his hand, and without first de- manding to be admitted, exceeded the limits of his official authority to make it, and rendered the attempt to do so in the manner pursued by him unlawful. New Castle County, November Term, 1863. At a Court of Oyer and Terminer held at this term, Lewis List was indicted and tried for the murder of John R. Baylis, a constable and police officer of the City of Wilmington, in that city on the 9th day of September preceding : and as usual the indictment was for murder of the first degree. The prisoner had been drinking to excess for a day or two before that, and had been to some extent noisy and troublesome on the street in that condition, and had been 134 COURT OF OYER AND TERMINER. roughly rebuked and handled for it the night before by the deceased in his capacity as a peace ofificer and a mem- ber of the city police, and early the next morning com- plaining of this treatment to a neighbor on his casual,ly stepping into his house for a few moments, the prisoner borrowed a loaded six-barrel pistol from him, and stepping out with it in his hand on the street proceeded up it towards the next corner above, where Baylis was then standing leaning against a lamp post with a drawn pistol of a similar description also in his hand. The prisoner was brandishing his in his hand in a violent and excited manner, and threatening to kill any one who attempted to interfere with him as he thus proceeded up the street. They had each in the mean while cocked their pistols, and on the prisoner's reaching the distance of half the square from the corner where Baylis was still standing leaning against the lamppost, the latter called out to him in a defiant tone to " fire away !" when the prisoner instantly fired one shot from his pistol at him, but with- out any effect, and which the deceaseid immediately returned with one discharge from his at him, but likewise without any effect. The prisoner then fired a second time at the deceased, and the deceased immediately afterwards a second time at him, and with the like results in both instances. The prisoner then turned about and ran down the street past the front of his dwelling-house and up an alley into the kitchen of it, rapidly pursued by the de- ceased in a very angry and excited mood, swearing he would kill him, up to the door of it, which the prisoner had endeavored to close against him immediately on entering it, but without being able to get it quite closed and fastened before the deceased had reached it, when a brief struggle immediately ensued between them, the one by main strength on the inside to hold it as nearly closed as then could be, and the other on the outside to force it open and effect an entrance into the kitchen. No demand however was made of the prisoner by the deceased for his surrender, or for his admission as an officer for the THE STATE v. LIST. 135 purpose of arresting him for the offense which he had just committed, on the contrary, he was excited, angry and violent, and with his pistol in his hand soon forced his way by his superior strength into the kitchen, hurling the prisoner back from the door half across the room as it was then irresistibly forced open by him. Several pistol shots then immediately followed in the kitchen when Baylis fell to the floor and soon expired. One of theni afterwards extracted from the wood-work of it was too large for the calibre of the prisoner's pistol, but was of the proper size for that of the deceased. The testimony showed that his death was caused by three small bullet wounds, one in the neck and two in the head, and that both of the last were mortal. Gray, Deputy Attorney General. The indictment was for the crime of murder of the first degree in killing a public officer in the performance of his official duty, and in unlaw- fully resisting his attempt to arrest the prisoner for an assault and battery committed on him with the intent to murder him by the prisoner, which was a felony, and which the evidence clearly showed -was not only commit- ted with premeditation and malice, but that the killing of him which soon after followed was prompted by the same feeling of revenge and animosity, and was therefore com- mitted with express malice aforethought. The firing of the pistol at the deceased by the prisoner and his flight and attempt to escape from arrest for it, and the pursuit and attempt by the deceased to arrest him for it, as he not only had a right, but was legally and officially bound to do, if practicable, had been particularly detailed in the evidence, and showed that the escape of the prisoner to his own house and his ineffectual effort to close the outer door of the kitchen and prevent the entrance of the swift pursu- ing officer, instead of qualifying or mitigating the offense of killing him, only aggravated it, as it converted his flight from arrest into a most violent, fatal and murderous resist- ance to it. I Russ. on Crimes, 447. 449. 136 COURT OF OYER AND TERMINER. Gordon for the prisoner. The jury should be satisfied fi-om the evidence in the case just as they should be in regard to any other material fact essential to be proved in it, that when the prisoner fired his pistol twice on the street at the deceased on the commencement of the aiifray and duel between them at the instigation of the latter, that it was his intention then to kill him in order to constitute it a felony ; but even, if they should be satisfied that such was the fact and it was a felony, and they should be further satisfied that after having fired the two shots with- out any effect, he endeavored to decline any further contest with the deceased, and for that purpose, or to avoid arrest, turned and fled down the street pursued by the deceased to the sanctuary of his own dwelling-house, with an oath and a threat that he would kill him, and that after the prisoner had reached it and taken refuge in it, the deceased with great anger and violence proceeded as soon as he had reached it to break or force open the outer door of it, and to make his way into it with his pistol cocked in his hand, and with the intention to carry that threat into execution, then it was a case of killing in self- defence on the part of the prisoner, and it was under those circumstances justifiable in law. Or if the jury could possibly believe on the evidence before them that his inten- tion merely was to arrest him when he forced open the door and effected his entrance with so much passion and violence into the house, but at the same time should be satisfied under the instruction which he would now ask the Court to give them on that point, and that was, that on the facts proved the deceased had clearly exceeded the limits of his lawful authority as a constable and a police officer in the violent manner in which he forced open the door and broke into the house, even if his pur- pose and intention solely was to arrest the prisoner, then and in that case the killing was excusable on the part of the prisoner ; and therefore in either case he should be ac- quitted. 3 Greenl. Ev. Sec. 1 1 6. State v. Mahon, 3 Harr. 568. Wootten, Attorney General, replied. THE STATE v. LIST. 137 The Court, Houston, J., charged the jury. The fact of the killing of John R. Baylis by the prisoner, Lewis List, in the City of Wilmington on the ninth day of September last, and that Baylis was at the time a constable and police officer of the city are proved and not denied. At common law the crime of murder consists of the killing of any person under the peace of the State, with malice prepense or aforethought, either express or implied by law ; and in either case it consists at common law of but one degree. By a comparatively recent statute of our State, however, the crime has been divided into two degrees, as they are termed, that is to say, into the crime of murder of the first degree, and the crime of murder of the second degree ; and in describing and defining them it provides that every person who shall commit the crime of murder with express malice aforethought, or in perpe- trating, or attempting to perpetrate any crime punishable with death, shall be deemed guilty of murder of the first degree and of felony, and shall suffer death ; and every person who shall commit the crime of murder otherwise than is set forth in the preceding provision, shall be deemed guilty of murder of the second degree and of felony, and shall be fined at the discretion of the Court, shall stand one hour in the pillory, shall be whipped with sixty lashes, and shall be imprisoned for life, if a white person, but if a negro or inulatto, shall be sold as a servant to the highest bidder, for life. Express malice afore- thought is therefore the general characteristic of the crime of murder of the first degree under the statute, and and except where murder is committed in perpetrating, or attempting to perpetrate, any crime punishable with death, it is the essential and indispensable ingredient of it. For a definition of the crime of murder with express malice aforethought the statute silently remits us to the common law where it has been long ruled and recognized to be when one person kills another with a sedate delib- erate mind and formed design, such formed design being evidenced by external circumstances showing the inward 10 138 COURT OF OYER AND TERMINER. • intention, such as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. And where this sedate deliberate mind and formed design to do the bodily harm is wanting, or the external evidences in the case fail to show such a sedate deliberate mind and formed design to the satisfac- tion of the jury, the killing cannot be deemed to have been committed with express malice aforethought, or to constitute the crime of murder of the first degree under the statute. And the language of the statute which provides that every person who shall commit the crime of murder other- wise than with express malice aforethought, or as is set forth in the first provision of it, also remits us to the com- mon law for the meaning and intention of it, and the import of which is that every person who shall commit the crime of murder otherwise, that is to say, not with express malice aforethought, but with malice aforethought implied by law, shall be deemed guilty of murder of the second degree under it, and shall be punished accordingly. But notwithstanding this kind or degree of malice afore- thought under the statute is not express,but implied by law, it is susceptible of direct and positive and circumstantial proof as well as express malice, for the law never implies it without sufficient evidence apparent to the satisfaction of the jury in the case to warrant the inference of it. Malice aforethought is implied by law from any deliberate, cruel act committed by one person against another, however sudden, as if one person kills another suddenly without any, or without an adequate provocation in con- templation of law to reduce the killing to the crime of manslaughter, the law will imply that it was committed with malice aforethought ; and wherever the act with- out such provocation is committed with deliberation, cruelty, or indifference to its consequences, but not with express malice, or in a way, or with means likely to pro- duce death, the law will imply malice aforethought from the act itself, notwithstanding no particular enmity, THE STATE V. LIST. 1^9 resentment, or hatred against the person killed can be shown on the part of the person killing ; and in all such cases the killing will constitute the crime of murder of the second degree under our statute. Manslaughter may be defined to be the oiiFense.of kill- ing a human being without malice, either express or implied, but under such circumstances as cannot render it wholly innocent, or excusable or justifiable in law. When the killing is done in a sudden transport of passion and heat of blood on a sufficient provocation in contemplation of law, it is imputed by the benignity of it to the weak- ness and infirmity incident to our nature, which negatives, even the implication of malice, and which is essential, at least, to constitute murder of the second degree under the statute, but which is nevertheless criminal and felo- nious, for it also constitutes a high crime under our laws, and is punishable with fine and imprisonment and the infamy which follows as a legal consequence in all cases of felony. And of this crime there are two classes, vol- untary and involuntary manslaughter. The first is where the killing is intentional, but is done in a sudden heat of blood under such a provocation as the law considers suffi- cient to repel the presumption or implication of malice aforethought, and to negative the existence of that calm- ness and deliberation which is essential to constitute it, as in cases of mutual combat where the parties have become involved in the fight without any preconcert between them for the purpose, or any premeditation and prepara- tion for it on the part of the slayer, and it was done in the heat of passion produced by it, suddenly, without previous premeditation or preparation, and before there is time for the blood to cool, or that sudden transport of passion to subside ; and the more dangerous and deadly the instru- ment or weapon used and with which the killing is inten- tionally done in such cases, the more rigid and exacting is the rule of law on this subject, in order to reduce it from the crime of murder of the first or second degree 140 COURT OF OYER AND TERMINER. under our statute, to that of voluntary manslaughter, as it is known and defined in the law. It is not necessary however on this occasion to advert to the other well- known, but comparatively limited classes of cases in which it has been held, and is now well settled, that the provocation may be sufficient to mitigate and reduce a voluntary act of homicide from the crime of murder to that of manslaughter at common law ;, nor is it necessary now to say more in regard to the other class of cases referred to, and denominated cases of involuntary man- slaughter, than to remark generally that the prominent cases of this kind occur where the killing is not done intentionally, but is the result merely of gross and culpa- ble negligence on the part of the accused m the relation held by him at the time to the deceased. But it has been contended in this case on behalf of the prisoner that he is entitled to an entire and absolute acquittal on the evidence before you, because he shot and killed the deceased in self-defense in an unlawful and violent assault made upon him with a loaded pistol in his own house, after he had abandoned and retreated from the preceding contest between them on the street, and had taken refuge from him in it ; and the counsel for the prisoner has asked the Court to so instruct you. The evidence is before the jury, and there is no occasion for our repeating it. We will say, however, with reference to this defense that excusable homicide se defendendo, or in self-defense occurs in law when a person is assaulted upon a sudden affray, and in defense of his person where certain and immediate suffering of some serious and dan- gerous injury in his person would be the consequence of waiting for the assistance or protection of the law, and there was no other probable means of escape from it he kills the assailant. And in such case it is excusable or justifiable homicide. But to reduce homicide even in self- defense to this character and innocent complexion, it must be shown that the party killing was closely pressed by the party killed and had retreated as far as he conven- THE STATE v. LIST. 141 iently or safely could in good faith with the honest intent to avoid the violence of the assault ; and the jury in such case must be satisfied that unless he had killed the assail- ant, he was in imminent danger of losing his own life, or of suffering some great bodily harm. It closely borders on the crime of voluntary manslaughter as before defined, for in each it is alike presupposed that violent anger and passion has been excited on both sides, and that blows, or what is equivalent to them, have passed between the parties, but with this distinguishing difference between them, that in manslaughter it must appear, either that the parties were actually engaged in mutual combat when the mortal stroke or wound was given, or that there was not time for the passion afterwards to subside before giving it, or that the slayer was not in imminent danger of being killed by his assailant, or of otherwise being grievously injured by him in his person ; while in homi- cide, excusable or justifiable on the ground of self-defense, it must appear either that the slayer did not begin the fight, or that having begun it, he endeavored to decline and avoid any further conflict, and being afterwards closely pressed by his antagonist, he killed him in defense of his own life. It is also a well settled principle of crimi- nal law on this subject that if a person engaged in a sudden affray quit the combat before he has inflicted a mortal wound on his antagonist, and retreat and fly as far as he can with safety, and then impelled by sheer neces- sity kills his adversary in defense of his own life, it is excusable homicide. It differs from manslaughter in the particular before adverted to, that in manslaughter the mutual combat is assumed to continue until the mortal stroke or wound is given, or that the heat and passion engendered by it so continues on the part of the person giving it ; but in excusable homicide of this character the slayer must have declined the combat and retreated as far as he safely could before the mortal stroke was given, and then only in defense of his own life, or to save him- self from some great bodily injury. And just here we 142 COURT OF OYER AND TERMINER. would say that on this point it is also a well settled prin- ciple of law that every man's house is his castle, and is considered his best and safest place of refuge in such case, and that no one is required to retreat or flee from per- sonal danger further than the security of his own dwell- ing in such cases. And in such a case of excusable homi- cide in self-defense, it is not material which of the parties began the sudden affray, or gave the first blow, or fired the first shot, or whether the slayer had inflicted wounds not mortal before he declined the combat and retreated or fled from it, and from his adversary, because if he declines the combat before a mortal wound is given by him, and retreats as far as he can with safety, or the law requires of him in such a case, he will be justified in giv- ing a mortal wound afterwards in defense of his own life. But at the same time we must further observe to you in regard to the law on this subject, that when in such a case the sudden affray is begun by the slayer, and was prompted by antecedent malice and animosity on his part against the other party which may be inferred from facts and circumstances, and the retreat from the affray is but specious and colorable, and he then turns on his pursuing adversary and kills him, it will be murder, at least, of the second degree under the statute. But these general principles of the law which we have just stated are subject to certain well-known qualifica- tions in the case of a public officer when he is acting in the due execution of his office and is clothed with the sanction and the powers of it, and his death is the result of unlawful resistance to his authority in his efforts to arrest the slayer. All ministers and officers of justice, such as sheriffs, constables, bailiffs, watchmen and police- men while in the execution of their office are under the peculiar protection of the law, for without it the public peace and tranquility could not be maintained, nor would either life or property be secure against the lawless ; and for these reasons the killing of public officers in the per- formance of the duties of their office, has been deemed THE STATE v. LIST. 143 murder with malice aforethought, as being an outrage willfully committed in defiance of the justice and author- ity of the State. But this protection of the law extends only to public officers, who have authority to arrest and imprison, (and their assistants,) and who use that author- ity in a proper and lawful manner, for it is well settled that any .material or substantial defect in the authority of the officer, or in the legality of the process with which he is armed, or in the regularity of the proceeding on his part, will, in general, have the effect to extenuate the crime of killing him and reduce it from the grade of mur- der to that of manslaughter in such a case. The authori- ties and decisions on this point warrant us in stating generally that when such an officer in executing his office, as in making an arrest, or attempting to make an arrest on the commission of a felony, or a breach of the peace, proceeds irregularly and transcends his author- ity, and becomes a wrong doer and a trespasser himself in the eye of the law, it affords him no protection or im- punity in such excess ; and if in so doing he be killed, the offense will amount to no more than manslaughter in the person whose rights and liberties have been so violated and invaded by him. If such an officer, however, pro- ceeds irregularly or illegally and exceeds his official authority in his efforts to apprehend a person at the time legally liable to arrest, and is opposed and resisted with force and violence and killed by him, that fact cannot of itself constitute a case of excusable homicide in self- defense, or reduce it below the crime of manslaughter at least. As to the manner in which such an officer should pro- ceed to make an arrest, it is not easy to prescribe any precise and definite rule under the varying circumstances and degrees of force and resistance which he may be des- tined to encounter in the legitimate discharge of his haz- ardous and responsible duty. But there is one rule well settled on the subject, and it is this, when a criminal offense of the grade of felony has been committed in the 144 COURT OF OYER AND TERMINER. view of the officer, he may at once proceed at his own in- stance and by virtue of his official authority without any pro- cess or warrant, to arrest the offender, and if resisted in the effort to apprehend him, he may use aiid employ whatever force and means that may be necessary under the circum- stances to overcome that resistance and to effect his arrest. But even when the criminal offense committed in the view of the officer is of the grade of felony, and the offender does not resist the officer, but merely flies or runs away from him to avoid arrest, the conduct of the officer should be cautiously regulated by the nature of the proceeding. For in civil cases, and also in the case of a breach of the peace, or any other misdemeanor or criminal offense less than felony, if the officer should pursue the offender in his flight to escape from arrest, and kill him in the pursuit, it will at least be manslaughter in contemplation of law under any circumstances, and may amount to murder when they are of a wanton, cruel and aggravated character. But if a felony be committed, and the felon fly from justice, the law holds it to be the duty of every man, and still more so, of every police officer, to use his best endeavors to prevent his escape, and to secure his arrest ; and if in the pursuit the party flying be killed, where he cannot be otherwise overtaken, it will be deemed in law justifiable homicide. And the importance of this distinction which we have just noticed, and the application of it to this case, will be seen when the jury comes to consider the evidence before them in relation to the beginning of the difficulty between the prisoner and the deceased on the morning of the 9th of September last, and which resulted in the death of the latter in a short time afterwards. For if the jury be- lieve from the evidence that the prisoner began the affray between them by firing a pistol at Baylis with intent to kill him, and that he was at the time near enough to him to have killed him, had he hit him, it constituted an assault and battery with intent to murder him, which is made a felony by express provision of our statute ; but should the jury not be satisfied from the evidence that he fired a THE STATE v. LIST. 145 pistol at him with the intent to kill him, it would not have been a felony, but a misdemeanor merely, the intent to kill, as well as the firing of the pistol at him, being indis- pensably necessary to constitute the act a felony. But without commenting on what immediately preced- ed or immediately followed the firing of the first pistol- shot by the prisoner, on the part of either of them accord- ing to the evidence, we must say to you that if the pris- oner afterward turned and fled from the street to his house pursued by the deceased, and shut the outer door against him, and endeavored to hold it closed against him to pre- vent his entering it, and the latter proceeded at once with force and violence and in an angry and threatening man- ner with a pistol in his hand and with threats on his lips to kill the prisoner, to force the door open, and so effected his entrance into the house, the proceeding, to say the least, was grossly irregular on his part as a public officer, and exceeded the proper limits of his official authority in making an arrest, even under such circumstances ; and if in the violent rencontre which immediately ensued be- tween them with pistols in the hands of each of them in the house, the prisoner shot and killed Baylis, the killing would amount to the offense of manslaughter only. For if the jury should be satisfied from the evidence that the assault and battery committed by the prisoner on the deceased before he fled from the street to his house by shooting at him with his pistol, and that it was done with the intent to kill him, and that it therefore rvmounted to a felony, the deceased as a constable or a police officer, would not have had authority in law to proceed with force or violence to break open the door for the purpose even of rhaking a peaceable arrest simply, without previously and formally notifying the prisoner of his business and pur- pose to arrest him peaceably, and a demand to enter for that purpose, and the refusal of that demand by the prisoner ; and, of course, equally irregular and unvy^arrant- able, if not more so, would such a proceeding have been on the part of the deceased, if the .offense for which the 146 COURT OF OYER AND TERMINER. prisoner was to be arrested in such a manner, had been but a misdemeanor instead of a felony. If such then were the facts of the case according to the evidence before the jury, the Court were bound to say to them, that the prisoner having fled to the sanctuary of his own dwelling, and shut himself up in it, as best he could, Baylis, the deceased, had transcended his authority as a public officer in his violent attempt at once to force his way into it, even if his purpose was merely to arrest him. Had he gone to List's door, notified him of his business and pur- pose, and demanded his surrender, and he had refused to give himself up to him as his prisoner, he would then have been warranted and justified in forcing an entrance into it through the door by breaking it open, if necessary, and yet even in that case he should have proceeded to make the arrest as peaceably and gravely as possible, and without angry menaces or threats of vengeance or violence. It could not, however, justify or wholly excuse the killing of him by the prisoner under the circumstances, or mitigate or reduce the offense in law below the crime of man- slaughter. Verdict — Not guilty. The State v. Rosannah R. Gardner. When one of two persons engaged in a mutual combat, suddenly seizes from a number of knives lying on a table near at hand, and exhibits sufficient thought, reflection and discrimination to select one more dangerous and deadly than the rest, and stabs the other with it, and death ensues, it will be evidence of express malice afore- thought, and murder of the first degree under the statute ; and this conclusion of law is only the stronger when the party thus killing the other with such deliberation and formed design to kill her, or do her some great bodily harm, has had time after the combat has ceased between them, for her blood to cool and for reason and re- flection to regain control over her passion. New Castle County, May Term, 1864. At a Court of Oyer and Terminer held at this term Rosannah R. Gard- THE STATE v. GARDNER. 147 ner, negro, was indicted and tried for the murder of Martha Ann Segreave, negro, of the first degree. The proof was that the parties were friends and Staying at the time at the house of a friend of theirs in the city of Wilmington, and that they had been out together in the early part of the evening, and on their return and re-entering it the deceas- ed was weeping and said to the mistress of it that she had something to tell her, when the prisoner exclaimed that she was a liar, and should not tell her, to which the deceased replied that she would tell her, or slap her in the mouth. The prisoner then stepped up before the de- ceased and defied her to slap her in the mouth, which she did, whereupon a scuffle and fight ensued between them, but they were soon separated and turned out into the yard of the premises, where no further collision occurred be- tween them. Both had been drinking, and were some- what intoxicated. They then re-entered the house and after some further angry words between them, the deceas- ed laid down on a bed in the room, and the quarrel seem- to have entirely ceased between them, but after a few moments the prisoner rose from her seat and went round the bed and struck the deceased lying upon it two or three blows with her fist, who immediately sprang up from it prepared again for battle, but the prisoner at once reced- ed from the position across the room to a table and seiz- ed a sharp pointed one from a case of table-knives lying upon it, and with it drawn in her right hand started again towards the deceased, when another woman who inter- posed and placed herself between them to keep them apart, seized and snatched the knife from her hand .and threw it back on the table, when the prisoner seized the knife again from the table and advancing towards the de- ceased, said to the woman who still stood between them, that if she did not get out of her way she would cut her, or any other nigger wench who stood in her way, and who at once moved aside, when she stepped up to the deceased with the knife drawn back in her right hand and stabbed her with it in the upper and anterior portion of her 148 COURT OF OYER AND TERMINER. right thigh. This occurred about 9 o'clock in the evening, and although a physician was immediately sent for and who arrived before 10 o'clock, the flow of blood from the wound which had been very great, had then ceased and the deceased was so far exhausted by the loss of it, that she was then past recovery, in his judgment, and expired about 7 o'clock the next morning. The knife had pene- trated the thigh to the depth of two inches, and had cut the femoral artery. The prisoner, as soon as she discov- ered what she had done, threw herself on the bed and ex- claimed that she had stabbed Martha, that she would die, and she would be hung for it, but soon after rose from the bed, manifested much concern about her and her condi- tion, called for salt to staunch the flow of blood, and for some time supported her head upon her arm as she lay bleeding on the floor. The Court, Gilpin, C.y., charged the jury . After defining the crime of murder of the first and second degrees, un- der the statute, and also the crime of manslaughter, and reading the definition of express malice aforethought as stated in i Russ. on Crimes, ^%2, that the instances there- in mentioned were only illustrations of the meaning in- tended to be conveyed by the definition, but that there were other illustrations or instances of express malice aforethought in cases of murder at common law and un- der our statute which were equally true and apposite, al- though not specifically mentioned or referred to in that definition. As for instance where two persons become in- volved in mutual combat and one of them in the midst of it turns to seize a weapon or a dangerous instrument from a number near at hand, and in so doing he exhibits sufficient thought, reflection and discrimination to choose and select from them one in particular more dangerous, and deadly than the rest, and shoots, strikes or stabs the other with it, although done quickly and on the spur of the moment, it may show such deliberation and formed design to kill, or do the other some great bodily harm THE STATE v. GARDNER. 149 with it and death results from it, as will constitute in contemplation of law murder with express malice afore- thought, and the crime of murder of the first degree un- der our statute. And of course, this conclusion of law is only the stronger when the party thus killing the other with such deliberation and formed design to kill her, or do her some great bodily harm, has had time -after the combat between them has ceased, for her blood to cool and for reason and reflection to regain control over her passion. Because every one must be presumed to intend the nat- ural consequences of bis own act when committed with such a degree of deliberation and design, as is thus evinced by the party inflicting the fatal wound. Nor can it alter or mitigate the grade or degree of the murder that the party was at the time in part excited or inflamed with in- toxicating liquor, as well as anger and passion, or was in^ toxicated, if she had sufficient knowledge, thought and re- flection left to be able to exercise and to show such delib- eration and choice and to form such a design. The Chief Justice then briefly recapitulated the facts proved in the case and added that if upon the evidence the jury should entertain a reasonable doubt on that point, as to the deliberation and design formed by the prisoner under all the facts and circumstances proved, to stab the deceased with the knife as proved in the case, she would be entitled to the benefit of it, and in such case she should 1 ot be convicted of murder of the first degree, but whether of murder of the second degree or of manslaught- er it would be for the jury to determine from all the facts and circumstances proved in the case, but if they should not be satisfied beyond a reasonable doubt that there was not sufificient time after the personal collision and conflict between the parties had ceased, for her blood to cool and her passion and fury to subside, so as to enable her to re- sist the impulse of it, and to restrain herself from seizing the knife in question and stabbing the deceased with it, as detailed in the evidence and not contradicted, the killing ISO COURT OF OYER AND TERMINER. could not be mitigated and reduced to the crime of man- slaughter in contemplation of law. Verdict — Guilty of murder of the second degree. McCaulley, Deputy Attorney General, for the State. Alder dice, for the prisoner. The State v. John Brister. Unless a confession taken before a Justice of tlie Peace and reduced to writing by him at the time, is read by him to the accused and is ap- proved and signed by him, it will not exclude parol evidence of it. But parol or verbal confessions in cases of felony should always be received with scrutiny and caution, and although admissible in evi- dence, the jury may discredit them, if all the proof in the case shall appear to warrant them in doing so. On an indictment and trial for arson the Court instructed the jury to acquit the prisoner, because it was not alleged in it that it was com- mitted feloniously. New Castle County, May Term 1864. At a Court of Oyer and Terminer held at this term, John Brister, a negro boy about fifteen years old, was indicted and tried for the crime of arson in setting on fire the dwelling house of James Davis, in St. George's hundred. He had been sent by his master, James Williams, to whom he was in- dentured as a servant, to Mr. Davis to work for him on his farm, who had whipped him for not working as he should, for which he ran away a few days afterwards, and on the Saturday night following about 10 o'clock he went over to his mother's house to look for him, without find- ing him, but on his return about one hour afterwards, found his house on fire and nearly burnt down, and the prisoner there sitting on a log looking at it which had then just fallen in, and also a good many of his neighbors there who had collected at the fire. He further testified that THE STATE v. BRISTER. 151 the prisoner staid there all that night, and did not try to leave, so far as he knew, but he told him not to go away, for he suspected him of having set it on fire, which, how- ever, he denied, as well as to others present who also charged him with it ; and that by his orders he went into the smoke house and staid in it all that night. The next morning he had him formally arrested for it and taken before a Justice of the Peace at Middletown. Thomas R. Hayes testified that the prisoner worked for him the Friday and Saturday before the house was burnt down on the night of the latter day. He had driven from home that day and returning in the evening, he told him to take his horse and carriage and turn him out, but that he was gone so long he became concerned about him. and went to look for him, without at first find- ing him, but went again about 9 o'clock into an out field, after Mr. Davis' house had been set on fire, where he saw him and called to him, when he dropped the bridle which he had taken from his horse, and ran off in the direction of Mr. Davis'. The Justice of the Peace testified that on the hearing before him the prisoner made a statement in regard to the matter of the offense charged against him, and that his impression was that he took some notes in writing of what he said, but he could not say positively, nor could he say whether he filed any confession in writing made by the prisoner before him, or that the prisoner signed any con- fession of the offense reduced to writing by or before him. He was then asked the general question what the pris- oner then said in regard to the burning of the house. Gray, for the prisoner, objected to the question. It was against the English rule, at least, if it was not against the rulings of this Court in such cases. By the English rule a confession made on examination before a Magistrate, must be taken in writing and signed by the Magistrate, as required by statute, 7 Geo. IV. c. 64, and parol evi- 152 COURT OF OYER AND TERMINER. dence of such a confession could not be admitted unless it is clearly proved not to have been reduced to writing, which would, of course, be the best evidence of it. Steph. Cr. Law, 27 Law Libr. 572, 573. i Phil. Ev. 82, note a. I Greenls Ev. Sec. 227. 2 Russ. on Crimes, 6^6. McCaulley, Deputy Attorney General, replied that such had not been the rulings in this Court. The Court. The provisions of the statute of George the Fourth are different from those of our statute, and the rulings of our Courts have not been so rigid as those of England on the point presented in the objection. For our statute requires not only that the confession shall be reduced to writing by the Magistrate, but that he shall read it as thus reduced to writing to the accused, and tender it to him for his approval and signature ; and yet our Courts have uniformly held that unless it satisfactorily appears to the Court that this has been done, and further- more that the prisoner approved and signed it, parol evi- dence of the confession is admissible. The witness then stated that he said he went over to Mr. Davis' house that night and sat down on an old and dry chestnut fence post, one end of which was under the house, and took a match out of his pocket to light a segar, and which he struck on the log and dropped on it after lighting the segar, and looking around soon afterwards he found it had set fire to some loose dry bark inside of the log and run under the house and set fire to it. Another witness (Wm. Giles) testified that he observed the fire about 10 o'clock that night and ran over to Mr. Davis', and when he reached the house Benjamin Armstrong and the prisoner were there, and were trying to put the fire out. They were on the top of a shed covered with straw apparently made for cattle near to, but not attached to the dwelling house, which was, then on fire and burning freely. The prisoner was atout there all that night, and THE STATE v. BRISTER. 153 he told him several times during the night that he must have set fire to it. He however said he did not, but the next morning after Mr. Hayes had whipped him, he asked him if he did not set fire to the house, to which he replied that he did — that he took out a match to light on a log that run under the house, and lighting it on the log it blazed right up and set fire to the house. Gray asked the Court to instruct the jury on the evi- dence before them of the severe whipping which the pris- oner had received that morning from Mr. Hayes, of his being dragged soon after with his hands tied behind a horse and carriage two miles to Middletown before the Magistrate, his age, color and condition in life, his ignorance and in- experience, and the improper manner in which it appeared the examination of him in regard to the accusation had been conducted by that officer, assuming his guilt as a fo^-egone conclusion, and without any admonition or inti- mation whatever given him as to the rights and privileges secured to him under the circumstances, and under the charge too, for a capital offense, and dictated by a car- dinal and humane precept of the law itself — even com- mencing it at the very outset with the abrupt enquiry, why he set fire to Mr. Davis' house, and the most of which had only been made to appear on the cross examination of the Magistrate, that it was not such a free and volun- tary confession as was justly entitled to any credit or consideration, or even to admission in evidence before the jury. I Greenl. Ev. Sees. 219, 216. Rex v. Wilson, 5 Eng. C. L. R. 192. Amer. Cr. Law 319. 2 Russ. on Crimes, 648. McCaulley, Deputy Attorney General, There were no improper means employed to induce the confession. There were no threats or promises made, or hope or idea of any benefit or advantage suggested to induce the prisoner to make it, and therefore there could be no ground for im- peaching the force and validity or disputing the admissi- bility of it. II 154 COURT OF OYER AND TERMINER. The Court, Gilpin, C. J., charged the jury, that a parol or verbal confession of guilt on an accusation of a feloni- ous offense when uncorroborated by any other evidence, should always be received with scrutiny and caution, but a free, deliberate and voluntary confession when proved to the satisfaction of the jury, is entitled to great weight in determining the question as to the guilt of the accused. In this case the Court declined to rule out the parol tes- timony of the Magistrate in relation to the admissions made by the prisoner on his examination before him and those made also before another witness, because the rulings of the Courts of this State on that point appeared to us to require that they should be admitted. But that deci- sion was simply on the legal question as to the admissi- bility of parol evidence under the circumstances disclosed of the prisoner's alleged confession or admissions ; for if the jury should believe from all the evidence before them that they were not freely and voluntarily made, or were not true in point of fact, or were made under fear or ap- prehension of further corporal punishment and chastise- ment, or under the hope and belief that it would be better for him to admit the charge than to deny it, but that he did not in fact commit the crime, then they would not be bound to credit his statement and admissions, but should discard them entirely from their consideration in making up their verdict in the case. The crime with which he stands charged is arson, which is not only a felony, but a capital felony under our statute ; and inasmuch as it is by the common law and by the law of this State, a well set- tled principle of criminal pleading that whenever a crim- inal offense of the grade of felony is charged in an indict- ment, it must be alleged among other averments that the offense was committed feloniously, and yet we are bound to say to you in this case that this allegation we find is wanting in this indictment, and for that reason we are further bound to say to you that you ought to acquit the prisoner. Verdict — Not guilty. COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. John R. Williamson. A, having four bank notes folded together in his pocket book, consist- ing of two one hundred dollar notes, a fifty dollar note, and a ten dollar note, went to the store of B to pay him two dollars which he owed him and told him he had come to pay it, and by mistake took from it one of the hundred dollar notes instead of the ten dollar note, and handed it to B, at the same time apologizing to him for handing him a ten dollar note in paying so small a bill. B took the one hundred dollar note, looked at it, and then went with it to his money drawer, opened it and looked in it, and then told him he could not make the change, but he would step out and get the change in the store next to his, which he did, and soon returned and handed him eight dollars as his change foir it. This occurred on Thursday evening after the lamps had been lighted in the store, but A did not discover his mistake until the following Satur- day, when B alleged that he had committed no mistake, that he had given him a ten dollar note, and not a one hundred dollar note, and that he returned him eight dollars, the right change for it. Held that if B knew that it was a one hundred dollar note, and not a ten dollar note, when he took it from A, and looked at it and went to his money-drawer with it and procured and returned to him the eight dollars as the right change for it, and designedly and fraudu- lently concealed his knowledge of the mistake of A from him, an the guilt or innocence of the prisoner. It would therefore be the duty of the jury, if after they have heard -the discussion of the facts and the evidence in the case, and the charge of the Court, and have maturely con- sidered the same, they should entertain a reasonable doubt as to whether the prisoner was not afflicted with an insane delusion as to the adultery of his wife with the deceased at the time he committed the act, to give the prisoner the benefit of that doubt, and to return a verdict of not guil- ty by reason of insanity, as provided for in the statute. Abner Rogers' Case, 7 Mete, 500. Moore, Attorney General, replied. The Court, Gilpin C. jF., charged the jury. After re- capitulating the facts proved and not disputed in the case, and remarking that if there were no other matters to be noticed in the case, they would constitute murder with express malice aforethought and of the first degree under the statute, but as this was denied upon the ground of in- sanity on the part of the prisoner, he would now proceed to speak of that defense. In former times, — indeed, even as late as the early part of the last century, it was consid- ered by the Courts that insanity, in order to protect a person from responsibility for crime, must be total in its character, either manifesting itself in wild, ungovernable, irrational and incongruous actions, or in stupid and pas- sive imbecility. In other words, it was held that to be insane, so as to protect the party, he must have no more reason than a brute, an infant, or a wild beast. It does not seem to have entered into the conceptions of men at that early day that a person might generally behave in, a perfectly sensible manner, and yet be insane upon some 172 COURT OF OYER AND TERMINER. one or more subjects. They do not seem to have been able to comprehend that he might be capable of reason- ing well or learnedly on most subjects, whilst in respect to some one subject he might be utterly deranged. Such was the old rule of law : — a rule, severe and cruel in the extreme. And I am happy to say to you that in conse- quence of the improvements which have since been made in medical science and jurisprudence, more enligiitened views as to the effect of disease upon the human mind have at length prevailed among men ; and that under the influence of a clearer, a wiser, and more benevolent ap- preciation of christian obligation, the sharp severity and inhumanity of this ancient doctrine has gradually given way, and that now, — at this day, the plea of insanity stands upon the solid ground of humanity, reason and justice. A man may be totally and permanently insane, and in. such case all his acts are excused — he is incapable of com- mitting crime. This is called general insanity. Or, he may be totally, but temporarily insane — that is, altogether insane on all subjects for a time, and insane to such a high degree that for the time being the reason, the conscience, the will and judgment are utterly overborne, overwhelmed, and obliterated, so that an act done during the continuance of the malady cannot be said to be a voluntary act, or the act of a free agent, but the mere act of the body with- out the consent or concurrence of a controling mind, — being the result rather of an irresistible and uncontrollable impulse. For acts done during the existence of such a state of insanity the accused is not criminally responsible. Or a man may be but partially insane, and where this is the case, it is called mono mania, or insane delusion, and this insane delusion consists in a belief of the existence of certain imaginary things as facts, but which are not facts, and therefore, have no existence ; and which no reasonable or rational person could or would believe. Now, whether such partial insanity can be held suffi- cient to exempt a person from responsibility for criminal THE STATE v. DANBY. 173 acts will depend upon the peculiar circumstances of each particular case. The nature, the force and effect of the delusion, the degree of its intensity and controlling power, and whether the act done was committed under the direct and irresistible influence of such insane delusion, are matters of vital importance in determining the ques- tion of responsibility. It is not every wild and frantic humor of a man, or strange and unaccountable language or conduct that will show him to be laboring under in- sanity. The law requires something more than this. Nor is partial insanity, or insane delusion always or necessarily an excuse for crime. On the contrary, it can only be so considered where it utterly deprives the party of his reason in regard to the act charged as criminal. The question is not whether he was insane upon any subject whatever, but whether he was insane in respect to the particular act alleged as constituting his offense. If it were otherwise, there would be an absolute immunity from punishment for crime committed under any species of insane delusion whatever, although such insane delu- sion might not in any degree becloud or obliterate the mental capacity of the accused to distinguish between right and wrong in regard to the particular criminal act with which he stands charged. If he is capable at the time of distinguishing between the right and wrong of that act — if he knows and understands that that act is wrong, he is responsible. But if he has not at the time a sufficient degree of reason to distinguish between the right and wrong of that act — if he does not know and understand that that act is wrong, he is not responsible. And therefore, although he may be laboring under par- tial insanity, if he still understands the nature and char- acter of his act and its consequences, if he has a knowl- edge that it is wrong, and mental power sufficient to apply that knowledge to his own case, and to know that, if he does the act, he will do wrong, such partial insanity is not sufficient to exempt him from responsibility for 174 COURT OF OYER AND TERMINER. crime. This doctrine has been fully and clearly estab- lished by numerous well-considered decisions, both in England and in this country. The enquiry, therefore, in such cases, as you must have already perceived, must always be brought down to the simple, but sharp question of the sanity or insanity of the accused, at the time and in respect, to the criminal act done by him. In this case the criminal act charged against the prisoner at the bar is the felonious killing of John Barnett, with express malice aforethought. To this charge the prisoner sets up the defense that at the time he did theact he was an insane man, and on this ground he claims an acquittal at your hands. And now, gentlemen of the jury, having made these few remarks touching the subject of insanity generally, and in explanation of the principles of law involved in the proper consideration of the question at issue, I now proceed to state to you briefly those rules and tests by the light of which it is your duty as good citizens and sworn jurors to be guided in investigating and consider- ing the evidence before you, and in making up the verdict which you shall feel yourselves constrained to return as the conscientious result of your deliberations. These rules are but few in number, and are as plain and simple as the nature of the subject will admit of. They, in fact, sub- stantially, embody all the learning and all the law on this subject. Whatever difficulty or embarrassment you may encounter in your investigations will, I am sure, mainly arise in applying the facts before you to the law of the case. I do not know that you will have any difficulty of the kind, but if you should, I feel very confident that a careful examination and consideration of the testimony, coupled with an honest and earnest purpose of mind and heart to arrive at the truth, will lead you to a just and satisfactory conclusion of your labors. The first rule, gen- tlemen, is this : Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to the satis- THE STATE v. DANBY. 175 faction of the jury. This rule is primary and fundamental It meets and challenges your attention at the very threshold of your enquiries. The prisoner at the bar, therefore, is to be considered by you to be a sane man and capable of committing crimes, until the contrary be clearly and satisfactorily established by the evidence. You will therefore, gentlemen, take this rule .with you as the very ground upon which you must stand in prose- cuting your enquiries upon this question. Secondly, — Insanity being matter of defense, the onus or burden of showing or proving it lies on the prisoner. It is true such proof may sometimes arise out of the evidence offered by the State, but if it does not so arise, it must be made out from distinct evidence offered on the part of the pris- oner ; in either case it must be clearly sufHcient to prove the fact of insanity, otherwise the presumption of sanity, or soundness of mind will stand unrebutted and in full force. But to establish a defense on this ground, it must be clearly proved that at the time of committing the act of killing, the prisoner was laboring under such a defect of reason from disease of mind as not to know the nature and quality of the act he was then doing, or, if he did know it, that he did not know he was doing what was wrong. If, therefore, this condition of insanity has been clearly and satisfactorily established by the evidence you ought to acquit the prisoner. If, on the contrary, he has failed to establish clearly and satisfactorily such a condi- tion of insanity as I have described, it will be your duty, however painful, to return a verdict of guilty in manner and form as he stands indicted. I say guilty in manner and form as he stands indicted, because if guilty at all, he is guilty of murder in the first degree. You thus perceive, gentlemen, that the prisoner's capa- city or want of capacity at the time to comprehend the difference between right and wrong in respect to the yery act with which he stands charged, is the test by which must be determined the question of his criminal respon- sibility. 176 COURT OF OYER AND TERMINER. I have now finished what I had to say on the law of this case. It is the duty of the Court to explain the law to the jury. I have endeavored to discharge this duty according to my best judgment and most conscientious convictions. But your duty, gentlemen, which com- menced with mine, is not yet ended ; the most important part of that duty yet remains to be done ; and I pray God that he will not only impress your hearts with a due sense of the solemn responsibilities which now rest upon you, but that he will also be pleased to enlighten your minds by imparting to you some portion of his own great wisdom, so that you may be enabled to arrive at the very truth and right of this cause, and a true verdict give according to the evidence. Verdict — Not guilty by reason of insanity. The Statk v. Ebenezer W. Frazier. On an indictment and trial for the murder of one who has been shot, a declaration made by him twenty-five or thirty minutes afterwards, and after he had been carried from the place to his home, and been undressed and laid on his bed, that the prisoner shot him, and how he did it, is not admissible in evidence as a part of the res gesia. After proof by several witnesses on the preliminary enquiry before the Court that the deceased had declared on Saturday and on Sunday and again on Monday preceding his death on the following Friday, that he could not live, that he could not recover, two affidavits, the first made on Saturday and the second on Monday by him and taken by a Justice of the Peace in his bed chamber, declaring that the prisoner shot him, and the circumstances under which he assailed and shot him, admitted in evidence as dying declarations of the deceased. But on such preliminary enquiry before the Court to ascertain whether the deceased was under a due sense and apprehension of impending dissolution at the time when they were made and the affidavits were THE STATE v. FRAZIER. 177 taken, it is irregular and contrary to the practice of the Court after the examination and cross-examination of the witnesses for the State on that point, to allow a witness to be called and examined on the other side to rebut or controvert their testimony. Such dying declarations, however, when admitted in evidence to the jury may afterwards be rebutted and controverted by the testimony of wit- nesses called on the other side in their regular course of examina- tion ; and if it is then proved that the deceased subsequently ex- pressed hope of recovery, the weight and effect of such declarations before the jury will be very much weakened nnd impaired by it. Murder with express malice aforethought, and of the first degree under the statute defined; also murder with malice aforethought implied by law, and of the second degree under the statute,- and manslaugh- ter defined. When the killing is admitted the law presumes that it was done with malice aforethought, and it is incumbent on the prisoner to show that it was not by proof of such provocation or alleviation as will sufHce in law to rebut the existence or implication of malice, unless it so appears from the evidence adduced against him in the case, New Castle County, May Term, 1865. At a Court of Oyer and Terminer held at this term, Ebenezer W. Fra- zierwas indicted and tried before Wootten, Houston and Wales, Judges, Gilpin C. J,, absent on account of sickness, for the murder of John A. Eliason in the first degree, at Middletown, on the 9th day of December 1864. The deceased, whose wife was a sister of the prisoner, resided with his family and was engaged in the mercantile busi- ness in that place at the time. From the evidence it appeared that his domestic relations had not been happy, although no open rupture or separation had occurred between him and his wife in consequence of it, but notwithstanding this had produced unfriendly rela- tions between him and other members of her family, the prisoner had always continued on the most friendly and intimate terms with him, and on all occasions of dissatis- faction or alienation between them, had uniformly sided with the deceased, until the occurrence in question, although his affection for his sister and his frequent and friendly ^visits to their house had been apparently in no degree diminished or affected by it. The residence of 178 COURT OF OYER AND TERMINER. the prisoner was in Maryland, several miles from Middle- town, but be had arrived there in the evening train on the preceding day, and spent the night at their house, and the whole of it up to twelve o'clock, in friendly con- versation with the deceased in his sitting room a greater part of the time, and afterwards with him and his sister in her bed room, who was too unwell to leave it, when they respectively retired to their separate rooms for the rest of it. The next morning he arose early and breakfasted at the hotel, but soon afterwards returned to the house of the deceased, and went up stairs to the room of his sister where he found them together with one of their sons, a lad ten or eleven years of age, and invited the deceased to take a ride with him to his mother's over in Maryland, which he declined, as he was not feeling very well, when he invited the son and asked the consent of both the father and mother for him to go with him, which they gave ; he then asked the deceased for the loan of his horse and buggy for the purpose, which were obtained, and soon afterwards the prisoner and his nephew started on the drive and were gone until about four o'clock in the after- noon. During their absence they visited and dined at his father's, and he was alone for some time in a room with his mother to which they retired from his nephew and the others at the house. On their return they stopped at the hotel at the Head of Sassafras, where the prisoner took during their halt there three drinks at the bar. He then drove back to Middletown and to the hotel of Mr. Davis where he left the horse and buggy and his nephew to drive them home, and went into the bar-room and took a drink, and soon afterwards left it and walked to the house of the deceased and up to Mrs. Ehason's bed room where she then was, and enquired for John (meaning John A. Elia- son) and where he was, but who had just before left it and gone down to the sitting room below it by another stairway as he went up to it. He then descended the stairs and entered the sitting room shutting the door of it behind him, at the same time the son of the deceased THE STATE v. FRAZIER. 179 before referred to, left the sitting room by a door opening on an alley and stood under the window of it with his back towards it and looking on the street. Just aiter he had left the sitting room a colored woman and a servant in the family, entered it with a message from Mrs. Elia- son to Mr. Eliason that she wished to see him in her room up stairs, when she found no one in it but Mr. Eliason and Mr. Frazier, and who described their respective positions in it as follows : Mr. Eliason was seated in a chair by the fire-place with his hat on, his legs crossed, and with his hands. clasped across his knees and leaning forward with a segar in his mouth, while Mr. Frazier was standing at the end of the mantel-piece with one elbow resting on it and the other arm akimbow, between Mr. Eliason and the door leading into it from the entry and with his back _turned towards the door. She delivered the message to Mr. Eliason and left, but had not returned up stairs more than a minute or two when she heard the report of a pistol, and looking out of a window over the alley saw Mr. Eliason running from it and Mr. Frazier after him. She had heard no words and no noise of any kind in the sitting room, either before or after she left it to go up stairs on that occasion, and this was corroborated by the testimony of the son who had been standing in the mean while and only for a few minutes under the window of the sitting room in the alley as before mentioned, when his father suddenly jumped from the door of it into the alley with the cry of murder, and ran down it pursued by his uncle with a drawn pistol in his hand,. and which he first fired at him as his father passed him (the witness) in the alley, and before he reached the alley gate and when he wals but a few feet behind him, and which he afterwards fired at him three times whilst he was pursuing him in the street. It was further proved by other witnesses that they were walking down the street towards the railroad depot about half-past four o'clock that afternoon, when their attention was called by the cry of " murder ! help ! help ! gentle- men !" to two men who had just come out of a side door i8o COURT OF OYER AND TERMINER. of the house of the deceased, both running down the alley without their hats, and one of them pursued by the other and not more than eight or ten feet from him. The fore- most one had about reached the gate of it when they first heard the report of a pistol, and as the chase passed into and along the street they saw the prisoner, whom they recognized and identified as the person who was pursuing the other fleeing from him, fire a pistol three times afterwards at him just about as fast as a revolver could be successively fired by a man when running. Another witness, Mr. Martin E. Walker, a particular friend of the deceased, had heard the reports of the pistol and had by this time reached the side of the street, when he saw the deceased running slowly and feebly towards him with one arm and hand behind him and the other uplifted and extended before him, and ran to meet him,, and just as he reached him, he exclaimed as his legs seemed to give way under him, " catch me Martin !" and fell into his arms. He at once asked him what was the matter with him, and he answered that he was shot. He then asked him who had shot him, and he replied " Eben Frazier ;" but the prisoner had then disappeared from the street, and was not in sight of the witness when he reached the side of it. Both the prisoner and the deceased were without their hats when they leaped from the sitting room door and during the chase in the alley and on the street, but the prisoner returned from it to the house of the deceased and was heard to- say as he re-entered the alley "now let them come on with their d d officers and arrest me as soon as they may !" But he soon after- wards reappeared on the street in his hat, and went to the hotel and not only took a drink, but invited others to drink with him without any effort made in town to arrest him ; it was now dark, however, and he must have soon afterwards left it, for by half-past nine o'clock that night he was at Bear Station, sixteen miles up the railroad from Middletown, where he got on a freight train and rode to Wilmington, but being suspected by the ofificers of it who THE STATE v. FRAZIER. iSi bad heard of the shooting of the deceased while the train was at Middletown, although he was personally unknown to them, he was through their instrumentality arrested for it on the arrival of the train at Wilmington. The prisoner until recently had been the U. S. Deputy Provost Marshal of the district in Maryland in which he resided, and the revolver with which the shooting was done was the same which he had whilst in office and since usually carried about his person. The deceased was at once carried to a drug store near at hand and a physician sent for who found two small bullet wounds on his body, one entirely through the posterior part of the thigh of his right leg, and the other in his back about two inches above his right hip and about the same distance to the right of the spinal column, in which the bullet had penetrated and lodged in the body and which on probing could not be found. By his direc- tion he was then removed to his own house, and in undressing him, a small four-barrelled- pistol fully charged was found in his coat pocket, and which it appeared.from the evidence he had been habitually carrying about him in the inside pocket of it for a month or more at that time. He languished in severe agony at times for one week, or until the following Friday when he died, the wounds having been inflicted on the pre- ceding Friday afternoon. During the examination of the witnesses on behalf of the State, the attorney general propounded the enquiry to one of them who had assisted in undressing the deceased after his removal from the drug store to his residence, what statement he then made in his presence in regard to his having been shot, and by whom and how it was done. T. F. Bayard, for the prisoner, objected to the admissi- bility of any declaration then made by the deceased in regard to the matter after the length of time which had elapsed since the shooting. i82 COURT OF OYER AND TERMINER. Moore, Attorney General. The statement or declaration he proposed to prove was made so soon after the deceased was shot by the prisoner, that it could and should be con- sidered as contemporaneous with the main fact under consideration, and was therefore properly admissible in evidence as a part of the res gestae under the well settled rule of law on that subject, i Greenl. Ev. sec. io8. Bayard, in reply, cited 3 Phil. Ev. Cow. & Hills' Notes, I Part 207. The Court then enquired and learnt from the witness that a period of not less than twenty-five or thirty minutes had elapsed between the time of the shooting and the removal of the deceased from the scene of it, and of his being undressed and laid to bed in his own bed chamber, after which the statement referred to had been made by him, and were of opinion that under the circumstances and after such a length of time having intervened, that it did not properly constitute a part of the res gestcB, and that it was therefore not admissible in evidence. A witness for the State who sat up with the deceased on the succeeding Saturday night and Tuesday, testified that on one or the other of those occasions when he enquired of him how he (the witness) thought he looked, to which he replied, better, although he did not think so, the deceased then said he was there for his winter quarters, and also said that he did not think he would recover. Another witness testified that he heard him say as they laid him on his bed after bearing him home from the drug store and undressing him, " Gentlemen, it is all of no use, this is my death bed." And that he afterwards told him to take good care of his keys, that one of them was the key of his safe, and his safe contained papers which would be very important to his children. And again on Sunday he heard him say he could not live. He heard him pray- ing also on Sunday, and several times afterwards, but never THE STATE v. FRAZIER. 183 before that time, although he had lived in his family for several years past. He was not a member of any church. A brother of the deceased also testified that he said to him on Sunday afternoon, that he could not live or recover from his wounds. Another testified that he heard him say on Monday that he could not recover. And another that he had twice heard him say the same, once on Saturday and again on Sunday. It was then proved that he sent on Sunday afternoon for a friend for the purpose, and had an alteration made in his will; but on cross-examination he stated that he said nothing to him about dying, or ex- pressed any apprehension of death whilst he was with him. As all this was understood to be but the prelude to an offer on the part of the attorney general of certain decla- rations in evidence afterwards made by the deceased and reduced to writing at the time. Mr. Bayard said he had a witness whom he would like the Court to hear before it passed upon the impor- tant question which was now about to arise in the case, from whose testimony, if he was correctly informed, it would appear that the deceased was not impressed with the apprehension of deatH, but was still hopeful of living and surviving his wounds when the declarations were made ; and asked the Court that he might now be called to the stand and sworn. The Attorney General objected that it was altogether irregular and contrary to the established practice of the Court in such cases. It was not, however, the first time that such an application had been made in a similar case in the Court of Oyer and Terminer in this State, for iden- tically the same application was made to and refused by i84 COURT OF OYER AND TERMINER. a majority of the Court, one Judge only dissenting, in the case of the State v. Cornish for the murder of Sauls- bury, i; Harr. 502. The Court, after consideration, refused the application and excluded the witness and his testimony at this stage of the trial on the ground of its irregularity and the long established practice of the Court to the contrary. This would not appear to be as strong a case for the prisoner for such a ruling as we are now asked to make, as was the case of the State v. Cornish cited by the Attorney Gen- eral, and yet in that case a majority of the Court over- ruled and refused a similar application. As to the admis- sibility in evidence of dying declarations, as they are usually termed, in such cases, it is of course the province and the duty of the Court to pass upon and determine the preliminary question whenever it is raised, whether they were made under such an apprehension of impending death from the wound or injury received, as will entitle them in their opinion to b? admitted in evidence to the jury ac- cording to the rule of law on that subject, and the practice of this Court as it has hitherto always been, and such as we believe has also been the general practice both in the Courts of this county and of England, to determine that preliminary question for or against their admissibility in evidence to the jury, on the prima facie proof presented on that point by the direct and cross-examination of the witnesses produced by the State to establish it, without hearing any witnesses on the other side to rebut or contro- vert it ; and in view o( the great and vital importance of their decisions in such cases to the accused, we believe we can further say that the Court has always felt the full weight of the solemn responsibility devolved upon it in every such instance. But after all, when they are clearly and conclusively entitled to it, and are duly admitted in evidence in the case, they rest on the same level with all the other evidence in it, and the credit, weight and effect of them are alone to be considered and' determined by THE STATE V. FRAZIER. 185 the jury ; and they may after their admission in evidence be weakened and impaired, contradicted and disproved by the witnesses and the testimony for the prisoner subse- quently produced on his behalf in the trial. The Attorney General then offered in evidence two affidavits, the formal proof of which had already been produced in the case, made by the deceased and taken by Jesse Lake, a Justice of the Peace of the county, one of them on Saturday and the other in the afternoon of Mon- day after he was shot, each of which had been drawn by him in writing at the instance and dictation of the deceased, and read over to and approved and signed by him, and to the truth of which he had afterwards been formally sworn by him on the days before mentioned, and which contained a statement of the facts and circum- stances by the deceased undeir which the prisoner made the attack upon him and shot him, and which he contended were admissible in evidence, not as affidavits, or by virtue of the sanction and solemnity of the oath under which the Justice of the Peace had unnecessarily taken them, but as dying declarations, or a solemn statement made by the deceased in regard to the matter under a solemn and profound apprehension of impending death ; and in case of the last and more important one only four days before he died, i Greenl.Ev. Sec. 156. State v. Thaughley,^Harr. 562. I Arch. Cr. PI. 141 n. i. i Arch. Cr. Pi. 452. i Greenl, Ev. Sec. 158, i Easts PI. Crown 354. 2 Ld. Cr. Cases 238. Bayard objected and contended that they >vere not such declarations as the law required in such a case, and were therefore not admissible in evidence to the jury. 3 Phil. Ev. Cow. & Hill's Notes, i Part 252. Moore, Attorney General, in reply, cited 2 Stark. Ev. 262. The Court. This is often a very nice as well as a very grave question, for the rule of law which governs it is not 13 i86 COURT OF OYER AND TERMINER. unfrequently of difficult application. These papers are offered in evidence as the dying or death-bed declarations of the deceased in regard to the time, place and manner in which he was attacked and shot by the prisoner at the bar, while he was yet languishing under the fatal wound received at his hand, and only four days before his disso- lution in consequence of it. In such a situation and in view of that death which he fully apprehends and believes in his own mind to be surely and inevitably approaching and near at hand, the conscious solemnity of the occasion and his duty to speak the truth, and nothing but the truth, is rightly assumed in law to invest his declarations made under such circumstances with as high a sanction and as much credibility, as if made under the obligation of an oath duly and formally administered in a court of justice under ordinary circumstances ; and the rule of law on the subject to which we have alluded we understand to be that whenever such declarations are offered in evidence in a trial like this, that to warrant their admission it must first appear to the satisfaction of the Court that they were made by the deceased under the apprehension of impend- ing death, although it is not essential that he should then apprehend immediate dissolution, for it is sufficient if he at the time apprehended it to be impending. 2 Stark. Ev. 459. This is the rule as stated by Mr. Starkie. And althoiigh Mr. Greenlief whose work on evidence has also been cited, also says that the length of time which elapsed between the declaration and the death of the declarant, furnishes no rule for the admission or the rejection of the evidence, he qualifies it with less precision and certainty by adding that it is the impression of almost immediate dissolution, and not the rapid succession of death, in point of fact, that renders the testimony admissible. Therefore, where it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour afterwards, the declaration is not admissible. On the other hand, a belief that he will THE STATE v. FRAZIER. 187 not recover, is not in itself sufficient, unless there be also the prospect of almost immediate dissolution, i Greenl. Ev. Sec. 158. In the original work of Phillipps on evidence it is thus stated, "but before such declarations can be ad- mitted in evidence against a prisoner, it must be satisfac- torily proved that the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. And that the question, whether the deceased made the declarations under the apprehension of death, is a question for the Court to determine, not the jury." I Pkil. Ev. 200. In this case it appears from the tes- timony of the several witnesses who have been examined on this point particularly, that on Saturday, Sunday and Monday, during the time embraced in the two affidavits and u'p to the time when the second one was taken, the deceased had repeatedly declared his belief that he must die, and that he could not recover from the wounds he had received, and that on no occasion during that time, or afterwards so far as we are informed, did he allude to the subject without expressing that conviction in a man- ner which leaves no room for any doubt or misgiving on our part as to the entire sincerity and solemnity of that conviction on the part of the deceased, or of the fact that they were uttered by him under the hopeless and des- pairing impression that his death was then imminently impending as the inevitable result of them. It is, there- fore, the opinion of the Court that the evidence offered by the Attorney General is admissible. Both of the affidavits or depositions were then read in evidence, but as the second substantially included all that was contained in the first and was much fuller in its state- ments, it alone is here given, and was as follows : MiDDLETOWN, Dec. I2th, 1864. John A. Eliason further deposes and says that Eben W. Frazier came to his house Thursday afternoon, the 8th day of December, 1864, and in conversation with him, he the said Eben W. Frazier told him that he had come to 188 COURT OF OYER AND TERMINER. Middletown to kill a man, and during the evening they talked over matters in a friendly manner respecting Mrs. J. A. Eliason, and that the said Eben W. Frazier agreed with him on the subject, and said he would stand by him, or back him. When going to bed his suspicions, however, were somewhat aroused and he closed the avenues lead- ing from the room in which Eben W. Frazer slept, and his own room in which he slept. On Friday, 9th of Dec, 1864, the said Eben W. Fra/ier proposed that he should take a ride with him, and he told him he could not go, but that he could have his horse and carriage, and that he accepted the offer and took with him his son, Frank Eliason, and returned about the middle of the afternoon, driving past his house towards the hotel, and that Frank brought the horse and carriage home ; after which the said Eben W. Frazier came back to his house and went up stairs to the room occupied by Mrs. Eliason, after which he came down stairs and came into the room where he was sitting on the rocking chair, and that they in a friendly manner talked over the matter which they had talked about the afternoon before, and that he acquiesced in what he said to him. After which he went up to Mrs. Eliason's room again, but soon came down again into the room in which he was sitting and enquired for his cane which was shown him, when he took it up and then took a seat in a chair beside him, and putting his hand on him, said to him that he had told Ella that he would have no fuss with him, for he had always found him a reasonable man ; but he thought it would be better if she could re- main with her little children, when he replied to him that probably it would be, if he could have an assurance that there would not be a repetition of the past, which had occurred two or three times already, when Frazier look- ed up at the clock and said it was near car-time, to which he replied "it wanted twenty minutes yet, stay, we will soon have some supper," when he replied he did not want any, then he immediately jumped up and drew his revolver and said, " John ! I am going to kill you right THE STATE v. FRAZIER. 189 here !" He asked him what for ? He said " I don't know." Whereupon he rose up from his seat and remonstrated with him, to which he replied and said that he had come down expressly to kill him ; he then asked him if that was still his determination, he said yes, he then made for the door and shut it after him, and ran out into the alley, and then into the street, and that Frazier ran after him and shot him with one ball in the alley, and shot at him two or three times after he had got into the street, hitting him with another ball in the street. JOHN A, ELIASON. Sworn and subscribed to, Dec. 12th. ;[ 864, before JESSE LAKE, J. P. Mrs. Ellen Hanson was then sworn and testified that she was at Mr. Eliason's house that day, between 4 and S o'clock in the afternoon, up stairs in Mrs. Eliason's room, who was very sick, and remained from ten to twenty min- utes. While there a gentleman came up stairs into her room, and soon went down again, who she told her was her brother after he went out, and whom she now recog- nized as the prisoner at the bar. He soon came up again into her room, and said to her it was near car- time, and he must leave. He then bade her good-bye, and she asked when he would come again, and he said in two or three days, and then went out and down stairs again. She left in about five minutes afterwards, and had not got across the street before she heard the report of a pistol and others soon afterwards, but did not see where they came from. The State then proved by a servant in the family that she was in the sitting room in an hour and a half or two hours after the deceased was shot, and there was then no derangement in the furniture of it, or other indication of any scuffle or personal collision having oc- curred in it between .the prisoner and the deceased. The coroner of the county testified that he held an in- quest on the dead body of the deceased the day after his 190 COURT OF OYER AND TERMINER. death, and produced the two pistol bullets which were proved before him on the inquest to be the bullets vvith which he had been shot. He also had a post mortem ex- amination made of it by Dr. Chamberlain and Dr. Barr, who had been in professional attendance on him from the day he was shot until his death ; and who were next call- ed to the stand and testified that the bullet wound in the right thigh was neither mortal or serious in its character, but that the bullet which struck him in the back about two inches to the right of the spinal column and about two inches above the right hip, had penetrated the body to the depth of six or eight inches, and passing through the grand colon or intestine, had lodged in the cavity of the abdo- men in about an inch and a half of the navel on the right side where it was found. Inflammation of the colon and the other part penetrated by it ensued in a few days and that was the cause of the death. That wound was a mortal one and caused his death. He had not been well the day he was shot^ and was very much exhausted by his wounds from the first. The Attorney General here rested the case and the counsel for the prisoner after his opening to the Court and Jury and reading the statutory definitions of murder of the first and second degrees, and also the provision that a person indicted for murder of the first, may be con- victed of murder of the second degree, or of manslaughter, and stating that he would be able to prove that the act was committed without previous malice or premeditation, that the parties were brothers-in-law, and had always been on the best and most friendly terms up to that unfortunate mo- ment, that the prisoner had been drinking very hard that day, and was intoxicated and was so much so as not to know what he was doing at the time ; and in addition to that he hoped to be able to satisfy the jury that such a sudden and fatal assault could not have been committed by one such warm friend and brother-in-law upon anoth- er, without some altercation and personal collision and THE STATE v. FRAZIER. 191 conflict of violence having suddenly occurred and pre- ceded it between them, he proceeded to call and examine several witnesses. » A son of the deceased, seventeen years of age, testi- fied that his father and his uncle, the prisoner, had always been good friends, and he believed that he had always agreed with his father in all matters of difference or dis- sension which had arisen in the family, and that they be- longed to the same political party, and were both Union men. A colored woman testified that she had lived all her life a servant in the family of the deceased, that the pris- oner had been a frequent visitor in it, and<4ie and Mr. Eliason had always been very friendly with each other. That the prisoner came to the house about seven o'clock the evening before Mr. Eliason was shot, and when she went to bed between 9 and 10 o'clock, they were sitting in the dining room together talking ; the next morning Mr. Eliason came down stairs first, and afterwards Mr. Eben Frazier came down when Mr. Eliason invited him into the dining room to take a drink, and they went into the room together, that was when he was about starting off in the carriage with Mr. Eliason's son Frank, and that they seemed then very friendly. She thought Mr. Frazier was intoxicated when he came back to the house that after- noon ; he staggered, and Mr. Eliason looked as if he had been drinking, he looked so about his eyes ; he had been drinking some the day he was shot. She did not see either of them drink that morning when Mr. Eliason invit- ed Mr. Frazier into the dining room to take a drink, be- cause she did not go or see in the room, but she saw Mr. Eliason drink once that morning when she took the pitch- er of water to him ; she did not, however, see him drink any more that day. Edwin S. Morris testified that he lived in Maryland, and that betwen 2 and 3 o',clock in the afternopn of the 192 COURT OF OYER AND TERMINER. 9th of December last, he met with the prisoner whom he had long been acquainted with, at the Head of Sassafras, and took two drinks in company with him at the hotel there, and that he was intoxicated at that time. That he and his brother then drove on to Middletown that after- noon, the prisoner driving on behind them up to Davis' hotel there, where he got out of his carrriage and took another drink. His brother was going up that afternoon in the cars, and the prisoner told his brother that he was also going up in them, and just as he was about driving off he heard him tell his brother on the hotel porch there that he was going up to bid John A. Eliason good-bye and would meet him at the depot. Dr. Wm. H. Barr testified that he was well acquainted with both the prisoner and the deceased. That they had always been good friends, and that Mr. Eliason had told him that Mr. Frazier had always sided with him in his family difiSculties. Mrs. EUenora M. Eliason testified that her brother, Ebenezer W. Frazier, came to their house in the afternoon of the 8th of December last, on the arrival of the train, but her husband not being in at that time he went away and came back after tea and after Mr. Eliason had come home. She was then sick in her room up stairs above the sitting room, and he and her husband remained in the sitting room until about 12 o'clock, when they came up to her room together, and remained in it with her for about a half hour, and then they each retired to their rooms for the night, but before they left he invited her husband to take a ride with him, the next morning, which he declined on account of her sickness. They were in her room to- gether again the next morning before breakfast, when her husband invited him to remain for breakfast, but he did not, and her husband said to him while they were then in her room that if he would stop drinking, he would be one to set him up in business. They were quite intimate. THE STATE v. FRAZIER. 193 After he came back in the afternoon from the Head of Sassafras he came to her room for a few moments and left, but came back again in about a half hour to bid her good- bye, saying he would write to her. He was intoxicated, so much so then that he staggereS and fell on her bed, and repeated the same words over several times. He then went down stairs and after a \yhile she heard a rattling in the sitting room below, but what occasioned it she could not tell. After she found that he was so much intoxicated, and after he had gone down stairs the second time, she sent a servant down stairs for her husband, fearing not for him, but for the prisoner's wife who was then staying with them, and who she did not wish to see him in such a condition, as she knew how much it would distress and mortify her. Walter L. Fountain testified that he had known the prisoner ten or twelve years, and was wi.th him at the hotel in Warwick where he halted on his way down to his father's pretty early in the morning of the 9th of Decem- ber last, and drank twice with him at the bar while there, and observed that he was under the influence of liquor as soon as he saw him, and that he was then about half and half. He did not stagger ; but it was not from his gait, but his conversation that he could judge when he was under the effects of liquor. Lawrence R. Davis was then called to the stand and testified that he sat up with Mr. Eliason from time to time after he was shot, and he told him on Thursday morning, he was then on his easy chair, and they all thought he was in a very bad way. They put him on his bed, and in a little while back again on his chair, when he had a good evacuation of his bowels, after which he said to him "how good that feels, I begin to feel like my- self again." That night his brother, William C. Eliason, was there and asked him if he would say that Eben W. Frazier shot him, but he did not answer the question until he asked it the third time. He then answered it, and said " he did, I always said he did." His brother 194 COURT OF OYER AND TERMINER. then said " gentlemen take note of that." He then left the room, and John A. Eliason then said to him, " Larry, why did my brother ask me that question ? He must think I am going to die, I hope not." That was all he heard him say. He never expressed any fears of death in his presence. The uniform tenor of the testimony on the part of the State was that the prisoner had been drinking, but was not drunk that day. Higgins, Deputy At.torney General, contended that on all the facts and circumstances proved it constituted a case of murder committed with express malice afore- thought, and of the first degree under the statute. Whart. Amer. Cr. Law, Sees. 930, 1103. 9 Met. 107. T. F. Bayarjd, for the prisoner, contended that it was not a case of murder committed with either express, or implied malice aforethought, or of the first or second de- gree under the statute, but a case of manslaughter. Whart. Amer. Cr. Law, Sees. 360, 374, 989. 2 Stark. Ev. 5151 523, 525. Ros. Cr. Ev. yi6, 739. I Russ. on Crimes, 465. I Stark. Ev. 502, 526. 2 Lead. Cr. Cases, 522. i Phil. Ev. 437. Whart. Amer. Cr. Law, Sees. 47, 431. i Arch. 902. Ros. Cr. Ev. 724, 729. As to the dying de- clarations and aiifidavits given in evidence, he cited 2 Lead. Cr, Cases 240, 243. i Arch. 455. Moore, Attorney General, in reply, cited 2 Stark. Ev. 515. I Hale's 452 Whart. Amer. Cr. Law, Sees. 945, 948, Mil, 1113. 2 Stark. Ev. 4.88, 489. Hawk. 451. i Arch. 846. Whart. Sec. I103. I Arch. 844. 9 Met. 103, 107. 5 Citsh. 295. Whart. Sec. 1109. i Arch. 832. i Bish. Sees. 300, 301, 302. The Court, Wootten, J.^ charged the jury. This pro- tracted and tedious case, with its arduous labors, has de- volved upon you and upon the Court the most important and responsible duty that ever engages the attention of THE STATE v. FRAZIER. 195 the Court and jury. It is of the most vital importance to the prisoner at the bar, because his life is involved in the issue. And it is of very grave importance to the community, because the maintenance of the criminal law- is essential to the security and protection of the lives of our citizens, and for the preservation of the peace and good order of society. You cannot, therefore, fail to per- ceive that this case which is about to be submitted to you for its final consideration and determination, is of the gravest character in every respect, and therefore requires your most serious attention and deliberative considera- tion. In your deliberations you should not allow any rumors, prejudice or outside influence to operate upon your minds in making up your verdict, but you should confine your investigation entirely to the evidence and the facts as proved in the case. The law you will have from the Court and the facts have been given you by the wit- nesses from the stand, and it is your duty to apply the law, as I shall expound it, to the facts and make up your verdict accordingly. With these preliminary remarks, I shall proceed to state to you as plainly and briefly as I am able, the law applicable to the case. The prisoner at the bar, Ebenezer W. Frazier, has been indicted and is now on trial for murder of the first degree, which is one of the highest grades of crime known to our law: He is charged with the commission of this crime by shooting John A. Eliason, at Middletown in this county, on the ninth day of December last, with a pistol, thereby inflicting a mortal wound in the back of the deceased near the spinal column, of which wound it is alleged he died on the sixteenth day of the same month. To this indictment the prisoner has pleaded that he is not guilty, and the simple, but important issue which you have been sworn to try is whether he is or is not guilty. Murder is the killing a human being with malice afore- thought, either express or implied by law ; the malice in all cases of homicide constitutes an essential ingredient 196 COURT OF OYER AND TERMINER. of the crime, and in the absence of both express and im- plied malice the homicide falls below the crime of murder of either degree, and amounts to a crime of lower grade (if any), At common law there is but one deg;-ee of murder, but our statute divides the crime into two degrees, denomi- nated the first and second. This statutory division of the crime varies it slightly from its character at common law ; the difference, however, is chiefly in the punishment which the law inflicts upon offenders. To convict the prisoner of murder of the first degree, it is necessary that it be shown to the satisfaction of the jury that the homi- cide was committed with express malice aforethought, and if the jury should not be satisfied that this species of malice existed in the heart and mind of the prisoner when the fatal shot was fired, he will not be guilty of murder of the first degree, express malice being an essential and necessary ingredient to constitute that crime". But al- though the evidence may not be sufficient in the opinion , of the jury to raise the crime to its highest grade, it may satisfy you of the guilt of the prisoner of the lower grade of the offense, that is, murder of the second degree, which may be committed without the existence of express malice, when the facts and circumstances surrounding the case are such that the law will imply malice. You will remember, gentlemen, that there are two kinds of malice aforethought, that is, express malice and malice implied by law, and it may be necessary in your deliberations to observe this distinction for the reasons which I have already adverted to, and here it becomes necessary that I should explain to you the nature and character of express malice and malice implied by law. Express malice is, when one person kills another with a sedate, deliberate mind and formed design, being evi- denced by external circumstances; discovering the inward intention, as by lying in wait, antecedent menances, for- mer grudges, and concerted schemes to do the party slain some bodily harm. THE STATE v. FRAZIER. 197 Malice is implied by law from any deliberate and cruel act committed by one person against another, however sudden, as where one person kills another suddenly with- out any or without a considerable provocation. The reason why the law implies malice from such wanton, deliberate and unprovoked acts of cruelty is, that they cannot be reconciled upon any principle of humanity. Having explained to you what in law is termed express malice and what is denominated implied mahce, I will endeavor to assist you in applying the facts to the- law, without, however, expressing any opinion in reference to the evidence, as it is not the province or desire of the Court to do so, but it belongs exclusively to you to pass upon the evidence and to give to it such weight and effect as in your best judgment it is entitled to. I shall only, therefore, allude to the facts in such wise as may be ne- cessary for illustration. The prisoner's counsel admits that John A. Eliason came to his death from the effect of a ball shot out of a pistol held in the hand of Ebenezer W. Frazier, the pris- oner at the bar, and you are relieved, therefore, from the consideration and determination of the fact of killing, and if the case rested here but little further investigation or consideration would be necessary, for it is a general and well settled principle of law, that every homicide is presumed to be malicious and amounts to murder, until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbent on the accused to make out and establish to the .satisfaction of the jury such circumstances of alleviation, excuse or justification, when they are relied upon as matters of defense. But whilst the counsel for the prisoner admits that the deceased, John A. Eliason, came to his death by the hand of the prisoner at the bar, and in the manner described by the indictment, he insists that the act was done under great provocation and without malice either express or implied by law, and under such circumstances of allevia- tion as in law will reduce the crime from the higher grades, 198 COURT OF OYER AND TERMINER. that is, from murder of either degree, to that of man- slaughter. When such defense is set up and relied upon by the prisoner, it is incumbent on him to establish to the satisfaction of the jury the facts and circumstances re- lied upon for that purpose, otherwise the offense will be murder. The circumstances relied upon by the prisoner as mat- ters of defense, to reduce the alleged crime of murder to manslaughter, are that, on th,e evening before and on the day of the occurrence, the prisoner and deceased had been drinking together, that the prisoner was at the time of the fatal tragedy in a state of intoxication, and that a difficulty arose between him and the deceased in the sit- ting room of Eliason's house immediately before the fatal shot was fired, and that the prisoner's reason was so far dethroned and swept away by passion and anger, as to make the consequences of his acts less criminal, and to reduce the crime from murder of either degree to that of mansla'ughter. Whether the prisoner has established this defense is a matter exclusively for your consideration. But it is to be observed that no provocation, however great, will reduce the crime of murder to that of man- slaughter, if there be sufficient time for passion to subside and reason to interpose, and afterwards the slayer com- mits the homicide with a deliberate mind and fixed pur- pose, because the killing in such case would be with ex- press malice, and the crime, murder of the first degree. The premeditation', or intent to kill need not have ex- isted for any particular length of time, for if the jury be- Heve from the evidence, that there was a design or fixed purpose and determination to kill distinctly formed in the mind of the prisoner at the bar at any time before, or even at the moment when he fired the pistol, it was a deliber- ate and premeditated killing with express malice, and therefore mui'der of the first degree. If however the shooting of the deceased by the prisoner was not with a sedate and deliberate mind and formed design, so as to amount to express malice and murder of the first degree. THE STATE v. FRAZIER. 199 but if you have any evidence or facts proved on either side to satisfy you that it was suddenly done by the prisoner in the heat of blood or gust of passion, without any or with- out a considerable provocation, it would constitute what is in law denominated implied malice, and in such case it w.ould amount to murder of the second degree. And if it has been shown to you that there was a personal con- flict or combat between the parties in the room spoken of immediately before the deceased left it, and on his leaving it the prisoner pursued him and shot him, the oiifense would be murder of the second degree, unless the provo- cation was great and the parties were on equal terms of defense ; and if the killing was done on provocation, but after sufficient time had elapsed for the blood to cool and for passion to subside and reason to interpose, it would be murder of the second degree. But if sufficient cooling time had not intervened, and the act was committed, that is, the deceased was shot by the prisoner in a fight upon provocation and in the heat of blood, and in a transport of passion, the offense would be only manslaughter, the indulgence of the law ascribing such acts to the infirmi- ties of human nature, and on the supposition that by the sudden and violent exasperation of the affray a tempo- rary suspension of reason was produced, and the trans- port of passion excludes the presumption of malice. There are no precise limits of time within which the blood may be supposed to cool, passion to subside, and reason to interpose, but every case depends upon its own circumstances, and the cooling time would be what was reasonable under the circumstances of the case. I have endeavored to describe to you the crime of mur- der of the first and second degrees, and also that of man- slaughter, and what constitutes the three several grades of crime, with such illustrations as will perhaps enable you to apply the evidence and determine which one of the crimes enumerated (if either) the prisoner is guilty of. It is competent for you to convict him under this indict- ment of murder of the first degree, or you may acquit him 200 COURT OF OYER AND TERMINER. as he stands indicted and convict him of murder of the second degree, or of manslanghter, as you may think the evidence requires. The order of your investigation, gentlemen, should be to satisfy yourselves from the evi- dence, whether the prisoner at the bar, shot and killed John A. Eliason with express malice aforethought, thfit is, with a sedate, deliberate mind and formed design, such design being generally evidenced by some ex- ternal circumstances indicating the inward intention ; these circumstances may be such as lying in wait, ante- cedent menances, former grudges and concerted schemes to do the party slain some bodily harm ; there is no other way to discover 'the secret intentions of the heart. You cannot look into its recesses to ascertain what is there. Necessity therefore requires a resort to circum- stances for the indication of the intentions which lie con- caled in the heart and mind. If upon a full and careful review and consideration of the evidence, and all the surrounding circumstances of the case, you should be satisfied that the killing was done with express malice aforethought, the crime is murder in the first degree ; but if you should not be satisfied that express malice existed in the mind and heart of the prisoner at the time he committed the fatal ajct, you cannot convict him of murder of the first degree, and you will then turn your attention to the lower grade of murder, that is, murder of the second degree, which under our statute is when the crime is committed otherwise than is described in the first section of the Act of Assembly defining the crime of murder. The crime of murder of the second de- gree may be committed without the existence of express malice, as when one person kills another suddenly with- out any, or without a considerable provocation, the law implies malice, and in the absence of circumstances of alleviation, extenuation, excuse or justification, which must be shown to the satisfaction of the jury by the prisoner, or be developed by the evidence on the part of the prosecution, the crime is murder of the second degree. THE STATE v. FRAZIER. 201 It is proper, gentlemen, that I should say something to you in reference to the affidavits of the deceased which have been read in evidence as his dying declarations ; such declarations are generally made without the sanction and obligation of an oath, and without an opportunity to those against whom they are used to cross examine the party making them ; yet as a matter of necessity and in furtherance of public justice, they are admissible when they are brought within the principles of law, which govern that class of evidence. Crimes of the highest grade are often committed when no eye witness is present ; hence the necessity of resorting to this species of evi- dence, but it should always be received with proper and due caution. Dying declarations of a deceased party are only admissible when made under a sense of impending dissolution, and some writers on the subject go so far as to say, that such declarations to be abmissible must be made under a sense of impending and almost immediate dissolution ; others have somewhat relaxed the rule, and are not quite so rigid in their construction of it. We think the proper and most sensible construction is, that there must exist in the mind of the party making such declarations at the time they are made, a firm conviction of impending dissolution, if not immediate, at no distant day, and that there should not be a lingering hope of ever recovering. Whether in this case the declarations contained in the affidavits of the deceased,, which have been read to you, were brought within this rule was a question for the Court, as like questions are in all other cases, and upon hearing the evidence on the part of the prosecution we permitted them to go in evidence. From the evidence we first had and on which we permitted the affidavits of the deceased to be read, it did not appear that the deceased, John A. Eliason, said much about his condition, as to fears of death or of hopes of recovery ; it did appear however that after he had been taken to his room and was being un- dressed, he said it was all of no use, he feared he had 14 202 COURT OF OYER AND TERMINER. fixed him. He also said some time after dinner, that the keys of his safe should be taken care of, that its con- tents were or might be valuable to his children. And subsequently on one or two occasions, he said he should not live. But after hearing other evidence in reference to this matter on the part of the prisoner, we now deem it our duty to say to you that the force and weight of these declarations contained in the affidavits are very much weakened and impaired. Mr. Lawrence R. Davis, a witness examined on the part of the prisoner, after the affidavits had been read in evidence, stated that on Thursday night previous to the death of Eliason on Friday, he sat up with him, that one of his brothers asked him "that night two or three times if Eben W. Frazier shot him, to which Eliason replied he did, that after the brother of the deceased had left the room, Eliason asked why his brother asked him that ques- tion, remarking that he must think I am going to die, saying "I hope not." The remark tends to some extent to show that Eliason was not entirely without hope of recov- ery, and therefore we say that the weight of the declara- tions contained in these affidavits is considerably weakened. Yet we are not disposed to take this portion of the evidence entirely from you, but leave it with you to be weighed and considered by you with caution, and accred- ited so far as you may in your judgment believe it to be entitled under all the surrounding circumstances. It is proper that I should further say to you in refer- ence to these affidavits, containing statements offered as the dying declarations of Eliason, that they are before you as though they were not sworn to, and that the fact of their having been sworn to by him does not give them any additional force or weight whatever, the oath adminis- tered to him by the Justice of the Peace being extra-judi- cial and unauthorized by law. You will now take the case, gentlemen, and retire to your chamber, and there give it that careful investigation THE STATE v. FRAZIER. 203 and consideration which its importance demands, and ren- der such verdict as will have the approval of your own consciences under the responsible duties and solemn ob- ligation resting upon you for the faithful discharge of which you will be answerable to God at the great day. The jury retired to their room at 8 o'clock in the even- ing and returned into Court at 6 o'clock the next morn- ing with a verdict of "guilty of murder of the second de- gree." COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. George Crutch. A prisoner indicted for larceny had been arraigned and had pleaded not guilty, and a jury had been duly empanneled and sworn to try the case, when it was discovered that the indictment contained no allegation as to the value of the goods stolen. Held that the At- torney General might at that stage of the trial enter a nolle prosequi, and indict him a second time for the same ofTense, because in con- templation of law the prisoner had not been put in jeopardy on the first indictment. Court of General Sessions, &c.. New Castle County, November Term, 1865. The prisoner, George Crutch, had been before indicted at this term for the same offense, the stealing of a half-barrel of mackerel, and on arraignment had pleaded not guilty, and after a jury had been duly empanneled and sworn to try the case, but before any witness had been called in it to the stand, the Attorney General had discovered that the indictment was defective, inasmuch as it omitted to allege the value of the prop- erty stolen, and with the permission of the Court, but THE STATE v. CRUTCH. 205 without the consent of the prisoner who had no counsel, entered a nolle prosequi with a view to send up the pres- ent corrected indictment for the offense. The Court, how- ever, took occasion to admonish him before the nolle prosequi was entered that it must be done subject to all legal exceptions as to the consequences and the effect it might have at that stage of the trial on another indict- ment for the offense. Gray, for the prisoner, objected that he could not under such circumstances be indicted a second time for the same offense. Higgins, Deputy Attorney General. A nolle prosequi may be entered at any time before judgment, and another indictment for the offense be sent up. i Whart. Am. Or. Law 513. 20 Pick. 356. 7 Pick. 179. The former indict- ment was so radically defective and insufficient for the want of any allegation as to the value of the goods al- leged to be stolen, that no judgment or sentence could have been pronounced upon it by the Court, even after a conviction ; and after a verdict of acquittal which the Court would have ordered at any stage of the trial as soon as that error had been discovered, it would be no defense under the plea of auterfois acquit in this trial, and when such is the case a nolle prosequi may be entered at any stage of the trial of it, for in contemplation of law the pris- oner never was in jeopardy by reason of it. Vaux' Case A, Rep. 44, 47. 2 Sumn.4.2. Arch. Cr. PI. 82. 2 Hawk. 521. I Ch. Cr. Law, 459. i Russ. on Crimes, 836. Gray, for the prisoner. The same fundamental provision of the constitution which guarantees to the accused a trial by indictment or presentment of a grand jury in such a case as this, also guarantees that he shall not be for the same offense twice put in jeopardy of life or limb. Cons. Art. \,Sec. 8. And the question which arises in this case is, when did that jeopardy begin on the first indictment 206 COURT OF GENERAL SESSIONS, &c. for the same offense ? And the answer to it is, it began the moment the jury was sworn on it to well and truly try the traverse joined and a true verdict give according to the evidence, for it was from that moment charged with the deliverance of the accused on the issue joined in the case. Co. Lit. 227 b. 2 Ld. Crim. Ca. 357. 6 5. & R. 586. After the prisoner had been formally arraigned at the bar of the Court for the crime, and had pleaded not guilty to the indictment, and the jury had thereupon been duly empanneled and sworn to try the issue joined in the case, and were so charged with the deliverance of the prisoner upon that issue, he was entitled to a verdict of acquittal on that issue and that indictment, for the At- torney General had no authority or discretion at that stage of the prosecution to abandon the trial, or to dis- continue it by entering a nolle prosequi ; but having done so at his own instance, and against the admonition of the Court, subject to all exceptions as to the legal effect and consequences of such an entry, it was in law equivalent to a verdict of acquittal, and must be so considered by the Court. United States v. Shoemaker, 2 McLean's C. CRep. 114. After the jury is empanneled a nolle prosequi cannot be entered without the consent of the prisoner. 20 Pick. 356. This was distinguishable from Vaux' Case and the others cited on the other side in which it had been held that a second trial might be had after motion and arrest of judg- ment, and in cases where the indictment was so fatally defective in substance that no conviction could have been sustained, and no judgment entered upon it, and in which it had been held for such reasons that in law the prisoner never had been in jeopardy. In each of those cases, how- ever, it would be observed that it was at the instance of the prisoner, of course, that the judgment had been ar- rested, or the conviction and sentence had been avoided, and not at the instance of the Attorney General or the prosecution. Besides, the prisoner in this case was then wholly without counsel, and non constat had the first trial THE STATE v. CRUTCH. 207 proceeded that the defect in the indictment would ever have been made known to him, or that any exception would have been taken at any time on his behalf to the invalid- ity to it. He would further observe that by another pro- vision of the constitution the prisoner was not only ex- empt from a second indictment for the same offense, but to a speedy trial on the first one in the case, and it would be contrary both to the letter and the spirit of that pro- vision to hold that the Attorney General has any author- ity or discretion thus to protract and delay the ultimate trial and final disposition of a case, and to surpersede it by another to be begun de novo for the same offense, particu- larly after the prisoner has got ready and gone to trial, and the jury has been empanneled and sworn in the case. The Court held that in contemplation of law the de- fendant had not been put in jeopardy on the first indict- ment within the true meaning arnd intendment of the clause in the constitution relied on by the counsel for the prisoner, and overruled the objection to the second in- dictment. COURT OF OYER AND TERMINER. The State v. William A. Manluff. Where there are several distinct, and independent felonies charged in an indictment, the Court will require the Attorney General to elect on which of them he will contend and rely for a conviction after all the testimony in the case has been heard on the trial of it ; but not when all the counts in the indictment are for the same alleged felony, or on an indictment for burglary in which the same breaking and entry of the dwelling house is alleged in all the counts with intent to commit different and distinct felonies specified and alleged in them. The crime of burglary is the breaking and entering of the dwelling house of another in the night time with intent to commit some felony in it, whether such felonious intent be executed or not. Both breaking and entering are necessary to constitute the offense, and it must be in the night time, when there is not sufficient daylight or twilight begun or left to discern the countenance of a peraon. But this does not extend to moonlight. A very slight breaking is suffi- cient, such as forcing open a door, picking a lock, pulling back a bolt, breaking a window, taking out a pane of glass, lifting up the latch of a door, or the like ; and even, the pulling dtjwn or raising up of the sash of a window, although it has no fastenings and is only kept in its place by its own weight, or its pulley weight, and if an outer door being open the burglar enters through it and unlocks or unlatches a chamber door wit^hin the house, or if to escape he breaks his way out of the house, it is a sufficient breaking in con- templation of law to amount to a burglarious breaking into the house. The jury must be fully satisfied from the evidence that the prisoner was the man that broke and entered the dwelling house as charged in the indictment, but this may be proved by either direct or circum- stantial evidence. THE STATE v. MANLUFF. 209 The jury must also be satisfied from the evidence that the prisoner broke and entered the dwelling house alleged with intent to commit in it some one of the felonies alleged in the several count3 of the indictment, and all of which allege the same breaking and entering into it by him with the different felonious intents respectively alleged in them. And the intent with which he broke and entered it must be proved as any other fact in the case must be, by direct or cir- cumstantial evidence indicating the intention to the satisfaction of the jury. In general the intent may be presumed from what the accused actually did in the house after breaking and entering it ; if he committed a felony, it may be fairly presumed that he broke and entered it for that purpose. But a person who commits one sort of felony in attempting to commit another^ cannot excuse himself on the ground that he did not intend to commit that particular offense. If the prisoner when he cut the girl Lizzie Griffith on the neck and temple or face, intended to kill her, it may fairly be presumed in the absence of proof to the contrary, that he broke and entered the house for the purpose of killing her. In doubtful cases, as where there is great conflict of testimony on ma- terial points, or where the evidence for and against the accused is pretty nearly balanced, previous good character is entitled to due weight, and should incline the scales in favor of the prisoner ; but where the facts proved are such as to satisfy the minds of the jury of the guilt of the accused, character, however excellent, is entitled to little, if any, weight or consideration. If, however, after thoroughly examining the evidence and maturely considering it, the jury should entertain any reasonable doubt of the guilt of the prisoner, such as honest' and conscientious men acting under the solemn obligation of their oaths, and in full view of all the testi- mony feel themselves constrained to entertain, he is entitled to the benefit of such doubt, and their verdict should be m his favor. New Castle County, May Term, 1866. At a Court of Oyer and Terminer held at this term, William A. Manluff, negro, was indicted for the crime of burglariously break- ing and entering in the night time the dwelling house of Mrs. Hannah F. Jones, with intent to commit rape and murder. The indictment contained several counts alleg- ing the burglary to have been committed with the intent to murder one Lizzie Griffith, also one Charles Chance, also some person unknown to the grand jury, and also 210 COURT OF OYER AND TERMINER. with the intent to ravish the said Lizzie Griffith. The dwelling house of Mrs. Jones was in the city of Wilming- ton and was broke and entered by the prisoner between the hours of three and four o'clock A. M. on the twenty- ninth day of March preceding, by ascending a trellis at the rear of it to a window in the second story of the back building through which he effected his entrance into it, and by a passage leading from it to the bed room in which the woman named Lizzie Griffith, an Irish servant girl, was then sleeping. On retiring to bed about eleven o'clock that night she closed her bed room door, but did not lock it, and was awakened about half-past three o'clock by the lighting of a match in her room, and saw by the light of it a colored man standing in the room. She was much frightened, but exclaimed " who is there and what brought you here !" The match was quickly extinguished by him, or went out. He made no reply to her inquiry, but came up to the side of her bed, and then said in a low voice " hush ! hush ! make no alarm !" and laying some- thing cold like steel or metal on the side of her face, asked her if she could see his pistol, said he had a pistol and if she made any alarm, he would fire the contents of it into her body. She replied she would not, if he would leave the room. He then asked her why she had made an alarm, to which she answered that she could not help it. After the match went out it was so dark in the room she could not see whether it was a pistol or a knife he had in his hand. She then asked him several times to leave the room, to which he at length replied that he did not know the way out. She then told him that there was a candle in the room and to light it, which he did, and placed it on the bureau, and then came up to the side of her bed again, and enquired if a widow lady did not live there, to which she replied yes, and then, if there was any man in the house, to which she also replied yes, and then where he slept, she answered in the small building in the yard detached from the main building. He then said that he was the man he came to kill, and not her, that he did not THE STATE v. MANLUFF. 211 come after her, but to drive a bullet through that man's head. She asked him what that poor man had ever done to him that he should want to kill him. He said that it was none of her business. He had given him sass. He then asked if they had any colored men in the house, and she said no. And then, if she would know him were she to see him again, and she said "no, she could not tell one colored man from another." He then asked her, if she was afraid of him. She said no. He then said, " I didn't come after you, but that man, to leave him a dead man." He then laid his hand on her bed, which she pushed off, telling him she did not want his hand on her bed. He then asked her to kiss him, which she refused to do, and said she would scream and wake the house. He told her to scream, for he wanted to know how loud she could scream. He next asked her name, and where she was from, and how long she had been in the country. Before that he had asked her if she was prepared to die, and told her that if ever she made any complaint against him, or any stir about the matter, he would meet her again for it. He afterwards said to her she was a fine girl, when she told him she did not want him to tell her so, whether she was or not, and again ordered him to leave the room, or she would give .the alarm instantly, to which he replied that he did not know the way out, when she told him he could take the candle ; he then wanted her to light him out, but she said to him she would not get out of bed on any account. He next asked how he could get out, she told him to go out of the door, and where he could find the stairs ; she was then sitting up in bed, and just as she took her eyes off him to look at the door, he struck her with something he had in his hand, but she could never see what it was, upon which she cried out murder, and on the second blow from him she fell back on her pillow and he ran out of the room. She soon afterwards rose from her bed and made her way in great fear and trepidation to the room of Mrs. Jones in the same story of the main building, with a great deal of blood on her face, neck and 212 COURT OF OYER AND TERMINER. the front of her clothing to her feet, and with her wounds still freely bleeding, and gave the alarm that a negro man had just left her room after insulting and cutting her in her bed, and that he was still in the house and in pursuit of her. Two physicians were immediately called in who described them as two incised wounds, one on the left temple and the other on the right side of the neck, clean cuts apparently made with a sharp knife or razor, but not deep, or penetrating much more than through the skin and the tissues below its surface, and which were soon healed. From her account the Mayor of the city pre- pared a description of the offender and advertized a reward for his apprehension, and in the course of a few days two colored men were in succession arrested by the police for the offense, and were brought before her for identification, but without hesitation she declared neither of them to be the man. On the arrest, however, a few days later, of the prisoner and his production before her, she as unhesitatingly, identified him and pronounced him to be the offender, and which identification she now con- firmed at the bar of the Court. The prisoner proved that his character for peace and order had always been good, and that he had been out that night with a serenading party until one o'clock, when he returned to his home and went to bed. David Paul Brown, for the prisoner. There were no less than ten counts in the indictment, and before the State proceeded to the jury he would ask the Court to require the Attorney General to elect and state on which one or more of them he would contend for a conviction in the case. Ros. Cr. Ev. 231, 232 and the cases there cited. The Court, without hearing the Attorney General, de- clined to do so, and remarked that it was an application addressed to their discretion ; and where there are sev- eral distinct and independent felonies charged in the THE STATE v. MANLUFF. 213 same indictment, the Court will require the AttoBney General to elect on which of them he will rely for a con- viction after all the testimony in the case has been heard on the trial of it ; but such is not the case in this instance, for all the counts in this indictment are for the same alleged felony, the burglary alleged in each of them, and when such is the case it is now well settled both in Eng- land and in this country, and in this State also, that the Attorney General will not be required to make such elec- tion. The case was fully and ably argued on the evidence before the jury by Higgins, Deputy, and Moore, Attorney General for the State, and by Mr. Brown for the prisoner. The Court, Gilpin, C. J., charged the jury. Burglary may be defined to mean in law, the breaking and entering the dwelling house of another in the night time, with intent to commit some felony in the same, whether such felonious intent be executed or not. Murder, rape, arson, assaults with intent to kill, larceny, and many other offenses, known to our laws, are felonies ; but it is not necessary for the purposes of this case, that I should par- ticularly enumerate them. There are several questions material to be considered by the jury. First — The breaking and entering the dv^ell- ing house of Mrs. Jones in the night time. Both breaking and entering are necessary to constitute the offense, and it must be in the night time ; that is, it must be at a time, when there is not sufficient daylight or twilight begun or left, to discern the countenance of a person. But this does not extend to moon light. Very slight breaking will be sufficient, as by forcing open a door, picking a lock, pulling back a bolt, breaking a window, taking out a pane of glass, lifting up the latch of a door, or the like ; and, even the pulling down, or raising up, the sash of a window^ amounts to a sufficient breaking, although the window has no fastenings, and is 214 COURT OF OYER AND TERMINER. only kept in its place by its own weight, or by reason of the pulley weights. And if, the outer door being open, the burglar enters through it and unlocks or unlatches a chamber door within the house, or if to escape he break his way out of the house, it is a sufficient breaking, in con- templation of law, to amount to a burglarious breaking into the house. The question then, first to be considered by you, is, did the prisoner break and enter the dwelling house of Mrs. Jones in the night time .'' And here, it is proper to observe, that this question involves the question of the prisoner's identity. Because, before the jury can be justi- fied in returning a verdict against him, they must be fully satisfied from the evidence, that he is the very man that broke and entered. It is seldom that the identity can be proved by direct testimony, and therefore, it is generally necessary to resort to circumstantial evidence ; but in this case, the proof is both direct and circumstantial. Direct as regards the testimony of Miss Griffith, circumstantial as respects the foot prints and the clothing with the pocket book and its contents. Lizzie Griffith swears positively to his identity. She described him accurately shortly after the occurrence, and before she had seen him after it, his color, his features, his size, his clothing, so accurately indeed, that the officer was led to arrest him from her description. She identi- fies his clothes and certain articles, found in his clothes, as her property ; and which she swears, were left by her in the pocket of her dress, when she went to bed on the night of the alleged burglary. Moreover, the foot prints in the soft ground, near the trellis, seem to corroborate her. Is she mistaken in his identity, or does she know- ingly swear falsely ? On the other hand you have the testimony of Campbell, the Howards, Wilson and his father, mother and brother, as to his whereabouts on that night. Joshua Campbell. Saw the prisoner go out of the side gate and heard him at his father's door trying to get in, at a little after i o'clock — lo minutes past l* THE STATE v. MANLUFF. 215 Geo. W. Howard. Left prisoner at 6th and French streets at 12 o'clock. Francis Howard. Parted company with the prisoner at nth and Market streets at i o'clock. Isaac Wilson. Parted with him at 9th and Orange streets at a quarter to i o'clock. John G. Manluff. I and William came home at 10 minutes to i o'clock. Hester Ann Manluff. Between 10 minutes before and 10 minutes after i o'clock, and Jno. G. Manluff Jr. 10 minutes past i o'clock. If you shall be satisfied from the evidence that the pris- oner raised the sash of the window over the trellis, and thus entered the dwelling-house of Mrs. Jones ; or if, the sash being up, he entered through the window, and after- ward unlatched the door of the chamber in which Lizzie Griflfith slept ; or if to escape he broke his way out of the house, then, we say to you that the breaking and enter- ing, required by the law to constitute burglary, was com- plete. If you shall be satisfied from the evidence that the prisoner broke and entered, then the next question to be considered, will be the intent with which he so broke and entered } Did he break and enter, with intent to kill and murder Lizzie Griffith, or with intent to have carnal know- ledge of hei- against her will and consent .' Or did he break and enter with intent to kill and murder a person of the name of Charles Chance, or with intent to kill and murder some other person whose name is unknown to you ? If he broke and entered for the purpose or with the intent of killing Chance or any other person, whether they were in the house at the time or not, the offense is complete. 2i6 COURT OF OYER AND TERMINER. The intent with which the deed was done, is a fact, to be proved, as any other fact in the case, either directly and positively, or circumstantially and inferentially, by the other facts established by the evidence. The intent of the accused is rarely declared by him in express words ; you cannot look directly in his heart, and there read its secret purposes. You have no such power, and there- fore, you are compelled to look to external circumstances, which have some relation to the fact charged, as indica- ting the internal purpose and intent of the heart. Cir- cumstantial evidence , may be, and oftert is, as conclusive as direct testimony. The mode and manner of the break- ing and entry, the time of night, his conduct when in the . room, his manner there, his conversation and threats, the nature of the weapon, dangerous or deadly, the nati^re of the wounds inflicted, these, and all other circumstances proved in the case are proper matters for your considera- tion, in determining the question of intent, because, the crime consists in breaking and entering for the purpose and with theintention of committing the felony, by killing the person supposed to be in the house, and whom he sought there. As I have already stated to you, that the breaking and entering must be for a felonious purpose ; the intent to commit the felony is an essential ingredient in the offense of burglary ; without such intent it would be merely a tres- pass. But it is a well settled general rule of law, that a person who commits one sort of felony in attempting tp commit another, cannot excuse himself, on the ground that he did not intend the commission of that particular offense. In general, the intent may be presumed from what the accused actually does in the house after breaking and en- tering it ; if he commits a felony, it may fairly be presumed that he broke and entered it for that purpose ; and in this case, if the prisoner, when he cut the girl Lizzie Griffith on the neck and temple or face, intended to kill her, it may fairly be presumed, in the absence of proof to the THE STATE v. GREEN. 217 contrary, that he broke and entered the house for the purpose of killing her. Evidence of the prisoner's good character is always ad- missible. In doubtful cases, as where there is great con- flict of testimony on material and essential points, or where the evidence, for and against the accused, is pret- ty nearly balanced, former good character, if proved, is entitled to due weight, and should incline the scales in favor of the prisoner. But where the facts proved are such as to satisfy the minds of the jury of the guilt of the accused, character however excellent, is entitled to very little, if any, consideration or weight. Gentlemen, the question which you are called upon to decide by your verdict, is, whether William A. Manluff, the prisoner at the bar, is guilty in manner and form as he stands indicted, or nor guilty. This question you are to decide according to the evidence. If you are satisfied from the eyidence that he is guilty, it is your duty to say so by your verdict. If after thoroughly examining the evidence, and maturely considering it, you entertain any reasonable doubt of his guilt, and by a reasonable doubt, I mean such a doubt as honest conscientious men, acting under the solemn obligation of their oaths, in full view of all the testimony, feel themselves constrained to enter- tain, the prisoner is entitled to the benefit of such doubt, and your verdict should be in his favor. Verdict — "Guilty." The State v. John Green. In a trial for murder neither the Court or the jury are to be governed in deciding the case by any thing contained in the statutes of other States, but solely by the statute of our own State. What was mur- der at common law is murder under our statute, and which merely divides it into two degrees, there being no ^uch division of it at common law. Malice aforethought is the essential ingredient and criterion of mur- der at common law, and is of two descriptions, express malice IS 2i8 COURT OF OYER AND TERMINER. aforethought and malice aforethought implied by law ; but in either case it was murder and punishable with death at common law, while a division is made in it in that respect by our statute ; it being made by it punishable with death only when committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death ; and with fine, pillory, whipping and imprisonment for life, when committed with malice aforethought implied by law. The former is denominated murder of the first, and the latter murder of the second, degree by the statute. Malice in general and express malice aforethought, and malice aforethought implied by law, defined and distinguished. In a case of mutual combat there is mutual provocation, and if in the heat of blood occasioned by it, one party kills the other without premeditation, it is manslaughter. But it must appear that it was done in the transport of passion produced by it, and before he has had time to cool, or reason to regain the control of his passion. All the circumstances of tne case must show 'that the act done, though intentional of death or great bodily harm, was not the re- sult of a cool, deliberate judgment and previous malignity of heart, but was solely imputable to human infirmity ; and this rule will gov- ern every case where the party killing upon such provocation makes use of a deadly weapon, or otherwise manifests an intention to kill, or to do some great bodily harm. Sussex County, October Term, 1866. At a Court of Oyer and Terminer, held at this term, John Green was indicted and tried for the murder of Solomon Potter. Both the prisoner and the deceased were colored boys about fifteen or sixteen years of age. The evidence was that in the month of August preceding, and a few weeks prior to the killing, the prisoner had demanded of the de- ceased a small sum of money he owed him, and when told by the deceased that he could not pay him because he had not the money, he became angry and swore and cursed him a good deal, and then told him if he did not pay it he would be sorry for it. That two weeks before the killing he exchanged an old pistol without any lock which he had long owned for another without any trigger and gave a dollar in the exchange for it, and which he loaded with powder and an iron slug made of a rivet or piece of wrought nail on the day preceding the commis- THE STATE v. GREEN. 219 sion of the act, and had it so loaded in his pocket on the night of that day when he rode on horse-back several miles from his home into Bridgeville where the deceased resided, and where he then enquired for him, but without meeting with him that night. The next morning on riding in a similar manner towards the town and when near it, he rode up to the deceased whom he found on the road side playfully boxing with another boy, and at once bade him to let that boy alone, and on his reply that he would not, he got off his horse, went up to him and took him by the arms, when the deceased did the same by him, but he soon bade the latter to let go of him, and after repeating it, told him if he did not let go of him he would shoot him, to which the deceased replied that he could not shoot anybody, he then said to him if he would let go of him he would show him, and soon the deceased let go of him when he put his right hand in his pocket, drew a pistol from it and leveling it at the de- ceased, who had now stepped backwards a step or two from him, and drawing the hammer of it back with his thumb, he let it fly forward when the pistol went off and shot the deceased who was then standing face to face in front of him and not more than a yard from him. The slug entered the abdomen of the deceased a short dis- tance below the breast bone, and penetrating to a depth of over four and a half inches, resulted in his death soon afterwards. As soon as the prisoner discovered that he had shot him, he remounted his horse and rode off very rapidly, and endeavored to avoid arrest by concealing himself, and when arrested made several false and con- tradictory statements in regard to the circumstance of their meeting and the encounter between them. Moore, Attorney General, contended that the evidence showed that the act was committed with express malice aforethought, and that the killing constituted murder of the first degree under the statute, for which the prisoner was indicted, because it clearly proved on his part a former 220 COURT OF OYER AND TERMINER. grudge against the deceased, and a deliberate mind and formed design by the means he adopted to procure the pistol and to prepare the iron slug with which he loaded it .the day before, to shoot the deceased as soon as he could find him, and which he evidently hoped and ex- pected to do during the evening of that day, and whilst in Bridgeville, and which he visited for that purpose. There was no fight between them to heat his blood or iniiame his passion ; and if there was, it was one of his own seek- ing and was begun by him without any provocation from the deceased ; and even, the cool and deliberate drawing of the pistol from his pocket and leveling and aiming it at the deceased as he stood directly before him, and draw- ing the hammer back with his thumb and so firing it off at him, was preceded by an express threat equally as cool and deliberate to shoot him ; all of which exhibited and proved that the act was committed with express malice aforethought as fully as it was possible for direct evidence to prove and establish it. He had since, it was true, alleged and pretended that the firing of the pistol and • the shooting of the deceased was an accident, and unin- tentional on his part. That, however, was not only ctfearly contradicted by the evidence, but the speed with which he remounted his horse and fled from the scene of the murder, and his eifort to escape arrest by concealing himself, were inconsistent with it, and in law negatived the pretension, i Whart. Am. Cr. Law, Sec. 714, 5^^.924, Sec. 971, note N. i Archb. Cr. PL 847. Layton, for the prisoner. There was not sufficient evi- dence to prove that the act was committed with premed- itation or express malice aforethought to constitute the killing murder of the first degree, and which it was abso- lutely incumbent on the State to prove to the satisfaction of the jury for two reasons ; first, because the terms of the statute required it, and secondly, because it is so expressly alleged and charged in the indictment ; and being a most material allegation, it must be proved as laid in it. Ex- THE STATE v. GREEN. 221 press malice aforethought was not to be inferred, and could not be implied, but must be affirmatively and posi- tively proved as laid in the indictment, to establish the crime of murder of the first degree. Had the act been committed the night. before in the town of Bridgeville, and the prisoner had sought to avail himself of the dark- ness of night to elude detection or escape arrest, the evidence of premeditation and design to shoot the de- ceased might have been more reasonably insisted on by the State as sufficient to prove it ; but it was not until ten o'clock the next morning on a Sabbath day when riding towards the town, he casually and unexpectedly met with him and another boy playing together on the public road some distance out of the town, when a simi- lar encounter commenced and' was continued without any anger or passion on either side, between the prisoner and the deceased, until it unfortunately and speedily termi- nated as much by the banter of the one, as by the folly and indiscretion of the other, in the shooting of the latter with a very harmless pistol apparently that would not stand cocked and had no trigger to it ; and the sad result of which it was much more reasonable to attribute to ac- cident purely and to the mutual rashness and indiscretion of two boys only fifteen or sixteen years of age, than solely to the express malice, or to a deliberate design to commit such a wicked and malignant act on the part of the prisoner. He could hardly have expected, much less intended, to hit and shoot the deceased, notwithstanding he was so near him, when he lifted and drew back the Jiammer with the thumb of the same hand in which he held the pistol at the time it went off, by accidentally slipping from his thumb, as he alleges, and which was not at all improbable. But even if it were not accidental, the fact that the shooting of the deceased was willful and malicious would not be sufficient to prove express malice and murder of the first degree, unless it further showed a deliberate intention at the time to kill him, on the part of the prisoner, i Russ. on Crimes, 482, 483 in notes. 5 222 COURT OF OYER AND TERMINER. F^/'^. 340. 3 F^r^. 383, Hale 4.$!. ^ Hump A. 4T,g. But there was no threat made by him at any time to kill the deceased. It was at most only to shoot him, and the sur- prise immediately evinced by him w^hen he found he had shot him, showed that he neither expected or intended even to shoot him, much less to kill him with such a pistol, and so charged as it was with a piece of an iron nail. Nor could his hasty flight from the scene in such a state of sudden surprise, nor the attempt afterwards to conceal himself, in one so young and inexperienced in crime, help out the evidence in the case to rebut his alle- gation that it was accidental and unintentional, much less to convict him of murder with either express malice aforethought, or with malice implied by law, or of the crime of murder of either degree, under the statute. For under the circumstances and the evidence detailed by the witnesses, it was manifestly the result of sudden surprise and fright, and not of conscious guilt. But the act was committed in a sudden collision and personal conflict be- tween them, and, therefore, if even the killing was inten- tional, it could amount to nothing more than voluntary manslaughter. Moore, Attorney General. Premeditation and delibera- tion may be the design of a moment in a case of homi- cide ; and if the act be done with a deliberate intention to kill, though but the determination of the instant and executed as soon as conceived, it is evidence, and suffi- cient evidence in law, of murder with express malice aforethought, and of the first degree under the statute, unless there be palliating circumstances shown sufficient to mitigate and reduce the crime to murder with implied malice simply, or of manslaughter at common law. The Court, Gilpin, C. J., charged the jury, that neither the Court or the jury were to be governed in deciding the case by anything contained in the statutes of other States, but solely by the statute of our own State. What Was murder at the common law, was murder under our THE STATE v. GREEN. ^^3 statute which merely divides it into two degrees, there being no such division of it at common law. Malice afore- thought was the essential ingredient and criterion of it at the common law, and was of two descriptions, express malice aforethought, and malice aforethought, implied by law ; but in either case it was murder, and was punish- able with death at common law, while a division was made in it in that respect by our statute, it being made by it punishable with death only when committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death, and with fine, pillory, whipping, and imprisonment for life when com- mitted with malice aforethought implied by law ; the former being denominated murder of the first degree, and the latter murder of the second degree by our statute. And as to the first it is sufficient in this case to say that the statute provides that every person who shall commit the crime of murder with express malice aforethought, shall be deemed guilty of murder of the first degree and shall suffer death. Malice in the sense in which the law here employs that term, is not confined or limited to hatred, spite, revenge or malevolence towards the deceased in particular, but imports that general malignity and recklessness of the lives and personal safety of others, and is the dictate of a wicked, depraved and malignant heart devoid of a just sense of social duty, and fatally bent on mischief. And express malice aforethought at common law is gen- erally defined to be where one person kills another with a sedate deliberate mind and formed design ; such formed design being evidenced by external circumstances, dis- covering the inward intention ; as lying in wait, antece- dent menaces, former grudges, and concerted schemes to do the party some bodily harm. And though it is termed express malice aforethought, it does not require, as we see from this definition, to be proved that the accused ever expressed or uttered that formed design, but it may be proved by circumstantial evidence, such as lying in 224 COURT OF OYER AND TERMINER. wait, antecedent menaces, former grudges, and concerted Schemes to do the party killed by him some bodily harm, because these facts or circumstances show the sedate deliberate formation of the design to commit the act before it was committed. And as evidence of express malice aforethought to be satisfactory to a jury on an indictment for murder at common law, that sedate delib- erate mind and formed design might have been either to kill the deceased, or to do him some bodily harm or injury, which though it might not have been so intended by the accused when committed, did in fact, result in his death, as was ruled in an early case after mature consideration by all the Judges and Barons in England, in which a park- keeper who caught a boy stealing wood in the park with a rope around his body, one end of which the park-keeper tied to the tail of the horse he was riding on when he sur- prised him in the act, and the boy making no resistance, then struck him two blows on his back when the horse took fright and ran off dragging the boy behind him on the ground, and so injured him that he soon after died of the injuries ; and on which evidence he was condemned and hung. Halloway's Case. Cro. Car. 131. And this definition of express malice aforethought at common law recognized and ruled repeatedly in later cases with only one qualification, and that is, that such deliberately formed design may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, or any dangerous instrument likely to produce death, by privily lying in wait, a pre- vious quarrel or grudge, the preparation of poison, or other means of doing great bodily harm, or the like. So that it must now appear from the circumstances attending the act that such formed design was either to kill, or to do some great bodily harm to the deceased which caused his death. 3 Greenl. Ev. Sec. 145. Many of the States have also divided the crime of murder into two or more degrees, and have materially modified and varied this principle of the common law, some of them making the THE STATE v. GREEN. 225 deliberate intention to kill, the sole and necessary crite- rion of express malice aforethought and of murder of the first or greatest degree under them. But inasmuch as the common law definition of the crime of murder and of ex- press implied malice aforethought, as constituting the es- sential element and characteristic of it, was the only rule or definition we ever had in this State up to the. time when the crime was divided into two degrees under the Revised Statutes in 1852, and that division simply provides in the first place on this subject that " every person who shall commit the crime of murder with express malice afore- thought," shall be deemed guilty of murder of the first degree under the statute, without any definition of it, or saying what shall constitute the evidence or the indica- tions of such malice aforethought, and the test of the crime of murder of the first degree under the statute, we are necessarily remitted, of course, to the common law for the legal meaning and definition of those terms, and of the meaning of the statute which has thus adopted them without any explanation or qualification of them. As to the question how long a time it will require in con- templation of law for the formation of such a design, or what amount of sedate premeditation is necessary to con- stitute the commission of the act a case of murder with express malice aforethought, the only pi*oper answer is that the question of time does not enter into it, for if it be calmly and deliberately formed, though in a moment, and as soon as formed executed, it vvould be evidence of express malice aforethought ; and therefore on that point to illustrate the meaning of the rule in this case he would say that if the prisoner at the time he took the pistol from his pocket and pointed it at the deceased and dis- charged it, had deliberately formed a design in his mind to shoot him with it, having committed that act with a deadly weapon, which was naturally calculated under the circumstances proved and at the short distance the par- ties then stood from each other, to inflict a mortal wound upon the deceased, it was committed with express malice 226 COURT OF OYER AND TERMINER. aforethought, and was murder of the first degree under the statute. And upon this allegation, which it was nec- essary for the State to prove as a fact to the s.-,tisfaction of the jury beyond any reasonable doubt, that it was point- ed and fired at the deceased with a deliberately formed design and intention at that moment on the part of the prisbner to shoot him with it, they would have to consider well the testimony of the only witness who was present at that time, and who testified that he and the deceased were playing and boxing with each other in the public road when the prisoner rode up on a horse and stopping at once bade the deceased to let him alone, to which he replied that he would not, when the prisoner dismounted, stepped up to the deceased and took hold of him by both of his arms, and that the deceased also then took hold of the prisoner in the same manner. That the prisoner soon tried to release himself from the hold of the de- ceased, and not succeeding in the effort, told him to let go of him, but the deceased did not, and soon the prisoner again told him to let go of him, and if he did not, he would shoot him, to which the deceased replied that he couldn't shoot any body, to which the prisoner rejoined that if he would let go of him, he would show him, and that the deceased then let go of him, when the prisoner put his hand in his pocket, drew from it the imperfect pis- tol proved and in evidence before them, and leveling it at the deceased who at that moment stepped backwards a step or two but not more than a yard from him, and still facing him, drew back the hammer of it with the thumb of the same hand in which he held the pistol, there being no trigger to it, when it quickly passed from his thumb, which fired and discharged it, and the deceased was shot and mortally wounded by it, as described by the physician who was instantly called to see him, and died of the wound soon afterwards. It would be the duty of the jury to consider well this and all the rest of the testimony in the case, and to de- termine from it whether the prisoner in the manner THE STATE v. GREEN. 227 described and detailed by the witness, intentionally dis- charged and shot off the pistol at the deceased, and if so, whether it was so discharged by him with a sedate deliber- ate mind and formed design to shoot the prisoner with it. If after so considering the evidence, the jury should be satisfied beyond a reasonable doubt that such was the case, then it would be their duty to find that he com- mitted the act with express malice aforethought, and is guilty of murder of the first degree under the statute ; for if he so committed the act, having xdone it with such a deadly weapon as a loaded pistol, the law assumes that he contemplated and intended the ordinary and natural con- sequences of it to the deceased. And in considering and determining this question of fact as to whether the act was, or was not, committed with a deliberately formed design by the prisoner, it would be proper for the jury to take into consideration in connection with the testimony before particularly referred to, the evidence in regard to the alleged previous grudge of the prisoner against the deceased, also the alleged previous threat or menace made by him that if he did not pay him, he would be . sorry for it, and also the evidence before them in regard to the procurement and the previous preparation and load- ing of the pistol by the prisoner. But, if the jury on the contrary should be satisfied from the evidence that the act was done accidentally and unintentionally by the prisoner, then it was excusable in law, and he should therefore be acquitted. As our statute provides in the first section that every person who shall commit the crime of murder with ex- press malice aforethought, or in perpetrating, or attempt- ing to perpetrate any crime punishable with death, shall be deemed guilty of murder of the first degree, and shall suffer death, and in the second section that every person who shall commit the crime of murder otherwise than is set forth in the first section, shall be deemed guilty of murder of the second degree, and shall be otherwise pun- ished as is set forth in the second section, that is to say, 228 COURT OF OYER AND TERMINER. with fine, pillory, whipping and imprisonment for life ; and as the object of the statute in dividing the crime of mur- der as it before existed in this State, and still exists at common law, was to make the penalty of it death only when committed with express malice aforethought, or in perpetrating, or attempting to perpetrate any crime pun- ishable with death, and to moderate and reduce the pen- alty of it to fine, pillory, whipping and imprisonment for life when committed otherwise than is specified in the first, section, the terms otherwise committed must be un- derstood to mean when committed with implied malice aforethought in the sense in which those terms were then used and understood at common law, or they will be wholly without meaning or signification, and there could be no crime of murder with implied malice, or of the second de- gree under the statute. According to the common law definition of it, malice is implied by law from any delib- erate cruel act committed by one person against another, however sudden, thus where one person kills another sud- denly without any, or without a considerable, provocation, the law implies malice. The distinction between it and " express malice, particularly, is when the act is committed suddenly without any provocation ; but the importance of it practically was but comparatively slight at common law, as the penalty was the same, and was death whether it was committed with express or with implied malice. Our statute however, nice as it may be in some cases, has made it one of vital importance to the accused in all such cases, by^making implied malice aforethought in contra- distinction to express malice aforethought, the sole crite- rion of the crime of murder of the second degree under its provisions. To constitute the considerable provoca- tion here referred to in the definition just stated, in order to rebut or negative the implication of malice aforethought in such a case of sudden killing, it must be at least suffi- cient in-law to reduce the killing to the crime of man- slaughter; and as the only facts or circumstances dis- closed in this case which can have any bearing on that THE STATE v. GREEN. 229 — 1 — ' " point was the failure of the deceased to pay the prisoner a small sum of money which he owed him, and demanded of him by the prisoner a few weeks prior to the commis- sion of the act, and the brief and apparently playful strug- gle between them immediately preceding the commission of it, and the evidence as to which he had already recap- itulated, he would read from a work of acknowledged authority the established doctrine of the common law in regard to the kind and degree of provocation which is re- quired to extenuate and reduce the killing in such cases from the crime of murder at common law, and of either degree under the statute, to the crime of manslaughter. As the indulgence which is shown by the law in some cases to the first transport of passion is a condescension to the frailty of the human frame, to the furor brevis which while the frenzy lasts, renders a man deaf to the voice of reason, so the provocation which is allowed to extenuate in the case of homicide must be something which a man is con- scious of, which he feels and resents at the instant the act he would extenuate is committed. All the circumstances of the case must lead 1;o the conclusion that the act done, though intentional of death or great bodily harm, was not the result of a cool, deliberate judgment and previous malignity of heart, but solely imputable to human infirm- ity. For there are many trivial, and some considerable, provocations which are not permitted to extenuate an act of homicide, or rebut the conclusion of malice to which the other circumstances of the case may lead. No breach of a man's word or promise, no trespass, either to lands or goods, no affront by bare words or gestures, however false or malicious and aggravated with the most provok- ing circumstances, will free the party killing from the guilt of murder. And it is conceived that this rule will govern every case where the party killing upon such prov- ocation makes use of a deadly weapon, or otherwise mani- fests an intention to kill, or to do some great bodily harm. I Russ. on Crimes 513, 514. The distinguishing charac- teristic between the crime of murder and the crime of 230 COURT OF OYER AND TERMINER. manslaughter at common law being that while the former cannot be committed without malice aforethought, either express or implied, the latter cannot be committed with hialice either express or implied. This extenuation on the ground of provocation usually arises in cases of mutual combat or fighting between the parties in which a violent transport of anger and passion had suddenly impelled the one to inflict a fatal blow or wound upon the other, and before there was time for the passion to subside and reason to restrain the furor brevis which impelled it. And yet, even in such cases where there was not time for the passion to subside and reason to re- sume its sway, the combat or fight will not be a sufficient provocation to extenuate and reduce the killing to man- slaughter, if the evidence be sufficient to satisfy the jury that the slayer had provided himself with a deadly weap- on beforehand in anticipation of the fight, and not for the defense of his person against a felonious assault appre- hended by him from the other party. 3 Greenl. Ev. Sec. 121. But according to the evidence in this case the collision be- tween the prisoner and the deceased which immediately preceded the shooting, did not amount to a combat or fight, perhaps, at any time between them, no blows having been struck by either, but at most, in contemplation of law, to a mutual assault and battery only, consisting of their seizing each other by both their arms and a struggle of strength for a few moments between them in which it seems the deceased proved too strong for the prisoner, and from which he soon voluntarily released him after the prisoner had twice threatened to shoot him if he did not do so on his bidding, with the taunt that he could'nt shoot any body. And yet when the provocation consists of an assault merely of this kind, the law holds that it must appear that the provocation was considerable, and not slight only, in order to reduce the homicide to man- slaughter, and that for this purpose the use of reproachful words however insulting or opprobrious, or of actions or gestures expressive of contempt or reproach, without an THE STATE v. GREEN. 231 assault, actual or menaced, on the person of the slayer, will not be sufficient, if a deadly weapon be used by him ; but if the fatal stroke be given by the hand only, or with a small stick, or other instrument not likely to kill, a less provocation will be sufficient to reduce the offense to manslaughter : and, therefore, the killing has been held to be only manslaughter, though a deadly weapon was used, where the provocation was by pulling the nose, pur- posely jostling the slayer aside in the highwhy, or other actual battery. ^ 3 Greenl. Ev. Sec. 122. But notwith- standing under certain circumstances, an assault by the deceased upon the prisoner may be sufficient to rebut the general presumption of malice arising from the killing, yet it must not be understood that every trivial provocation which in point of law amounts to an assault, or even a blow, will as a matter of course reduce the crime to man- slaughter. For where the punishment inflicted for a slight transgression of any sort is outrageous in its nature, ' either in the manner or the continuance of it, and beyond all proportion to the offense, it is rather to be considered as the effect of a brutal and diabolical malignity than of human frailty, and is one of the symptoms of that which the law denominates maHce, and the crime will amount to murder notwithstanding such provocation. Ros. Cr. Ev. 725. I East. P. C. 234. I Russ. on Crimes. 515, It would therefore be the duty of the jury to consider and determine from all the facts and circumstances proved in the case, and upon the law as thus announced and de- fined to them, whether the prisoner willfully and inten- tionally shot the deceased with the pistol in question, and if so, whether the act was committed by him with express malice aforethought, as before defined and ex- plained to them ; and if such should be the conclusion of the jury on all the evidence, then it would be their duty to convict the prisoner in manner and form as he stands indicted, that is to say, of murder of the first degree. But should not the jury be so satisfied, and come to the con- clusion that it was committed in a sudden transport of 232 COURT OF OYER AND TERMINER. passion produced by the mutual assault in ' which the parties had immediately before been engaged, and be- fore it had subsided, if such a passion had been excited in the prisoner by it, and without previous malice or malevolence on the part of the prisoner against the deceased, and also that it was committed without a con- siderable provocation thereby given him by the de- deceased, such as would be sufficient according to the law laid down to them on that point, to extenuate the act and to reduce the killing to manslaughter, then in con- templation of law itr was committed with implied malice, and their duty would be to convict him of the crime of murder of the second degree. But if, on the contrary, they should be satisfied from the evidence that the act was so committed by him in a sudden transport of passion pro- duced as just before mentioned and without previous mal- ice or malevolence as before stated, but with and upon such a considerable provocation thereby given him by the deceased as has also just before been stated, then the legal implication of malice would be rebutted, and it would be their duty to convict him of the crime of manslaughter. For under the indictment the prisoner may be convicted of either of these crimes. As the factum of the killing of the deceased by the prisoner has been proved and is not denied, it is presumed in law to have been done with malice aforethought, and it is therefore incumbent upon him to prove to the satisfaction of the jury that it was not done maliciously, unless it should so appear from the evidence offered against him. All the facts and circum- stances proved in the case together with the weapon used, its imperfection, the manner in which it was loaded, the way in which he fired it, and the youthful age of the pris- oner, with the questions of law involved in it, were all before the jury and upon which it would now be their solemn duty after a careful, complete and conscientious consideration of them, to decide and determine whether the act of shooting the deceased was willfully and inten- tionally committed by him, and if so, whether he was THE STATE v. TILL. 233 guilty of the crime of murder of the first degree, oi>of mur- der of the second degree, or of manslaughter in commit- ting it, and in thus killing the deceased, bearing in mind, however, that it will also be your duty at every stage of this progressive enquiry as to his guilt, from the first to the last, to give the prisoner the benefit of any reason- able and conscientious doubt which you may have as to his guilt, or the degree or grade of the crime, if he is guilty of either under the indictment, and which it was the province of the jury, and not of the Court, to deter- mine. Verdict — Guilty of murder of the first degree. The State v. John Till. Murder of the first degree under the statute is when the homicide is committed with express malice aforethought as described and defined at common law, or in perpetrating or attempting to perpetrate any crime punishable with death. Murder, of the second degree under it is when the homicide is com- mitted with implied malice aforethought as described and defined at common law. Voluntary manslaughter under it is when the homicide is willful and unlawful, but is committed under such circumstances of provocation or alleviation as will suffice at common law, or under statutory pro- vision, to rebut the implication of malice aforethought and reduce it below the grade of murder of the second degree. Homicide se defedendo or in self-defense, is excusable or justifiable in law, but to constitute and establish this defense in any case it must appear that the party killing was not only in imminent and manifest danger of losing his life, or of suffering enormous bodily harm, and was closely pressed by his assailant, but that he sought to avoid it,, and retreated from the violence of the assault as far as he conve- niently and safely could, and that the killing of the assailant was necessary after having done this, to protect his own life, or to save himself from such bodily harm. Drunkenness or intoxication is no excuse in law for crime, unless it be such as to render the party unconscious of what he was doing at the time. New Castle County, May Term, 1867. At a Court of 16 234 COURT OF OYER AND TERMINER. Oyer and Terminer held at this term, John Till, negro, was indicted and tried for the murder, in the first degree, of William H. Till on the 24th day of March, 1867. They were brothers, the deceased being older and much stouter than the prisoner, and were both employed at the time as hands on the farm of James Rogers, Esq., near New Castle. The prisoner had been sent that morning from the farm to the town, and the deceased on his leav- ing had supplied him with a small sum of money to buy some tobacco for him, but on reaching the town he was drawn to a fire which had just broken out in it, and after assisting to extinguish it returned to the farm later than he was expected, and when asked by th? deceased if he had got his tobacco, said he had not, and on his then asking him for the money, he told him with a smile that he had spent it, at which the deceased took offense, and angrily exclaiming "do you take my money in that way and then laugh in my face ?" struck him twice with his fist, once on the neck and once on the cheek, when the prisoner also flew into a passion and swore with an oath that he would get the gun for him, and as he turned and started towards the house which was near at hand, the de- ceased kicked him and defied him to do it, and said to him if he came out there again he would skin him. The prison- er proceeded with a quick step to the house and into the kitchen, and from the kitchen up stairs and soon re-ap- peared at the kitchen door with the gun in his right hand and without stopping to do it, took it in both hands, cocked it and looked at the cap of it as he walked hur- riedly towards the deceased, who then started towards him with a long-handled weeding shovel in his hand with which he had been at work when the altercation began between them ; the prisoner then raised the giin in both his hands to his shoulder, pointed it at the deceased and fired and shot him when they were about twelve or fifteen feet from each other. The deceased then rushed at the prisoner, caught him by the collar and again kicked him. The prisoner said nothing as he came towards him from THE STATE v. TILL. 235 the kitchen door, but seemed to be very angry. The de- ceased, however, soon afterwards fell upon the ground, and died in a few hours of the wound inflicted which was with No. 8 bird shot covering a circumference of four or five inches in diameter on the upper portion of the right side of the chest, a number of which had penetrated it to the depth of three inches between the first and second ribs and lacerated the lungs very much. It was also proved that the prisoner had been drinking some that morning after the fire in the town had been extinguished, but was not drunk. Higgins, Deputy Attorney General, contended that the evidence constituted it a case of murder of the first degree under the statute, as the intention to kill the deceased and the deliberation with which it was done as manifested by the facts and circumstances which accompanied it, clearly indicated, for the distinctive peculiarity attached by the statute to murder of the first degree is that it must nec- essarily be accompanied with a premeditated intention to take life. Wherever then in cases of deliberate homicide there is a specific intention to take life, the offense, if con- summated is murder in the fifst degree ; if there is not a specific intention to take life, it is murder in the second degree under the statute. To constitute murder of the first degree under the statute, the intent of the party killing must have been to take life, whereas, by the com- mon law, if the mortal blow is malicious, and death en- sues, the perpetrator is guilty of murder, whether such an intention does or does not appear to have existed in his mind. The first enquiry, therefore, of a jury under the statute after a felonious and malicious homicide is estab- lished, but not committed in perpetrating or in attempting to perpetrate either of the other high crimes specified in the act, is whether the mortal blow or wound was given with the intent to take life, or merely to do great bodily harm to the person killed. If the former is proved by the evi- dence, the crime is murder in the first degree ; if such an 236 COURT OF OYER AND TERMINER. intent does not satisfactorily appear, the jury should re- turn a verdict of murder in the. second degree, i Whart. Cr. Law, Sec. 1084. It must be assumed from the facts proved and the deadly weapon used and aimed and point- ed directly at the breast of the deceased within twelve feet of the muzzle of it, that the prisoner intended not only to shoot him, but to kill him. Besides it is an irre- sistible presumption both of reason and of law that the pris- oner intended the natural and probable effect and conse- quences of such an act when he did it. A specific intent, therefore, to take life could not be more clearly and con- clusively indicated and established in any case. The time it took to procure the gun, the distance he went in search of it after his first collision with the deceased, the cool- ness with which he returned from the kitchen stairs down to the door with it, and with which he cocked it and looked at the cap of it as he walked out into the yard toward the deceased, and with which he raised it in both hands to his shoulder, pointed it at the breast of the deceased and fired and shot him with it at twelve feet only from the muzzle of it, showed such deliberation and premeditation in his preconceived purpose from the start to kill him with it, and such express malice as in law could only properly characterize the crime of murder of the first degree under the statute, and not even murder of the second degree un- der it, much less the crime of manslaughter. As to the latter grade of offense, if a verdict, as a last resort, in that form should be contended for on the other side, he would only say that where the killing is done with a deadly weapon, the provocation must be great to mitigate and reduce the offense to the grade of manslaughter, and no assault with the fist or foot, or both merely, can consti- tute an adequate provocation to so mitigate or alleviate it in any case when the killing is done with a deadly weapon. Besides, too long a time had elapsed according to the facts proved in this case, and too much coolness, premeditation and deliberation was exhibited by the pris- oner in the selection and procurement of the deadly weap- THE STATE v. TILL. 237 on with which it was done, between the time of the pro- vocation received and the time of the mortal wound given, to reduce the crime to manslaughter, even if a much greater provocation had been given, and one which might otherwise have been sufficient for that purpose, i Whart. •Cr. Law, Sec. 971. Fost. 290. i Russ. on Crimes, 482. As to the state of intoxication the prisoner was in be • fore he left the town that morning the opinions of the wit- nesses varied considerably. One thought him pretty drunk and another very much intoxicated ; another witness met him afterwards as he was driving out of town on his way back to the farm where he lived, and had some talk with him, and thought then that he had been drinking, but that he was not drunk, and another who rode out with him to the farm stated that he was drunk going out to the farm, but was not as drunk when he arrived there, as he was in town, for he staggered in the town But the legal test and rule on this subject now is, that if the prisoner was not so drunk' at the time as not to know what he was doing, and to be unable to form any intention to do it, then the state of his intoxication whatever it might have been at that time, could not excuse or mitigate in any de- gree the great crime which he had committed, i Whdrt. Cr. Law, Sees. 42, 43. i Bisk, on Cr. Pro. Sees. 298, 382. Booth, for the prisoner, contended that there was no evidence of a specific and deliberate or premeditated in- tention on the part of the prisoner to kill, or take the life of the deceased, without which the killing could not be considered murder with express malice aforethought at common law, and of the first degree under the statute. On the contrary, the facts proved clearly showed that it was suddenly committed in a violent transport of passion and fury under a gross provocation by way of an assault upon him by the deceased, at a time when the prisoner was certainly under the influence and excitement of intox- ication which would negative even the implication of malice, and reduce it to nothing more that manslaughter 238 COURT OF OYER AND TERMINER. at furthest. Ros. Cr. Ev. 724, 726, 733. Reg. v. Kirkham, 34 E. C. L.R. 318. Reg. v. Smith, 34 E. C. L.R. 334. The state of intoxication he was still then in, according to all the proof on that point, together with the provocation which he had just received from the deceased, and the sudden heat of blood produced by it, and which had not yet had time to cool in his excited condition increased as it was by that intoxication, was sufficient in law to mitigate and reduce the homicide to the offense of manslaughter, at least, i Whart. Cr. Law, Sees. 41, 42, 43. i Bish. on Cr. Pro. 302. Reg. v. Thomas, 32 E. C. L. R. 750. King v. Lynch, 24 E. C. L. R. 342. i Whart. Cr. Law, Sec. 1026, (Selfridge's Case.) But the deceased not only rudely and violently assaulted the prisoner in the first instance and at the beginning of the brief but unfortunate affray be- tween two brothers without any adequate provocation, but taunted and defied him to get the gun, and as soon as he produced it rushed at him with his long-handled shovel, a weapon scarcely less dangerous and deadly than a small bird-gun charged with a half-load of ordinary bird-shot ; and which converted an unprovoked affray of his own making almost instantly into a mutual combat of his own seeking, with equally dangerous and deadly weap- ons on the part of both of the combatants ; and which would justly constitute a case of killing in self-defense on the part of the prisoner. Ros. Cr. Ev. 765. For sad and horrible as the tragedy in the end proved to be, and as much as it was to be abhorred on the part of both the brothers, he would venture to say that the deceased, who was older and so much stouter than the prisoner, was in a moral point of view the most responsible for it. Moore, Attorney General, replied. The Court, Houston, J., charged the jury. The prisoner, John Till, is indicted for the killing of his brother, Wil- liam H. Till, on the 24th day of March last in this hun- dred, with express malice aforethought, and accordingly THE STATE v. TILL. 239 for murder of the first degree under the statute. But by the terms of the statute it is also provided that in every case in which murder is otherwise committed than with express malice aforethought, or in perpetrating or at- tempting to perpetrate a crime puni?hable with death, it is murder of the second degree under it ; and this im- ports in contradistinction to murder of the first degree as just defined in the words of the statute, when it is committed not with express malice aforethought, but with malice aforethought implied by law. Murder of the fii-st degree is punishable under it with death, murder of the second degree with fine, pillory, whipping and im- prisonment for life. Prior to the enactment of the statute the only law we had in this State defining the crime of murder was the common law, and to that we must recur for the meaning and definition of express and implied malice aforethought, since the statute itself does not give any, and it must therefore be understood to derive them from the common law, and by implication, at least, to adopt them in the same sense in which they were employed and recog- nized at common law and the law of this State when the statute was enacted. At common law, and by the law of this State at that time, however, the distinction between express malice aforethought, and malice, aforethought implied by law in respect to the crime, had no effect in law to mitigate or change the grade of it, because it was murder nevertheless, and punishable with death, whether committed with ex- press or with implied malice aforethought in the sense in which those terms are efnployed at common law respec- tively, although each has its appropriate meaning and signification at the common law. And therefore in accor- dance with it before the enactment of our present statute, some fifteen years ago, we had but one degree of murder under the laws of this State, and that was punishable with death, whether committed with express or implied malice aforethought, as before stated. And at common law they 240 COURT OF OYER AND TERMINER. are thus defined in respect to murder, and to which crime they can alone apply in their proper legal signification. Murder is the killing of any person with malice prepense or aforethought, either express or implied by law. And malice prepense or aforethought constitutes the chief characteristic, the grand criterion by which murder is to be distinguished from all other species of homicide, as well as all other crimes ; and it will therefore be neces- sary to enquire concerning the cases in which such malice has been held to exist. It should, however, be observed that when the law makes use of the term malice afore- thought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of ma- levolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordi- nary symptoms of a wicked, depraved and malignant spirit ; a heart regardless of social duty, and deliberately bent on mischief. And in general any formed design of doing mischief may be called malice ; and therefore not such killing only as proceeds from premeditated hatred or re- venge against the person killed ; but also in many other cases such killing as is accompanied with circumstances which show the heart to be desperately wicked, is adjudg- ed to be of malice prepense, and consequently murder. So much for malice prepense in general and the pecu- liar import of the term in the description of murder, and in the distinction of it from all other species of homicide and from all other crimes. But as we have before said, it may be either express or implied by law, and although the distinction between them at common law was not sufficient to induce any discrimination in the grade or degree of the crime or in the punishment due to it, whether committed with express or implied malice, our legislature has seen proper to make the common law dis- tinction between them, slight as it is, the ground of dis- tinction between murder of the first degree and murder of the second degree under the statute, except when it is committed in perpetrating or attempting to perpetrate THE STATE v. TILL. 241 any crime punishable with death, which it also makes murder of the first degree. At common law express malice aforethought is when one person kills another with a sedate, deliberate mind and formed design, such formed design being evidenced by external circumstances discov- ering the intention of the mind ; such as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. As the in- tention with which the act is done is in general only to be discovered from the facts and circumstances attending it, these are given as instances merely in which the facts and circumstances stated evidence the deliberate mind and formed design to commit the act or to do the party some bodily harm which results in his death. And from this it clearly appears as a further definition of the par- ticular and peculiar meaning attached to the term malice aforethought in describing the crime of murder, that the malicious intention must be to do the party some bodily harm, for an intention to do him any other harm or injury however great or malicious, felonious or deliberate it may be, cannot involve in contemplation of law the malice afore- thought which constitutes the grand criterion and chief characteristic of murder. For not, even the crime of arson, or the malicious burning of another's dwelling house, al- thought a capital offense also, however deliberately and maliciously it may be done, involves the idea of such malice aforethought in contemplation of law. And it is because the security of human life is of the highest con- sideration in law. Malice aforethought is implied by the common law from any deliberate, cruel act committed by one person against another, however sudden, as where one person kills another suddenly without any, or without a considerable, provocation, the law implies malice. And it is a general rule of the common law that all homicide is presumed to be malicious, and to be murder, until the contrary appears from circumstances of alleviation, excuse or justification ; and that it is incumbent upon the pris- oner when the killing is proved, to make out such circum- 242 COURT OF OYER AND TERMINER. stances to the satisfaction of the Court and jury, unless they arise out of the evidence produced against him. From these definitions of express and implied malice aforethought at common law it will appear to the jury that while a sedate deliberate mind and formed design on the part of the accused to kill the party slain, or to do him some bodily harm, is essential to constitute express malice aforethought, and murder of the first degree under our statute, the other description of malice aforethought essential to constitute murder of the second degree under it, is implied by law from any deliberate cruel act com- mitted by one person against another, however sudden ; as where one person kills another without any, or without a considerable provocation, the law implies the malice aforethought which constitutes it murder of the second degree under the statute. When therefore the act is com- mitted with the deliberate mind and formed design con- templated in the first definition, and death is produced by it, it is evidence of express malice aforethought, and is murder, as we have before said, of the first degree in this State ; but if death is produced by any deliberate cruel act committed by one person against another, however suddenly done, without any, or without a considerable pro- vocation, the law implies malice aforethought in such a case, and it is murder of the second degree in this State. Because here, as we have before remarked, the distinction between the first and the second degree of murder under our statute, depends entirely on the distinction between express malice and implied malice aforethought at com- mon law in respect to murder, except when it is com- mitted in perpetrating or attempting to perpetrate a crime punishable with death. And this view is sustained by the authority cited by the Deputy Attorney General, in this case, i Whart. Cr. Law, Sec. 1084, although by the statute of Pennsylvania, and the judicial interpretation given to it by the Courts of that State, the specific inten- tion to kill is made the criterion of murder of the first degree under their statute. THE STATE v. TILL. 243 But in order to .reduce the killing from the crime of murder committed with express malice aforethought and of the first degree under our statute, or with that coolness and deliberation of mind and formed design which is dis- covered and evidenced by the circumstances attending it, to murder committed with implied malice aforethought and of the second degree under the statute, it must not only appear that the deliberate, cruel act against the per- son killed was committed suddenly, and without the coolness, deliberation and formed design before mentioned, but that it was also committed without any, or without a considerable provocation. Because if the act of killing appears to have been committed with such a considerable provocation as is recognized in law to rebut and negative even the implication of malice aforethought, it cannot constitute murder of the second degree under the statute, but it will be reduced to the crime of manslaughter under the statute. For under the facts and circumstances proved in this case, and .as the killing of the deceased by the prisoner at the bar is not in dispute now before the Court and jury, it is sufficient here to say without any further reference to, or general explanation of, the law in relation to homicide, that the term provocation just men- tioned can have no other application in this case than such as the counsel for the prisoner has contended should have the effect to reduce it to a killing in self-defense, or to the crime of manslaughter, at least, in contemplation of law. But the provocation referred to in the definition of implied malice aforethought has particular reference to such acts of provocation as are sufficient to reduce an unlawful killing of one person by another from the crime of murder of either degree under the statute, to the crime of manslaughter^the next highest offense in case of homicide. And as in this species of homicide, malice aforethought which is the main ingredient and characteristic of mur- der is considered to be wanting, manslaughter is there- fore defined to be the unlawful killing of another without malice aforethought, either express or implied ; and as 244 COURT OF OYER AND TERMINER. the offense is supposed to have been committed without malice, so also it must have been without premeditation. But this cannot • occur in any case of unlawful killing unless it appears from the evidence that it was committed under a considerable provocation, and such as is recog- nized in law as sufficient under the circumstances proved to rebut the implication of malice ; and such provocations vary in their character, but are well defined in the law : So far however as this case is concerned it will not be necessary to refer particularly to more than one class of them, and which is of more frequent occurrence, perhaps, than any other in cases of manslaughter. And that is when the provocation consists of actual violence or an assault committed by the deceased on the person of thp accused, and in a sudden transport of passion, or heat of blood produced by it, and before he has had time to cool, he kills the aggressor, either with means not likely to pro- duce death, or with a deadly weapon at hand and sud- denly seized or used without preparation or premeditation, it is imputed by the benignity of the law solely to human infirmity, which though criminal in the eyes of the law, is considered as incident to the frailty of the human con- stitution, and therefore to have been committed without malice, and to be manslaughter only. But no words, however abusive, insulting or offensive, without an assault or actual violence committed or menanced to him, upon the person of the accused, or on some one standing in the rela- tion of a wife, son, daughter or servant, can constitute such a provocation in contemplation of law. And as the indulgence which is shown by the law in such cases to the first transport of passion is a condescension to the frailty of the human frame, to the furor brevis, which while the frenzy lasts renders a man deaf to the voice of reason, so such a provocation must be felt and resented by him at the instant and before he has had time to cool, or for reflection ; and all the circumstances of the case must lead to the conclusion that the act done, though inten- tional of death or great bodily harm to the deceased. THE STATE v. TILL. 245 was not the result of a cool, deliberate judgment and previous malignity of heart, but was solely imputable to human infirmity. For there are many trivial, and some considerable, provocations, which are not permitted, or deemed sufficient in law to extenuate an act of homicide, or rebut the conclusion of malice, and so reduce it to the crime of manslaughter. It is also a rule of law on this sub- ject that in all cases of slight provocation, if it may be reasonably inferred from the weapon made use of, or from any other circumstance proved in the case, that the party intended to kill or do some great bodily harm, the law will imply malice, and such homicide will be murder of the second degree, at least, under our statute ; and will be murder of the first degree, if the act is done with express malice, for the plea of provocation will avail in no case where there is evidence of express malice afore- thought. And though an assault made with violence or circumstances of indignity upon a man's person, and resented immediately by the party acting in the heat of blood upon that provocation, and killing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood that the crime will be so extenuated by any trivial provocation which in law may amount to an assault, nor in all cases even by a blow, for violent acts of resentment bearing no proportion to the provocation or insult, are barbarous and proceed rather from brutal ma- lignity than human fraiky, and barbarity will often be evidence of malice. It is furthermore a rule of law that if a deadly weapon, or other instrument likely to produce death, be made use of, and death ensues, malice will be presumed, unless it appears that it was suddenly used without premeditation, in the heat of blood and the trans- port of passion produced by the provocation ; and that in every case of homicide upon provocation , how great so ever that provocation may have been, if there is suflScient time for passion to subside and reason to interpose, such homi- cide will be murder of the second degree, at least, under the statute. 246 COURT OF OYER AND TERMINER. With respect to the interval of time which shall be allowed for passion to subside, the law prescribes no exact limits for it. In cases of this kind the immediate object of enquiry is, whether the suspension of reason arising from sudden passion continued from the time of the provocation received to the very instant the mortal wound was inflicted ; for if it appears from any circum- stance whatever in the evidence that the prisoner reflected, deliberated, or cooled any time before the fatal shot was fired, or there was time or opportunity for cooling, the killing will amount to murder of the second degree un- der the statute, as being attributable to malice and re- venge, rather than human frailty. As we have before remarked, it is not every provocation, even by a blow, when the party receiving it uses a deadly weapon, that will reduce the killing to manslaughter, but it depends, as we have before said, upon the time elapsing between the blow received and the mortal wound inflicted, and also upon the fact whether it was inflicted with such a weapon at the moment in the possession of the party, as was likely to produce death, or he went for it and got it and brought it from another place, and when the latter fact occurs in a case it constitutes a material circumstance in the consideration of the question whether it was inflicted in the sudden heat of blood occasioned by the provoca- tion, or a sufficient interval had elapsed for his passion to cool and for reason to regain dominion over his mind. The proof in the case was substantially as follows : The prisoner and the deceased were brothers, the latter being the oldest and largest and stoutest of the two, and were employed as hands on a farm near this place, and on the day of the homicide the prisoner was sent by his em- ployer into town for a brief purpose and was soon expect- ed back, and on his leaving the deceased requested him to get him some tobacco, and gave him the money to pay for it ; but on reaching the town he found a fire had broken out in it, and he hastened to it, and was active and efficient with many others in extinguishing it, for THE STATE v. TILL. 247 which they were treated to whiskey, and after which the prisoner lingered in the town long enough to drink too much elsewhere, and to spend the money the deceased had given him without getting any tobacco for him. On his return after an absence of several hours, however, he was asked by the deceased if he had got it for him, to which he answered that he had not, and on his then ask- ing him for the money, he smiled and told him he had spent it ; on which the deceased angrily said to him, " do you take my money in that way, and then laugh in my face !" and with that struck him two blows with his fists, one on the side of his neck and the other on his cheek, on which the prisoner also flew into a passion, and swoie with an oath, but without returning either blow, that he would get the gun for him, and instantly turned towards the mansion on the farm which was near at hand, for that purpose, and as he did so the deceased also kicked him once, and as he started quickly towards the house defied him to do it, and told him that if he came out there again hfe would skin him, the prisoner at the same time proceed- ing with quick steps to the kitchen of the house which he entered and through which he passed and up a stairway to a room on the floor above it where the gun then was, and retracing his steps reappeared at the kitchen door with it in his hand, and without stopping to do so, raised it and cocked it and looked at the cap of it, as he walked quickly from the house towards the deceased, who in the mean while had picked yp a large weeding hoe and was then weeding the ground with it near where the collision had commenced between them, and who immediately started towards the prisoner with it raised in his hands, but had proceeded only a few steps toward him. when the prisoner aimed and fired the gun at him, and he fell mortally wounded by the discharge of it, and died in a few hours afterwards. There was no proof in the case of any antecedent grudge or malice on the part of either of them against the other, and no expression or manifestation of such a 248 COURT OF OYER AND TERMINER. feeling on the part of the prisoner towards the deceased after the fatal shot was fired. And as there was no proof as to the distance from the place where the provocation was received to the room above the kitchen where the gun then was, and none as to the time which elapsed between the giving of the provocation and the shooting which soon afterwards followed it, it would be for the jury to con- sider and determine from the evidence before them whether a sufificient time had elapsed for the passion and anger of the prisoner to cool and subside and for reason or reflection to regain control of it and of his actions in the mean while. If you should find that there was, then the law will imply that he killed the deceased with malice aforethought, and in that case your verdict should be that he was not guilty in manner and form as he stands indicted, but guilty of murder of the second degree ; but on the contrary, should you find that there was not a sufficient time for that to have taken place, then your verdict should be not guilty in manner and form as he stands indicted, but guilty of manslaughter. As to the plea of selif-defense the law on that subject is well settled, and under the facts proved it cannot avail in such a case as this. The contention on the part of the prisoner's counsel is that inasmuch as the deceased advanced with a large weeding hoe raised in his hands to encounter the prisoner with the gun in his hands pointed at him, it became a case of mutual combat between them with equally dangerous and deadly weapons, and as the prisoner was then in imminent danger of being killed or grievously wounded by the deceased, to save himself from that immediate danger, he was justified or excusable in law in shooting and killing the deceased, particularly, as it was in a conflict which he had provoked and court- ed from the beginning of the altercation between them. But to constitute and establish such a defense in any case the law requires that the party killing was not only in imminent and manifest danger of losing his life, or of suffering enormous bodily harm and was closely pressed THE STATE v. PRATT. 249 by his assailant, but that he sought to avoid it, and retreated from it as far as he conveniently and safely could, and that the killing of the assailant was necessary after having done this to protect his own life, or save him- self from such bodily harm. Had such been the conduct of the prisoner in this case, he would have been entitled to a verdict of acquittal at the hands of the jury, but the evidence does not present such a case, and it is therefore insufficient to warrant such a verdict. As to the state and condition of the prisoner at the time the act was committed, so far as drunkenness or intoxication was concerned, the jury must consider and determine as to that from all the facts and circumstances in evidence before them in the case, the rule of law on that subject being that drunkenness or intoxication is no excuse for crime, unless it is so great as to render the party unconscious of what he is doing at the time. The verdict was " guilty of murder of the second degree. The State v. Joseph W. Pratt. The statute by which the two degrees of murder are established does not in any respect change the general law of murder. The com- mon law definition of murder, together with all the rules and prin- ciples applicable to the crime remain as they were before the passing of the statute. Its only effect is to graduate the punishment accord- ing to the degree. Murder in the first and second degree and vol- untary manslaughter defined. If a husband fiuds another in the act of adultery with his wife and in the first transport of passion excited by it, then and there kills him, it will not be murder, but manslaughter only. It is not nec- essary, however, that he should witness an act of adultery com- mitted by them. If he saw the deceased In bed with his wife, or leaving it, or found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just then committed the adulterous act, or were then about to commit it, the effect will be the same ; and if under such circumstances the mortal 17 250 COURT OF OYER AND TERMINER. blow was then and there given, the killing will be manslaughter merely. But no other knowledge on the part of the husband, how- ever positive, otherwise acquired of their adulterous intercourse, can suffice to mitigate and reduce the killing from the crime of murder to manslaughter. In order to exempt a person from responsibility for a criminal act on the ground of partial insanity, the controlling power of it, whether arising from insane delusion, or from a real cause, must be so in- tense and overwhelming, as utterly to deprive the party of his reason in regard to the act charged as criminal. And the enquiry in a case like this is always narrovijed down to the question of the insanity of the prisoner at the time of the commission of it, and in respect to the criminal act charged against him. Was he at the time, and as touching that act, sane or insane ? Tf he had sufficient mental capacity at the time of committing it, to distinguish between the right and wrong of that particular act, and to know that it was wrong, he is criminally responsible for it. And as every man is pre- sumed in law to be sane and possessed of a sufficient degree of rea- son to be responsible for his crimes, until the contrary is proved to the satisfaction of the jury, and the alleged insanity of the prisoner at the time of committing the crime charged against him is set up as matter of defense to it, the burden of showing it lies on the pris- oner. It must be proved like any other fact to the satisfaction of the jury. If the proof of it does not arise out of the evidence offer- ed by the State, the prisoner must prove it to the satisfaction of the jury beyond a reasonable doubt ; otherwise the presumption of sanity or soundness of mind will remain unrebutted and in full force. New Castle County, May Term, 1867. At a Court of Oyer and Terminer held at this term, Joseph W. Pratt was indicted and tried for the murder in the first degree of Joshua Pusey Smith, in the city of Wilmington on the 29th day of April preceding. It appeared from the evi- dence that both of the parties had formerly resided and been intimate acquaintances in the State of Pennsylvania, but had removed with their families a few years before to the city of Wilmington, the deceased in the year 1858 or 1859 and^ the prisoner in 1864, and that the deceased at the time of the alleged murder was keeping the Indian Queen hotel in that city, and- the prisoner and his family, consisting of himself, his wife and a son fourteen years old resided in a house on Seventh street owned by the THE STATE v. PRATT. 2^1 deceased. In 1865 the prisoner made a protracted visit to West Virginia leaving his family in Wilmington, but returned there on Monday, the 15th of last month, and went the next day to the city of New York and came back to Wilmington at midnight on the next Friday, the 26th of that month. The deceased was at that time hav- ing some of the rooms re-papered in the second story of the house in which the prisoner and his family resided, and was in the house on Sfiturday, the following day, to see how the work was progressing, and to learn what Mrs. Pratt, the wife of the prisoner, thought of the new paper he was having put on the rooms. That morning the prisoner played checkers with his son while his wife was preparing breakfast, but after breakfast he walked about the house from one room to another without stay- ing long in any one' place. Afterwards his wife went to market and he went with her, and they returned to the house together between 8 and 9 o'clock. He then sat down in the sitting room and talked with his wife in the presence of the young woman who gave this evidence, and afterwards left the house with his son, and returned without him about 3 o'clock in the afternoon while his wife was preparing dinner, and soon after he and his wife sat down and took dinner together. On leaving the house with his son they went together to the railroad depot where he purchased two tickets, one for himself to Elkton and the other for his son to Newark, and sent him there to collect two bills for him by the half past 9 o'clock A, M. train, and who did not return until the following Mon- day after the fatal attack had been made upon the de- ceased. The call of the deceased before mentioned at the house that morning was after the prisoner and his son had left it as above stated, and while there he requested the prisoner's wife to go to the rooms above to assist him in measuring them for the paper, and she complied with his request The witness then stated that she returned to the house of the prisoner the following Monday morning about half 252 COURT OF OYER AND TERMINER. past 7 o'clock, and finding the front door locked went round to the back door and was let into the kitchen door by him with a friendly "good morning," and she passed from it into the sitting room. The prisoner then came into the sitting room from the kitchen without any coat on and complained of having the headache, but soon went out into the kitchen again, and his wife went up stairs, but soon a woman came in for a moment, the prisoner put on his hat and went into the sitting room, and which he again re-entered through the entry door as the woman was passing out of it. He and his wife then went out of it into the kitchen and shut the door and remained there some time, and were there when the deceased entered the" front door, walked to the sitting room door opening into the passage, looked in and bidding her good morning as she sat sewing by the window in it, and enquired of her if the paper-hangers had come, she informed him they had and had been at work some time, he at once turned fromi the door and went up stairs, but had hardly more than reached the head of them and the floor above, before his wife re-entered the sitting room from the kitchen followed by the prisoner, when she observed to her that Mr. Smith had come, to which she replied that she had heard him when he came in. The prisoner then proceeded to the en- try door, but halted for a second perhaps, at the foot of the settee just at the door, then passed out of it and ran rapidly up stairs, while his wife looked anxious and worried and walked towards the mantle, clasped her hands, and then passed into the parlor and closed the door which led into it from the sitting room. In a very short time afterwards she heard a sudden noise above and then a sound as if two or three persons were running down stairs together, a woman screamed, and immediately afterwards she heard some one run down the first flight of stairs and through the entry to and out at the front door. The prisoner imme- diately afterwards opened the entry door into the sitting room and walking towards her exclaimed, "he has ruined my wife ! he has ruined my wife" ! and then, "my God THE STATE v. PRATT. 253 -what have I done ! My poor mother ! My poor child ! " and repeating these words several times he laid down on the floor with his face towards it. His wife also came into the sitting room just at that moment and said to him "Jo- seph, what made you do it ? It was done without a cause. See what temper has brought you to." She then went to the front door and looked out, closed it and came into the sitting room again, then went into the kitchen and returned with a pail of water and a broom, and asked her if she would not wash the blood off the front steps and the pavement, for the whole town was in an uproar, and which she did for her. There was a good deal of blood marking the flight of the deceased down the stairs and through the entry, as well as on the front steps and the pavement. She saw nothing of her when she went back into the sitting room, but the prisoner was still lying on the floor of it with his face turned towards it, as when she went out of it. She then put on her hat and shawl and Tvent home, and was not there any more that day. That was Monday, the 29th day of last April, and it was after 10 o'clock that morning when she reached home. When she heard the woman scream she recognized the voice as that of the prisoner's wife. There was blood running from her right hand when she first came into the sitting room after the disturbance had occurred, and she saw on the following Wednesday that the middle finger of her left hand had been severely cut. The foreman of the paper-hangers who was the next ■witness, stated that he was at the house of the prisoner ■on Saturday, the 27th day of April last, at work papering the front room in the second story of it, and about half past 4 o'clock he heard the front door open and a person •come in and with a quick and heavy step pass from it into the back parlor or sitting room, and in a'minute after, Mr. Smithy the deceased, came up into the front r*oom where he was at work, made sonle remarks about it and the pa- per, seemed pleased with the appearance of it, and soott left ; and he left it, without finishing the papering of it. 254 COURT OF OYER AND TERMINER. about 7 o'clock that afternoon, and returned to his work upon it about half past 7 o'clock the next Monday morn- ing, and after taking up into the room some paper he had brought with him, he went down into the sitting room to- get a table where he saw a young woman sitting at the window sewing, but saw nothing of the prisoner or any other man about the house that morning, until about half past 9 o'clock when he heard the front door open and a person enter with the same quick and heavy footsteps, as on Saturday, and very soon Mr. Smith came up stairs and into the front room where he was, and again said he was pleased with the paper, and then turned on his heel and went out into the entry, and up the next flight of stairs into the third story he was satisfied, for had he gone down stairs he would have seen him ; and in two or three min- utes afterwards he heard a noise above as of the shufHing of feet or persons moving quickly over the bare floor, and very soon what sounded like a fall or a heavy jump upon it which jarred the windows and seemed to shake the house itself, and just then a lady's voice and a sudden shriek with the words "my Lord, Joseph what have you done" ! and immediately after that footsteps coming fast and heavy down stairs and along the entry below until they seemed to pass out of the front door of the house ; something was said by the lady before he heard the shriek, but he did not understand what it was siie said. He also heard ap- parently light footsteps following the fast and heavy ones, down stairs immediately afterwards, but he saw no one as the door of the room was closed during the whole time. Another at work in the same room with him at the time was then examined as a witness and made the same state- ment with the addition, that he heard no one come up the first flight of stairs, or go up to the third story after the deceased had come up to the room they were at work in,. or after he had left it and gone up into the third .story, but soon after the fast and heavy steps were heard going down stairs and out of the front door, he heard some one slowly coming down stairs groaning, and when he got THE STATE v. PRATT. 255 down stairs into the sitting room he heard him say, " Oh, my God." But just before that he heard light footsteps, and then in a minute after a person coming slowly down groaning as before mentioned. The evidence for the State further showed that the wound was inflicted in the front room in the third story of the prisoner's house, and consisted of a single stab about four inches below the top of the left shoulder, be- ing behind as well as below it, or on the back part of the left arm-pit, and extending around towards the front, two and a half inches in length and four inches at least in depth, made with a dagger or sheathed knife which was soon afterwards found lying on the floor with fresh blood on it, and with the scabbard or sheath of it also lying on the floor not far from it ; arid which were produced and proved and put in evidence. The deceased was so much exhausted by the flow of blood from it that he was un- able to reach his home at the Indian Queen Hotel and died about 10 o'clock that morning. The physicians who had reached him but a few moments before he expired were of the opinion that the wound was not necessarily mortal, if he could have immediately had the proper at- tention and treatment from them, but under the circum- stances it was a mortal wound and the cause of his death. The evidence for the prisoner by a number of witnesses from Kimballville in Pennsylvania eighteen miles above Wilmington, showed that he and the deceased had long resided in that vicinity and were very intimate friends prior to their removal to Wilmington, and that whilst the prisoner was the keeper of a hotel in that place, and the deceased owned and resided on a farm a mile from it, he was a frequent visitor at the hotel, and more so when the prisoner was from home than when he was there ; that when the prisoner was at home he always drove up and lighted from his carriage in front of the hotel and would have a friendly salutation with everyone he knew about it, and acted as others did, but when he was away from home he always drove around and lighted in the yard in the rear 256 COURT OF OYER AND TERMINER. of the hotel, walked into the bar-room and took a drink, and then into the sitting room where he spent the whole ol his stay in company with the prisoner's wife, and that he sometimes spent the night at the hotel, but never when the prisoner was at home ; and according to the tes- timony of the bar-keeper that one night which he spent at the hotel in the absence of the prisoner, he came into the bar-room and told him he wished to go to bed, and that she had before informed him to put him in the front room, which was next to hers, and having left his over-coat in the bar- room, and knowing that he always left the hotel very early, before retiring himself, he took it late at night up to his room, but found he was not there, although the bed in it had been occupied that evening. Afterwards the prisoner left the hotel, and took a private house in the place and removed his family to it, and the deceased was then ob- served according to the testimony of several witnesses, one of whom then resided next door, to continue his visits to the family, and frequently when the prisoner was away to stay all night at the house, and to leave it by the back- way early in the morning. The son of the prisoner who had been examined as a witness on behalf of the State was now recalled and ex- amined as witness on his behalf, and stated that on the removal of his father's family to Wilmington they first resided in French street about a year, then removed for a year to No. 703 Jefferson Street, and from there to No. 523 Seventh Street on the 25th of March 1866. 'That his father and Mr. Smith were very friendly, and that he was intimate with their family. He used to come often to their house when they lived in French and in Jefferson Streets. His visits were to his mother, for he would come when his father was away, as he was always at his office in Sixth Street, except at meal times. His father went away to West Virginia while they lived in Jefferson Street, and after that his visits to their house were oftener than before. He had seen him there as often as seven times a week. He would come about seven o'clock in the THE STATE v. PRATT. 257 evening and stay a good while ; that was at the house in Seventh Street after they moved there. He often sent him out for refreshments, ice cream, oranges or apples ; they then had no family but himself and his mother. He had sometimes known him to leave before he went to bed. In August last year his mother went away and he went into the country on a visit to Louisville, Pa., and he wrote to his father in West Virginia that she had gone away and that he thought she was at his uncle's, Thomas Slack's, but afterwards wrote to him correcting it and told him she was at Mr. Hanse's. His father then came home. After that he had a suspicion that all was not right, and coming down stairs he found him in the dark without his coat, vest or shoes, and on two occasions in their back yard after nine o'clock at night, and when his father again came home in October last he told him of it. Another witness residing on Seventh Street testified that he had seen the deceased go to the house of the prisoner on that street almost every day. Maxwell B. O.cheltree another witness for the prisoner stated that he was associated with him in business as real estate agents from June 186410 June 1865 when the pris- oner went to West Virginia, and that the prisoner and the deceased were intimate and particular friends, and the prisoner reposed entire confidence in him. When he came back in August last, the deceased was away from home, and he apprised him of the reports in circulation in relation to the improper intimacy between his wife and the deceased both in Wilmington and at Kimballville, at which he seemed thunderstruck and utterly speechless, for he held down his head and made no reply. The next time he saw him was on his return to Wilmington again in the month of October last, in the bar room of the deceased at the Indian Queen hotel. They were there together, and they went from there to a private room together to have a talk over the matter, but he declined to accompany them, although he was invited by both of 258 COURT OF OYER AND TERMINER. them to accompany them. The next time he saw the prisoner was during the evening of that day walking up Fifth street with the deceased-. He stopped and bade him good bye, and did not see him again until he saw him in prison. Higgins, Deputy Attorney General, contended that even if the criminal intimacy between the deceased and the wife of the prisoner were conceded, if the act of killing was preceded by deliberation and premeditation, it could constitute no provocation to excuse or mitigate the offense, for unless it was done by the prisoner when the deceased was in the act of adultery with her, it would be murder with express malice aforethought, and of the first degree under the statute. Foster's C. L. 296. Rev. Code, Chap. 127, Sees, i, 5. T. F. Bayard, ( Wayne Mac Veagh with him) , contended that the circumstantial and presumptive evidence in the case was sufficient and all that the law required to estab- lish the fact of a long continued adulterous intercourse between the deceased and the wife of the prisoner at the bar. Loveden v. Loveden, 2 Hazzard. And whilst the discovery of that fact was sufficient to overwhelm the mind and reason of the prisoner for the time being, at least, the evidence clearly showed that he was utterly beside himself, crazed and insane that morning and at the time when he committed the fatal act, and that he was not criminally responsible for it ; and at the moment he dealt the blow that he could not have been conscious of what he was doing. Windsor's Case 5 Harr. 512. On this point he also read from a recent charge to the jury by Judge Brew- ster in a case in Pennsylvania not yet reported, except in the newspapers, as follows ; if the jury believe from the eivdence in the case that the prisoner committed the act of killing, but at the time of doing so was under the influ- ence of a diseased mind, and was really unconscious that he was committing a crime, he was not guilty in law, and, THE STATE v. PRATT. 259 should not be convicted of any crime. If the jury be- lieve that from any predispo.sing cause, the prisoner's mind was impaired, arid that he was mentally incapable of con- trolling or governing his acts at the time the homicide took place, they must acquit him. The question of fact im- plied in each of the -foregoing points, like all others in the case, were open questions to be decided by the jury be- yond all reasonable doubt against the supposition that the prisoner's mind was in any degree impaired by disease so as to render him unconscious of his acts, incapable of con- trolling them, or of properly judging of their nature with reference to the crime of murder, before they could convict the prisoner of the crime wherewith he was charged. The law does not require that insanity shall be shown to exist for any definite period, but only that the accused was suf- fering from a paroxysm of mental disease, whether short or long, at the time the act took place of which he is ac- cused of committing. And he asked the Court to instruct the jury that if they had a doubt of the sanity of the prisoner, or if the preponderating weight of the evidence, direct and circumstantial, was that the prisoner was insane at the time he committed the fatal act, they must give him the benefit of the doubt, and wholly acquit him in the case. C ommonwealth v. Yorke, 9 Met. 93. Benn. & Hurds' Ld. Ca. 522. Moore, Attorney General, replied. The Court, Gilpin, C. J., charged the jury. It is my duty, as well as my purpose, on the present occasion, to explain to you, as briefly as I can, so much of the law of homicide, as is applicable to the crimes of murder and manslaughter. And I take leave to say to you, in the outset, that no mere words, however violent, reproachful or offensive, can amount, in law, to a provocation sufficient to excuse even the slightest assault. And further, that even a slight assault will not excuse the use of a deadly weapon, so as to mitigate the offense, and reduce it below the grade of murder, in case death ensues from its use. 26o COURT OF OYER AND TERMINER. In order to reduce the crime to manslaughter, the provo- cation must be very great, — so great indeed, as to pro- duce such a transport of passion, — or frenzy of the mind, — and heat of blood, as to render a man, for the time being, altogether deaf to the voice of reason. It must, in fact, be made to appear, by the evidence, to the satis- faction of the jury, that the killing was not the result of deliberate design or purpose, nor attributable to precon- ceived malignity of heart ; but, on the contrary, was only and solely imputable to human infirmity or frailty. Whilst, on the one hand, murder always proceeds from a wicked, depraved and malignant spirit, — from a heart regardless of social duty and perversely bent on mischief, and is always characterized by malice as a necessary ingredient ; — manslaughter, on the other hand, results from acts of unpremeditated and thoughtless violence, and not from any malignity of heart, — acts proceeding from sudden heat of blood, and unreflecting rage, caused by adequate provocation, and not from deliberate design or purpose. Malice is the great test or criterion of murder. It dis- tinguishes it from manslaughter. Malice is always present in murder as its characteristic and distinguishing feature ; — but, in manslaughter, it is always absent ; and hence, I say to you that wherever malice is shown to have been the impelling cause of the act committed, from which death has ensued, the crime must necessarily amount to murder, And I charge you further, that if the slayer, in the act of killing, exercised thought, consideration and reflection, and did the fatal act of purpose and design, his offense, instead of being reduced to manslaughter, will be murder;, for, wherever there is thought, coolness and reflection, coupled with a purpose and design to take life, there is malice, — and malice, being the moving cause of the act, makes murder. Having thus briefly, but I trust with sufficient plainness, explained to you the difference between murder and man- slaughter, I may now say to you in further elucidation of the subject, that malice, legal malice, characterizes all THE STATE v. PRATT. 261 acts perpetrated with an evil intent, — all wrongful acts done intentionally without just cause or excuse, and in willful disregard of the rights or safety of others. Such is legal malice. Now, gentlemen, let me say to you another word or two in regard to the question of malice. In the first place, I charge you, especially, to remember, during your entire deliberations, that whenever the fact of killing has been once proved, all circumstances of accident, neces- sity, or infirmity and of alleviation, extenuation, justifica- tion, or excuse, must be proved to your satisfaction by the prisoner, unless they happen to arise out of the evi- dence produced by the State against him ; for the law, which is to be your guide in dealing with the evidence, presumes the fact of killing to be founded in malice, and therefore, amounting to murder, until the contrary is made to appear. And you will also bear in mind, in this connection, that malice in killing constitutes the murder. Under the law of this State, murder is divided into two degrees — first and second. Murder in the first degree, is where the crime is committed with express malice afore- thought ; and murder in the second degree is where the crime is committed with implied malice ; which implied malice is an inference or conclusion of law, from facts actually proved. The statute, by which these two de- grees of murder are established, does not in any respect change the general law of murder. The common law definition of murder, together with all the rules and prin- ciples applicable to the crime, remain as they were befoi-e the passing of the statute. Its only effect is to graduate or measure the punishment according to the degree. Express malice may be defined to be where one person kills another with a sedate, deliberate mind and formed design, which formed design to kill, may be manifested in many ways, as for instance by laying in wait for the deceased, or by antecedent menances or threats, dis- closing a disposition on the part of the slayer to commit the act charged, or by former grudges, that is to say, 262 COURT OF OYER AND TERMINER. former ill-will, secret enmity, hatred, or sullen malevo- lence, towards the deceased, or concerted schemes to do him great bodily harm, or lany other circumstances, cal- culated to disclose the inward fatal purpose or intention of the accused towards his victim. Implied or constructive malice, being as I have already said, an inference or conclusion of law from facts actually proved before the jury, is implied by law from every de- liberate, cruel act committed by one person against another, however sudden the act may be. For the law considers that he who does a cruel act voluntarily, does it maliciously. And now, gentlemen, in order that you may have a definite idea of the distinction between the two degrees of murder, I here say to you, first, that wherever there exists a design or intention, deliberately formed in the mind of the accused, to take life, and death ensues froni his act, it is murder with express malice, and consequently murder in the first degree. Secondly, where there exists no design or intention to take life, but death results from an unlawful act of violence on the part of the accused^ and in the absence of adequate or sufficient provocation, it is murder with or by implied malice, and therefore murder in the second degree. Again, the difference between murder and voluntary manslaughter may be seen in this : — voluntary man- slaughter is the killing of another in sudden heat of blood, upon adequate provocation, and without malice, either express or implied ; and therefore, where death ensues from such unpremeditated and thoughtless violence, upon sufficient provocation and without malice, it is man- slaughter only. The law justly and mercifully requires that an act of violence, in order to amount to murder, must be done deliberately. But it is proper that I should say to you, and I say it emphatically, that no specific length of time is necessary to make an act a deliberate act in legal contemplation ; for every act which is done designedly and of purpose, is in point of law, esteemed THE STATE v. PRATT. 263 to be a willful act, every willful act an intentional act, and every intentional act a deliberate act, so that if death ensue from such an act, it must be held to be a case of malicious killing, and therefore murder. You all know, because common sense and reason de- clare it to be so, that even the most sudden and instanta- neous act may be attended with circumstances which show beyond doubt, that it was the result of a deliberate pur- pose. Time, the lapse of time I mean, need not enter into the consideration, as part of deliberation, as an essen- tial or necessary element ; for if a design or intention to to take life, be but the conception of a moment, it is suffi- cient. And if the slayer had time for thought, and think- ing but for a moment, did intend to kill, and in fact did kill, it is just the same in legal contemplation as if he had in- tended it for a length of time, and killing under such circum- stances, is held to be both deliberate and premeditated. As a general rule, it is the intention with which an unlawful act is done, that determines its criminality. As the intention of the perpetrator of an unlawful act is rarely declared by words, and as the eye of man can not penetrate to the hidden recesses of the heart, or mind, we are necessarily compelled to resort to surround- ing circumstances, and to rely on them as the external manifestations of the inward hidden intention, with which the deed was done. The intention to take life may be disclosed in a variety oi ways, and especially, may such intention be disclosed by the use of a deadly weapon, a weapon likely to take life, as for instance, where one per- son purposely shoots at another with a gun within strik- ing distance, or strikes him on the head with an axe or a iron-bar or heavy bolt, or purposely stabs him with a sword or dagger, for these are all deadly weapons, and the use of any of them, in the absence of great provocation, must compel every reflecting mind to conclude that he who does such an act intended to kill. Again, gentlemen, it is well settled in the law, as a rule of universal application, that every man is presumed to 264 COURT OF OYER AND TERMINER. contemplate and intend the ordinary and natural conse- quences of his own acts ; so that, if a deadly weapon be used against the person of another, as it has a direct ten- dency to destroy life, the intention to take life, is a nec- essary conclusion from the nature and character of the act itself. Having thus, gentlemen, stated to you. with as much brevity as the importance of the case would permit, the principles and rules of law, which should guide you in your deliberation, I now pass to the consideration of the two several grounds of defense, urged on behalf of the prisoner, -and upon which he claims an acquittal at your hands. And first, as to the adulterous intercourse, alleged to , have existed, between the deceased, Joshua P. Smith, knd the prisoner's wife. The law on this subject is very plain, and very easily understood; it is this : If a man find an- other in the act of adultery with his wife, and in the first transport of passion kills him, he is guilty of manslaugh- ter only. It is not sufficient .to show that an adulterous inter- course has been, for some time prior to the act of killing, carried on between the deceased and the wife of the pris- oner ; nor is even positive knowledge on the part of the prisoner of such adulterous intercourse sufficient to miti- gate the offense, and reduce it from the crime of murder, to manslaughter. No, it is not so. No matter with what certainty, or conclusiveness, the fact of adultery may have been proved, or how frequently, or how recently, the fact of adultery may have occurred, it amounts to noth- ing, even in mitigation of the offense, unless the prisoner found the deceased in the very act of adultery with his wife. The deceased must be taken in the very fact, and the accused must act, and act at once, under the sting of the then present,provocation, and in the first transport of passion, excited by such provocation. Nothing short of this will do. No suspicion, however vehement, no be- lief, however well founded, no knowledge however posi- THE STATE v. PRATT. 265 tive and absolute, that an adulterous intercourse has pre- viously existed, between the deceased and the prisoner's wife, can have the effect of mitigating, or reducing the crime, below the grade of murder. I have already intimated to you that if the prisoner found the deceased in the act of adultery with his wife, and then, in the first transport of passion, excited by the , then present provocation, killed the deceased, he is not guilty of murder, but of manslaughter only. For the law, in compassion for human infirmity, extends its indulgence to acts, springing from sudden passion, justly excited, by adequate provocation, when committed instantly, or be- fore reflection has intervened, or reason has had time to resume its controlling power". But if the slayer, instead of killing the adulterer in the act, or, at the time of the adultery committed, kills him on the ground of suspicion or belief, or even on the ground of clearly ascertained and known previous adultery, his case is without palli- ation or excuse, and he is justly held to be guilty of the crime of murder. Killing under such circumstances, is not killing under adequate provocation ; on the contrary, rather, it is killing from a feeling of hatred and revenge. And, gentlemen, allow me to say to you, in this connec- tion, that whatever act is done, upon revenge, is done willfully, deliberately, and with malice, and, if death ensue, as the result of such act, it is murder. In charging you, as I have done, that in order to reduce the crime from murder to manslaughter, it is necessary it should be shown, that the prisoner found the deceased in the very act of adultery with his wife. I do not mean to say, that the prisoner must stand by and witness the actual copulative conjunction between the guilty parties. If the prisoner saw the deceased in bed with the wife, or saw him leaving the bed of the wife, or if he found them together, in such a position, as to indicate with reasona- ble certainty to a rational mind, that they had just then committed the adulterous act, or were then and there about to commit it, it will be sufficient to satisfy the re- 18 266 COURT OF OYER AND TERMINER. quirements of the law in this regard, and if, under such circumstances, he then and there struck the mortal blow, his offense would amount to manslaughter only. But if he did not so find the deceased and his wife, in the act of adultery, but struck the mortal blow, in revenge for pre- vious adultery, either suspected or known, he is guilty of murder. The other ground of defense, relied on by the prisoner, is insanity; and, therefore, it is proper I should also ex- plain to you the law on this subject. Insanity may be either total, or partial, in its character. So, also, it may be total and permanent ; or, although total in its nature, it may be but temporary, in point of duration. Of course, a person totally and permahently insane, is incapable of committing any crime whatsoever ; because, the will and judgment of the man, being overborne and obliterated by the malady, his act can not, justly, be considered the vol- untary act of a free agent, but rather, the mere act of the body, without the consent of a directing or controlling mind. So, too, in regard to total, but temporary insanity. If the insanity be such, for the time being, as to utterly overwhelm the reason and conscience, the will and judg- ment, the accused can not justly be held criminally re- sponsible for acts done during the continuance of such temporary insanity. As I have just intimated, there may exist a state of mind called partial insanity, sometimes denominated in the law, monomania, or insane delusion, which delusion, consists in a fixed belief in the existence of certain things, purely imaginary, as real facts, when in truth they have no real existence whatever. Insane delusion is that diseased state or condition of the mind, which gives to airy nothing a local habitation and a name. But in this case, it is insisted that the cause was not imaginary, but that it was real and substantial. Now, whether partial insanity is of such a character as to exempt a person from criminal responsibility for wrong- ful acts, is always a question of vital importance ; and its THE STATE v. PRATT. 267 solution must necessarily depend upon the nature and in- tensity of the delusion, the force or degree of its control- ling. power over the will and conscience, — and especially, and above all, — whether the act which is charged as con- stituting the crime, was committed under the direct and irresistible influence of such insanity. Partial insanity, even when it is clearly shown to exist, is not always or necessarily an excuse for crime. There are many varying shades of it — many degrees of it. It may becloud the intellect but a very little, or, it may becloud it utterly, in respect to a particular subject. In order to exempt a person from responsibility for a criminal act, the control- ling power of the insanity, whether arising from delusion or from a real cause, must be so intense and overwhelming as utterly to deprive the party of his reason in regard to the act charged as criminal. The enquiry is always in a case like this, narrowed down to the plain, sharp question of tlie insanity of the prisoner at the time, and in respect to the criminal act charged against him. Was he at the time, and as touching that act, sane or insane ? The in- sanity must have specific reference to the particular act charged as constituting his offense. The question is not whether he was insane on any subject whatever, but whether he was insane in respect to the particular act charged against him. If it were otherwise, there would be a total exemption from punishment for crime commit- ted under any species of partial insanity, notwithstanding the fact that such insanity might not in any degree have impaired the mental capacity of the accused, to distinguish between right and wrong in respect to the particular act charged as constituting his crime. If the prisoner had sufficient capacity at the time to di.stinguish between the right and wrong of that particular act — if he had sufficient capacity to know that that act was wrong, he is responsi- ble for it, and for all its fatal consequences. If, however, you shall be satisfied from the evidence be- fore you, that at the time when the mortal blow was given, the prisoner had not a sufficient degree of reason 268 COURT OF OYER AND TERMINER. to enable him to distinguish between the right and wrong of that act ; if, in other words, his reason was at the time so overborne or obliterated as to render him incapable of knowing or comprehending that that act was wrong, he is not criminally responsible for it, however fatal the re- sult may have been. But, if at the time the act was com- mitted, he possessed sufficient mental capacity to com- prehend the nature or character of the act and its proba- ble consequences ; or if he understood the nature of the act. he was doing, and had reason sufficient to know that it was wrong to do it, he is legally and justly responsible for such act, notwithstanding he may at the time have been laboring in some degree under partial insanity. For^ after all has been said that can be said in elucidation of the subject, we are compelled to return to the plain and simple question whether the prisoner, at the time he com- mitted the act, had sufficient mental capacity to distin- guish between right and wrong in respect to that act. If he had, he is responsible ; if he had not, he is not respon- sible. Now, in this case, the criminal act charged against the prisoner is the felonious killing of Joshua Pusey Smith with express malice aforethought, to which charge, as we have seen, he sets up the defense of insanity, and claims at your hands an acquittal on this ground. If he has sus- tained this plea by satisfactory evidence, he should be ac- quitted ; if he has failed to establish the fact of insanity by satisfactory proof, he ought not to be permitted to escape punishment on this ground ; and if he killed the deceased, he should be convicted. And now, gentleman, before taking leave, altogether, of the question of insanity, it is my further duty to state to you, at least briefly, cer- tain primary and cardinal rules or tests, by which, under your oaths, you must be guided, in order to arrive at a proper solution of this question. The first great rule, on this subject is this : Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the con- trary be proved to the satisfaction of the jury. This rule THE STATE v. PRATT. 26g is fundamental, and of universal application ; it meets you at the very commencement of your enquiries, and you must carry it with you in all your deliberations, You must, therefore, gentlemen, fully understand and remem- ber, throughput all your investigations that the prisoner is to be considered by you, to be a sane man, and capable of committing crime, until his insanity shall be clearly, or satisfactorily established by the evidence ; on this ground you must take your stand, firmly and squarely, if you ex- pect ever to arrive at a just or proper decision of this •case. In the next place, insanity being matter of defense, the ■second great rule is, that the burden of showing it, lies on the prisoner. It must be proved as any other fact, to the satisfaction of the jury. If the proof does not arise out of the evidence offered by the State, the prisoner must establish the fact of insanity by distinct evi- dence, and prove it, beyond a reasonable doubt ; other- wise the presumption of sanity or soundness of mind will remain unrebutted and in full force. Exhibitions of mere eccentricity of mind, manner, or conduct, mere passionate jealousy, or vehement suspicion of adultery, however well founded, or showing that the prisoner was at times aflflict- ed with a sort of mental strabismus, or squinting of the mind, will not be sufficient to excuse him from the conse- quences of his criminal acts. The law requires more than ' this ; the proof must go beyond this ; the proof must estab- lish the fact, that the prisoner, at the time he committed the act of killing, was incapable of distinguishing between right and wrong in respect to that fatal act. Having thus stated to you the general law of felonious homicide, as well as the rules and principles of law appli- cable to the grounds of defense relied on by the prisoner, I now reverse the order in which I have presented these several matters, and charge you, in conclusion, as follows : First. If you shall be satisfied from the evidence, beyond a reasonable doubt, that the prisoner, at the time lie struck the mortal blow, was laboring under such a 270 COURT OF OYER AND TERMINER. disease of the mind as to render him, for the time being, in- capable of distinguishing between the right and wrong of that act, you should acquit him, on the ground of insanity, and should so return your verdict. Secondly. If however, you shall not be satisfied from the evidence that he was, at the time of committing the act, an insane man, then it will be your duty to consider, whether he found the deceased in the act of adultery, with his wife, and then and there, in the first transport of passion, instantly inflicted the mortal blow. If you shall be satisfied from the evidence that the prisoner killed the deceased, Joshua P. Smith, in such a position, under such circumstances, then he is guilty of man- slaughter under our statute, and your verdict should be^ guilty of manslaughter in killing the said Joshua P. Smith whilst in the act of adultery with the prisoner's wife. Thirdly. But if you shall not be satisfied from the evi- dence, that the prisoner found the deceased in the act of adultery with his wife, and then and there, in the first transport of passion, instantly struck the mortal blow,, but that, on the contrary, he killed the deceased on the ground of previous acts of adultery, then, we say to you, that lie is guilty of murder, either in the first or sec6nd degree, and in which degree you must determine from the evidence. And in order to aid you in passing on this question, I repeat to you, that wherever there exists a design or in- tention deliberately formed in the mind of the accused to- take life, and death ensues from his act, it is murder with express malice, and therefore, murder in the first degree. But where there exists no design or intention to take life,- but death results from an unlawful act of violence on the part of the accused, and in the absence of adequate or sufficient provocation, it is murder by or with implied malice, and consequently murder in the second degree. Verdict — " Not guilty, by reason of insanity." COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. The State v. Moses Rash. So far as the act of Congress, termed the civil rights bill, assumes to compel, regulate, or control the admission of evidence in the courts of this State, it is inoperative, unconstitutional and void. The negro on whom the assault and battery alleged in the indi(?tment was committed, is a competent witness on the trial of it for the' pros- ecution against a white man, although there was a white witness pres- ent when it was committed. Court of General Sessions, &c., Kent County, October Term, 1867. Moses Rash, the defendant, was indicted for an assault and battery committed on Samuel Derry, a negro man. There was no formal opening of the case to the jury. The jury having been sworn, Mr. Draper, the Deputy Attorney General, stated to them, that they were empanneled to try the defendant for an assault and battery, as charged in the indictment, and without further remark proceeded to call his witnesses. "The first wit- ness called was a negro man, named Berry. He took his place at the witness stand ready to testify, when the counsel for the defendant objected to his competency, on 272 COURT OF GENERAL SESSIONS, &c. the ground of the Act of Assembly of February 3, 1799, the eighth section of which was re-enacted in 1852 and is to be found in section 4 of chapter 107 of the revised code ; which section declares, that in criminal prosecu- tions, a free negro or free mulatto, if otherwise compe- tent, may testify, if it shall appear to the Court that no competent white witness was present at the time the facts charged is alleged to have been committed, or that a white witness being so present, has since died, or is absent from the State, and can not be produced." Comegys, for the defendant. There was a competent white witness present at the time the alleged assault and battery occurred, that he had been subpoenaed, and was then in Court ready to be produced on the call of the State. Draper, Deputy Attorney General. The objection of the counsel for the defendant, brought up the question of the constitutionality of the civil rights bill ; and he proceeded at once to state the grounds upon which he claimed that the evidence of the negro was admissible, and to discuss briefly the question thus raised. He insisted that the civil rights bill was the supreme law, and as such, was binding on all courts whether state or federal, and that any state law which came in conflict with it was rendered null and void. And, in support of these positions, he contended that the power to pass the act in question was expressly conferred upon Congress by the recent amendment of the constitution of the United States, which declares (i) that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been convicted, shall exist within the limits of the United States, or any place subject to their jurisdiction." And (2nd) that ''Congress shall have power to enforce this article by appropriate legislation." Comegys replied in support of his objection, and against the constitutionality of the act of Congress, and argued THE STATE v. RASH. 273 the question with ability and at considerable length. No suggestion was made by either of the counsels, that the negro called to the stand as a witness, was the person up- on whom the assault and battery had been committed. The Court, Gtlpin, C. J . This is the first time the con- stitutionality of the civil rights bill, or any provision of it, has been formally presented and argued, and submitted for the decision of this Court. At the first term of the court in the county of Sussex, I think, which was held after the passage of the act of Congress, and also, at the terms which immediately followed in Kent and New Castle, upon trials of negroes for felonies, I took occasion to announce to the gentlemen of the bar that whenever the question of the constitutionality of the civil rights bill as touching proceedings in the Courts of this State should be made and argued we should hold ourselves bound to decide it. From that day to this, no one in either county has shown sufficient interest in the ques- tion to present and argue it, and so the question has re- mained undecided up to this time. The precise question raised by the objection of Mr. Comegys on behalf of the defendant, namely, the right of a negro to give evidence in the Courts of this State, against a white person by force of the civil rights bill, and in contravention of our own act of assembly, has never hitherto been presented for our consideration, has never hitherto arisen here. It has, however, frequently arisen in other States, and it is certainly a matter of regret that the question has not been passed upon by the Supreme Court of the United States. It may possibly turn out that the testimony of the negro man called as a witness, may be properly admissi- ble on another ground. However, the question now be- fore us for decision, is the competency of the negro to give evidence in this Court by force of the civil rights bill and I am not disposed to evade it. It may as well be set- 274 COURT OF GENERAL SESSIONS, &C. tied now, so far as the Court is concerned, as at any other time, since, otherwise, it must necessarily still continue to confront us. The exclusion of negroes as witnesses is believed to date back to the time when slavery was first introduced into this country. Indeed we know of no period in our history when they were held competent to testify against a white person in any case, civil or criminail, except under special conditions as provided for by the acts of 1787 and 1799. The common law doctrine that slaves were com- petent witnesses, has never been recognized in this State ; on the contrary, the rule of exclusion has always prevailed as settled law. As slavery was exclusively confined to the black or colored race, color became the badge or. sign of servitude, and the rule of exclusion was extended and applied to all who bore that badge whether slave or free. And so the law continued to be until modified by the acts of Assembly to which I have just referred. I think it is a mistake to assign as the ground of their incompetency, the want of sufficient mental capacity or intelligence to speak the truth. It seems to me rather, that the theory or ground upon which they were exclu- ded was an assumed defect of moral character on their part, superinduced by their ignorant, degraded and servile condition. They were slaves. They were subject, body and mind, to the absolute control of their masters, and were bound to obey their master's will in all things. In course of time some of them were set free, and were rec- ognized by the law as free. But the rule of unqualified exclusion remained in full force until the legislature, by the acts of 1787 and 1799, recognized free negroes as pos- sessing certain civil rights, to wit : the right to hold prop- erty, and to obtain redress in law and equity, for any in- jury to person or property, and allowed them, under cer- tain circumstances, to give evidence against white persons. Now I do not intend that my opinions, in regard to the law which excludes negro testimony, shall be misun- derstood. I hold the law to be wrong and indefensi- THE STATE v. RASH. 275 ble. The condition of things has changed. The reason for the rule of exclusion has ceased to exist. The negroes are now all free, and there no longer remains any good reason why they should not be allowed to testify. I speak for myself on this point. I think the continuance of the law inexpedient and unwise, and that it should be repeal- ed, and that negroes should be made competent to testi- fy in all cases in which white persons, under like cir- cumstances, are held to be competent. Their credibility would still be left to a white jury. Moreover, their evidence is becoming every day more and more important to the white race, to say nothing of its importance to the black race. And now, as to the civil rights bill, or rather, as to the power of Congress under the constitution to prescribe a rule mandatory in its nature requiring a State Court to admit a negro as a witness to give evidence before it. Has Congress power to do this ? Has Congress power to prescribe rules of evidence, and regulate the mode of proceeding in a State Court .-' Or, in other words, has Congress power to compel a State Court to admit a cer- tain class of persons to testify in contravention of a State law.? Prior to the adoption of the constitutional amendment, it was always and everywhere conceded that Congress had no power to regulate the remedy in State Courts, but that this power belonged exclusively to the States, respec- tively. Now, the admission or rejection of evidence, the competency or incompetency of a witness, touches the remedy ; and the remedy, as we have said, has hitherto always been considered as being subject to state regula- tion and control. Even in regard to contracts, the States may modify the remedy, as they please, provided they leave some remedy. Again, it seems to have been pretty well settled, that the entire judicial power of the United States must be vested in federal courts ; for the constitution expressly requires that the judicial power shall be vested in Courts 2/6 COURT OF GENERAL SESSIONS, &c. ordained and established by the United States. The con- stitution is imperative on this point. It would seem, therefore, quite clear that Congress cannot confer upon, or vest in a State Court any judicial power or authority, or impose upon it the duty of performing zxiy judicial act or function prescribed by a federal law. A State Court de- rives its jurisdiction and powers from the constitution and laws of the State ; and it is not and cannot be made, the instrument of Congress for the enforcement of federal laws. If, therefore, Congress cannot confer any judicial power or authority on a State Court, it would seem to follow, that it cannot compel a State Court to admit a witness to give evidence. He cannot "give evidence" be- fore he is sworn, and he cannot be sworn without the order of the Court, the swearing of him is the act of the Court, his admission or rejection is the act of the Court, and these several matters involve the exercise of discre- tion and judgment, and are of a judicial character ; they are not merely ministerial. The civil rights bill contains many provisions, some of them of a very grave character. One provision of a law may be unconstitutional, and all the rest constitu- tional. Or a law may be constitutional as applied to the federal Courts, and unconstitutional as applied to State Courts. All that concerns us for the present, however, in regard to the civil rights bill, is the clause in the iirst section which declares, in effect, that negroes shall have a "right to give evidence" in State Courts. This "right" as it is called. Congress undertakes by the second sec- tion, to compel us to accord to them in this Court in fear of certain pains and penalties denounced against us in case we decline to obey their mandate. Now, it seems to me that this is an alarming stretch of federal power, an aggressive and an unconstitutional invasion of the judi- cial authority of the State ; which, if tolerated, must ulti- mately prove destructive of the independent administra- tion of public justice. The law of the State excludes the negro from testifying ; tl^e civil rights bill says he shall THE STATE v. RASH. 277 have a right to give evidence ; and thus there is brought about a direct conflict between the two laws. They both cannot be obeyed. And hence, the judge, in the exercise of his best judgment, arrives conscientiously at the con- clusion that Congress has assumed to itself the exercise of power not warranted by the constitution ; and that, therefore, the act of Congress, so far as it attempts di- rectly or indirectly, to regulate the proceedings in the State Courts, is invalid. Was it ever before supposed by any lawyer that a Judge, who, in the discharge of his ju- dicial functions, and in obedience to the express prohibi- tion of a statute of his own State, should refuse to allow a certain class of persons to testify in a case pending be- fore him, could be held criminally responsible for such refusal .' Congress is not omnipotent. On the contrary, its powers are limited, and its legislation must be confined within the fair scope of the powers granted by the consti- tution. From the time of Edward the Third until recent- ly it has always been considered settled law that no Judge could be held answerable, civilly or criminally, for an er- ror of judgment in doing or refusing to do any oiificial act in the exercise of judicial power. For an abuse of power he may be impeached, nothing else. Certain it is, that prior to the adoption of the constitutional amendment no one dreamed that Congress possessed any such power. But it is said that the second section of the amendment confers the power upon Congress to compel State Courts to admit negro testimony in all cases in which, under like circumstances, white testimony is admissible. Well let us see whether this is a fair and reasonable construction of the amendment. Now, the second section confers no pow- er on Congress which Congress would not have had without it. The first section makes the negro race free. It does nothing more. They are free by the Supreme Law, the constitution. The testimony of no witness is neces- essary to establish that fact. Under no circumstances can they be reduced to the old condition of slavery, so long as the constitution stands. And hence this freedom is as- 278 COURT OF GENERAL SESSIONS, &c. sured to them, unless they forfeit it by the commission of crime. So that there can be no legal involuntary servi- tude, but such as results from the judgment of a Court of competent jurisdiction, and in regard to that judgment and its results, the record alone can speak. But this kind of servitude is recognized as legal and proper, and the testimony of witnesses cannot discharge the party when once duly convicted. But how are we- to arrive at the true interpretation of a constitutional provision .■' In the first place, we must consider the end proposed to be accomplished by it ; and in considering this, we must give to the words used, just such operation and force, and no more, as is consistent with their legitimate meaning, as applied to the subject matter about which they treat. Now it is perfectly man- ifest that the end proposed, was the abolition and extir- pation of slavery, within the States and Territories of the United States. And it seems to me, to be equally clear, that the second section was intended to confer upon Congress power, by appropriate legislation, to vest in the federal Courts, just such jurisdiction and authority as might be found necessary or proper for carrying into effect the end proposed by the first section of the amend- ment For it must be borne in mind that there is nothing in the amendment, that can be construed to refer to State Courts. And we must also remember that federal laws must be enforced by and through the instrumental- ity of the federal judiciary. Whatever legislation, therefore, may be necessary or proper, to extinguish slaVery, or involuntary servitude, or to prevent restraint of, or interference with, personal lib- erty, is clearly within the power of Congress. And Congress may, very properly, regulate the mode of pro- ceeding, the competency of witnesses, the nature and character of evidence to be admitted, and all other mat- ters touching the trial of cases, or the administration of justice in the federal Courts, or before judicial officers of the United States. And for any illegal interference with, THE STATE v. RASH. 279 or restraint of personal liberty, Congress has power to provide an appropriate and speedy remedy, to be admin- istered by the federal judiciary. Every one knows, who is at all familiar with the, sub- ject, that the appellate jurisdiction of the United States, as at present exercised, is very comprehensive indeed. It extends to all cases arising under the constitution and the laws of the United States, or where the validity, or construction of the constitution, or a Jaw of the United States, is drawn in question. And a case may be said to have arisen under the constitution, or a law of the United States, whenever its correct decision depends upon the true construction of either. And as Congress is impera- tively required to vest the whole judicial power of the United States in a superior Court and such inferior Courts as it shall ordain and establish, it has power to provide for the exercise of the appellate jurisdiction in such form as may be deemed proper, the manner or mode of removal being mere form and not substance. It may be by writ of error, appeal, or removal on petition, or in such other form, as Congress may see fit to prescribe. But whether, under the appellate power. Congress has made any pro- vision, or can make any provision, for the removal of a case like this, are questions which we are not called upon to decide. The constitution, and the laws of the United States, which shall be made in pursuance thereof, are the supreme law of the land, and as such, are binding on all the Judges of every State, any thing in the constitution or laws of any State, to the contrary notwithstanding. But the law to be binding, must be made in pursuance of the constitu- tion ; that is to say, it must be a constitutional law. An unconstitutional law, is a mere nullity. The question presented here, is a naked question of power. The statute law of this State excludes negroes from being witnesses, except under certain circumstances. The civil rights bill of Congress, in effect, declares that they shall have a right to give evidence, in all cases in 28o COURT OF GENERAL SESSIONS, &C. which a white person is competent to testify ; and it is contended that the act of Congress operates as a repeal of the statute law of this State which excludes them, and is binding on this Court. I do not think so. I think Con- gress had exceeded its power. I am therefore of opinion, that in so far as the civil rights bill assumes to compel, regulate, or control the admission of evidence in the Courts of this State, it is inoperative, unconstitutional and void. The fact that the negro man called as a witness, was the person on whom the assault and battery had been committed, having come to the knowledge of the Court, the Chief Justice, remarked that his testimony was ad- missible under the rulings of the Court, on the ground of humanity and necessity, although there was a white wit- ness present, and he referred to the case of the State against Whitaker. Mr. Comegys said he was not aware the rulings had gone to that extent; that if he had been, he should not have raised the question. The Chief Jus- tice replied that the admissibility of negro testimony, was raised in the case of the State against Whitaker, for kid- napping, tried in Kent County in the year 1840, and also, in two other cases, one against Griffin, for kidnapping, and the other against Cooper, for an assault and battery. He stated that in those cases, competent white witnesses were present ; that although in the cases of Whitaker and Griffin, the white persons present were participants in the crime, yet they were competent witnesses, and that in Whitakers case an accomplice, named David Walton, was actually examined for the State ; and yet the kid- napped negro boy, William Clarkson, was held to be a competent witness in the case ; and that ever since those cases, it had been the practice of the Court, to allow the negro on whom the offense had been committed to testify. Wooten, J., concurred with the Chief Justice, in regard to the civil rights bill, and also^ as to the competency ot the witness on the ground of humanity and necessity. THE STATE v. HAMILTON. 281 Wales, y., said he was unable to concur in' the views of the Chief Justice, and was therefore compelled to dissent from the opinion of the majority of the Court on the con- stitutionality of the Civil Rights Act. He was inclined to believe that the act was valid, and this belief was strengthened by recent decisions on this question, some of which had been made by Judges of the United States Supreme Court. But perhaps, after fuller argument and consideration he might think differently. He agreed, how- ever, that the witness should be admitted for the reasons stated by the Chief Justice. The State v. William Hamilton. The defendant was indicted for a malicious injury in cutting the cot- ton warp on one hundred and twenty-six looms, of the value of one thousand dollars, in the cotton factory of Daniel Lamot, Jr., in Bran- dywine hundred, to the great damage of the said Daniel Lamot, Jr., and against the peace and dignity of the State. The Court held the alleged malicious injury to be an indictable offense un- der the laws of this State, which by necessary implication and con- struction make a malicious injury done by one person to another, either in his person, or in his real or personal estate, a breach of the peace, and as such, an indictable misdemeanor in this State. Court of General Sessions, &c.. New Castle County,. November Term, 1867. William Hamilton, the defendant, was indicted for unlawfully, wantonly, willfully, malicious- ly and mischievously cutting the cotton warp on one hun- dred and twenty-six looms, alleged to be of the value of one thousand dollars, and of the goods and chattels of Daniel Lamot, Jr., to the great damage of the said Daniel Lamot, Jr., and against the peace and dignity of the State. Heard before Wootenand Houston, Justices; Gil-pin, C. J., absent. The facts on which the indictment was found by the grand jury were as follows : Daniel Lamot, Jr., was the owner of a cotton factory in Brandywine hundred, IQ 282 COURT OF GENERAL SESSIONS, &c. and on the morning of the 26th of June last discovered that some person during the preceding night had clan- destinely entered the beaming room of the factory and cut one hundred and twenty-six cotton warps on the like nuniT ber of beams and power looms in the room, and which had been so placed on them preparatory to commencing the process of weaving the warps that day, consisting of over thirteen thousand yards of warp, and worth at least forty cents per pound, and that the injury thereby done to the warp, and the damage thereby done to him would amount to as much as fifteen hundred dollars. The defendant had been in his employ as a hand in the factory, and in the beaming room in it, but he had been discharged from his service a few months before, and from the evidence before them the grand jury were satisfied that he had se- cretly and maliciously committed the act to injure and damage Lamot. Grubb, lor the defendant, now submitted a motion to quash the indictment because the alleged wrong and in- jury was not an indictable offense under the laws of this State, as we had never had any statute making malicious mischief an indictable offense, as they had in England and in some of the other States, and it was never indict- able at common law, either in England or in this State, unless the commission of the mischief or injury was at- tended with an actual breach of the peace ; for it was at common law nothing more than a mere trespass to pri- vate property, for which an indictment would no more lie at common law than it would for the breach of a contract, i Bennett & Heard's Lead. Cr. Ca. 21, 22. Rex, v. Storr. 3 Burr. 1698. Rex. v. Atkins, 3 Burr. 1706. Rex. v. Bake et al. 3 Burr. 1731. 2 Bouv. 9. 3 Black. Com. 214. 4 Black. Com. 5, note 5, 243. Brown's Case, 3 Greenl. Rep. 177. Black's Casey 2 Md. Rep. 376. Smith's Case, i Cheeves Rep. 157. Phipps' Case, 10 Ire. 19. 'Wheeler's Case, 3 Ver. 344. Kilpatrick' s Case, 5 Denio 281. Tay- lor's Case, 6 Humph. 285. Shell's Case. 6 Humph. 283. THE STATE v. HAMILTON. 283 Burrow s Case, 2 Halst. 426. Where the trespass or of- fense manifestly tends to a breach of the peace when it is committed, it is indictable at common law in this State, but not otherwise. Chandler's Case, 2 Harr. 553. Moore, Attorney General. This is an indictment at common law, and a malicious injury to private property when grossly aggravated, is an indictable offense at com- mon law, and had so been held and ruled in this State in the case of the State v. Vodges, which was for maliciously shooting into another's dwelling-house. Or where it man- ifestly tends to a breach of the peace. Chandler's Case, 2 Harr. 553. 2 Whart. Amer. Cr. Law, Sees. 2002, 2003. And what other tendency could such a malicious injury as this have, but inevitably to a breach of the peace when committed by one wholly irresponsible for the damage in a civil action 1 It was not every trespass, or even ma- licious injury or mischief to private property, that was in- dictable at common law he would admit ; but when it was committed secretly in the night time, or was such as to inflict a peculiarly wanton and malicious injury on another in the damage or destruction of his property, it was in- dictable at common law as a misdemeanor. As, however, all the early and later acts of Parliament have made the offense in such cases a felony in England, the misdemeanor there has been merged in the felony by force of the stat- utes, and it was therefore no longer indictable otherwise than under the statutes. 3 Greenl. Rep. 177. i Bish. Cr. Law, Sees. 420, 421, 421 «. 2 Bish. Cr. Law, Sees. 831, ^35. 839. J. Kel. 29. 6 Mod. 175. 2 Strange 1133. i Leach 12. 2 Arch. 708. Loomis v. Edgerton, 19 Wend. 419. The People v. Smith, 5 Cow. 258. Feischer's Case, I Dall. 335. Eckert's Case, 2 Brown 249. Taylor's Case, 5 Binn. 277. Commonwealth v. Leach, i Mass. 58. i Overt. 305. I Wheel. Cr. Ca. 490. Henderson! s Case, 8 Gratton. 2Cranch2i,g. 2 Humph, ^g. gPick. i. $ Salk. i8y. 13 Lre. 33. Grubb replied. 284 COURT OF GENERAL SESSIONS, &c. Houston, J., announced the opinion of the Court over- ruling the motion to quash the indictment. The question in this case has been well argued on both sides, and we regret that we have not had more time to give to the consideration of it in the mean while, since this is the first time that it has ever been formally discus- sed and submittd for decision to a Court in this State, in the only way that could entitle it to the weight and au- thority of a precedent on the point 'to guide or control us in the practial solution and determination of it in the form in which it now comes before us. But with our pres- ent impressions in regard to it, and with the conflict of authorities before us which have been cited in the argu- ment, we are not prepared to sustain the motion which has been submitted by the counsel for the defendant to quash the indictment. For we cannot but think after the best consideration which we have been enabled to give to the subject, that a wanton, malignant and malicious injury deliberately perpetrated by one person upon the property of another, is something more than a mere tres- pass in the ordinary acceptation of that term, and is, and ought to be, a public offense, and indictable as such by the law of this State. And we shall take occasion here- after to assign our reasons for this conclusion in a more formal and considerate manner than is either convenient, or expedient perhaps, at the present time, in the mere matter of disposing of this motion. Among the author- ities cited in the argument, Bishop and Wharton on crim- inal law and Wheeler's Criminal Cases so lay it down, while Bennett & Heard's Leading Criminal Cases and Blachstone in his Commentaries assert the contrary, that is to say, that it is not a public offense, nor indictable as such at common law, as the counsel for the defendant contends. But the discrepancy and conflict between these authorities, as well as that which appears in the multitude of Ameri- can cases which have been cited in the argument, and are referred to by the text-writers, serve to show that it is, to say the least, still a vexed and unsettled question in this country. THE STATE v. HAMILTON. 285 But we apprehend that malicious mischief and injury to private property as a mere misdemeanor, and indictable and punishable as such, has received a wider and a more enlarged interpretation in this country than it has in Eng- land. In that country upwards of eighteen hundred sec- tions, it is estimated, of acts running from the reign of Henry the Eighth down to the reign of George the Third, have been enacted for the special purpose of providing ' against malicious mischief and injury ; and as such pri- vate wrongs and offenses were thereby originally made felony without beneiit of clergy, and are still made fel- onies of a high degree, and the penalties thereby pre- scribed for them' were more certain and specific than that of the common law, the books give but few examples of common law indictments for this class of offenses. But as these English statutes do not obtain in this country, malicious mischief, as a common law offense, has here been the subject of frequent adjudications. In its general application here it may be defined to be any malicious or mischievous injury, either to the rights of another, ,or to those of the public in general. The recent inclination, however, so far as the common law is concerned, is to restrict the party injured to his civil remedies, except (i.) where the offense is committed secretly in the night time, or in such a way as to inflict peculiarly wanton injury ; or (2.) where it is marked by malignant cruelty to animals ; or (3.) where it is accompanied with a breach of the peace, or it directly and manifestly tends to a breach of the peace, as being done in the presence of the party in- jured, to his terror, or against his will. 2 Whart. Amer. Cr. Law, Sees. 2002. 2003, 2004. And malice, either ex- pressed or implied, is required to sustain the indictment. Idem, Sec. 2006. But whether it is settled or not, that every mere tres- pass upon the private property, real or personal, of an- other originally constituted a breach of the peace, and therefore an indictable offense, or misdemeanor at com- mon law, there can be no doubt of the fact that what- 286 COURT OF GENERAL SESSIONS, &c. ever act qould amount; to a breach of the peace at com- mon law would be indictable as a criminal offense, and a misdemeanor, at least, at common law, for that was from time immemorial the acknowledged test and criterion by which the common law distinguished a public from a pri- vate wrong merely, and determined whether it was in- dictable as a common law offense or not ; and it is cer- tain that every breach of the peace was indictable at common law, because it immediately concerned the King, his crown and dignity, and because he was the grand con- servator of the peace of his kingdom, and therefore the wrong which it constituted was against him and his sov- ereign authority, as well as against the subject, or pri- vate individual injured by it. And although the Court of King's Bench held as late as the time of Lord Man- field in the case of Rex. v. Siorr, 3 Burr. 1698, that the mere terms of vi et armis alleged in an indictment at common law for a forcible entry into real estate and turn- ing the owner out of the possession of it, with nothing more, and without the words et manuforti, would not im- port that it was done with sufficient force to constitute a breach of the peace to render the act of mere trespass in that case an indictable misdemeanor, yet it does not, nor was it intended to reverse or impair the ancient and well established rule that wherever the act alleged in the in- dictment is so alleged as to constitute a breach of the peace, it is prima facie indictable as an offense at common law. But admitting, as we may, that such a malignant and malicious and aggravated injury as we are considering in this case, would not now be indictable as a misdemeanor at common law in England, because under the later rul- ings and practice of the Courts there it would not have constituted a breach of the peace in contemplation of law, we will next consider and enquire if this can be the com- 'mon law rule with us under the special statutory provisions which have long been in force in this State, and which seem to have an important bearing on the subject. We THE STATE v. HAMILTON. 287 allude to the provisions of Sections 7 and 12 of Chapter 97 of the Revised Code, /. 331, and of Section 18 of Chap- ter 127 of the Revised Code, p. 475, the first of which provides for binding to keep the peace persons who threat- en to kill, or wound another, or to injure him in person, or estate, and the last of which provides that assaults, batteries, and nuisances, not specially provided for by- statute, shall be deemed misdemeanors, and shall be punishable by fine and imprisonment, or either, according to the discretion of the Court. Sir William Blackstone with the characteristic partiality with which he contem- plates and commends the superiority in liis view of the laws and institutions of the realm of England gen- erally, claims for it in his chapter on preventive justice, as contradistinguished from punitive justice, almost the sole honor among the governments of his day, of having by law any means of preventing the commission of crimes and misdemeanors. Now, it so happens that we have, and have had for a long time in this State, borrowed, doubtless, at an early date from the laws of England on the subject, a much more comprehensive and liberal statute for that purpose, than can be justly boasted of by any British subject in that country. The proceeding, how- ever, in such cases is very much the same here as there, the jurisdiction and redress there being thus defined by him ; after stating the authority of any justice of the peace there, ex officio, to bind all such persons to keep the peace as should in his presence commit the acts mentioned, he adds: "also wherever any private man hath just cause to fear, that another will burn his house, or do him a corporal injury, by killing, imprisoning, or beating him, or that he will procure others to do so, he may demand surety of the peace against such person ; and every jus- tice of the peace is bound to grant it, if he who makes it will make oath that he is actually under fear of death or bodily harm, and will show that he has just cause to be' so, by reason of the other's menaces, attempts, or having lain in wait for him; and will also further swear that he 288 COURT OF GENERAL SESSIONS, &c. does not require such purety out of malice, or for mere vex- ation. This is called swearing the peace against another-; and if the party does not find such sureties as the justice in his discretion shall require, he may immediately be com- mitted till he does." 4 Blacks. Com. 254, 255, And this security was taken by a recognizance before the justice entered into by the principal and his sureties, the main condition of which was that the principal should in the mean while keep the peace, and to appear at the next sessions, and to which it would be certified and returned by the justice. The causes for which such surety of the peace could be required are also stated by Hawkins to be, wherever a person has just cause to fear that another will burn his house, or do him a corporal hurt, as by killing or beating him, or that he will procure others to do him such mischief, or is threatened to be imprisoned by him. I Hawk. Sects. 6, 7, p. 2 54. And which are substantially as same as stated by Sir William Blackstone. And they were each of them acts which when committed would constitute a breach of the peace at common law, and therefore it was that this judicial proceeding to prevent the commission of these special offenses when justly ap- prehended by any one at the hands of another, was a proceeding to prevent a breach of the peace, and which, of course, it could not have been, unless the acts and wrongs it was intended to prevent when committed, should amount in law to breaches of the peace. But as we have before remarked, the provisions of the statute of this State on the subject are much broader, and the causes for which security of the peace may be here required are very different from what they are in England, although in this State such security can only be demanded on threats actually made by the party against whom it is demanded, as provided for in the statute. And as we have seen, it is not only "whoever shall threaten to kill or wound another," is to be subject to such demand, but " whoever shall threaten to kill or wound another, or to injure him in person, or estate," shall on proof such THE STATE v. HAMILTON. 289 threats before a justice of the peace, be subject to it un- der our statute, and shall be required to enter into recog- nizance with surety to be approved by such officer, con- ditioned for his appearance before the next Court of General sessions of the Peace and Jail Delivery, to be held in the county, there to ansvirer such matters as shall be objected against him by the complainant, and in the mean time to keep the peace and be of good behavior towards all the people of this State, and especially towards the complainant, and not to depart the Court without leave thereof, as is provided for and prescribed in 7 Sec. of chapter 97, Rev. Code 331 before referred to, and which in that section is denominated in terms a binding to keep the peace, and which just as clearly imports a bind- ing to prevent a breach of the peace by the execution of the threat to do the injury to the complainant in his person or estate, as alleged and set forth in his affidavit of com- plaint on which the proceeding was incepted. And ac- cordingly, it has been long and uniformly held in the Court of General Sessions of the Peace and Jail Delivery, in which we are now sitting, that a threat by one person to injure another, either in his person, or in his estate, real or personal, is a threat to commit a breach of the peace under the provisions of this statute, and against which security to keep the peace may be demanded for the protection of the party threatened pursuant to the form prescribed in it. But every such threat is, of course, a threat to do the party threatened a malicious injury, and is also, of course, a threat to commit a breach of the peace under the effect and operation of the statute. And if so, has not the statute by necessary implication made every malicious injury done to another in his person or estate, even without any antecedent menace or threat to commit it, a breach of the peace in contemplation of law .' For by what kind of legal magic or mystery could the statute make a threat to injure another in his person, or estate, a threat to commit a breach of the peace, without at the same time making indirectly and by necessary im- 290 COURT OF GENERAL SESSIONS, &c. plication, at least, every such malicious injury in the abstract a breach of the peace ? Even the threat simply to commit such a malicious injury, because it is a threat under the statute to commit a breach of peace, is made a criminal act by it, iirst cognizable before a Justice of the Peace under his criminal jurisdiction, and then cognizable before this tribunal of general criminal jurisdiction below offenses made capital and the crime of manslaughter, and it has therefore, made such a threat even an inchoate misde- meanor. And if such a malicious injury when committed without any threat preceding it, is made by the necessary implica- tion and operation of the statute, a breach of the peace ac- cording to the technical import and effect of those terms at common law, no punishment for it, as such, being special- ly provided by statute, is it not to be deemed a misde- meanor and indictable at common law under which all breaches of the peace are indictable, unless it is otherwise provided by statute, pursuant to the meaning and inten- tion of the iS Sec. of Chapter iij. Rev. Code 475, before referred to, and which is as follows: " Assaults, bat- teries, nuisances, and all other offenses indictable at com- mon law, and not specially provided for by statute, shall be deemed misdemeanors, and shall be punishable" by fine and imprisonment, or either, according to the discretion of the Court ?" Such at all events, are the conclusions of our minds on the questions here presented and considered. The defendant was afterwards tried and convicted on the indictment at this term of the Court. COURT OF OYER AND TERMINER. The State v. Jesse Draper. Express malice aforethought, and malice aforethought implied by law, and murder of the first and second degree under the statute, and manslaughter defined and distinguished. One born deaf and dumb, and who has never received any education in the schools designed for mutes, or religious or moral instruc- tion, will be criminally responsible for murder of either degree, or of manslaughter, as the case may be, if he has sufficient capacity, reason and intelligence to distinguish between right and wrong with reference to the act when he committed it, apd knowledge and con- sciousness that it was criminal and would subject him to punishment, and to understand thq nature and consequences of it. But the law will not imply malice from the use of a knife by one afflicted with that natural infirmity and a violent temper when angry and excited, with which he furiously stabs and kills another who has suddenly assaulted and thrown him, and is about to whip him, unless there is evidence sufficient to satisfy the jury that he had provoked the assault for the purpose of stabbing the deceased with it. On an indictment for murder against a person deaf and dumb from his birth, the killing by him being proved, the law will presume that he was criminally responsible for it, until the contrary appears. Sussex County, April Term, 1868. At a Court of Oyer and Terminer held at this term, Jesse Draper, a deaf and dumb man, was indicted for the murder in the first degree of Nathaniel H. Dickerson. On his arraignment the At- torney General read the indictment aloud to him, and on the question being put to him, guilty or not guilty, his counsel, Mr. Cullen, responded for him, not guilty, and 292 COURT OF OYER AND TERMINER. thereupon the Court ordered the plea of not guilty to be entered upon the record. The evidence in the case was that the prisoner, who was a negro, about thirty years of age, and deaf and dumb from his birth, had been living for the last seven years in the family of the father of Nathan- iel H. Dickerson, the deceased, working on the farm with the father and the deceased and another son, and had long evinced a strong and peculiar partiality for the whole family, and had never before manifested any disposition to injure any member of it, or fear of a,ny of them, except the deceased, who was the only member of it capable of mastering him, and who had sometimes had occasion to conquer and chastise him, when in his violent and angry moods actual force Was required to overpower and subdue him. On the evening of the 9th of November preceding, the father and the deceased, his brother and the prisoner had been in Georgetown, and on their return together to the farm a few miles from town, and soon after leaving it, the deceased, who had been following on foot some distance behind the cart drawn by a yoke of oxen, in which the deceased, his father and brother were riding, came up and got in and sat down at the tail of it, when the deceased, who was seated on the side of it and driving the oxen, or- dered him by signs which he well understood, to get out and walk, because the oxen were tired, and it increased too much the weight in the cart at that end of it, to which he paid no attention, but on the repetition of it he got out in a very angry mood and made a good deal of noise, muttering and mumbling as he walked nearly a half mile by the side of the cart, the violence of his anger and pas- sion increasing as he proceeded, until finally he went round the cart and up to the side of it on which the deceased was sitting, and shook his fists violently at him, when the latter threw off his coat, sprang out of the cart, and both at the same time seizing hold of each other the deceased threw him on the ground, and was on top of him, when after some delay, the cart and oxen still pro- THE STATE v. DRAPER. 293 ceeding onward with them, the father and brother got out and went back to the spot to separate them, and where they found them lying side by side on the ground, the deceased badly cut with a knife on the left side of his neck, and who died of the wounds in a few minutes afterwards. It was then between the hours of nine and ten o'clock at night, and on reaching home and examining his body it was found to be cut and stabbed in fifteen different places with a sharp pocket-knife by the prisoner, as it was after- wards ascertained, the immediate cause of his speedy death consisting of the cut first discovered in the left side of the neck, three inches in length and two in depth, and which completely severed both the jugular vein and artery. When first seen by the father, after the deceased jumped out of the cart, they were striking at each other, they then ran together, clung hold of each other, and the deceased threw him on the ground, falling on top of him ; and when arrested, as he was that night, there was a lump on the forehead of the prisoner, just above the left eye, which had the appearance of having been made by a re- cent and severe blow with a fist. It further appeared in evidence that the prisoner was a strong and athletic man, whom but few were able to over- power in a trial of strength or personal conflict, and although he and the deceased had several times fallen out, and the deceased had always before overpowered and whipped him in such conflicts, he had never seriously hurt him, and they were in general on very good and friendly terms with each other. And although the pris- oner had never been able to speak or hear, and had never received any instruction or education in the alphabet or language of signs taught in the schools of mutes, he had signs of his own by which he could readily communicate his ideas to and converse with such persons as were famil- iarly acquainted with him, on many ordinary matters and things, and was possessed of a good deal of intelligence and mechanical ingenuity, and was not only a good hand and workman on a farm, but could make well any article 294 COURT OF OYER AND TERMINER. he tried to make that was required upon it, and knew the boundaries of it and of the adjoining tracts in the woods better than the owner of it, and knew the difference in the value of our national silver coins, as well as our smaller bank notes, and could be sent to t,he stores in town to buy many ordinary articles required on the farm or in the family ; and although he had never received any religious Instruction, he seemed to have some conception of a future state of rewards and punishment, and to believe that there is a heaven above for the good and a hell be- neath for the bad, indicating by appropriate signs that those who shout at religious meetings will go to the for- mer, while the bad would descend to the latter. He also in like manner could make known that he knew the public jail and the whipping post and pillory, and what they were for in Georgetown, and that people who stole were there whipped and imprisoned for it. His previous char- acter had been good, and though evidently conscious of what he had done, he made no effort to escape or attempt to deny it, but seemed apparently to exult over it. To a witness who knew him very well, and soon after saw him passing on the road that night with a good deal of blood on his clothes, and who by signs enquired of him the cause of it, he replied by signs which he understood that he had had a fight with a man and had cut his throat and killed him, and that it was the man with whom he knew he had had a fight not a great while before, by which he knew he meant the deceased, whom he also knew very well ; and that the prisoner was very angry when he first came up to him on the road, and seemed to grow more so while communicating this intelligence to him. It was further proved that the prisoner had purchased the knife with which the cutting and killing of the deceased was done, some time prior to that, at a store in Georgetown, and that he was seen sharpening it on a grindstone two days before, and that on that night before they left Georgetown the prisoner showed it to another witness, and how sharp it was, and then flourished it around in his THE STATE v. DRAPER. 295 hand as if cutting with it, but what more, if anything fur- ther he meant by it, he could not say. Moore, Attorney General. The evidence showed that the prisoner, though he had been deaf and dumb from his birth, had sufficient reason and intelligence to distinguish between right and wrong in reference to this horrible act, and to restrain the passion and the impulse which led to the commission of it, and to know that it was wrong in the sight both of God and man ; and that he was, there- fore, criminally responsible for it, and could and should be convicted and punished for it under the indictment. That the evidence was strong and sufficient to prove to the satisfaction of the jury that it was prompted by malice which had long before been growing and increasing in rancor and intensity against the deceased, until it burst in all its fury upon him on that fatal night of the 9th of November last, and that the prisoner had not only coolly and deliberately premeditated such a deadly attack upon him, but had deliberately prepared for it by purchasing and sharpening the knife with which he perpetrated it ; and that thus actuated by malice he was prompt to avail himself of that occasion by his own unreasonable violence and insults to provoke a fight with the deceased, in order that he might, now that he was thus prepared for it, fully gratify it. And if that was the case, then it was conclu- sive evidence that it was committed with express malice aforethought, and was murder of the first degree, as such a weapon so used as it was by him, was certain to pro- duce death, i Russ. on Crimes, 482. i Hale, 452. But if such evidence of antecedent malice or malevolence against the deceased were wanting, as the prisoner was the aggressor, and the fight which followed was evidently a provocation of his own seeking, for the purpose of kill- ing or cutting and stabbijjg the deceased with the knife with which he was then prepared, it would be evidence at least of implied malice, and could not possibly extenu- ate and reduce the crime below murder of the second de- 296 COURT OF OYER AND TERMINER. gree. i Russ. on Crimes, 521, 585. Ros. Cr. Ev. 684. I. East. P. C.244, 245. Cullen, for the prisoner. Assuming for the sake of ar- gument that the prisoner was in contemplation of law a sane man and criminally responsible for the act, the offense could not amount to murder of either degree, but to manslaughter only. But it did not amount even to that offense, because the prisoner having been deaf and dumb from his birth, and wholly without any religious, moral or any other kind of formal instruction or educa- tion, he was both in fact and in law an insane person, and was therefore not criminally responsible for the act. The law regarded such a deaf and dumb person as non compos mentis, and as much so as an idiot, i Black. Com. 304. 1 Russ. on Crimes, 6. Rev. Code, chap. 133, sec. 15. Ros. Cr. Ev. 224. 4 Black. Com. 324. i Mass. 103. 32 E. C. L. R. 517. /\. Denio g. i^ Mass. 2gg. 1 Beck's Med. Juris. %^%. Shelf, on Lun. 2 Law Lib. 2, 289. Constitution of the State, Act 1, Sec. 7. There was not sufficient, if, indeed, there was any evi- dence before the jury, to satisfy them that the prisoner had capacity and reason sufficient to enable him to dis- tinguish between right and wrong as to the particular act he was then doing ; or sufficient knowledge, moral sense and consciousness to know that the act he was doing was wrong and criminal, and would subject him to punishment. On the' contrary, the evidence from the beginning to the end of it, clearly showed that he had not ; and if so, then he was not, and could not be criminally responsible for it. 2 Greenl. Ev. Sec. 372, and foot note to the same. I Becks Med. Juris. 764. 7 Met. 500. 38 E. C. L. R. 208. 5 Harr. 512. On that point all the witnesses who know him best, had testified that it would eyen now be impossible to make him understand the difference between right and wrong in general, and particularly in an abstract sense, or between right and wrong as to the act committed by him, or that he is criminally liable, and is now being tried THE STATE v. DRAPER. 297 for it, and that, even his life may at this moment be de- pending upon the issue of it. He has not heard a word that has been said since the trial commenced, and still knows and understands nothing as to the object and im- port of it. Moore, A ttorney General. By the law as now settled on that early question in regard to them, deaf and dumb per- sons are not necessarily and absolutely irresponsible for crime by reason of that natural infirmity, but it is incum- bent upon the prosecution to prove that such a person when indicted for a crime has some degree of intelligence. Whart. & Stille, Sec. 140. Whart. Sec. 532. Beck's Med. Juris. 765. Rev. Code 491, Sec. 15. The Court, Gilpin, C. J., charged the jury. The ques- tions presented in the case, and which it would be their duty to consider and determine on the evidence before them were, whether the prisoner was criminally responsi- ble for killing Nathaniel H. Dickerson, the deceased, on the night of the 9th of November last, in the manner and under the circumstances proved, and about which there was no dispute, inasmuch as it was also proved, and not disputed, that the prisoner was, and had been from his birth, a deaf and dumb person, without any instruction or training in any school for the education of mutes, and if so responsible, then to what extent was he here criminally responsible for it on this indictment, which is for murder with express malice aforethought, and of the first degree under the statute. He then proceeded to define the crime of murder with express malice aforethought, and read from i Russ. on Crimes, the definition of it, as follows : Express malice is when a person kills another with ;', sedate, deliberate mind and formed design, such formed design being evi- denced by external circumstances discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some 20 298 COURT OF OYER AND TERMINER. bodily harm. And this malice must be aforethought, and this sedate, deliberate mind and formed design to kill or to do some great bodily harm to the person slain, as thus evidenced and shown by external circumstances, must be formed and exist in the mind of the slayer before the mortal blow is given or the act or harm done to the body of the slain which causes the death, is committed. And when such is the case, and such is the evidence, it is mur- der of the first degree under the statute. But the crime of murder may also be committed at common law and under the statute without express malice aforethought, but with what is known and defined in law as implied mahce aforethought, and which is implied by law from any delib- erate, cruel act committed by one against another, how- ever sudden, which causes his death, as where one person kills another suddenly without any, or without a consider- able provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause, i Russ. on Crimes, 482, 483. And in such a case the killing will be murder of the second degree under the statute. It has, however, been contended by the counsel for the prisoner, conceding for the sake of argument that he can be held criminally responsible for the act, that the killing in this case can in no event be considered, under all the circum- stances proved, as amounting to more than the crime of manslaughter, which is by the same authority defined to be whenever death ensues from a sudden transport of passion, or heat of blood upon a reasonable provocation, and without malice, it is considered as solely imputable to human infirmity, and the offense will be manslaughter ; but no words however offensive they may be, nor even a blow with the fist, will be sufficient to free the party kill- ing from the guilt of muiyder, if upon such provocation a deadly weapon be made use of, or an intention to kill, or to do the party some great bodily harm was otherwise manifested, nor will even a blow be considered a sufficient provocation to extenuate the crime and reduce it to man- THE STATE v. DRAPER. 299 slaughter where the revenge is disproportioned to the in- jury inflicted by it, and is outrageous and barbarous in its nature, if malice aforethought express or implied is proved to have existed in either of such cases, i Russ. on Crimes, 580, 581. According to the testimony of James Dickerson, the brother of the deceased, the evidence on this point was s\ibstantially to the following effect : He and his father and brother, Nathaniel H. Dickerson, and the prisoner were together in this place, and started home to the farm of his father a few miles from here that evening with the cart and oxen, his father, brother and himself in the cart and the prisoner following on foot some distance behind it, but who overtook them not far from town, and got into the tail of the cart, when his brother, the deceased, who was seated on the side of the cart and driving, told him by signs which he understood, to get out and walk, because his weight made the cart too heavy behind, and the oxen were tired and were getting along very slow before he got into it, and that the prisoner at first did not do it, but on his brother's telling him again soon afterwards to get out and walk, he got out very angry and walked along the side of the road and the cart about a half mile mak- ing a good deal of noise muttering and mumbling in his angry way to provoke his brother to attack him, and growing madder and madder (to use the language of the witness) as he proceeded, he passed to the other side of the road and that of the cart on which his brother was then seated and shook his fists violently at him, when his brother instantly threw off his coat, sprang out of the cart at him, and after striking a few blows at each other, they clung and his brother threw him on the ground falling on top of him. Not apprehending anything serious as likely to occur from it, they did not immediately stop the oxen and get out of the cart and go back to separate them, but after a while they did so, and when they reached the place where they fell they found them both lying on the ground side by side, and his brother cut in the neck 300 COURT OF OYER AND TERMINER. as described more particularly by the physician who made the examination of the body, and other numerous cuts and stabs received by him in the combat, and that when they separated them and the prisoner left the place he was very angry, and was making a great deal of noise and exulting apparently in what he had done. And if the jury were satisfied from the testimony of the brother and father of the deceased that such were the facts of the case which immmediately preceded, accompanied and con- cluded the mutual combat between the parties, and that the prisoner sought and provoked the combat for the pur- pose and with the intention of using his knife and killing or severely wounding the deceased with it in the fight, then we must say to the jury that if they should be further satisfied from all the evidence which they had heard in the case that the prisoner at the time when he inflicted these knife-wounds on the body of the deceased, had ca- pacity and reason sufficient to enable him to distinguish between right and wrong as to those acts, and had a knowledge and consciousness that the act he was doing was wrong and criminal, and would subject him to punish- ment, and to understand the nature and consequences of it, and to know that it was wrong and criminal, his offense would be, in contemplation of law, murder with express . malice aforethought, and of the first degree under the statute. 2 Greenl. Ev. Sec. 372. But if the jury should not be satisfied from the evidence that the prisoner sought and provoked the fight with the deceased for the pur- pose and with the intention before mentioned, and on- ly bethought himself of the pocket knife he was then daily carrying in his pocket, and determined to use it against the prisoner after the fight had begun and in a sudden and violent transport of anger and passion pro- duced by the combat, and so used it without any such previous design or intention, the offense would amount to manslaughter only, provided the jury should also at the same time be further satisfied from all the evidence which they had heard in the case that the prisoner had THE STATE v. DRAPER. 301 sufficient capacity and reason to distinguish between right and wrong as to the act itself, and knowledge to understand that it was wrong and criminal and would subject him to punishment as before stated. For there could be no doubt on the proof upon that point that hav- ing been already greatly exasperated and incensed by the order of the deceased to get out of the cart and walk while he and his father and brother remained in it, he must have been still more infuriated with anger and passion when the deceased, unfortunately for himself, with more rashness than prudence or legal justification, sprang out of the cart and commenced the fight with him, on his merely shaking his fists violently at him in it, particularly, when we consider the peculiar and natural infirmity with which the prisoner was unfortunately afflicted. They must have both been very angry at that moment, and the mutual blows which followed could have but increased the rage of such a person as the prisoner unfortunately appears to -have been ; and therefore, unless the jury should be satisfied from all the evidence before them in the case that the prisoner possessed sufficient capacity and reaso;i to be criminally responsible as before stated, and was actuated by antecedent malice and malignity against the deceased, and with a preconceived design provoked him to attack him on the occasion for the purpose of grat- ifying that malice and malignity by cutting and stabbing him with the pocket knife with which he was then pro- vided and prepared for that purpose, no malice could be implied by law from the facts and circumstances proved in the case, and the transport of passion and heat of blood in which it was suddenly done in the fight between them, would extenuate and reduce the commission of the act to the crime of manslaughter. In all cases of alleged crime, the crime alleged having been proved to have been committed by the accused, it is the general rule that he is presumed to have been at the time sane or of sound mind, and to have had a sufficient degree of reason to be criminally responsi- 302 COURT OF OYER AND TERMINER. ble for it, until the contrary has been proved to the satisfaction of the jnry. But this rule of law does not apply to a deaf and dumb person when charged with the commission of a crime. On the contrary, the legal presumption is then directly reversed; for in such a case it is incumbent upon the prosecution to prove to the satisfaction of* the jury that the accused had capacity and reason sufficient to enable him to distinguish between right and wrong as to the act at the time when it was committed hy him, and had a knowledge and conscious- ness that the act he was doing was wrong and criminal, and would subject him to punishment ; and this the State was bound to prove in this case in regard to the capacity and reason, knowledge and understanding of the prisoner at the bar to the satisfaction of the jury, or it would be their duty to acquit him. And owing to this legal pre- sumption in his favor, the prisoner would be entitled to the benefit of any reasonable doubt which the jury might have on that subject. He would also be entitled to the benefit of any reasonable doubt which they might have as to the act having been committed by him with express malice aforethought, as before explained and defined, if they should be clearly of the opinion after carefully and maturely considering all the evidence in the case that he was criminally responsible, and in that event he could not be properly convicted of any crime greater than man- slaughter. The verdict of the jury was, not guilty by reason of insanity, or' want of criminal responsibility. State v. Robert H. Goldsborough. Murder with express malice aforethought at common law is murder of the first degree under the statute. Circumstantial evidence is receivable both in civil and criminal cases ; and the necessity of admitting it in criminal matters, is even greater than in civil n^atters, and it is adopted the more readily in proper- THE STATE v. GOLDSBOROUGH. 305 tion to the difficulty of proving the fact by direct evidence, and be- cause of the ease with which it can be disproved by the proof of other facts inconsistent with it. But to warrant a conviction it must be entirely satisfactory, and of such significance, consistency and force, as to produce conviction in the minds of the jury of the guilt of the accused beyond a reasonable doubt. But the rule in regard to reasonable doubt in criminal trials, requires that the jury shall be satisfied of the guilt of the accused to a moral certainty, not to an absolute certainty. Sussex County, October Term, 1869. At a Court of Oyer and Terminer held at this term, Robert H. Golds- borough who had been indicted at the preceding term, was tried for the murder of Charles Marsh of the first de- gree, on the loth day of December 1868 in Lewes and Rehoboth hundred. The evidence in the ca.se consisted of the following facts and circumstances. The deceased was a bachelor residing on his farm near the ocean in the hundred mentioned, with a nephew of his named William H. Burton, the tenant of it, and the prisoner who since the month of September preceding had constituted the only members of the family. The latter, however, was away a few days almost every week, and wa's only there when he had nothing to do elsewhere, without paying for his board or receiving wages as a hand on the farm. Two of the witnesses who had gone there from. Georgetown on a gunning excursion for 'the next day in the neighbor- hood, to spend the night on the 9th of December, the day preceding the murder, found no one at home on their ar- rival there about 9 o'clock that night, but the deceased returned about i o'clock. The two arose early the next morning and went gunning before breakfast, leaving the deceased alone in the house, but on their return for break- fast they found the prisoner there and also the deceased. After breakfast between 8 and 9 o'clock they went out gunning again in the direction of the shore, and invited both the deceased and the prisoner to go gunning with them, which they both declined, the deceased saying he 304 COURT OF OYER AND TERMINER. had to go to Lewes, and the prisoner that he had some work to do, but that he would be at the house when they came back to dinner from gunning, and would have din- ner ready for them ; but when they returned for it between half past I and 2 o'clock they found no one there. Some body had fed their horse in the stable, however, for he was not done eating his corn when they got back for din- ner ; and when they got up on the sand hills on coming back from the beach for dinner one of them saw some person driving off from the house a yoke of oxen and a cart with a hogshead in it, but could not see where it went, and did not see it again. Another witness who lived about a mile from the de- ceased's farm in a south west direction, as he was walking over to the house of the latter that morning, saw him and the prisoner coming up from the beach towards the house, and when about a hundred yards from them, the prisoner called to him and asked him what he wanted. At the first and also the second enquiry from him, he did not an- swer, but when he had got near enough he told him he had come for the chisel which he had lent them; The three then went on together to the house, and the prisoner told him where he would find it in the house, and soon after he had got it, the three started back from the house to- gether down towards the branch, leaving no body at the house ; but the prisoner said to him as they started that way together that the other way was his nearest way back to his home, to which he replied that he thought that was his nearest way and proceeded on with them in the direction of the branch, it was but a narrow path lead- ing from the house of the deceased towards and around the branch, and they walked in single file, the deceased ahead, himself next and the prisoner behind them, they had not proceeded far, however, when the deceased stoop- ed down and picked up a turtle gig and grubbing hoe lying by the side of the path, and then the prisoner stopped, stooped down and picked up a double barrelled gun also lying by the side of the path, and which he iden- THE STATE v. GOLDSBOROUGH. 305 tified as the same which was then produced and submitted to his inspection on the trial. They then proceeded on in the same order down the path towards the branch, the deceased carrying the gig and. hoe, and the prisoner the gun, until they reached a point where it diverged from the direction of the branch towards his own house, when he turned up it in that direction from the deceased and the prisoner, while they proceeded straight on still towards the branch in the same order, the prisoner about four yards behind the deceased when he parted from them. When he had got about a half mile from them towards his home, he heard a loud report of a gun fired off, but he could not say from what direction. It was about 9 o'clock that morning when he left his home to go over there. The deceased had on a black soft felt or wool hat. He did not see, the prisoner again until about 12 o'clock that day, and he was then walking very fast near his house going up the neck with a black pair of pants under his arm and a pair of boots in his hand, and called to him, but he made him no answer. He next saw him on the Monday night follow- ing at a neighbor's house two miles from that of the de- ceased, and the prisoner then said to him that Charles Marsh must be dead, and should be looked for. The wit- ness and another had that day looked for him around the pond and branch in the direction in which the deceased and the prisoner were going when he parted from them on the day of the disappearance of the deceased, without finding him ; but he renewed the search with three others, relations of the deceased, and a brother of the witness early the next morning, and went round the branch and pond and found his dead body lying as if it had fallen forward to the ground, breast downward and with the wounded side of the head and face turned upward, the left hand un- der it and the right arm and hand extended from it on the ground. The gun shown him was lying on one side of it upon the ground about ten or twelve inches from it, with one barrel discharged and the other still loaded ; a turtle gig was also lying on the ground by the side of it, but 306 COURT OF OYER AND TERMINER. there was no grubbing hoe there, nor has the one he was carrying that morning ever been found there or elsewhere. There were also one piece and some smaller fragments of a black, soft felt hat, and the lining of it lying near his head, and a dark cloth cap uninjured lying some foot arid a half from it, and in his pocket a wallet or purse with $15 in it, also powder in a horn and shot in his pocket in a shot-bag. About one-third of his head was gone and had been shot and blown away. On the Monday night before spoken of the prisoner told the witness that the last he saw of the deceased, he went to his house and took a drink and went oiif on the day he disappeared. He next saw the prisoner the morning after the body of the deceased had been discovered, and when he told him that he heard a gun fired not long after he had parted from him and the deceased on his way back home on the day the deceased disappeared, he replied that he heard no gun and was so busy plastering at the deceased's house that day, and there were so many guns fired about there, that if there had been a thousand fired that morning he would not have heard one of them. On the morning after deceased's body was found, the prisoner told him that after he left him and Marsh at the branch they went round the pond to a persimmon tree and dug some holes, and that he left Marsh there, and then went back to the house. Wm. J. Burton, the nephew and tenant of the deceased, testified that he left his house on Tuesday, the 8th of December, and went to his mother's in that neighborhood to superintend the slaughtering of her hogs, and returned on the following Saturday, and that he left the prisoner there when he went away with his uncle, and he was the only person then left with him. He had been staying there since the 21st of September preceding, and had done some plastering in the house, but none that he could dis- cover since the preceding Monday. That when he came there he told him he had five dollars, and that it was all the money he had, and that the witness knew that his uncle had received about two weeks before the murder THE STATE v. GOLDSBOROUGH. 307 $485 in paper money which he carried in his pocket folded up in brown paper, and he recognized and identified the lit- tle old pocket-book or wallet found in the pocket of the deceased after his death, with $15 in it, as the property of his uncle, and which he had seen only a few days before in a trunk in one of the lower rooms of his house, and had seen the prisoner in that room only the day before he left there to go to his mother's ; but the wallet had only a few cents in it when he last saw it ; and that on the same day his uncle was talking in the presence of the prisoner of going to Philadelphia to buy some clothes and carpets for his house, and when he requested him to delay it until his return from his mother's, where he was going the next day. He also identified the cloth cap found and picked up near the head and body of the deceased, as belonging to his uncle, and which he had some time before found on the sea-shore, but had not seen him wear it but once that fall ; it was kept hanging on a nail in the kitchen. In October the prisoner had asked him what his uncle did with his money, and he knew that he had received the $485 spoken of before, about two weeks previous to the mur- der. He next saw the prisoner at his mother's about sun- set on Thursday, the lOth day of December, and he there requested him to send his clothes to him from his uncle's house, and said he would not be back there any more ; he enquired of him how his uncle was, and he said he had taken his gun that morning and gone down on the bank muskratting. Another witness testified that he was at Andrew J. Marsh's on Thursday, the lOth day of December, and about II o'clock that morning, the prisoner came up there from the direction of the deceased's farm, and wanted to borrow an augur and said he was going to make a ladder, and asked Marsh to go with him to the deceased's place and help him make it, but he was killing his hogs and told him he could not go. He said the deceased had taken his gig and gun and gone off, he did not know where. Andrew J. Marsh testified, that on that day he was 3o8 COURT OF OYER AND TERMINER. killing hogs, and between half-past lo and ii o'clock the prisoner came to his house, and wanted an augur to make a ladder, and asked him to go and help him, but he told him he could not. He said the deceased had gone off with his gig and gun, and when invited by him to remain for dinner, he said he could not stay, that some gunners were to be at the deceased's house for dinner, and he had to go back and get it for them. He did not remain more than twenty minutes, and left about 1 1 o'clock. Lemuel W. Marsh testified, that the prisoner was at his house, two miles and a half from the deceased's farm, at 12 o'clock on Thursday, the loth of December, and when he came he took a seat in the kitchen door, which was open. He seemed very warm, and there were large drops of perspiration on his face and forehead, although the day was quite cold. Witness's wife requested him on that ac- count to shut the door, when the prisoner said, "For God's sake, don't shut the door ! I am sweating like a horse, and if I haven't come since I left Charles Marsh's in a horse gait, shoot me ! " While he was there the witness's brother came up with a cart and oxen, and asked the prisoner to go back with him to Charles Marsh's ; he said " No, Thomas, I have overstayed my time, and ought to be at Catherine Burton's now." She was a sister of the deceased. And the wife of the preceding witness also testified that when the prisoner came up and took a seat in the kitchen door, he threw down a pair of pants and said, " there were more gunners down at Charles Marsh's ;" when she asked if Charles was not tired of gunners, he said he did not know, but Charles had gone away with his gun, he did not know where, before he got there, and he then said he was done at Charles Marsh's, and ought to have been at Catherine Burton's before that time. Catherine W. Futcher testified, that the prisoner stop- ped for a few moments at their house about half-past I2 o'clock on Thursday, the loth of December, and she in- vited him to come in and take a seat, but he said he had not time, that he was on his way to Mrs. Catherine Bur- THE STATE v. GOLDSBOROUGH. 309 ton's, and had waited at Charles Marsh's for him to come home, until he could wait no longer, and was now behind time to do a half day's work that afternoon at Mrs. Burton's. Charles W. Burton, a boy, testified that he was at his mother's, Catherine Burton's, Friday morning, the day after the deceased disappeared ; the prisoner was there, and said he must have some whiskey, and taking a five dollar note out of his pocket, said it was the last money he had, and he hated to break it, but he must have some whiskey, and gave it to him to ride up to a store in the neck and buy him a quart, which he did, and when he brought it to him with the change, he gave him twenty- five cents out of it. He drank very often, and wanted another quart by noon that day, which he got for him in the afternoon, and another the next morning, which he also got for him. Lemuel M. Burton testified that he went with the pris- oner from his mother's, Catherine Burton's, after dinner on Saturday, the I2th day of December, down to the pris- oner's father's, and while there he saw him take a roll of bank notes from his pocket, and extending his hand to- wards his father, and with the ends of the notes project- ing and plainly visible beyond his fingers and thumb, heard him say to him, " Pa, will you take a chew of to- bacco ? " And to which he replied, merely, " None of your nonsense. Bob." And that on the Monday follow- ing they were again at his mother's, and his sister was weeping over the strange disappearance of their uncle, and said she feared he was dead, when the prisoner replied that there was not a bit of doubt in his soul that he was dead, and that his body ought to be searched for, and when found he would be found dead in the woods along the branch, with his gig and gun beside him, and then added, "didn't I tell you, Penn, Charles Marsh would shoot himself with that gun, that the right barrel was easy on the trigger .' " 310 COURT OF OYER AND TERMINER. Joseph W. Hudson testified that the prisoner was at his house in that neighborhood, on Tuesday morning after the disappearance of the deceased, and several other per- sons were also there, but no one had alluded to it before the prisoner remarked " that is a great go about Charles Marsh !" Witness asked what was it ? He replied that he was missing. He then said that Charles and he went musk-ratting on Thursday morning, and when they got to a little glade round the branch, Charles told him t.o go back and finish plastering the kitchen, and took the gun, grubbing hoe and gig, and that he had not seen him since they then parted, that Charles went on and he went back to the house, finished the plastering and then left. The witness then asked him if he might not have gone to some of his neighbors, and he replied that he did not think he would go to any of them dressed as he then was. He then said he had no doubt he had shot himself; and he also said that Charles had near five hundred dollars about him that morning. The physicians who saw and examined the body, soon after it had been found, before the coroner's inquest, testi- fied that the death had been produced by a gun shot wound in the head, and that the load of shot had entered the back part of it, passed through the skull and came out at the right eye or a little above it. All the right side of the top of the skull had been carried or blown away by it, the right hemisphere of the large brain was gone, also the right eye was entirely blown to pieces, the bones of the nose were all there, but torn loose, the right cheek bone was also loose, the right ear was also torn and blown to pieces, and the back of the neck and hair were black- ened and singed as by exploding gun powder. It would seem that the load must have entered and come out in a body, and the muzzle of the gun could not have been but a short distance from the back of the head when the load of powder and shot was discharged from it. The wound was mortal and death must have ensued instantly, almost. There was also an oblique fracture of the skull across the THE STATE v. GOLDSBOROUGH. 311 centre of it in the direction of the left eye technically termed a depressed fracture, which could not have been produced as the other wounds and fractures were, and which they thought might, have been produced by a blow upon it with the stock of the double barrelled gun which was found by the side of the dead body with the breech of it broken. Several of the witnesses also testified that they found the foot prints of two persons in the ground where the soil was light and loose enough to receive them, proceeding to within one hundred and fifty yards where the body was found and in that direction, and which could not be traced any further because of the nature and hardness of the ground from that point to where it was lying, and that they were near about in the same line, as of two persons walking one after the other, and not by the side of each other ; that one pair of them was considerably larger than the other, and when they were afterwards severally measured with the boots which the deceased, and also with those which the prisoner wore on the morning of the murder, those of the deceased not only fitted in length and breadth with the larger pair, but even corresponded in the impression which a patch on the sole of one of them had made in the tracks, while those of the prisoner as closely fitted the smaller tracks. There was also a line of the smaller footprints starting from the direction in which the body lay and proceeding towards the house. Bates, Deputy Attorney General, reviewed the evidence very fully and contended that it was absolutely conclusive against the prisoner, and that he was cleary guilty of murder of the first degree under the statute. Wright, {W. Saulsbury with him,) contended that the evidence was purely circumstantial, and when such was the case in a trial for murder, every circumstance relied on to establish it, must be as clearly and satisfactorily proved, as if the whole case solely depended upon it, for 312 COURT OF OYER AND TERMINER. there should be no imperfect or defective link in such a chain of testimony when relied on for such a purpose. It must also be consistent throughout the entire length of it with every other fact or circumstance proved in the case, even to the most minute extent. It was essential too, that the circumstances should be of the most con- clusive character. Preponderence of proof had no appli- cation in criminal prosecutions, although the rule was otherwise in civil cases ; and such evidence should to a moral certainty actually exclude every other hypothesis than the one proposed to be established by it. i Stark. Ev. 540, 572, 577. No malice in the ordinary sense of that term, had ever been ascribed by any one to the pris- oner, as a motive for murdering the deceased, and the only motive that had ever been, even by way of hypothesis purely, imputed to him for the commission of the alleged crime, was the sum of about five hundred dollars which the deceased had received some two weeks prior to his death, and which it is supposed and assumed, but not proved by any witness, that he had about his person at that time. The prisoner on his arrest had been searched for it, but none of it had been found on him, while a wal- let containing fifteen dollars was in a pocket of the de- ceased when his dead body was found. That alleged fact and the assumed motive based upon it, constituted the most vitally important circumstance in the case, accord- ing to the theory and hypothesis of the prosecution, but had it been as clearly and conclusively proved to the sat- isfaction of the jury, as both law and reason required in such a case .'' But conceding for the sake of argument, that the deceased had been carrying that amount of money about his person wherever he went and in whatever man- ner he was dressed for two weeks, others were aware of the fact as well as the prisoner, and therefore such a motive could not be hypothetically imputed to him alone for the commission of the crime, and no one under the evi- dence in the case could conclude that it could not possibly have been committed by another ; and without such a THE STATE v. GOLDSBOROUGH. 313 moral certainty that the prisoner committed the act, the jury would not be justified, either in law or conscience in convicting him. Lore, Attorney General, replied. The Court, Gilpin, C. y., charged the jury, that the death of Charles Marsh, for the murder of whom the prisoner is indicted, had been established by the evidence, and that it was produced by a gun shot wound in the back part of the head and neck which was scorched and discolored with the exploded powder, and the nature, extent and fatal effect of which had also been clearly established in the evidence ; but whether the gun was charged with leaden shot, or other deadly substance which produced it, was not material in the case. When a man comes to his death in such a manner the law does not presume that it was by his own hand, or by accident, either, but by violence at the hand of some other person ; and hence it becomes the duty of the coroner of the county to institute an official investigation into the cause of it, and to arrest and commit the perpetrator of it, if ascertained, and the evidence in his judgment shall war- rant it, in order that he may be tried for it before a Court and jury, and the law vindicated, if on indictment and a full and fair trial he be found guilty of the offense. In the course of the testimony the jury had learned all the facts and circumstances from the sworn witnesses examined in the case, on which the State relies for the conviction of the prisoner of the crime with which he is charged in the indictment, and which is the murder of Charles Marsh on the lOth day of December last in Lewes and Rehoboth hundred in this county, with express malice aforethought, and of the first degree under the statute. And in order that you may understand the meaning and import of these terms in contemplation of law, we say to- you that express malice aforethought is when one person kills another with a sedate, deliberate mind and formed 2i 314 COURT OF OYER AND TERMINER. design, such formed design being evidenced by external circumstances discovering the inward intention, such as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. These however, are but some of the instances given for the sake of examples or illustrations in which the exter- nal or attending circumstances will evidence the sedate, deliberate mind and formed design to kill, or to do the party killed some bodily harm, for whenever in any other case the attending circumstances evidence such a mind and design to do the act, and death ensues, it constitutes in law express malice aforethought, and murder of the first degree under the statute, and is punishable with death ; as where one, either from motives of hatred or revenge, or with a view to rob him- of his money or get possession of any other thing about his person, coolly and deliberately forms the design in his mind to kill another, or wound and disable him for that purpose, and commits the act, either by lying in wait for him, or in any other manner, and his death ensues as the consequence of such bodily injury, it is likewise murder with express malice aforethought, and of the first degree under the statute. There is no direct evidence in the case that the prisoner killed the deceased, and if he is guilty of killing him, there has been no fact or circumstance proved in the case that requires of us to define or describe the crime of mur- der of the second degree under the statute, or any other grade of felonious homicide under it. On the contrary, all the evidence in it is what is called circumstantial evi- dence exclusively. But circumstantial, or presumptive evidence is receiva- ble in both civil and criminal cases. The affairs and busi- ness of the world could not well be carried on without recognizing the admissibility of this description of evi- dence. In criminal matters the necessity of admitting it is indeed much more manifest, than in civil matters. Crime usually seeks secrecy ; and the possibility of prov- ing the offense charged by direct or positive evidence, is THE STATE v. GOLDSBOROUGH. 315 much more rare and difficult in criminal cases than in civil cases. Circumstantial or presumptive evidence is, where some facts being proved, another fact follows as a natural or very probable conclusion from the facts actually proved, so as readily to gain the assent of the mind from the mere probability of its having actually occurred. It is the inference of a fact from other facts proved ; and the facts thus inferred and assented to by the mind, is said to be presumed, that is to say, it is taken for granted, until the contrary be proved. And this is what is called circumstantial or presumptive evidence ; and it is adopted the more readily, in proportion to the difficulty of proving the fact by direct evidence, and the obvious ease with which it can be disproved, or with which other facts can be proved, which are inconsistent with it, if it never really occurred. In capital felonies, such as murder, where the proof is of a circumstantial character, it is quite usual for the counsel to declaim against circumstantial evidence, and to denounce and reprobate conviction, founded upon such evidence ; and yet, the universal experience of those en- gaged in the administration of justice, shows the absolute necessity of admitting it, and of relying on it, in forming our conclusions in regard to the guilt or innocence of the accused persons. Indeed, if Courts of Justice, were to exclude circumstantial evidence, the great majority of criminals would escape the just penalty of their crimes. They would go unwhipped of justice, and be turned loose upon the community to commit other crimes. But whilst I say this, I also say to you, most emphatically, that circumstantial evidence, to warrant a conviction, must be entirely satisfactory, and of such significance, consistency, and force, as to produce conyiction in the minds of the jury, of the guilt of the accused, beyond a reasonable doubt. The great rule on the subject is this ; that were the evidence is circumstantial, the jury must be fully satisfied, not -only that those circumstance are con- sistent with the prisoners having committed the' act 3i6 COURT OF OYER AND TERMINER. charged as constituting the crime, but they must also be fully satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the prisoner was the party. They must be such as to exclude any other hypothesis or conclusion. The facts and circumstances proved in the case with the legitimate inferences resulting from them, and on which the State relies for the conviction of the prisoner in manner and form as he stands indicted, were all now before the jury, and by that evidence alone was the ques- tion of his guilt or innocence to be determined by them. But there is a marked distinction between civil and crim- inal cases in respect to the degree or quantity of evidence necessary to justify a jury in finding their verdict for the State. In civil cases their duty is to weigh the evidence carefully, and to find for the party in whose favor it pre- ponderates, although it may not be free from reasonable doubt. But in criminal trials the party accused is enti- tled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. It is therefore a rule of crim- inal law that the guilt of the accused must be fully proved ; and neither a preponderance of evidence, nor any weight of preponderating evidence is sufificient, unless it produces full belief of the fact to the exclusion of all reasonable doubt in the mind of the jury. But that does not import in contemplation of law a mere possible doubt ; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which after entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot feel any abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the pre- sumptions of law, independent of evidence, are in favor of innocence ; and every person is presumed to be innocent of the offense charged until he is proved to be guilty. If upon such proof there is reasonable doubt remaining, the THE STATE v. JONES ET AL. 317 accused is entitled to the benefit of it by an acquittal, for it is not sufficient to establish a probability, though a strong one, arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary ; but the evidence must establish the truth of the fact to a reasonable and moral certainty ; a certainty that con- vinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act con- scientiously upon it. This we take to be proof beyond reasonable doubt ; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether. The verdict was guilty of murder of the first degree. The State v. Joshua Jones and Lewis Carpenter. On an indictment and trial against two for a rape, one as principal and the other as accessory to the commission of it, the voluntary confes- sion of the latter formally taken by the committing magistrate as required by the statute, is admissible in evidence just as it is drawn against him on their joint trial, but after its admission the Court will specially instruct the jury that it is not evidence against the other prisoner. New Castle County, November Term, 1869. At a Court of Oyer and Terminer held at this term, Joshua Jones and Lewis Carpenter (negroes) were indicted, each as princi- pal and each as accessory in separate counts, and tried for a rape committed on a white married woman, named Mary Meredith, on the 17th of September preceding. She and her husband and their two children were living at the time with Mr. Henry McCrone, on his farm, but she and her children, who were quite small, were left alone in the house about ten o'clock that evening, both her husband and Mr. McCrone being absent for the night, which was known to the prisoners, both of whom had been at 3i8 COURT OF OYER AND TERMINER. work there during the day. She had retired to bed with her children in the room above the kitchen, leaving the door of the kitchen unfastened, and a lamp lighted in it for Mr. McCrone on his return, and another in the room above on retiring to bed with her children, and was awakened between ii and 12 o'clock by the presence of a colored man in the room and on her bed, the lamps then being extinguished both in her bed-room and the kitchen below, but she made such a strenuous resistance against his efforts to force her, and such an outcry, that he de- sisted for a time, and left the room and went down stairs, but after a time he came up again into her room, and while she yet had the lamp in her hand and was groping about for a match to relight it, he seized her round the body, and after struggling all she could to prevent it, and crying and begging him to let her go, he threw her down on the floor, and by choking her until she became uncon- scious, he accomplished his purpose, and when she re- covered her consciousness, and was aroused by the crying of both her children, he was gone. She then fled with them in great haste, fright and distress, about 12 o'clock, to the nearest neighbor's house, where she at once made known the occasion of it, and what had happened to her, and who in their testimony confirmed her statement as the same as was then made to them, except that she did not then say she had been ravished. William Moore, another negro man, was sworn, and testified that he went with Lewis Carpenter that evening from Mr. McCrone's farm to Mr. Morrison's, and as they went back Joshua Jones joined them, and as they went along Joshua asked Lew. if Meredith was at home ; Lew. said he was not, and he then said, let's have some devil- ment to-night — let's go over and ravish old Mary Mere- dith, and Lew. agreed to it, and said he would hold her if he would ravish her, to which Joshua replied, he would do it. They all three then went on to the house of Mr. McCrone, and Josh, and Lew. went into the yard, where he stopped and remained, and then into the kitchen - THE STATE V. JONES ET AL. 319 where they put out the light, then up stairs to the room above it where they put out the light there too. Josh, then got on the bed where she and her children were lying asleep, but soon one of them waked up and com- menced crying, and they came down again, and they all went together to the barn yard, where Josh, said that was a d — d pretty way to help a man ! and then said, let's go back again and do it before she gets the lamps re-lighted ; and they then went back again, he remaining at the yard gate, and that the prisoners then re-entered the kitchen and went up stairs as before, and were gone about a quar- ter of an hour, and when they came back to him he asked Josh, if he had had connection with her, and he said he had. The constable who arrested the prisoners and conveyed them to jail on the commitment of the magistrate, testi- fied that on their way Joshua Jones asked him when they would hang him, to which he replied that he could not inform him, but added, "You admit, then, that you did it.''" to which he answered, "I might as well, the way things have gone ; " and that Lewis Carpenter then said to him, " Yes, Joshua, you know that you did it," to which he replied that he was sorry that he had not done always as his mother had told him ; if he had, that would not have happened. The Attorney General, after the formal proof of it, then offered in evidence the voluntary confession of Lewis Carr penter, taken before the justice of the peace, and reduced to writing and read over by him to the prisoner and ap- proved and signed by him, admitting his participation in the transaction, and stating that the rape was committed on Mary Meredith by Joshua Jones, and not by him, in substantial conformity with the facts stated in the fore- going testimony of the witness. Whitely, for the prisoners. Where a crime is committed by two or more joint offenders, and an admission or confession made by one constitutes a part of the res gestce, 320 COURT OF OYER AND TERMINER. it is admissible in evidence against all of them, or only when it is in itself an act, or accompanies and explains the criminal act for which the others are responsible ; but not when they are in the nature of a narrative, descrip- tion, or subsequent admission or confession. Besides, in this case, the confession of Carpenter offered in evidence, is admissible against him only by virtue of the statutory provisions expressly, and because it was reduced to writ- ing and read over to him by the magistrate, and was duly approved and signed by him in his presence, and which therefore could have no such sanction, validity or effect against Jones, the other prisoner. Greenl. Ev. Sec. 233. Regina v. Blake, 6 Ad. & El. 126 N. S. Lore, Attorney General. It is admissible in evidence, at least, against Carpenter, who formally made it, in this case, and must go to the jury just as he made it, although the Court will instruct them that it is not evidence against Jones, the other prisoner. 2 Stark. Ev. 39. i Phil. Ev. 414. 19 £. C Z. i?. 351. Whiteley, in reply, cited Arch. 408, 409. The Court remarked that the better and settled practice now is to admit the confession in such a case just as it is made in evidence against the prisoner, but to specially instruct the jury, as they should in this case, that it is evi- dence only against the prisoner. Carpenter, but not evidence against the prisoner, Jones. Verdict, "Guilty against both of them." THE STATE v. DARNELL. 321 State v. Edward Darnell. On a trial for murder of the first degree the voluntary confession of it made by the prisoner, before his arrest, to a person having no authority over him, who said to him out of the hearing of any other, that he must know something about the killing of the de- ceased, and if he would tell him all about it, he would say nothing about it to any one, and upon which the prisoner then stated to him how he and another person killed him, held to be admissible in evidence. Kent County, April Term, 1870. At a Court of Oyer and Terminer held at this term, Edward Darnell, alias Edward Young, a negro boy about fifteen years of age, was indicted and tried for the murder of Thomas Hogan of the first degree, on the 19th day of March preceding. The deceased lived in Philadelphia and was in the habit of visiting this State once or twice a year as a foot-ped- dler vending lamps and buying old brass, pewter and musk- rats skins, and was but slightly known in the neighbor- hood in which the murder was committed, and without being missed by any one in the mean while, his dead body was accidentally found lying on the 26th day of that month in Kersey's Millpond, near the margin of it in a retired spot where it was set in pine trees and briar bushes, and near an old worm fence which extended down to it between the place and the public road leading over the dam and not far from it, and where the water was not more than a foot deep in the pond ; and on the same day before it had been removed from the water, a physician had been summoned and was present to make an exam-^ ination of the body, who testified that he found near a small pine bush traces of blood on the ground, and from that point in a direct line to the edge of the pond where the body was lying was, by measurement, about ninety-six feet. The back of the body was very much rubbed and scratched, and which might have been produced by the dragging of it on the ground from that point down to the edge of the pond. There was a gash cutting through the 322 COURT OF OYER AND TERMINER. scalp three inches in length on the left and back part of the head, and another about two inches long also on the left side of it, and the left ear was very badly mashed. There was, however, no fracture of the skull, and the only wounds which he found upon it, and which he had just described, could not, he thought, have produced death, but they were sufificient to paralyze and render him in- sensible for a time, and if in that condition the body was dragged down to the pond and into the water sufficiently deep for the purpose, the person would soon drown ; and in his opinion drowning in that condition was the imme- diate cause of his death. Samuel T. Moore testified that he was on the same day at the coroner's inquest on the body ; that the prisoner was also there, and that he had a conversation with him when no other person was within hearing of what they said. That he said to the prisoner he must know some- thing about the killing of the deceased, and if he would tell him all about it, he would say nothing about it to any one. Lofland, for the prisoner, objected to the admissibility of any admission or confession made by the prisoner to the witness under such a promise, and cited the case of the State v. Bostic, 4 Harr. 563. Lore, Attorney General. The witness had no power or control over him, and although the statement might have been confidential, it was entirely optional and voluntary on the part of the prisoner, and it v/as against the sound rule and policy of the law, and the due administration of criminal justice, to allow the lips of an important witness to be sealed before a Court and jury for such a reason, or by such an assurance. The Court ove.xx\Ae.A the objection. It appears the dec- laration was voluntarily made to one who had no power or authority whatever over the prisoner, and without any THE STATE v. DARNELL. 323 threat, promise or inducement which could exclude it from going in evidence. Gilpin C. J., remarked that he relied on the rule as stated in i Greenl. Ev. Sec. 229, upon this point, and distinguished it from the case of Jhe State v. Bostic, \Harr. 563, because in thit case the witness stood in the commanding and authoritative relation of mistress to the accused, and because the promise and inducement made and held out by her to the accused in that case were much stronger than in this. The witness stated that he then asked the prisoner if he had ever seen that man (the deceased) before, he said he had, and that on that Saturday, the 19th of March, he and Bill Lowber came to his uncle's, John Young's, where he then was, and that Lowber took him to one side and told him the old man had money, and if he would help him kill him, he would give him some of it, and that when he left there they went with him into the thicket and pines across the road and along the millpond under the pretence of showing him the way to a house around there where he could buy some muskrat skins, and as they got over the fence into the pines, Lowber took a fence rail and knocked him down with it, and that they then drug his body into the millpond and left it there, sunk in the water,but Lowber did not give him any of the money, although he promised him he would at another time. William H. Sard testified that on the day of the cor- oner's inquest the prisoner voluntarily said to him, he would like to tell all he knew about the killing of the old man. He then said that he was that morning cutting wood at Sally Ann Morris's when the old man and Bill Lowber came there together, and while the old man was in the house. Bill Lowber came round behind the house to him where he was cutting wood, and said to him that the old man had money, and if he would help him kill him, he would give him some of it, and that when the peddler left there and started over the mill dam they followed after him, and that when he went into the woods around the pond they followed him, and there Bill Lowber took 324 COURT OF OYER AND TERMINER. a fence stake and knocked him in the head with it, and then they pulled his body down to the pond and pushed it into it. The Court, Gilpin C. J. charged the jury, that the pris- oner, it would seem, did not deny his participation and complicity in the killing of the deceased, and his only object seemed to be to show that another was engaged with him in it, and first suggested it to him, who dealt the fatal blow according to his statement, and that he was more guilty than himself in the perpetration of the crime which he thus confesses ; but it was enough if he was merely present and in any way aiding and Assisting the other in the commission of it, to constitute him a principal in it, and as guilty of it in the eye of the law, as the person whom he alleges was the principal both in the conception and the execution of it, if what he has stated was true in regard to him. Verdict — Guilty of murder of the first degree. The State v. William Lowber. Although the testimony of a witness who has been convicted of mur- der of the first degree, but has not yet been sentenced for it by the Court, is admissible on the part of the State, under the statute in such case made and provided, on the trial of another person separ- ately indicted and tried at the same term for the same murder, yet, if it is uncorroborated by the testimony of any other witness in the case, the Court will leave it, as the statute does, to the jury to judge of the credibility and weight of it with the taint of his conviction attaching to it. But if the credibility of it is further weakened and impaired by contradictory declarations made by him in regard to the prisoner's participation in the murder, before his own trial, and and also by contradictory testimony of other witnesses in the case, the Court will advise the jury that they ought not to convict the prisoner on his testimony alone. At the same time as in the preceding case, and at the same Court of Oyer and Terminer, William Lo-wber, THE STATE v. LOWBER. 325 negro, was also separately indicted and tried for the mur- der of Thomas Hogan, of the first degree, on the same day and year aforesaid. Lore, Attorney General, before the trial commenced, presented his petition to the Court for a writ of habeas corpus ad testificandum to the Sheriff of the County, for the production in Court of Edward Darnell, alias Edward Young, negro, who had been tried and convicted, but not yet sentenced, at the same term and was now in prison in the gaol of the county for the murder of the same person, as a witness for the State in the case, upon which the Court directed, as is usual, the issuing of the writ to be noted by the clerk on the record, and the Sheriff to pro- duce the prisoner in the Court as a witness. On his exam- ination he stated that he was at his aunt Sally Ann Mor- ris's, near Kersey's mill, on the day the peddler was killed, and the old man and Bill Lowber came there that inorn- ing from Fredericka, between 8 and 9 o'clock. The peddler took out a soldier's overcoat and asked him if he would buy it, he did not, but his aunt Sally Ann Morris bought a lamp which he also took out and asked her to buy. He and Bill were not there long, not a half an hour. After they had left she sent him to tell the peddler that he had not given her the right change, and to send it to her by him ; he overtook him at his uqcle John Young's bars as he was going in there, and told him he had not given her the right change, but he said he had, and he followed him in there. Bill Lowber was there and went round behind the house, and called him to him, and said to him that man has money and he was going to have it, and if he would go with him and help to rob him and say nothing about it, he would give him some of it ; but the peddler had left there before Bill Lowber called him out behind the house and said that to him. It was about 9 o'clock when he left there ; that they talked about robbing him while they were in his uncle John Young's yard, and again on the mill dam to which they followed him, while the 326 COURT OF OYER AND TERMINER peddler was ahead of them and they were together follow- ing him. From there the peddler went across the field up to the house of Phillis Lewis, and they waited in the road until he came out from there, and they then went from there just behind him to the mill dam, and from there Bill went up with the peddler to Mrs. Wootter's house and he went up into the pines by the side of the pond and waited for them near a half an hour, when they came there. Was there when Caesar Beauchamp passed along the path which there lies through the pines, and he had been there more than half an hour when he came along. The peddler was then easing himself in the edge of the pines, and he was standing in the path, but Bill Lowber to avoid being seen by Beauchamp, stepped out of his sight into some pine bushes and pretended to be making water ; that it was then about half past lo o'clock, and was not quite a half an hour after that time when they got to the place where they killed him and drug his body into the pond, and that it was after lO o'clock when they killed him, and which he now described substantially as it was represented by him in his admissions proved on the trial in the preceding case against him. On cross-examination, however, he admitted that he had told Mr. J. Stewart that it was himself, and not Bill Lowber, who went with the peddler up to Mrs. Wootter's house that morning, and also that he had told Mr. John Jester that it was not Bill Lowber, but Jim West and himself who killed the peddler. Henry Whitaker testified that he lived and kept store near Frederica on the road to Kersey's mill, and about 8 o'clock in the morning of the 19th of last March, Thomas Hogan, the peddler, came into his store and enquired where John Young lived, and a short time before he came in he saw a negro man whom he took to be William Low- ber, pass his store walking in the direction of Kersey's mill. That he gave him the information asked for and in a very few moments he left, and having occasion soon after- THE STATE v. LOWBER. 327 wards to step out of the store himself, he looked up the road and saw them going up the road, but Lowber a little ahji:;ad of Hogan. Alexander Young testified that he was at work that morning putting up a fence along the road about a hun- dred yards beyond Mr. Whitaker's store and saw the pris- oner pa?s up the road, and afterwards the peddler about a half a mile behind him, and that it was about 8 o'clock when the latter passed him. James McQueen testified that he lived this side of Fred- ericka, and that the deceased spent the night before he was killed at his house, and left it the next morning between 6 and 7 o'clock, and he saw him again that morn- ing between 8 and 9 o'clock going towards Kersey's mill, and that the prisoner was then with him, and they were walking along the road together side and side, that he stopped and talked with the deceased for a few moments, when the prisoner kept on for a short distance, and then stopped in the road and waited for the deceased, and that they were then a mile beyond Mr. Whitaker's store to- wards Kersey's mill. Sarah Ann Morris testified that she lives on the road from Fredericka to Kersey's mill, a mile and a half from the former and a half mile from the latter place. On the morning of the 19th of March last William Lowber and the peddler came up the road together as far as her house between 8 and 9 o'clock, and the peddler stopped and came in, the prisoner did not, but kept on up the road. Edward Darnell was then there, and the peddler showed a soldier's coat to him and wished to sell it to him, but did not, she however bought some articles of him, and he gave her the right change all to five cents. Soon afterwards the peddler went away from her house alone and up the road towards Kersey's mill, and after a bit stepping out of the house and looking up the road, she saw him going into Kersey's 328 COURT OF OYER AND TERMINER. house, but saw the prisoner nowhere then or again that day. Soon after that Edward Darnell left her house and went up the road in the same direction and towards his uncle John Young's house, and was away until about twenty-five minutes of 12 o'clock, when he came back and ate his breakfast. Jim West was at her house at that time and took a dinner from there to a man who was working out in the woods some distance from her house, at twenty- five minutes before twelve o'clock and that Jim West was cutting wood at her house when the peddler came there, and was about there all that morning. She did not know why Edward Darnell went after the peddlar from her house. She did not send him after the peddler for any thing. He was no relation of hers, but her mother had raised him, and he had been living at her house since last June, and Jim West boarded there all last winter. Two other col- ored women who were at her house during the period of that day spoken of by her, confirmed her statements, one of whom testified that the peddler came there a few min- utes after the clock had struck eight that morming. Thomas J. Young, a negro boy nine years old, testified that he lived at John Young's his grandfather's, on the road from Fredericka to Kersey's mill, and not far from the mill, and that it was the third house on the road from Sally Ann Morris' going towards the mill. That he saw the peddler at their house about 10 o'clock that morning, he saw him come along the road and stop there and saw William Lowber about the same time pass by their house on the road, but he did not stop, but kept right on, and soon after that Edward Darnell came to their house, but William Lowber was not with the peddler or Edward Dar- nell, or at their house when either of them came there. Margaret A. E. Benning testified that she lives at Ker- sey's mill, and lived there on the 19th of last March, and saw the peddler at their house that morning, and it then wanted five minutes of 10 o'clock, and soon after he left THE STATE v. LOWBER. 329 there and she went into the house, she saw two colored persons whom she did not then know, but whom she now recognized and identified as William Lowber and Edward Darnell, pass along the road in the same direction, and not far behind him, and when she last saw them the ped- dler was passing over the bridge of the dam and they were not more than fifty yards behind him. She was not more than five steps from the road when they walked past, and as they came towards her she could see their faces dis- tinctly. Matilda Wootters testified that she lived at the end of Kersey's mill dam and next neighbor to the preceding witness. The peddler came to their house that morning about 10 o'clock she supposed, and first inquired if she had any lamps like the one he held in his hand that she wanted to sell, she told him she had not, and he then enquired if they had any muskrat skins to sell, and she answered no. He had left his pack and satchel at the Jyard gate when he came through it, and as soon as he left the house she stepped to one of the front windows and then saw a negro man whom she did not know, but now recognizes and identifies as the prisoner, standing outside of the gate waiting for him, they then went away from there together up the road towards her father's house, and about fifteen minutes afterwards she saw the same two men coming from the pine patch and across his field towards the Can- terbury road. The colored man had on a soldier's light blue overcoat, and which she also identified as the same which the prisoner then had on. Two other women who were then at the house of the witness in their testimony corroborated her statement and stated further that it was then about 10 o'clock in the morning when the peddler came there ; but both of them on cross-examination admitted that they were witnesses for the State in the hearing of the prisoner's case on the writ of habeas corpus before Judge Houston, and that they were not then able to identify him. 33 330 COURT OF OYER AND TERMINER. James Wilkins testified that he saw the peddler that morning and a tall colored man with a heavy beard and mustache, between 9 and 10 o'clock, on the road together near Sally Ann Morris', and now recognized and identi- fied the colored man as the prisoner. Samuel W. Darby, the first witness called on behalf of the prisoner, testified that he saw him going into the town of Frederica about 6 o'clock in the morning of the 19th of March last, and William E. Knowles of the same place, that he sold him as early as 7 o'clock that morning, a dose of medicine on a prescription which he brought from Dr. Cahall, and Robert Parkinson that he saw him going into Frederica about 6 o'clock and afterwards going out of it about half-past 7 o'clock that morning ; that he was at his shop when he saw him pass it going out and spoke to him, and that his shop is a mile and a half from Sally Ann Morris' house, and Samuel Town- send that he met him On the road that morning between half-past 7 and 8 o'clock about a mile from Fredericka going towards Kersey's mill, and the peddler about a half a mile behind him going in the same direction. Henry Carter testified that he saw the peddler going into John Young's house that morning about half-past 9 o'clock, and Edward Darnell also going in there a few steps behind him, but he did not see any body else, and he saw them again on his way back from the mill about fifteen minutes afterwards, the peddler within an eighth of a mile of the mill, and Darnell about seventy-five yards behind him. James H. Beauchamp testified that he met the peddler that morning between 9 and 10 o'clock, on Kersey's mill dam about midway of it, and about two hundred yards from Mrs. Benning's house, and a colored man with him whom he did not know ; but he knew William Lowber very well, and it was not him. Csesar Beauchamp also testified that between half-past 10 and 11 o'clock that morning he was going along the path through the pines near where the body was found in the mill pond, and saw the peddler THE STATE v. LOWBER. 331 buttoning up his clothes a short distance form it in the pines and Edward Darnell standing in the path not far from him ; but he did not see William Lowber, or any other person near there. He knew it was as late as half- past 10 o'clock when he left his house to go to the mill that way. It was also proved by various witnesses that it was a mile and a half from the place of the murder to the prisoner's house, and not less than seven miles from there to the town of Lebanon by way of his house, and that he was at his home at half-past 9 o'clock and geared and hitched his horses to his wagon and drove off on the road leading towards Lebanon, and was there by about 1 1 o'clock that morning. He also proved by several of the most respectable citizens residing in that section of the county, that his character for peace and good order had always been remarkably good for a man of his race, and void of all suspicion whatever until this accusation had been brought against him. The Court, Gilpin C. J., charged the jury, that the pris- oner was to be presumed to be innocent of the charge until his guilt had been proved and established by com- petent and credible testimony to the satisfaction of the jury beyond a reasonable doubt. The factum or corpus of the crime, that is to say, the killing of Thomas Hogan as alleged in the indictment against the prisoner, was sup- ported by the testimony of one witness only, Edward Darnell, who had himself been convicted at the present term of the Court of the crime of murdering him, and upon his confession that he was an accomplice and par- ticipated in the murder of him. He was admitted as a competent witness on behalf of the State, and against the prisoner in this case on the special application of the Attorney General for a writ of habeas corpus ad testifi- candum to the sheriff of the county, for the production of him out of the common jail, in which he then was, and still is, imprisoned after his conviction of the crime, await- ing the sentence of the Court upon it, as a witness for the 332 COURT OF OYER AND TERMINER. State in this case, and under the provision of the act of the General Assembly entitled " An Act in reference to to the competency of certain persons as witnesses," passed at Dover, February i8, 1859, which is as follows : " Sec. 3. That no person shall be excluded from testifying as a witness by reason of his having been convicted of a felony, but evidence of the fact may be given to affect his credi- bility." Del. Laws. 1 1 vol. 686 ; but which while it re- moved any exclusion which might then without the statute have prevented him from being a witness in the case, still leaves the fact of his conviction to affect his credibility as such, and which leaves the jury to judge of the weight and worth of his testimony with such a taint cast upon it. But in addition to this inherent defect in the character and credibility of it, his testimony against the prisoner was still further weakened and impaired by the contradictory declarations and statements made by him before his trial, and which he admitted on his cross- examination as a witness in this case, he had made to Mr. J. Stewart, that it was he himself, and not Bill Low- ber, the prisoner, who went with Hogan, the peddler, up to Mrs. Wootters' house, and which he made at another time to Mr. John Jester, that it was not Bill Lowber, but Jim West and himself who killed the peddler. His testi- mony was also further weakened and impaired in its weight and credibility, by the inconsistent and contradic- tory testimony of other witnesses on several material and important points which would readily occur to the jury when they come to consider and compare them with his testimony, as well as by the fact which clearly appeared from the testimony of others that the prisoner could not have been at or near the place of the murder at the time when it was committed that morning. So far then as it connects the prisoner with the commission of it, his testi- mony not only stands alone without any direct evidence from any other witness to corroborate or support it, but it is, on the contrary, directly contradicted by his own declarations made after his arrest and before his trial, and THE STATE v. LOWBER. 333 by the testimony of other witnesses in several very impor- tant particulars. The Court therefore in accordance with the general practice in relation to the testimony of ac- complices in cases of murder and other felonies, would advise the jury that they ought not to convict the pris- oner on the testimony of the witness, Edward Darnell alone, without corroboration to satisfy them beyond any reasonable doubt that the prisoner was a particeps crim- inis with him in the perpetration of the crime alleged, or that the prisoner participated with him in the kiUing of Thomas Hogan, as sworn to by him, notwithstanding the fact that he had himself already been tried and convicted of the crime of murdering him before he was admitted to testify as a witness in this case, for by his own statement he appeared and was produced and testified here as an alleged accomplice with the prisoner in the commission of the crime, although his credibility for that reason may not be affected to the same degree, as it might have been, if he had been called as an accomplice to testify in this case prior to his trial and conviction for the murder of the deceased. Independent of his testimony the evidence in the case is entirely circumstantial, and in which there were marked discrepancies in the statements of the witnesses as to the time of day when the prisoner was last seen that morn- ing in company with the deceased, or with him nearest to the place where the murder was committed, and which was a matter of great importance in the consideration of the case, as he was proved to have reached his home, a considerable distance from there, before the murder could have been committed according to the testimony of some of the most intelligent and reliable witnesses who had testified on such points in the case. But there is a marked distinction and difference between circumstantial evidence in civil and in criminal cases at law. In civil cases it is not necessary that the minds of the jurors shall be free from all doubt as to its sufficiency to prove the fact or matter in dispute, for it is their duty in such cases to 334 COURT OF OYER AND TERMINER. decide in favor of the party in whose favor the weight of such evidence preponderates, and according to the rea- sonable probability of its truth ; on the contrary, in crimi- nal cases the jurors are required to be satisfied, beyond any reasonable doubt, of the guilt of the accused, or it is their duty, to acquit him, the charge not being proved by that higher degree of evidence which the law in such cases demands. In civil cases it is sufficient, if the evi- dence on the whole agrees with and supports the hypoth- esis which it is adduced to prove ; but in criminal cases it must exclude every other presumable hypothesis but that of the guilt of the accused. Because in criminal cases, and particularly in a prosecution for a capital crime, the law presumes the accused to be innocent, or not guilty of it, until the commission of the act by him has been proved by the evidence to the satisfaction of the jury beyond a reasonable doubt. Verdict " not guilty." Lore, Attorney General, Draper, for the prisoner. COURT OF GENERAL SESSIONS OF THE PEACE AND JAIL DELIVERY. State v. Charles Lee. In an indictment for burglary in the dwelling-house of a father, and stealing therefrom sundry articles, consisting of ornaments merely, and not necessaries, belonging to a minor and unmarried daughter then living in the house with him and his family, the property in them should be laid in the daughter, and not in the father. Court of General Sessions, &c.. New Castle County, November Term, 1870. Charles Lee was indicted and tried for burglary, in breaking and entering in the night- time the dwelling-house of William P. Cresson, with intent to steal his goods and chattels and money therein, and then and there one gold hunting-case watch, of the value of one hundred dollars, one pair of black onyx ear-rings, of the value of six dollars, one pair of black onyx sleeve-buttons, of the value of six dollars, two gold thimbles, each of the value of five dollars, three silver napkin rings, each of the value of two dollars, one ivory- tipped pencil, of the value of five dollars, one gold stud, of the value of two dollars, one pair of long gold and black enameled ear-rings, of the value of fifteen dollars, one pair of gold and black enameled sleeve-buttons, of the value of ten dollars, and one small pearl-handled pen- knife, of the value of one dollar, of the goods and chattels of the said William P. Cresson, in the said dwelling-house then and there being found, he did then and there feloni- ously and burglariously steal, take and carry away, &c. 336 COURT OF GENERAL SESSIONS, &c. The evidence was that he broke and entered in the night time the dwelling-house of the said William P. Cres- son, and stole therefrom one gold hunting-case watch, two gold thimbles, and one small pearl-handled pen-knife, the property of a daughter of Mr, Cresson, a young lady of about nineteen years of age, unmarried, and then residing in the house with him and his family. The only witnesses were her father and mother, and both of them proved that all the articles stolen, as well as the above which had been recovered, produced and identified by them, be- longed to their daughter. y. H. Rodney, for the prisoner, asked the Court to charge the jury that, as the property in the articles stolen was alleged in the indictment to have been in Mr. Cresson, and the evidence was that they were the property of Miss Cresson, his daughter, and were ornaments merely, and not necessaries, the property in them should have been laid in her, notwithstanding she was a minor and unmar- ried, and residing in the house with her father and his family at the time ; the prisoner* could not be lawfully convicted upon the indictment. Bates, Deputy Attorney General. Although ornaments, and not necessaries, as they belonged by courtesy rather than by law, to a minor and an unmarried daughter then living in the family, and under the authority of her father, it was more correct to allege the property in him, although it might have been laid in either the father or daughter, under the circumstances proved. The Court, Gilpin, C. J., charged the Jury, That as the articles stolen were mere ornaments, and not neces- saries, and belonged, not to the father, but to the daugh- ter, they could not, under the facts and circumstances proved, properly convict the prisoner on the indictment ; and he "was acquitted. COURT OF OYER AND TERMINER. State v. Samuel Townsend. In case of a fight between two persons, nothing short of imminent peril to his life or person from the other, can justify or excuse the one in killing the other, even if the other was the aggressor and assailant ; and without that in no such case can the homicide fall below the grade of manslaughter. Kent County, April Term, 1871. At a Court of Oyer and Terminer held at this term, Samuel Townsend, a negro boy, sixteen or seventeen years of age, was in- dicted and tried for the murder of Peter Young, a negro boy some older and larger than he, of the first degree, in the town of Frederica, on the night of the 24th of De- cember preceding. There were two counts in the indict- ment, the first charging him with having committed it by hitting him on the left side of the head with a brickbat, and the other by having hit him with a black-jack- loaded with lead. They had been fighting, and had been separated by a third person, soon after which the prisoner was seen to cross over to the side of the street on which the de- ceased was standing, and passing round behind and to the left side of him, and when two or three feet from him was seen to strike him with something on the left side of his head, and knocked him down. The prisoner soon after said to the witness, it was a brickbat, but it was too dark for the witness to see what it was he struck him with, but the blow produced a dull, heavy sound, and a cut and bruise through the skin of the temple about two inches in length. The deceased soon recovered his feet and remained moving about the town for some time after- 338 COURT OF OYER AND TERMINER. wards without suffering any serious pain or inconve- nience from the blow, apparently, and his mother tes- tified that when he came home that night his head was hurt and bloody, and she washed the wound in cold water the next morning, and did -the same every day during the week. At first it ran blood only and all the time, but towards the end of the week it began to run white and watery matter, and on Saturday night just one week after he had received the blow, he came home cry- ing and said his head ached as if it would burst. Sunday he became unconscious, and lingered until the following Wednesday, when he died. The post mortem examina- tion on the Coroner's inquest, disclosed that the wound was on the -left side of the head, back and above the temple, and was bruised and contused and somewhat rag- ged on its edges, that the skull was fractured an inch and three-quarters in length, and a portion of the skull was- slightly depressed by it, and the brain and other matter was suppurating from it. The inflammation which ensued was the cause of his death. The physician further stated that he would hardly have thought that it could have been made by a brickbat, and that he saw the prisoner in the fall preceding at work making a black-jack or billet out of a piece of whip and a piece of lead weighing as much as a quarter of a pound ; and the fracture might have been more readily made with such an implement. It might also possibly have been made by the deceased's falling when knocked down, with the side of his head against a sharp edge of a stone, or some other hard sub- stance. Draper, for the prisoner, contended that the only evi- dence was that the blow was struck with a piece of a brick hastily picked up by the prisoner in the street in the sud- den heat of blood consequent on the affray or fight which he had just had with the deceased, and that it was not a deadly weapon, or of such a class of dangerous instru- ments as would imply malice in such a use of it on such an THE STATE v. TOWNSEND. 339 occasion, and that under the circumstances it could, even in its worst aspect for the prisoner, amount to no more than manslaughter. But it was quite as probable that the injury- was produced by the fall of the deceased on some sharp, hard substance in the street, and if so, the prisoner could not be convicted even of manslaughter ; and asked the Court to so instruct the jury. Lore, Attorney General. In consideration of the age of the prisoner, and all the facts and circumstances proved in the case, he would not contend for a verdict of guilty of murder of either of the first or of the second degree, but there was no evidence whatever that the deceased had been hurt, much less that his skull had been fractured, by his fall when he was suddenly knocked down by the prisoner Gn the street, for there was a well-proved, patent and palpable cause for it, with whatever weapon or instru- ment it may have been done by him. He would, therefore, confidently insist that it was clearly on the proof a case of manslaughter. The Court, Gilpin, C. J., charged the jury. The Attor- ney General has conceded that this is not a case of murder of either degree, but contends that it is nevertheless a case of manslaughter, which is the lowest grade of feloni- ous homicide, and if it is not that, then the prisoner must be acquitted under the indictment. Nothing short of im- minent peril to his life or person can justify or excuse one person in killing another, even though they are fighting together at the time, and the other is the aggressor and the assailant in it ; and in every such case in which the killing is done without the necessity of doing it in order to save his own life, or his own person from great and im- pending injury from the other party at the time, it cannot amount in law to less than manslaughter, and in no case to excusable or justifiable homicide. But as the Court has been asked to charge you by the counsel for the prisoner, on another point presented by him in the case, the Court will say to you that if the de- 340 COURT OF OYER AND TERMINER. ceased's skull was fractured, not by a blow of some kind inflicted by the prisoner, but by his falling after he was struck by him, with his head against a stone or some other hard substance in the street, and there is sufficient evidence to satisfy the jury that such was the case, then the prisoner could not be convicted of manslaughter or any other offense under the indictment, because it does not so allege the killing, but in a wholly different and in a much more direct manner. Or, if the fatal blow was given in any other method, or in other way substantially and essentially different from those alleged in the indict- ment, and the jury should entertain a reasonable doubt on that point, or of the guilt of the prisoner in manner and form as he stands indicted, he was entitled to the benefit of it, and should be acquitted. Verdict " Not guilty." The State v. Stephen H. Costen. If one person shoots another with a deliberate intent to kill and kills him, it will be murder with express malice, and of the first degree under the statute ; but if he only intended to disable him by shoot- ing his arm off, it will be murder of the second degree under the statute. If in a collision between two persons one is stabbed by the other with a knife who seizes a loaded gun at hand and shoots and kills him, it will amount to manslaughter only. New Castle County, November Term, 1871. At this term Stephen H. Costen, a Justice of the Peace of the county, was indicted and tried for the murder in the first degree, of Charles W. Woolsey, a public school-teacher, in the town of Christiana, on the night of the fourth day of the present month. The parties were both bachelors and had been intimate friends up to the evening just mentioned. They were to- gether at King's hotel in the village that evening, where they were joined by the two most material witnesses in THE STATE v. COSTEN. 341 the case, Lemuel Butler before nine o'clock, and William T. Cann about ten, who testified that Costen drank three times while he was there and was then intoxicated, but Woolsey apparently not so. They all four remained there till about twelve o'clock and left together for their several homes. After they got out and started, Costen said to them he was going then to have some supper and wanted some beef, and they all went round to Cann's slaughter- house and got some, and then went with it to Costen's house, where he at once went to work to have the supper prepared. Another person joined them on their way to Costen's house by the name of Rickards, and when they took their seats at the table, Costen and Woolsey did not, but remained on their feet attending to the cooking and waiting on the table, until they were about done when they also took seats at the table ; and Butler testified that when he left there about three o'clock in the morning nothing unpleasant had occurred up to that time, and Costen and Woolsey were then sitting at the table to- gether, Costen at the head of it and Woolsey at the side of it, and Cann lying on a lounge in the same room. Cann testified that Costen, Woolsey and he sat down to the table together and ate supper, and immediately afterwards between half past i and 2 o'clock he laid down on a lounge in the room nnd soon fell asleep, and when he awoke Costen and Woolsey were both on their feet moving around the table, Costen away from Woolsey, and just then he saw Costen pick up a carving knife from the table and stretching it out in his hand with the point to- wards Woolsey, heard him say, " Woolsey, if you come at me again, I will give you this," when Woolsey advanced a step or two towards him and was then three or four feet fronr him, saying to him as he stepped forward he did not care a d — n for him or his knife either. As he ad- vanced Costen stepped from the room through the open door into the passage, and he then could not see him, but in a moment or in not more than a minute after he left the room, or more than a minute from the time he awoke 342 COURT OF OYER AND TERMINER. and first saw them moving around the table, a shot gun was fired from the passage into the room, by whom he could not see, and Woolsey fell to the floor near the lounge on which he still was, and so near to it that he had to step over his. body when he arose from it. The whole charge had entered his left breast. But he neither saw the gun when it was taken up in the passage, nor when it was fired. It was very quick after Costen's going out of the room into the passage that it was fired. As he passed out of the room he heard Woolsey say to him, "you son of a bitch, I have taken your abuse long enough !" As soon as Woolsey fell, Costen reappeared at the door and said to him to catch the artery and stop the blood, and that was the only thing he then said, and soon after the witness left the house for a doctor, and on returning with him in about fifteen minutes afterwards, he pronounced Woolsey dead and he then heard Costen say that he did not intend to kill him, but shot to take his arm off, for he, Woolsey, had stabbed him in the back, and that he felt the blood running from the wound down his back when he went out of the room into the passage. When he awoke, Woolsey was very near his head as he lay upon the lounge, and as he was moving around the table after Costen, neither of his arms were raised, but both of his hands were down by his side, and he saw no knife or weapon of any kind in his hands. The Doctor testified that when he reached the house he found Costen sitting on the steps at the door of it talk- ing to himself incoherently, and when he pronounced Woolsey dead he enquired of him if he was dead, and got him to examine a fresh cut wound in his back, which he found to be on probing, an inch and three-quarters in depth and three quarters in width. Costen's own knife which he produced was not sufficient to make it, but a knife afterwards found in the inside coat pocket of Woolsey he found would have made such a wound, and would also have made the cut over the wound in the coat of Costen. THE STATE v. COSTEN. 343 It was further proved that Costenwasa sportsman and kept a bird gun and frequently left it standing loaded in his passage and other places about his house, and that it was so charged on the occasion in question. There was a coroner's inquest and a post mortem exam- ination of the deceased, showing that the wound was not only mortal, but that death was almost instantaneous, and before which the prisoner made a voluntary confes-. sion in due form, setting forth the facts as already sub- . stantially detailed in the evidence, and declaring that his only intention was to shoot off or disable the right arm of the deceased, and not to kill him, which the State offered and read in evidence. Bates. Deputy Attorney General. There was no direct evidence, although there was an eye-witness present, it would seem from the inception of the tragedy, that noth- ing more than an assault was at any time threatened by the deceased against the prisoner, and if to repel that it ap- peared that the prisoner retained sufficient coolness and self-possession to reason and reflect, the act was commit- ted with deliberation and with malice, and the offense was murder, for the law recognizes no particular number of moments for cooling time. The only question is then, was he cool, was he deliberate at the moment he com- mitted the act 1 The changing of the carving-knife as his first deadly weapon for the gun was an exercise of choice, of reason and reflection, and was evidence of deliberation and of malice. But when he had retreated in safety from the room to the passage, why did he not retire still fur- ther from that scene of discord and midnight debauch between him and his friend } And why did he stop there to pick up the gun, and yet think long enough as he raises it and levels it at him that he will not kill, but only take one of his arms off .? On the contrary, was it not evidently his foregone c onclusion and deliberate intention from the first as he was moving around the table, to reach 344 COURT OF OYER AND TERMINER. the gun as far more available for his purpose of killing Woolsey, than the carving-knife ? And particularly, as he could do it with that at a much safer distance from him. And all of which clearly showed coolness and deliberation, as well as malice, even express malice aforethought, on his part. That even, if it were true that the prisoner with such coolness, calculation and deliberation, fired the gun at the deceased with the intention only of shooting his arm off, or disabling him in it, and yet killed him in so doing, it would be murder with express malice aforethought and of the first degree under the statute. And he asked the Court to charge the jury to that effect. Gordon, for the prisoner, on the contrary, asked the Court to charge thejury that to constitute murderof the first de- gree under the statute, it must be committed with an intent to kill, or in perpetrating, or in attempting to perpetrate, a crime punishable with death. 3 Greenl. Ev. Sec. I45. Lore, Attorney General, replied. The Court, Gilpin C. J ., charged the jury . Homicide is the killing of any human being. It is of three kinds, known to the law. First, as justifiable, being such as is committed from unavoidable necessity ; as where an officer executes a criminal by command, and in strict conformity to the requirements of the law in every particular, or where the killing is for the advancement of public justice ; as where an officer in the due execution of his office kills a person who assaults and forcibly or violently resists him ; or, if a felon flee from justice and in pursuit he be killed where he cannot otherwise be taken. Or where the killing is for the prevention of any atrocious crime attempted to be committed by force ; such as murder, robbery, house- breaking in the night time, rape, mayhem or any other act of felony against the person. But in all such cases, THE STATE v. COSTEN. 345 the attempt must be not merely suspected, but. clearly- apparent and the danger must be imminent, and the oppo- sing or resisting force must be clearly necessary to avert the threatened danger or to defeat the attempted felony. Second. Excusable Homicide, ist. By misadventure, as where a person doing a lawful act unfortunately kills another : as if he be at work with a hatchet and the hatchet accidentally flies off and kills a bystander ; and so, in other like cases. 2ndly. Killing in self-defense which is where one is assaulted upon a sudden affray and in the defense of his person where certain and immediate suffer- ing would be the consequence of waiting for the assistance of the law and there existed no other probable means of escaping impending death or enormous bodily harm, he kills his assailant. But to reduce the killing in self- defense to this degree and thus to make it excusable, it must be shown by the evidence that the slayer was closely pressed by his assailant and retreated as far as he conveniently or safely could in good faith, and with an honest intent to avoid the violence of the assault. And the jury must be satisfied from the evidence that unless he had killed his assailant, he was in imminent .ind mani- fest danger either of losing his own life, or of suffering enormous bodily harm. I have called your attention to the laws of justifiable and excusable homicide because of the very erroneous notions prevailing in the community on this subject, and not because there exists any necessity in this particular case for my doing so. The 3d kind of homicide is felonious, and is either murder or manslaugh- ter, and if murder, it is either murder in the first or sec- ond degree ; if in the first degree, the crime is punishable with death ; if of the second degree, by fine, pillory,, whipping and imprisonment for life. Murder may be defined or described as the unlawful killing of a human being under the peace of the State with malice aforethought, either expressed or implied. It must be committed by a person of sound memory and discretion. It must be an unlawful killing, not excusable 23 346 COURT OF OYER AND TERMINER. or justifiable, and the killing must be committed with malice aforethought either express or implied. Malice as an ingredient in the crime is the essential criterion by which murder is distinguished from manslaughter. Wher- ever malice .is the moving cause of the act committed which results in death, the crime amounts to murder. Malice in its legal sense, the sense in which it is used in respect to the crime of murder, is more comprehensive than mere personal hatred or malevolence towards indi- viduals. For whilst it includes hatred it also comprehends and characterizes all acts committed with an evil disposi- tion, all wrongful acts injurious to another done inten- tionally without just cause or excuse, all' acts done from an unlawful and wrongful motive. Malice therefore ac- cording to its legal signification may be said to charac- terize all acts done voluntarily and with a willful disregard of the rights or safety of others. Where the act of kill- ing is committed with express malice it is- murder in the first degree. Express malice is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be variously manifested, as for instance, by laying in wait, by former menaces or threats disclosing a disposition or purpose to commit the act charged, former grudges, former ill-will, secret enmity, hatred or sullen malevolence towards the deceased ; or in fact by any other circumstances which disclose an evil or wrongful intention or purpose of the accused towards the deceased. Killing with express malice as I have said, constitutes murder in the first degree. Implied or con- structive malice is an inference or conclusion of law from facts proved. It is implied by law from every deliberate, cruel act committed by one person against another, how- ever sudden the act may be. For common sense teaches us that whoever voluntarily or willfully does a wrongful and injurious act against another does it maliciously. The intention to kill is the grand characteristic which distinguishes murder in the first degree from murder in the second degree. Wherever therefore there is a design THE STATE v. COSTEN. 347 or intention deliberately formed in the mind to take life, and death ensues in consequence of such design or inten- tion, it is murder with express malice, and consequently murder in the first degree. The act of violence therefore from which death has ensued, in order to amount to mur- der in the first degree must be done deliberately with express malice, of the existence of which malice the design or intention to take life is the evidence. Murder in the second degree is where the malice necessary to constitute it, is implied by law. And malice, is im- plied by law from any deliberate, cruel act committed by one person against another, however sudden. While therefore there exists no design or intention to take life, but death ensues from an unlawful act of violence on the part of the slayer, and in the absence of adequate or suffi- cient provocation, it is murder with or by implied malice, and consequently murder in the second degree. 1 have said that the act of violence charged as causing death, in order to amount to the crime of murder, must be committed with a " deliberate mind and formed design." Certainly this is a just, and at the same time, a humane provision of the law. Deliberately and willfully doing an unlawful or wrongful act of violence without just cause or excuse, indicates the existence of malice in the perpe- trator, and where death ensues from such an act, malice makes it murder. It is especially necessary, therefore, to enable you to properly discharge your duty as jurors, that you should comprehend and understand the legal significance of the terms " deliberate mind, and formed design." Now, no specific length of time is necessary to make an act a de- liberate act, in legal contemplation. A deliberate act may be very sudden. It does not so much import in its legal acceptation, an act done after time for reflection, as a voluntary act done upon motive of purpose and design, in contradistinction to acts done in the heat of passion, a paroxysm of resentment, in which reason and choice for the moment have lost their controlling influence. The 348 COURT OF OYER AND TERMINER. very definition of murder with implied malice shows that this is the legal signification of the term " deliberate," when used in this connection. Malice is implied by law from any deliberate, cruel act committed by one person against another, however sudden. Such is the explicit and uniform declaration of the law upon this subject. Your own experience and observation, gentlemen, must have taught you that the most sudden and instantaneous act may be attended with circumstances which leave no doubt on the mind that it was the result of deliberation. Indeed, we are left in no uncertainty in regard to the legal meaning of the term " deliberate," for it is well settled in the law both in this country and in England, that if the design to take life be but the conception and intention of a moment, it is as deliberate in legal contem- plation as if it had been the design of hours, and that if the person killing had time for reflection or thought, and did not think, and did then intend to kill and death ensued from his act of violence, it is just as much a case willful, deliberate, premeditated killing, as if he had in- tended it for hours. The intention to take life may be shown by a variety of external circumstances surrounding or connected with the fact of killing ; such for instance as the declarations of the slayer ; the mode or manner of killing, the character of the instrument used as a deadly weapon, or weapon likely to produce death, as- well as by the manner in which the weapon was used by the slayer. All instruments likely to take life are deadly weapons.. A gun is emphatically a deadly weapon. Now gentlemen, it is my duty to say to you that it is a well-settled rule of law of universal application, the wis- dom of which will be recognized upon a moment's reflec- tion, that every man is presumed to contemplate and in- tend the ordinary and natural consequences of his own voluntary act. If the act thus voluntarily and willfully done has a direct tendency to destroy the life of another, the natural conclusion from the fact is, that he intended to destroy such a person's life so that if a person voluntarily THE STATE v. COSTEN. 349 ■discharges the contents of a loaded gunagaintthe person -of another, the presumption is that he intended to kill him. As a general rule, all homicide, all killing of a Jiuman being is presumed to be malicious, and of course amounts to murder until the contrary appears ; and therefore, it is incumbent upon the accused to make out hy proof to the satisfaction of the jury, all such circum- stances of alleviation, mitigation, extenuation, justifica- tion or excuse as may be relied on as matter of defense, unless such proof arises out of the evidence produced against him. It follows, therefore, that the presumption of malice arising from the fact of killing may be rebutted, overborne and displaced by showing circumstances of alle- viation, mitigation, extenuation, justification or excuse. Now, gentlemen, you will bear in mind that what I liave said in regard to deliberation, formed design, and intention to kill, have exclusive reference to the fact of malice, either expressed or implied, the existence of -which is absolutely necessary to constitute the crime of murder. But there is,another crime of a lower grade, called man- slaughter, to which I now wish to call your attention, and in doing so, I shall endeavor to enable you to understand in what respect it differs from the crime of murder, whether of the first or second degree. Murder results from and is attributable to pre-conceived malignity of heart, but voluntary manslaughter on the other hand is solely imputable to human frailty, the act of killing pro- ceeding from heat of passion, a paroxysm of resentment, caused by adequate provocation. Malice is the irppell- ing cause in murder ; but it is not so in manslaughter, for in manslaughter there exists no malice. Murder pro- ceeds from a wicked, depraved and malignant spirit, a heart regardless of social duty and perversely bent upon mischief Voluntary manslaughter, on the contrary, is the unfortunate result of acts of unpremeditated and thought- less violence, of acts of blind and unreflecting rage, caused by adaquate provocation in which reason and choice for 350 COURT OF OYER AND TERMINER. the moment have no agency. But it is only to such acts as these, where there is no malice, that the law, in view of the infirmity of human nature, extends its benign and merci- ful consideration, so as to reduce the crime to manslaugh- ter. Voluntary manslaughter, therefore, may be defined to be the unlawful killing of another in heat of blood, upon adequate or sufficient provocation and without malice, either express or implied. But in order to reduce the crime to manslaughter, where a dangerous or deadly weapon is used as the instrument by which death is causfed, the provocation must be great indeed ; so great, in fact, as to produce such a transport of passion and heat of blood, such an actual frenzy of the mind, as to render a man for the time being, utterly deaf to the voice of rea- son. If the act of killing is attended with circumstances showing preconceived malignity of heart, deliberation or formed design, it will not be manslaughter, but murder. Provocation to avail anything, must be something which the slayer feels at the instant of its occurrence, and he must act under the sting of that provocation, and resent it at once and without delay or time for thought or reflection. If between the provocation and the act of violence causing the death, there intervenes sufficient time for passion to subside, or the blood to cool, or time under the circum- stances for the exercise of reflection and the formation of a deliberate purpose in regard to the act which he is about to do, provocation will not avail anything. For no provocation however great, will justify a man in killing another, nor will it excuse him. Killing on adequate or sufficient provocation must, at least, therefore, amount to- manslaughter. Now, gentlemen, I have endeavored to explain to you briefly, the characteristic and nature of malice in general, and also to point out to you the distinctive differences between express malice and malice implied by law from facts actually proved, and also to explain what under our statute law amounts to murder in the first and murder in the second degree. I have, moreover, stated to you the THE STATE v. COSTEN. 351 rules or principles in regard to the crime of manslaughter, which is the lowest grade of felonious homicide. I have also endeavored to point out and explain to you by lan- guage as plain and significant as I can command, in what respect manslaughter differs from murder. Having thus, as I trust, enabled you to comprehend and understand these several matters, especially the legal meaning and import of the term malice, which enters so largely into the question of felonious homicide, as constituting the grand criterion distinguishing murder from manslaughter, I may, I think, without any impropriety and without in the least trenching upon the undoubted province of the jury, advert for the moment to material and undisputed facts disclosed by the testimony. Gentlemen : — The terrible tragedy which resulted in the instant death of Charles Woolsey occurred on the early morning of Sunday, the yth of the present month. The slayer and the slain had for several years ante- cedent to the fatal controversy, stood towards each other in the relation of mutual and intimate friends. They had often engaged in earnest disputation with each other, and at various times each of them for the moment became angry with the other, but it seems that this anger speed- ily passed off without, apparently, leaving any rancor in the heart of either. The material facts, as disclosed by the evidence, are but few in number and are easily stated. As to the origin or exciting cause of the controversy the testimony is silent. We know nothing definitely. We find the prisoner and Woolsey at the house of Mr. Caulk, at about 12 o'clock on Saturday night, in company with several friends. The prisoner and Woolsey prepared sup- per and set the table in the front room and their friends sat down and partook of the supper sometime between one and two o'clock on Sunday morning, the prisoner and Woolsey waiting on them at the table. It does not ap- pear at what hour precisely these companions (except Cann) left the house. Cann says he laid down on the lounge between half-past one and two o'clock and went to 352 COURT OF OYER AND TERMINER. sleep, and that when he laid down the friends were all there — when he awoke they were all gone. Up to this time there is no evidence of a quarrel between the pris- oner and the deceased. . Something certainly occurred and awoke Cann. When he awoke he saw Woolsey standing near his (Cann's) head as he lay on the lounge and Costen near to Woolsey within striking distance, and Costen immediately moved down the room round the corner of the table — a portion or corner of the table being between them — and picking up a carving knife, he shook it at Woolsey and said to him "If you come at me again I will give you this," or "I will stick you with this." Woolsey replied, "I don't care a d n for you or your knife," and advanced a step or two towards Cos- ten, who immediately moved out of the room into the entry toward the door leading into the back room, Wool- sey saying as he was so passing out of the room, "I have taken the d d son of a bitch's abuse long enough," or "You d d son of a bitch, I have taken your abuse long enough,' for the witness states the remark both ways. At the time when Woolsey advanced towards Costen they were about four feet apart. Witness saw nothing in de- ceased's hands, and no attempt or offer to strike. Witness thinks that "between the time of Costen leaving the room and his hearing the report of the gun, he kind of lost him- self a little ;" but does not think it was for more than a minute. He says in another part of his evidence, "As near as I could come at it, about a minute elapsed between Cos- ten's going out of the room and the report of the gun." At the time the gun was discharged, Woolsey was not mov- ing — he was standing but a step or two from where Cann first saw him near his head. He was standing where he paused in his advance towards Costen. He was struck by the load discharged from the gun in the left breast and fell where he first stood and died almost instantly. Cos- ten came forward to him immediately and requested Cann to catch the artery and stop the flow of blood, but it could not be done. Cann finding that he could not stop the THE STATE v. COSTEN. 353 flow of blood left the house, went and aroused the keeper of the hotel, and at the latter's suggestion, went after Dr. Hudders. It was probably from a quarter to half-past three o'clock when Woolsey was shot ; for the Doctor says he was waked up by Cann at about a quarter to four o'clock, and proceeded immediately to Caulk's house, and upon examination of the body of Woolsey he found him already quite dead. At the time he (the Doctor) entered Caulk's house he passed Costen who was sitting on the door step, with his head leaning on his hands. As the Doctor was about to leave the house Costen told him that he was hurt, and that Woolsey had stabbed him in the back. He worked his way, the Doctor says, into the room, and the Doctor examined the condition of his back and found an incised wound just below the shoulder blade, and between that and the spinal column — in depth about one inch and three-quarters, and in width about three- quarters of an inch. The wound at the time he examined it was somewhat swollen, and was, in his best judgment, an inch and a half in depth immediately after its infliction. Costen subsequently made a statement before the Coro- ner's jury, which was reduced to writing, and is now be- fore you as a part of the evidence. Whether his statement, assuming it to be true, indicates thought and deliberation, is a question for your decision under the circumstances of the case. It is manifest, how- ever, I think, that but a short time elapsed between the prisoner's leaving the room and the report of the gusn. Cann thinks it was about a minute. It may have been more — it may have been less. But whether the time was shorter or longer, if you shall be satisfied from the evidence that the prisoner in that short space of time delit>erately formed the design, purpose or intent to kill the deceased, and in execution of such deliberation, purpose and intent shot him to death, his crime will amount to murder with express malice, and hence to murder in the first degree. If, however, you shall not be fully satisfied from the evidence that he intended to kill the deceased, but that 354 COURT OF OYER AND TERMINER. at the time he fired the fatal shot there was a deliberately formed purpose and design to disable the deceased by shooting off his arm, his crime will amount to murder in the second degree ; for such an act would be an unlaw- ful, cruel act — an act without either justification or ex- cuse — from which the law implied malice and which con- stitutes the test or criterion of murder in the second de- gree. But, gentlemen, if you shall be satisfied from the evi- dence that at the time or immediately preceding the wak- ing up of the witness, Cann, there was or had been a col- lision or contest between the prisoner and the deceased, and that the deceased then and there stabbed the prisoner in the back and inflicted the wound spoken of by Dr. Rud- ders and Wm. T. Cann, then, I say to you, that such stab- bing was a provocation, indeed a great provocation, and if the prisoner acted immediately and without delay under the sting of that provocation induced by a sudden trans- port of passion and in a moment of frenzy or heat of blood caused by that provocation, and without deliberation or formed design, suddenly rushed from the room and seizing the gun discharged its contents against the body of the de- ceased, his crime will be reduced to manslaughter; for from such a sudden act, done in the heat of blood upon reas- onable or adequate provocation and without deliberation, the law does not imply malice, but attributes the act to the infirmity of human nature. A few more words, gen- tlemen, in regard to the law of this case, and I shall close what I deem it to be my duty to say to you on the pres- ent occasion. ist.I repeat to you that whenever there is a design or intention deliberately formed in the mind to take life, and death ensue, it is murder with express mal- ice and therefore murder in the first degree. 2d. When there exists no design or intention to take life, but death results from an unlawful act of violence on the part of the slayer, and in the absence of adequate provocation, it is murder with implied malice and therefore murder in the second degree. 3d. Voluntary manslaughter is the THE STATE v. BOICE. 355 unlawful killing of another in heat of blood upon sufficient or adequate provocation and without malice. But no provocation, however just, will justify the killing of another, nor will it excuse the act. Killing upon provoca- tion cannot be less than manslaughter. Verdict — Guilty of manslaughter. The State v. Alfred Boice. Express malice is where one person kills another with a sedate, delib- erate mind and formed design ; and such design may be shown by the circumstances attending the act, such as the deliberate selection of a deadly or dangerous weapon, antecedent threats or menaces, and privily lying in wait, former grudges and preconcerted schemes to do the party slain some great bodily harm. And when committed with express malice aforethought it is murder of the first degree under the statute. Implied malice is an inference of law from the facts found by the jury ; and among these facts, the actual intention of the prison, r at the commission of the fatal act becomes an important and essential fact to be ascertained by the jury, for th. ugh he may not have intended to take away life, or to do any great bodily harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act, such for instance, as intending to rob the party slain, from whieh the law raises the presumption of malice. If he intended to kill him, he is guilty of murder of the first degree, but if he did not intend to kill him, and was engaged in any other felonious or un- lawful act, such as an attempt to rob him, or the like, he is guilty of murder of the second degree. New Castle County, November Term, 1871. At this term of the Court, Alfred Boice, negro, was indicted and tried for the murder of John Mawheney, of the first degree, near Middletown, on the 9th day of August preceding. The dead body of the deceased, who was an aged, feeble and delicate man, was found lying on the road between Middletown and Armstrong's Corner, with the bridge of his nose broken and crushed in by one or more violent blows, apparently. A pocket-book was found on the 356 COURT OF OYER AND TERMINER. ground near it, which it was proved had been purchased by the prisoner that afternoon in Middletown. It was also proved by another witness that he was on that part of the road that night when the prisoner came up the road and said to him that there was a peach-pluck behind them, let's go through him ; he asked him how he knew, and he said he had just seen him. In a little while he came along, when the prisoner went up to him and said, "Where is that five cents you owe me.'" to which he replied that he had before told him he had no money. The prisoner then struck him and knocked him down ; he then raised partly up on one of his arms and said, " Oh ! see my face ! " and then told him if he would let him up he would let him have what money he had, to which the prisoner replied, " You told me a lie then, did you, when you said you had no money .■' " and struck him again, and knocked him flat on his back, and then left him lying there. He struck him both times with his fist. This testimony was corroborated by several other wit- nesses for the State, one of whom met the deceased, whom he knew, and two negro men whom he did not recognize, about nine o'clock that night, on the road as he was walking into Middletown, the two negroes walking close beside each other, and the deceased just behind them, walking in the same direction ; and he was the first person on his return, in about an hour afterwards, to find his dead body lying flat on its back in the road not far from the place where he had met them. And another, that he passed the deceased and two or three other per- sons with him, walking up the road that night as he was going from Middletown to Armstrong's Corner. They were walking quite slow when he passed them, but just before he reached Armstrong's Corner, he saw and recog- nized the prisoner and the first witness examined as they passed him together walking fast, and went oh up to the corner ahead of him into a crowd of colored people then collected there. And another, that he heard the prisoner say to some persons standing there as he came up into THE STATE v. BOICE. 357 the crowd, " not to fool with him, for he had just knocked a man stiff down the road ! " And another, that he saw the prisoner in the store that night stretch out his hand, and at the same time say to some men standing around, " Do you see that ? " and then add that he had just knocked some d — d old son-of-bitch cold down the road ! and that his knuckles were then skinned, and there was blood on his fingers. And another, that he heard the prisoner say there that night, that he had killed one man down the road,, and if they did not look out he would kill another. The deceased was a very quiet and inoffensive person, and a gardner in the service of a gentleman re-, siding in the neighborhood. The physicians who performed the post mortem exami- nation of the body at the corner's inquest, testified that it was a contused wound, which might have been made with a blunt instrument, or with a fist. The bones of the nose were broken, and it was such a blow, or blows, as by concussion of the brain might have produced death, and, in their opinion, that was the cause of his death. Bates, Deputy Attorney General, contended that the evi- dence clearly showed that, cruel as the act was, it was not committed suddenly, but coolly and deliberately, and after consideration of the matter by the prisoner, without any offense or provocation whatever on the part of the deceased, and almost without any other apparent motive for it than the quintessence of malice itself It could, therefore, be nothing less than murder committed with express malice aforethought, and of the first degree under the statute. Hodgson, for the prisoner. That it was a case of murder with implied malice, and of the second degree only under the statute. The Court, Wootten, J., charged the jury. The prisoner at the bar is indicted and on trial for the highest crime known to the law of this State. He is charged with the 358 COURT OF OYER AND TERMINER. commission of the crime of murder in the first degree, the crime being alleged by the State to have been com- mitted by taking the life of John Mawheney, on the 19th of August last. Murder is where a person of sound mind and discretion unlawfully kills a reasonable creature, with malice afore- thought, either express or implied. At common law such killing was murder without any distinction of de- grees, but our statute has divided the crime into two degrees, the first and second, and the killing of a human being unlawfully and with express malice, is murder of the first degrees, and where there is no express malice afore- thought, and the fact of killing is done under such cir- cumstances as to make it a case of implied or constructive malice, the crime is murder of the second degree. The division of the crime of murder by our statute into the first and second degree, merely changes the punishment and modifies it, leaving the crime in the first degree punisha- ble with death, and making it in the second degree pun- ishable by fine, whipping, pillory, and imprisonment for life. Every homicide is held to be mklicious and premedi- tated, and therefore amounting to murder, unless it otherwise appears by some facts or circumstances of ex- cuse, justification or alleviation, and this may be shown either by evidence disclosed on the part of the prosecu- tion, or by the defense. In order to distinguish between the two grades of the crime of murder, a proper applica- tion of the law of express and implied malice is necessary, for if the homicide is committed with express malice, the crime will be murder of the first degree, but if committed with implied malice, it will be reduced to the lower grade of murder, that is, murder of the second degree. Ex- press malice is where one person kills another with a sedate, deliberate mind and formed design ; and such design may be shown by the circumstances attending the act, such as the deliberate selection of a dangerous or deadly weapon, knowing it to be such, antecedent threats THE STATE v. BOICE. 359 or menaces, and privily lying in wait, former grudges and preconcerted schemes to do the party slain some great bodily harm, or the like. Implied or constructive malice is an inference or conclusion of law from the facts found by the jury ; and among these facts, the actual intention of the prisoner at the time o( the commission of the fatal act, becomes an important and essential fact to be ascer- tained by the jury, for though he may not have intended to take away life, or to do any great personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act, such for instance as in- tending to rob the party slain, from which the law raises the presumption of malice. The matters to which you should first direct your in- quiries in this case are, whether John Mawheney, the party alleged to have been murdered on the 19th of August last, is dead, and whether he came to his death by acts of violence inflicted upon him by the prisoner at the bar. I presume you will have but little difficulty in determining these facts. If you shall be satisfied from the evidence before you that John Mawheney is dead, and that he carhe to his death by acts of violence by the hands of the prisoner at the bar, you will then determine the character of the offense, whether it is murder of the first or second degree. I say whether it is murder of the the first degree, or murder of the second degree, because I feel constrained from a sense of duty to say to you, that there is ndt the slightest evidence before you of any sort of provocation, and therefore the offense cannot be re- duced below the crinie of murder of the second degree, and the important inquiry is, whether it is of the first or second degree. This fact it is your duty to determine from the evidence and all the surrounding circumstances. If the homicide was committed, and John Mawheney was killed by the prisoner with express malice aforethought, such as I have described it to you to be, he is guilty of murder of the first degree. But if there was no express malice by which the prisoner was moved and actuated in 36o COURT OF OYER AND TERMINER. the commission of the offense, and it was done under such' circumstances as come within the principle of implied malice such as I have described that to you to be, then the crime would be murder of the second degree. And here, as I have before said to you, it is essentially neces- sary to the determination of the question of express or implied malice, to ascertain and satisfy yourselves as to the intention of the prisoner at the time of inflicting the violence, whether he did or did not intend to take away the life of the deceased. If he did intend to kill him, he is guilty of murder of the Jir'St degree ; but if he did not in- tend to deprive him of life, and was engaged in any other .felonious and unlawful act, such as an attempt to rob him, or the like, he is guilty of murder of the second degree. I believe I have said all that is necessary that I should say to you in reference to the law applicable to the case, leaving the facts, without comment, entirely for your de- termination, it is neither our province or desire to discuss them. You will now take the case and give it that de- liberation and consideration which its importance to the prisoner as well as the State demands, and render such verdict as your sense of duty under the responsibility which has devolved upon you may require. Giving to the pris- oner the benefit of any reasonable doubt that you may entertain growing out of all the facts and circumstances of the case. Such doubt, however, should be such only as men of thought and discretion, as you doubtless are, would reasonably entertain, and as are irreconcilable with the evidence on which you are sworn to give your verdict. Verdict — "Guilty of murder of the secon.d degree." THE STATE v. ADAMS & AIKEN. 361 The State v. James Adams and John Aiken. The gist of the offense alleged in an indictment for a conspiracy to d