23 Del. 479 | Delaware Court of Oyer and Terminer | 1892
charging the jury:
Gentlemen of the jury:—During six very arduous days you have attended here to the painful and pathetic story of the mysterious disappearance and death of a boy but eight years old. During this trying period, you have; with great inconvenience and discomfort to yourselves, doubtless, discharged faithfully.one of the highest duties of citizenship—the duty of standing between your fellow; citizen who is accused, and your State, which is his. prosecutor, and determining whether or not he is guilty of the crime charged against him, before the punishment, which he will justly deserve if found guilty, shall be inflicted upon him for destroying an individuál human life and menacing the public safety; You have been selected for the purpose of determining whether the prisoner now on trial is the person who caused the death in question. You are not here to ascertain—in case you shall find he is not that person—what other person is the real criminal. That is not the duty of this jury, but of the public-authorities. Your duty is to discover, if you can, from the evidence produced from this witness stand—and from no other source whatsoever—whether or not the prisoner at the bar is the guilty person. If you are morally certain that he is such, then you must convict him regardless of all other considerations; otherwise you must acquit him.
With these prefatory remarks, we will proceed to the con
Walter W. Blackburn, the prisoner at the bar, stands charged in this indictment with murder of the first degree, for the wilful and felonious killing of Edward H. Gardner, with express malice aforethought, in the month of October, 1891, at Wilmingtoti Hundred, within this County.
Under any indictment for murder of the first degree the jury may find the accused guilty of either murder of the first or second degree,or of manslaughter, according as the law and evidence may warrant, but unless they shall find him guilty of one of these three grades of felonious homicide, they must acquit him and render a general verdict of “not guilty.” It therefore becomes necessary for the jury, in the present instance, to be sufficiently informed by the Court as to the definition and nature of murder and the distinctions between the two degrees thereof, as well as to the differences between these and the inferior grades of homicide.
Homicide is the killing of any human creature, and is of three kinds: justifiable, excusable, and felonious. The taking of human life is held to be justifiable when done in the execution of public justice, as where the proper public officer duly executes a criminal under lawful sentence of death; or in the advancement of public justice; or for the prevention of any atrocious crime attempted to be committed with force—of which examples need not here be given. Excusable homicide is that which is committed either by misadventure, or in self-defense. Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct. Homicide in self-defense is where one is assaulted upon a sudden affray, and, in the defense of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills his assailant.
In the case now before you, the marks of mortal violence upon the deceased, if you believe the witnesses thereto, show an unlawful killing and there is no evidence showing any ground for the plea of self-defense,—much less of justification. Therefore
Is it then a case of felonious homicide ? Felonious homicide, at common law, is of two kinds; namely, manslaughter and murder; the difference between which consists principally in this, that in murder there is the ingredient of malice, whilst in manslaughter there is none; for manslaughter, when voluntary, arises from the sudden heat of passion, but murder from the wickedness and malignity of the heart. Therefore manslaughter is defined to be the unlawful killing of another without malice either express or implied and without premeditation. Manslaughter is either voluntary or involuntary. Voluntary manslaughter is where one kills another in the heat of blood, and this usually arises from fighting or from provocation. Involuntary manslaughter is where one in doing an unlawful act, not felonious nor tending to . great bodily harm, or in doing a lawful act without proper caution or requisite skill, undesignedly kills another.
You will see at once that this is not a case of voluntary manslaughter; because there is no evidence of any provocation or heat of blood at the time of the killing of the deceased. Nor is it one' of involuntary manslaughter, because the evidence of the brutal marks of violence upon him, if you believe it, shows that his slayer was doing an unlawful act tending not only to great bodily harm to -the deceased, but to produce his death. If, therefore, you cannot lawfully render a verdict of manslaughter, it will be necessary for you to determine whether the killing of the deceased is murder.
Murder, which is one of the two kinds of felonious homicide, —manslaughter being the other—is where a person of sound memory and discretion, unlawfully kills any reasonable creature, in being under the peace of the State with malice aforethought either express or implied. The chief characteristic of this crime, distinguishing it from manslaughter and every other kind of homicide and therefore indispensably necessary to be proved, is malice prepense or aforethought. This term, malice, is not' restricted to spite or malevolence towards the deceased in particu
Under the statute law of this State there are two degrees of murder; namely: Murder of the first, and Murder of the second degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; and the second degree is where the crime of murder is committed otherwise and with malice aforethought implied by law. Express malice is proved by evidence of a'deliberately formed design to kill another; and such design may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such; a preconcerted hostile meeting, mutually agreed upon or notified and threatened by the prisoner, privily lying in wait; a previous quarrel or grudge; antecedent menaces; the preparation of poison or other means of doing great bodily hax;m to the deceased; or any other circumstances evidencing such deliberately formed design to kill. Implied or constructive malice is an. inference or conclusion of law from the facts found by the jury; and among these, the actual intention of the prisoner becomes an important and material fact; for, though he may not have intended to take away life, or to do any personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act from which the law raises the presumption of malice. It is the difference between express and
Having thus instructed you as to murder of the first and of the second degree, and the lesser grades of homicide, for your proper guidance in determining the guilt or innocence of the prisoner whom you have in charge, it is also proper to remind you that, as the law presumes every accused person to be innocent until he is proven guilty, the burden is upon the prosecution to prove beyond a reasonable doubt by competent evidence, every essential ingredient of the crime charged in this indictment, before the prisoner can be found guilty thereof. But, on the other hand, every sane man is presumed to intend that which is the ordinary and natural consequence of his own wilful act. Therefore on a charge of murder, where the fact of killing as charged in the indictment is shown by the prosecution, unaccompanied by circumstances of justification, excuse or mitigation, the' law presumes that the homicide was committed with-malice, and hence amounts to murder, until the contrary is shown, and consequently the burden is thereupon thrown upon the accused of disproving the malice and showing by evidence to the satisfaction of
But, for the reasons already stated, you cannot, in this instance, lawfully find that the killing of the deceased is either justifiable or excusable homicide, or manslaughter. So that,if, after a careful review of all the testimony before you, you shall be satisfied that the slayer of the deceased is guilty of a higher grade of homicide than manslaughter, it will then be your duty to determine from the evidence, whether the prisoner is guilty in manner and form as he stands indicted—that is, of murder of the first degree—or guilty only of murder of the second degree.
In considering the evidence, with a view to determining this question, you must be guided by the legal definition and nature of these two degrees of murder, and bear in mind the distinction between malice aforethought express and malice aforethought implied, as these have just been explained to you. And here, it is necessary also to inform you that, although when the fact of killing as charged in the indictment is shown by the prosecution unaccompanied by circumstances of justification, excuse or extenuation, the law presumes that the homicide was committed with malice until the contrary appears from the evidence produced at the trial, yet.it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that the killing is murder of the second degree under our statute. Wherefore, before a verdict of murder of the first degree can be lawfully rendered by the jury, it must be shown by the prosecution, that the prisoner killed the deceased with a deliberate purpose and formed design to take his life. Such deliberate purpose and formed design may exist only for a moment, but it must be shown by the facts and circumstances attending the homicide to actually exist, in order to prove that express malice aforethought, without the evidence of which, a conviction of murder of the first degree cannot be secured.
But before the prisoner can be found guilty of murder of either degree under this indictment, it is incumbent on the prosecution to prove to you, beyond a reasonable doubt, first, thatv
The prosecution contends that the prisoner is the person who caused the death of Gardner. This the prisoner denies; and endeavors to prove an alibi and other circumstances to disprove the testimony and contention of the State. So far as the testimony discloses, no human eye—save the perpetrator’s—saw when, where, how or by whom this shocking homicide was committed. Consequently the case against the prisoner cannot be proved by direct and positive testimony, but rests solely upon what is called circumstantial or presumptive evidence. As you are aware, gentlemen of the jury, the fact in controversy to be proved in any trial will generally be attested by those who speak of their own actual and personal knowledge of its existence; or else it is to be inferred from other facts satisfactorily proved. In the former case, the proof rests upon our faith in the veracity, impartiality, opportunity for observation, accuracy of memory, etc., of those who speak of their own personal knowledge. In the
But you must nevertheless remember, and most positively, that circumstantial evidence, to warrant a conviction, 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. As this Court has heretofore announced, the established rule on the subject is this: where the evidence is circumstantial, the jury must be fully satisfied, not only that the circumstances proved are consistent with the prisoner’s having committed the act charged as constituting the crime, but they must also be likewise satisfied that the facts are such as to be inconsistent with any other rational conclusion
• In this connection we will briefly refer to the law in respect to the proof of motive in criminal cases. Whenever upon the general' evidence, the..imputed guilt of the prisoner appears to the 'jury to be doubtful, the absence of any testimony in proof of a
Before concluding our instructions as to the law of this case, it is necessary to consider another matter. For the purpose of proving an implied confession of his guilt by the prisoner, evidence has been introduced by the State to show that, on certain occasions when charged by Mrs. Gardner with having killed her son, the prisoner failed to reply to, or deny this charge; and to show also that, when the prisoner’s wife made a certain statement to Mrs. Gardner in the prisoner’s presence, he did not make any response thereto. If you should believe that such charges and statements were really made in his presence, then you are entitled to learn from the Court what effect they should have, in contemplation of law, upon your minds in the consideration of this case. The law is well settled that the prisoner’s extrajudicial confession, when the corpus delicti that is, the fact of death and that it was criminally caused, has not been otherwise proved, is not sufficient for his conviction. There are two kinds of extra-judicial confessions; namely: direct confessions of guilt, and indirect confessions; which latter, like admissions in civil cases, may be inferred from the conduct of the prisoner and from his silent acquiescence in the statements of others, respecting himself, and made in his presence. But acquiescence, to have the effect of such a confession, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, and his mind and attention sufficiently directed to its purport and impor
And now, gentlemen of the jury, it becomes your duty, subject to the law as we have given it to you, to determine from the evidence before you whether or not the prisoner is the person who caused the death of Gardner, as charged in this indictment, That Walter W. Blackburn, the prisoner at the bar, is that person the prosecution contends is the only just and rational inference to be drawn from a careful and intelligent consideration of all the facts and circumstances proved by the credible and reliable witnesses in the case. In support of this contention, the State has sought to show, among other things, to your satisfaction the following circumstances (if you find we state them correctly): that between one and two o’clock on the afternoon of Wednesday, October 14th, 1891, Edward H. Gardner, then about eight years old went forth alive from his home and his mother’s presence, and was found dead with marks of mortal violence upon him about
On the other hand, the prisoner denies that he is the person who caused Gardner’s death, and, in order to disprove the theory and impeach the testimony of the prosecution and establish his innocence, has endeavored to prove by witnesses produced in his behalf before you, among other things, that he and the boy Gard
It is these opposing contentions and this conflicting testimony upon which you have to sit in judgment and reach a conclusion before you render your verdict. If, in this brief summary of the testimony offered on each side,' we have erred in any respect, you will correct the error. Our purpose in referring to its general outlines only, is simply to aid you in your investigation, by directing your attention to the main line of inquiry;
It only remains for us to say, in conclusion, that if, after youf thorough consideration of all the facts and circumstances proved on both sides in this case, you shall be satisfied beyond a reasonable doubt that the prisoner is the person who caused the death of the boy Gardner, as alleged in this indictment, then you are further to determine, subject to the law as we have explained it to you, whether or not the prisoner is guilty of murder of the first degree, or of a lesser grade of felonious homicide, and to render your verdict accordingly. But if, after such consideration of said facts and circumstances, you shall not be satisfied beyond|a reasonable doubt that the prisoner is guilty of murder of the first degree, or of a lesser grade of felonious homicide, then you are to acquit him and render a verdict of “not guilty.”
With these instructions, which are more specific and extended than is usual in ordinary trials, because of the exceptional features of this uncommon case, we commit it to you for your most careful and conscientious consideration. You have both a solemn and responsible duty to discharge, for not only the fate of the prisoner, but also the safety of this community depend upon your verdict.
Verdict, Not guilty.
These four cases which follow, though not recent, are considered of sufficient importance to include in this report.