"1.
Unless the evidence given in this cause satisfies you
beyond a reasonable doubt that, on or about the 7th day of
April, 1890, at this county, the defendant did cut and
stab Silas Bell, thereby causing his
death, as charged in the indictment, you will find the
defendant not guilty. Section 1824 of the statute reads
thus: 'A defendant is presumed to be innocent until the
contrary is proved. When there is a reasonable doubt whether
his guilt be satisfactorily shown, he must be acquitted. When
there is a reasonable doubt in which of two or more degrees
of an offence he is guilty, he must be convicted of the
lowest degree only.' In applying this section you will
start out with the presumption that the defendant is entirely
innocent, and unless the evidence given in the cause
satisfies you, beyond a reasonable doubt, that the defendant
gave the fatal thrust, as charged in the indictment, he must
be found not guilty. But if you are thus satisfied that
he gave the fatal thrust, as charged in the indictment, then
if there remains a reasonable doubt as to whether he gave it
with premeditated malice, he can not be found guilty of
murder in the first degree; and if there remains a reasonable
doubt as to whether or not he gave the fatal thrust, as
charged in the indictment, purposely and maliciously, but
without premeditation, he can not be found guilty of murder
in the second degree; and if there remains a reasonable doubt
as to whether he gave the fatal thrust, as charged in the
indictment, unlawfully, he can not be found guilty of
manslaughter, and must be acquitted. In order to remove all
reasonable doubt as to the truth of the matters and things
heretofore mentioned, the evidence tending to prove the same
must so overcome all opposing evidence, and all inferences
that may reasonably be drawn from any want of evidence, that
a prudent man might, without distrust, voluntarily act upon
the truthfulness of such matter or thing in matters of the
highest import to himself. If there is any reasonable
hypothesis consistent with the innocence of the defendant
which does not contradict any credible evidence given in the
cause, you must acquit. If any one juror
has a reasonable doubt on any material point, you can not
convict, but may disagree.
"2.
If the defendant did not seek a fight with said Bell, and
walked away; and if said Bell followed him up and caught hold
of him and began to strike him with his
fist, those facts alone would not justify the defendant
in using his knife; but if the defendant, being without
fault, as just supposed, then honestly believed himself to be
in imminent danger of great bodily harm, and could think of
no other less dangerous means of preventing such great bodily
harm than the use of his knife, he would be justified in
making such use of it as then appeared to him to be
necessary. On this point you must be very careful;
the right of Mr. Bell to life was just as sacred as the
right of the defendant to self-defense.
"In
order to determine whether or not the defendant honestly
believed that it was necessary to use his knife, as he did,
to prevent great bodily harm to himself, if you find he did
use it, you ought to consider the relative size and strength
of the two men, their character and dispositions, and the
efforts, if any, made by the defendant to free himself from
said Bell. If the defendant, during the fight, made no outcry
or request for Bell to desist, nor warned him at any time
that he would use his knife unless he did desist; or if the
defendant at any previous time, used language showing malice
or ill will towards said Bell, you may take such matters into
consideration in determining his good faith in using his
knife as he did. If from all the evidence given in the cause,
or from any want of evidence, you have a reasonable doubt as
to whether or not the defendant did then honestly believe
himself to be in imminent danger of great bodily harm, and
could think of no other less dangerous means of
preventing such great bodily harm than the use of his
knife as he did, he being without fault, as above
supposed, you must acquit. In other words, the
defence of self-defense does not need to be made out by a
preponderance of the evidence, it is sufficient if a
reasonable doubt be raised.
"3.
If the defendant dared or challenged said Bell to fight, in
order that he might have an opportunity to kill him, or to do
him great bodily harm with his knife; and if, during the
fight, without warning to said Bell, and without believing
himself to be in imminent danger of great bodily harm, in
pursuance of his original intention, gave said Bell the
thrust with his knife which caused his death, as charged in
the indictment, he is guilty of murder in the first degree;
and, if the defendant dared or challenged said Bell to fight,
and if said Bell accepted said challenge, and entered into
said fight with his fists only, it was the duty of the
defendant, if he desired to stop the fight, to warn said Bell
of that fact, and request him to desist; but if, instead of
so doing, he purposely and maliciously gave said Bell the
thrust with his knife which caused his death, as charged in
the indictment, he is guilty of murder in the second degree;
and if, under the same circumstances, the defendant, in the
heat of the fight, but without malice, gave said Bell the
thrust with his knife which caused his death, as charged in
the indictment, he is guilty of manslaughter.
"4.
You are the exclusive judges of all questions of fact, of the
credibility of the witnesses, and of the leaning and weight
of the evidence; and on none of these matters do I express my
opinion. You have also the right to determine the law
contrary to my opinions herein expressed.
"5.
If you find the defendant guilty of murder in the first
degree, you will fix his punishment at death or imprisonment
in the state prison during life, in your discretion. If you
find him guilty of murder in the second degree, you will fix
his punishment at imprisonment in the state
prison during life. If you find him guilty of manslaughter,
you will fix his punishment in the state prison not more than
twenty-one years nor less than two years. If you find him not
guilty, you will simply say so. Forms of verdict for murder
in both degrees, for manslaughter, and not guilty, will be
furnished you. When you have all agreed, fill up the blank
according to the fact, if it needs filling; let the same be
signed by your foreman, selected by you, and return it in
open court."
