30 Ind. 197 | Ind. | 1868
Moore was arrested and- committed to jail by a justice of the peace, on a charge of murder in the first 'degree, for the killing of oue Sinex, and sued out a writ of habeas corpus for the purpose of being let to bail. After the service of the writ, and before the final hearing, Moore was indicted in the Eloyd Circuit Court for the same offense. The question presented to the judge, on the return of the writ, was whether .the proof ivas evident and the presumption strong that the pi’isoner was guilty of murder. The judge refused to admit the prisoner to bail, and dismissed the writ on the evidence, from which the prisoner appeals to this court.
The only question presented here is, whether the proof of the prisoner’s guilt is so clear, or the presumption so strong, as to render the offense a non-bailable one.
The facts disclosed by the evidence are, substantially, as follows: The prisoner and tire deceased were both residents of the city of Row Albany, and wore friends, no trouble or difficulty having previously existed between them. On the day of the difficulty, which resulted in the death of the
We held in Ex parte Heffren, 27 Ind. 87, that in this class of cases, it was proper that we should weigh the evidence, and determine the facts, as if trying the case originally.
To constitute the offense of murder, either in the first or second degree, malice is an essential ingredient. It is true, that where one person unlawfully and purposely kills another, malice, in the absence of rebutting evidence, is presumed from the act. But when no express malice is shown, and it appears that the act, though voluntary, was the result of a sudden heat, or transport of passion, upon a sufficient provocation, it rebuts the presumption of malice, and reduces the offense to manslaughter.
Here, it appears that no quarrel or difficulty existed between the prisoner and the deceased prior to their controversy in the saloon, just preceding the fatal act. The personal violence and.indignity perpetrated by the deceased on the accused, and so often repeated, were certainly suffi
Applying these rules to the facts of the case under consideration, and in view of the provocation given by the deceased, the high state of excitement and passion produced upon the mind of the prisoner thereby, the hasty manner in which he went to his house and returned to the saloon with the pistol, and the short period of time, not exceeding five minutes, that intervened between the provocation and the act, and it seems to us that it cannot be fairly said that it is clear that there was sufficient time between the provocation and the act for the' passion to cool and
"We think, therefore, that the prisoner is entitled to be lot to bail.
The judgment is reversed, and the cause remanded, with directions to the judge of tho Court of Common Pleas to let tho prisoner to bail in such sum as may be deemed proper to secure his presence to be tried on tho indictment in tho Circuit Court. '