State v. Brown

20 Del. 120 | New York Court of General Session of the Peace | 1902

Lore, C. J.,

charging the jury :

Gentlemen of the jury:—Frank Brown, the prisoner at the bar, is charged with having shot and killed one James Gilmore, in a house back of the post office in this town, on the twenty-eighth day of May, 1900.

The indictment charges him with having committed murder of the first degree. Under this indictment, if the evidence should warrant, the jury may find any one of four verdicts; (1) murder of the first degree, or in manner and form as he stands indicted; (2) murder of the second degree; (3) manslaughter; or (4) not guilty.

So that it becomes necessary for the Court to charge you as to what constitutes the three grades of homicide—murder of the first degree, murder of the second degree and manslaughter.

Murder of the first degree is the killing of a human being with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; that is to say, in general, where the homicide is committed with sedate, deliberate mind and formed design to take the life of, or to do some great or serious bodily injury to the person killed. Such design may be shown by the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, a preconcerted hostile meeting, privily lying in wait, a previous quarrel or grudge, antecedent menaces or threats or the preparation of means to effect such a design or intent. That is murder of the first degree.

Murder of the second degree under our statute is where there is no such deliberate mind and formed design to take life, or to perpetrate or attempt to perpetrate a crime punishable with death, but where nevertheless the killing was without justification or excuse or without provocation sufficient to reduce it to the grade of manslaughter.

Manslaughter is the unlawful killing of a human being without malice either express or implied but in the heat of passion, before the passions have time to cool. Malice is the essence of murder; in manslaughter there is no malice.

Under the law and the evidence in this case it is your duty to find by your verdict of which of these grades of homicide the prisoner is guilty, if of any.

Where one person is killed by another, unless it be under the sentence of the law, it is presumed by the law to have been done with malice aforethought, until the contrary is proved.

The law presumes the innocence of the accused—this is his protection and shield—until he is proven guilty beyond a reasonable doubt. A reasonable doubt is one that must grow out of the evidence alone; one that Keeps your mind from reaching a clear conclusion of the guilt of the accused after a careful and conscientious consideration of all of the facts in the case, interpreting them in the light of the rules ordinarily governing human actions under like circumstances.

Another principle of law applicable to this case, is, that the ball fired from the gun or pistol at one person with an intent to wound or kill him carries with it the ingredient of malice when it strikes another and a different person. Malice goes with the ball and gives character to the action, or as the rule is, malice speeds the ball whoever may be the victim.

Another principle of law applying to this case is, that in order to acquit of a charge of this nature, under the plea of self-defense the jury must be satisfied that the slayer was closely pursued by the other person and retreated as far as he conveniently and safely could, in an effort and with an honest intent to avoid the violence of the assault, or that he was in imminent and manifest danger either of losing his own life or of suffering enormous bodily harm, or that the circumstances were such that an ordinarily prudent man would have believed himself in such danger although such danger might not have in fact existed. The belief of the accused that he was in such danger is immaterial unless it coincides with what the belief of an ordinarily reasonable and prudent man would have been under such circumstances.

Proof of previous good character is to be considered by the jury as any other evidence tending to prove the innocence of the accused, and is to be given just such weight by the jury as under the circumstances of the case it is reasonably entitled to in connection with all the other evidence.

Taking these principles ot law, as we have announced them to you, you are carefully and conscientiously to consider the evidence and to determine what verdict should be rendered. If you believe that Frank Brown fired the pistol with the ball which killed James Gilmore and that when he did so it was in pursuance of a sedate, deliberate mind and formed design to take life or to do some great and serious bodily injury to the person killed or to another person, and the person killed happened to be the one in the way, then we say to you that your verdict should be guilty in manner and form as he stands indicted. If you should believe, however, that the prisoner did kill Gilmore but not with sedate, deliberate mind and formed design, but with such a reckless disregard of human life as to be indifferent to the consequences of his act, then the law implies malice; and in that case your verdict should be guilty of murder of the second degree. But if you believe that the prisoner killed the deceased without justification or cause, without malice, in that case your verdict should be not guilty in manner and form as he stands indicted but guilty of manslaughter only. If, however, you should believe that he fired the ball that killed the deceased, and that at that time he was in imminent danger of his life, or of great bodily harm, and had retreated as far as he could to avoid any collision or attack, then your verdict should be not guilty.

You have the evidence before you, and to you we commend this case for you to return such a verdict only as under your -conscience and your oath the evidene in this case shall warrant.

Verdict: “ Not guilty in manner and form as indicted but guilty of manslaughter only, with a recommendation that the Court impose the full penalty of the law in such cases.”