"The Charge.
"The Court: The indictment in this case charges the defendant with the murder of Melinda Wilson, in this county, on the 6th day of June last To support this indictment the state must prove the facts sufficient for that purpose by evidence beyond a reasonable doubt. A reasonable doubt would exist when the judgment of the jury, after a careful review of all the evidence, finds itself unconvinced of the guilt of the prisoner. If such a doubt exists, you are bound to give the benefit of it to the prisoner, but you are not bound to give him the benefit of anything but such a reasonable doubt. Under this indictment there may be a conviction of any grade of criminal homicide established by the evidence. If the evidence does not establish the guilt of a higher degree beyond a reasonable doubt the defendant is entitled to the benefit of a reasonable doubt in that respect, and he should only be convicted of that degree of crime which the evidence establishes beyond a reasonable doubt. To make out the case the state must have established by evidence beyond a reasonable doubt, first, the death of Melinda Wilson at or about the 6th day of June. If the evidence is believed,— and there is no contradiction of it,— she was alive in the morning of that day. About one o'clock she was found by her son, lying, with her head covered with blood, in what he describes as a pool of blood, she being still living. Shortly after she was seen by other people, and Policeman Campbell stood by the door when she died. She was found dead by Dr. Wright and by Dr. Douglas, the coroner. If believed,— and, as I say, there is no contradiction of this evidence at all,— you may find her death proved beyond a reasonable doubt. If you believe the evidence of the physician who made the autopsy, there were wounds inflicted upon her head, fracturing her skull, producing an effusion of blood upon the brain, and causing death. If you believe that medical evidence,— and there is no contradiction,— her death was caused by wounds inflicted upon her head. The state must further prove by evidence beyond a reasonable doubt that these wounds were occasioned, and therefore the death caused, by some acts of the defendant, in order to sustain this charge against him. On that subject you have the evidence of Mrs Stoutenburgh in respect to a quarrel between
the two in the course of chat morning, the quarrel occurring on the stoop of the house. As I have the evidence, she declares that the defendant made some threat, to which the deceased replied that she was not afraid; she would see people as she chose. He said that he knew she was not afraid; she was not afraid of God, and he intended to send her to hell. She said she was not afraid, and, 'if you do send me to hell, you will have to go'; and he said, 'No; I am afraid of God, and I mean to save my soul.' If you believe that evidence, it is important with reference to the condition of the defendant's mind, and his attitude appearing towards the deceased. The son of the deceased went to the house during the course of the morning, and found the defendant in the kitchen. He had been there before, but I am directing your attention only to the occurrence then. You must consider all the other evidence, however. I do not mean to exclude from your consideration, but I am only calling your attention to the main points of the evidence. He asked a question about the deceased, and in his direct examination he said the reply of the defendant was that he did not know; that he (the boy) ought to know. In cross-examination he was asked the same question, and he said the defendant replied that she had gone out Then the cross-examiner said to him: 'When you testified awhile ago, you said, "I asked him where was mamma. He said he didn't know; I ought to know." Now, which is the truth of those two? Answer. He told me I ought to know. Question. Well, now, did he say to you, when you came in there and asked him, "where is mamma?" did he say, "I don't know; you ought to know"? Answer. Yes, sir. Question. That is the truth, is it? How did you come to say just now he told you she had gone out? Answer. I made a mistake, I guess, because anybody makes mistakes,' etc. You will observe that when he was asked about the mother, whatever response he made, he did not disclose the fact— which was a fact — that the mother was lying in the next room, then, in a helpless condition from seme injuries inflicted about her head. The boy went to the door, and, looking through a crack, discovered his mother's body upon the ground. He broke down the door, saw her condition, and ran to the police station. Mrs. Stoutenburgh was told by the boy, on the way, what had occurred. She went upstairs, and she saw, as she said, the defendant go to the door and try to pull it shut. She explained the difficulty of shutting it by the fact that the boy, in breaking the door down, had affected the lock and bolt in some way so that it would not go to. That the defendant saw her, and told her to go back,— 'Go back; what was she doing there,'— and then told her the deceased was sleeping, he standing at the door where she was lying on the floor; she was asleep, and that he did not want to wake her up. You then have the evidence of the policemen. After being told of this occurrence, Morrison and Campbell went towards the house, and on the way were attracted to this man, the defendant, going into the West End Hotel. They followed him there. He was in the act of taking a drink, or had taken it, when Morrison told him that he wanted him, and put him under arrest. At that time he told Morrison he had killed her, and he was glad of it, and would hang for it. Immediately after that, in connection with the same topic, he said, 'She would do more for him than for me,' though he did not explain what he meant by that. He went to the house with Morrison, and at the house took Morrison to the door of this room, threw it open, and said, 'There she is.' He told Morrison that he had done it with an ax. He went with Morrison into the kitchen, and said he did not know where the ax was, but, looking, found it behind the stove, and came and gave it to Morrison; and at police headquarters, to which he was taken, he repeatedly said that he had killed her. No contest by the counsel who have so zealously and ably defended the prisoner under the assignment of the court is made over these facts, and, if you believe this evidence, you may find proved that the death was occasioned by the defendant's act, beyond a reasonable doubt. Upon facts of this sort, if found by you, as I have stated, the law presumes the killing to be a criminal homicide.
"Criminal homicides in New Jersey are divided into two classes,— murder and manslaughter. The presumption in the case of criminal homicide is that it is murder. To reduce the crime to the grade of manslaughter, the evidence must show a lack of what the law calls 'malice.' Malice, as the law uses the term in defining these crimes, consists in the intent to do bodily harm. Intent to do bodily harm is malice. Manslaughter is a criminal homicide, but manslaughter is without intent to do bodily harm. Murder is a criminal homicide with malice; that is, with an intent to do bodily harm. Of course, you know intent is an act of the mind, which cannot be seen, but can only be inferred from the conduct and acts of the party. In this case, if you find that the death of the deceased ensued upon blows struck with an ax upon the head with vigor enough to fracture the skull in the way the doctors have described, you may infer an intent to do bodily harm, and therefore malice. That the criminal homicide is murder has not been rebutted in this case, and no contention is made that any verdict of guilty of manslaughter would be proper. So you may find that, if the defendant did the act he is guilty of murder, the presumption of the law, which remains uncontested, the evidence indicating no lack of malice, unless the evidence furnishes some defense.
"it is contended in defendant's behalf that at the time he was intoxicated; that he had been drinking on the Tuesday previous to the Saturday when this thing occurred, and had
continued drinking during the intermediate time. It is my duty to tell you, gentlemen, that intoxication willfully entered upon furnishes no excuse for crime, and no defense against the consequences which the law denounces against crime. A criminal homicide, as I have stated, is presumed to be murder. The presumption is that it is murder in the second degree. To constitute murder in the first degree, and to justify a verdict of murder in the first degree, the state must make out by proof beyond a reasonable doubt, such as I have described to you, those ingredients which distinguish murder in the first degree from murder in the second degree; and that requires me to instruct, and you to understand, the difference between those two degrees. It is unnecessary to define all the cases which, under our statute, constitute murder in the first degree. So far as this case is concerned, it is quite sufficient to describe one class of them. That class consists of every killing of a human being, willfully, deliberately, and with premeditation. That has been defined by our courts in cases like that before us as including such killings as are those with an intent to take the life of the deceased; not a mere intent to do bodily harm, but an intent to take the life of the deceased; an intent carried out willfully, with deliberation and with premeditation. As I have already...
