"The
defendant is indicted here for murder; and as in criminal
offenses the greater offense always includes the lesser
offense, he is indicted for manslaughter also. You will
have to find the defendant guilty of murder, of
manslaughter, or not guilty. There are only three possible
verdicts you can render on the indictment. In order to
enable you to consider the testimony intelligently, it is
my duty to describe to you what murder is, and it is my
duty to tell you what manslaughter is; and if the defendant
is guilty of neither the one nor the other, from all of the
circumstances, the only other possible verdict is that he
is not guilty at all. Murder consists in the killing of a
human being with malice aforethought, either express or
implied. Now, you see, it consists of two things,--the
killing of a human being, and that killing must be done
with malice aforethought. I need not explain to you what
killing is; you know that as well as any lawyer in the
land: Here it is, of course, to take a human life.
'Malice' is used in the description of the offense
as a term of art. It is a set phrase, and its most general
definition, as used here in the description of murder, is
evil intent. Now, to intend to kill a human being
generally speaking, is to intend to do an evil act.
Therefore the law holds that when one human being kills
another, and that fact is known, and there is no more known
in connection with the killing, the law presumes that it is
murder. Because the fact is known of the killing, it is
presumed that it was an intentional killing; and to intend
to kill in pursuance of such intention is malice for to
intend to kill is an evil intent, and therefore it is a
malicious intent, and it is malice. Now, one man may kill
another, intending to kill him. If one man kills another
intending to kill him, but his primal motive is to save his
own life, that is a higher motive than the right to kill
and therefore that is excusable; and if, in saving his own
life, a man thereby kills another, it is not a malicious
killing. That is the reason that killing in self-defense is
excusable, because it is not evil to take human life for
the purpose of saving your own. In the case of murder, you
kill for the purpose of taking a human life; in the case of
killing in self- defense, you kill for the purpose of
saving your own life. Well, there are other killings which
I need not go into. You see the sheriff takes the life of a
prisoner who is condemned to die under the judgment of the
court, and that is not murder. Now, murder is the killing
of a human being with malice aforethought. It is to kill
him for the purpose of taking his life, and, whenever that
is done without the purpose springing from a higher motive
than the mere intent to take human life, that is murder.
Manslaughter is the felonious killing of a human being
without malice. Well, what is that? It is generally
described as killing in sudden heat and passion, but that
is unsatisfactory. Manslaughter is the felonious killing of
a human being in sudden heat and passion. Now, Mr. Foreman
to illustrate: You kill a man after he has angered you, and
you mean to kill him, and do kill him, on that account, and
in that state of mind, you are guilty of murder, because
you have meant to kill him, and you have not killed him to
save your own life, and have killed him; that is
manslaughter.
"Now
let us consider some of the aspects of the case you are
trying in connection with the principle that I have submitted
to you. In the first place, the defendant says that he did
not kill Sam Banister. That is a question of fact for you to
settle. If you are satisfied beyond a reasonable doubt that
he did kill him, why, you go a step further, and inquire
whether it was maliciously done,--whether it was done with an
evil intent. Of course, if you have a reasonable doubt as to
whether he killed him or not, you may stop your investigation
right there. But, if you are satisfied beyond a reasonable
doubt that he killed him, then did he kill him maliciously,
in the sense I have described to you? Now, he insists that he
did not kill him; if he killed him at all, that he did not
kill him maliciously, because he did not die immediately, but
that his death was hastened by the surgery performed by the
Indian doctor. Now, you remember that Sam Banister did not
die for several days. Now, suppose we take it that from that
wound he would not have died for several days, and that other
pistol shots had been fired there, and a ball had gone
through his heart, and he had died, who killed him? Of
course, the last man that shot killed him. You see, he had
been shot through the head, and he would not die for several
days; but while that was a question of time, and another shot
fired by another hand killed him immediately, there, you see,
he was sure to die from either shot, but the last shot caused
the quicker death. Now, suppose that he only received one
shot,--the shot in the head,--and that, in consequence of
improper and bad treatment, his symptoms were aggravated, and
his death hastened, still, if the shooting of the bullet in
his head was the primal cause of his death, that would not
excuse the person who inflicted that wound,--not at all,--and
that is long-established law. No matter if the death is
hastened or aggravated, the death is attributed to the first
cause; but, if the first causes are disassociated and
disconnected, then the cause of his death would be attributed
to the one that did cause his death. Now, here is a case,--a
very old case: 'We all agree that, ordinarily, if a wound
is inflicted, not dangerous in itself, and the death was
evidently occasioned by the grossly erroneous treatment, the
original author will not be accountable. And we agree, also,
that, if the wound was mortal or dangerous, the person who
inflicted it cannot shelter himself under the plea of
erroneous treatment.'
"That
is the law in brief. Now, Mr. Foreman and gentlemen, that
means this: Suppose two men get into a personal encounter
upon the streets, and one inflicts a slight wound upon the
arm of the other, and there is no danger from it; but suppose
some ignorant person put something on it, or made some
foolish treatment, whereby harm resulted,--the law holds that
the person who inflicted the wound is not guilty, but the
person who did the treatment is. But where one man wounds
another, and he dies from the wound, that person is
responsible for his death. Now, that is the rule. Now, I am
not going to indicate to you in the slightest way what my
views are on this subject. You have heard all the testimony.
There is testimony here that a person known as the
'Indian Doctor' stuck an instrument into the head of
the deceased. The legal rule is that if Sam Banister was
suffering with a wound, and that person came there, and, no
matter how ignorant, if that wound was fatal when it was
inflicted, then that person who fired that shot would be
responsible for his death. But if the wound was not at all
dangerous, but was a slight wound, and the Indian doctor had
been sent for, and he had applied something which killed him
the person who inflicted the wound would not be guilty, but
the Indian doctor would be held responsible, probably for
manslaughter, but the man who inflicted such a wound would
not be responsible for his death. Now, there was another
point which was made in the argument, which is this: That if
one man shoots a fire-arm at another, and misses that other,
and strikes a by-stander, he who fires is just as responsible
for striking that by-stander as if he had hurt the one he
fired at. If he shot at a man and intended to kill him, and
the bullet strikes another, and kills that other, the act is
the same quality and degree as if he had struck the man he
shot at and killed him. Now, a great deal has been said in
argument as to the rights of John Banister to shoot Sam
Banister, upon the assumption that Sam was cutting Jess.
Counsel stated the law properly to you, I think, on that
point. Now, a man has no right to kill another to prevent the
commission of a misdemeanor; but any citizen has the right to
shoot another to prevent a felony, or to prevent the escape
of the felon in any other way. Suppose one man shoots
another, kills him, and he is indicted and put upon his
trial, his defense is: 'I shot him to prevent him from
committing a felony.' He must show that the felon was
committing a felony, and that you could not have prevented
him from committing it without shooting him. You must show
that, and, if you can show that, you go free; if not, you do
not go free. Now, taking human life to prevent a grievous
wound is excusable. If you cannot tell whether the man is
going to kill or not, the law throws the same protection
around a man who takes life to prevent a grievous wound, just
as it would protect a man for preventing the burning down a
house by taking human life, and he must show that the wound
would have resulted in a felony; and it is not only excusable
homicide, but justifiable homicide, because he is in the
discharge of a public duty. As I said, if the case is made
out that it is not...
