strict rule of law, yet, in fairness to the prisoner, those who conduct the prosecution in such cases, usually prove the whole of the facts and

or not this is the true meaning intended to be expressed by Lord Coke, I think it is made clear, by his definition of implied malice, on the next page. "First in respect of the man ner of the deed. As, if one killeth another without any provocation of the part of him that is slain, the law implieth malice; whereof you may read in Mackalley's case," 9 Co. 67 b. Mackalley's case was heard before all the judges, on a special verdict, on an indictment of several persons for the murder of a civil officer. Many points were considered and adjudged, and it is difficult, without making too large an extract, to state the exact point decided on this subject. But I understand it to be stated by Lork Coke, as decided by all the the judges and barons, that "if one kills another without provocation, and without any malice prepense which can be proved, the law adjudges it murder, and implies malice; for by the law of God every one ought to be in love and charity with all men; and therefore, when he kills one without provocation, the law implies malice, and he may be indicted generally, that he killed of malice prepense; for malice implied by law, given in evidence, is sufficient to maintain the general indictment." This case, decided in the reign of James I., on great consideration, by all the judges, appears to decide the point, that if the fact of killing is proved, and on this proof of the homicide no excuse or extenuation appears, no other proof of malice need be given; the malice is proved by the act, and a conviction of murder must necessarily follow. It is an act done malo animo, and without excuse or justification which can be proved.

In the above statement, the case of a killing without provocation is put. But I think it will manifestly appear, from a great variety of cases, that this is equivalent to saying, that it is where no provocation appeareth; where none is proved; on the well known rule, that facts alleged, but not proved, are considered, for all judicial purposes, as not existing. This is established by Legg's case, Kelyng, 27. One John Legg was indicted for the murder of Robert Wise. "It was upon the evidence agreed, that if one kill another, and no sudden quarrel appeareth, this is murder, as in Mackalley's case, 9 Co. 67 b. And it lieth on the

party indicted to prove the sudden quarrel.' This was affirmed in the leading case of The King v. Oneby, 2 Ld. Raym. 1485, and 2 Stra. 766. It was argued on a special verdict, before all the judges, in the year 1727, and their unanimous opinion was delivered by Lord Raymond, C. J. The case is too long to cite, but I will state several points decided, bearing upon the present question. On the subject of implied malice, it was held, that "killing a man, without a provocation, is murder; as if A. meets B. in the street and immediately runs him through with a sword, or knocks out his brains with a hammer or bottle." One objection to the verdict was, that the homicide was upon a sudden quarrel, and so but manslaughter; whereupon the court stated the rule thus: "In answer to this objection, I must first take notice, that where a man is killed, the law will not presume that it was upon a sudden quarrel, unless it is proved to be; and therefore in Legg's case, it was agreed upon evidence, that if A. kills B., and no sudden quarrel appears, it is murder; for it lies upon the party indicted to prove the sudden quarrel."

There is another view of the subject, which appears to me to lead strongly to the same conclusion. I allude to the cases of special verdicts and judgments thereon. It is a settled rule, and was so laid down in Oneby's case, to which all the judges agreed, that the court are judges of the malice, and not the jury; and that the court are also judges of the facts found by the jury, whether, if the quarrel was sudden, there was time for passion to cool, or whether it was deliberate or not. It is an equally well settled rule, that if, upon all the facts found and returned by the jury, in a special verdict, the accused may be not guilty, the court will take nothing by intendment, and are bound to pronounce him not guilty.

If the fact of killing did not necessarily imply malice, and exclude the inference of heat of blood on provocation or in mutual combat, then it would follow that, after the fact of killing is found, if the jury do not negative such fact of provocation or mutual combat, it would still be left equivocal, whether the homicide was upon malice or heat of blood, and the court

circumstances, so far as they have come to their knowledge, as well as those which make for the prisoner, as those which make against him.

could not render a judgment as for murder. But it is believed, that in Mawgridge's case, Kelyng, 119, and in Oneby's, and many other instances of special verdicts, the jury do not in terms find that the homicide was of malice, nor do they return, negatively, that there was no provocation or sudden quarrel. They return the facts; of course, the facts proved, and no others. If, upon these facts, the court conclude that there was a homicide with malice, judgment is entered for murder; because, whether malicious or not is matter of law. So if, upon the verdict of the jury, no fact of provocation or sudden quarrel apppears, it is because no such fact was proved to their satisfaction. The reason why the court are bound to render judgment for murder, when the verdict neither finds nor negatives the fact of provocation or sudden quarrel, is, that in the absence of proof of these facts, the law presumes malice, from the act of killing, unless the matter of excuse or extenuation affirmatively appears; and unless it does so appear upon the proof in support of the provocation, it must be proved by the accused; otherwise it will not appear at all. It follows, therefore, that in such case, if the accused does not or cannot offer proof of such fact, satisfactory to the jury, his defence on that ground must fail. This is clearly stated by the court in Oneby's case, in 2 Ld. Raym. 1494, where the court say, "although there are many special verdicts in indictments for murder, there never was one where the jury find, in express terms, that the act was done with malice, or was not done with malice prepense, or that it was done upon a sudden quarrel and in transport of passion, or that the passion was cooled, or not cooled, or that the act was deliberate, or not deliberate; but the collection of those things from the facts found is left to the judgment of the court." Hollowaye's case, Palm. 545. Cro. Car. 131. W. Jon. 198. So in another passage in the same opinion, being a comment upon Legg's case, before cited, it is said, "if A. kills B., and no sudden quarrel appears, it is murder: for it lies on the party indicted to prove the sudden quarrel; and therefore the jury not having found any such thing for the prisoner's benefit, it is to be took there was no such."

From this view of the immemorial usage of the courts, upon special verdicts, it appears manifest that the fact of killing is prima facie evidence of malice, and unless overcome by preponderating proof the other way, it must be held murder, and judgment go accordingly.

This view of the law of homicide, showing how a judgment must be rendered upon a special verdict which finds, in terms, neither the fact of malice nor the fact of provocation or sudden quarrel, (including, of course, the nature and incidents of such provocation or quarrel,) in extenuating the homicide, leads to the consideration of another part of the direction to the jury, excepted to by this motion. This direction was, that if, in their opinion, the proof preponderated against the conclusion that there was mutual combat, although they might entertain some doubts, then the extenuation was not proved. The argument against this proposition is this, that as it is a maxim of the crimimal law, in favor of life, of innocence, and of immunity from punishment, that the guilt of the accused must be proved to the full satisfaction of a jury, and if they have reasonable doubts on the subject, the defendant ought to be acquitted; then if the proof of the fact of extenuation is such as to raise a reasonable doubt, whether there was not such sudden quarrel as to extenuate the homicide, the jury ought to find a verdict for the lesser offence; otherwise the defendant might be convicted of the higher offence, whilst in fact the jury would have doubts whether he was guilty of it. This is putting the objection strongly, and it is certainly entitled to a respectful consideration. But we think it is not well founded. The maxim is certainly a humane and a sound one, and constantly practised on, that guilt must be proved beyond reasonable doubt. In the language of that humane judge, Lord Hale, tutius semper est errare in acquietando quam in puniendo; ex parte misericordiæ, quam ex parte justitia. But we think the argument drawn from it, on this occasion, is not valid. It is the guilt of the accused, which is to be proved to the satisfaction of the jury, and beyond reasonable doubt. Now if we are right in the main point, which we have been endeavoring to establish, his guilt is proved

The instances of implied malice I have here given, are perhaps obvious enough, and create little difficulty; but there are others which

by proof of the act of voluntarily killing another, without excuse or justification apparent upon the proof offered in support of the prosecution. Unless this fact is proved beyond reasonable doubt, unquestionably the defendent is entitled to an acquittal. But when this is proved beyond reasonable doubt, the guilt of malicious homicide is proved beyond reasonable doubt, and the humane maxim of law is not violated. But it is in favor of life and innocence, that this maxim of criminal law, in the application of evidence, has been adopted; and therefore it was, that in the other branch of the instruction, the court directed the jury to find for the prisoner, if, in their opinion, the proof preponderated in favor of the fact of sudden and mutual combat. Proof beyond reasonable doubt is necessary to establish a fact against the accused; but preponderating proof-proof sufficient to satisfy a jury of the fact-is sufficient to establish a fact in his favor. But it must go to this extent; otherwise there is nothing on which the jury can found their belief, and warrant them in considering the fact proved. It is not sufficient, therefore, to raise a doubt, even though it be a reasonable doubt of the fact of extenuation; simply because it is no proof of the fact. And here, again, we think the point may be illustrated by cansidering how the case would stand on a special verdict. Supposing the jury were to find, in the usual form, that the accused made the felonious assult on the deceased with a dangerous and deadly weapon, called a dirk knife, and therewith gave him one mortal wound, of which he instantly died, in manner and form, &c.; and should also return, that there was some evidence tending to prove that said wound was given in heat of blood, during a sudden and mutual combat; but that the proof of such fact did not preponderate over the proof against it, though it raised some doubt in their minds. It seems to us that it must be then considered that the matter of extenuation was not proved; and then, as in very many precedents, the judgment of the court must be against the prisoner, for the higher offence. And yet that would be precisely similar to the present case, with this difference, that, in this case, the jury were directed to draw the inference as they should find the fact upon the proof; whereas, in the case supposed, the inference would be drawn by the court, on the same state of the case on the record.

I am aware that Lord Holt, in his elaborate opinion, in Mawgridge's case, (Kelyng, 119,) in some introductory remarks, states the ancient law in regard to murder and homicide, in the time of the Danes, and afterwards of the Normans, in which certain arbitrary presumptions were, by express enactment, to be raised. Homicide was not then considered murder, unless it was secret. Among other extraordinary provisions, it is stated that, before the statute of Marlbridge, as the law stood or was interpreted, if a man was found to be slain secretly, it was always intended, 1st, that he was a Frenchman; 2d, that he was killed by an Englishman; 3d, that the killing was murder; and 4th, that if any one was apprehended to be the murderer, he was to be tried by fire and water, (i. e. by ordeal,) though he killed him by misfortune; which was extended beyond reason and justice, in favor of the Normans. These are undoubtedly cases of mere arbitrary presumptions, for the security of despotic power, rather than the dictates of reason and justice. But they are mentioned rather as curious matters of remote antiquity, explaining the origin of the word "murder," than as the basis or origin of any modern rule of law. And Lord Holt, in the same opinion, adds: "It appears, that since the time of Bracton," (who had described murder to be distinguished from manslaughter only by being done secretly, clanculo,) "the notion of murder is much altered, and comprehends all homicides, whether privately or publicly committed, if done by malice prepensed." In the same elaborate opinion, Lord Holt states the law, it is believed, as it is now understood and practised. "Malice," he says, "is a design formed of doing mischief to another; cum quis data opera male agit, he that designs and useth the means to do ill is malicious." "He that doth a cruel act voluntarily doth it of malice prepensed. If one doth such a mischief on a sudden, that is malice prepensed; for, saith my Lord Coke, if it be voluntarily, the law will imply malice. Therefore, when a man shall, without any

are well recognized in law, and guide the decisions of judges, which cannot rightly be treated of, without discussing the whole subject of

provocation, stab another with a dagger, or knock out his brains with a bottle, this is express malice; for he designedly and purposely did him the mischief. This is such an act that is malicious in the nature of the act itself, if found by a jury, though it be sudden, and the words ex malitia præcogitata are not in the verdict." Kelyng, 127.

And in the opinion of the judges, in Oneby's case, in 1727, 2 Ld. Raym. 1487, they say: "without entering into a nice examination of the several definitions or descriptions of murder, as they are found in the old law books of Bracton, Britton and Fleta, where the wickedness of the act is aggravated by the circumstances of secrecy or treachery; murder has been long since settled to be the voluntary killing a person of malice prepense, and that whether it was done secretly or publicly."

An instance of arbitrary presumption, created by positive law, by an English statute, designed to prevent the growing evil of infanticide, in certain cases enacted that, if a woman should conceal the birth of her bastard child, and afterwards the child should be found dead, it should be presumed that the child was born alive, and that she killed it. This statute was afterwards repealed.

But if we are right in tracing the principle and the true ground of the rule, which seems to be so well established by authority, it is not like an artificial presumption, established by positive law, on considerations of policy; nor like an arbitrary edict of an invading sovereign, jealous of his newly conquered and still exasperated subjects; but an instauce of an infe rence, drawn by correct reasoning, from facts proved, which must stand until controlled or rebutted by some other fact proved. That such is the principle and foundation of this rule, I have offered some standard authorities to prove; and it remains only to show how uniformly this rule has been repeated, and enforced and acted upon, both by judges, and text writers of established authority.

I have already cited the leading passage in Foster's Crown Law. But the principle is recognized, rather than formally stated, in various passages of that work. "I have already premised, that whoever would shelter himself under the plea of provocation must prove his case to the satisfaction of his jury. The presumption of law is against him, till that presumption is repelled by contrary evidence." p. 290. And again, in p. 313: "for all voluntary felonious homicide without a provocation is undoubtedly murder.”

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Lord Hale says, "when one voluntarily kills another without any provocation, it is murder; for the law presumes it to be malicious, and that he is hostis humani generis." 1 Hale P. C. 455. In 1 Hawk. c. 31, § 32, it is laid down, that, "wherever it appears that a man killed another, it shall be intended, prima facie, that he did it maliciously, unless he can make out the contrary, by showing that he did it on a sudden provocation, &c." In 4 Bl. Com. 201, it is said, we may take it for a general rule, that all homicide is malicious, and of course amounts to murder, unless where justified, excused, or alleviated into manslaughter; and all these circumstances of justification, excuse or alleviation, it is incumbent upon the prisoner to make out to the satisfaction of the court and jury; the latter of whom are to decide whether the circumstances alleged are proved to have actually existed: the former, how far they extend to take away or mitigate guilt." In 1 East P. C. 224, 340, it is laid down, that "the fact of killing being first proved, the law presumes it to have been founded in malice, unless the contrary appear; and all the circumstances of accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him. Upon the truth of these facts, so alleged, the jury alone are to decide; but whether, taking them to be true, the homicide is justified, excused or alleviated, is matter of law, upon which the jury ought to be guided by the direction of the court." The law is stated in nearly the same terms, in 1 Russell on Crimes, (1st ed.) 614-616. It is there said, that "it is encumbent upon the prisoner to make out such circumstances" of alleviation, &c. The following books are to the same effect. Bac. Ab. Murder, C. 2. 2 M'Nally, 546. Stark. Ev. 948. Archb. Crim. Pl. (1st ed.) 212, 213. 3 Chit. Crim. Law, (4th Amer. ed.) 727. Roscoe Crim. Ev. (2d ed.) 20, 653. 1 Gabbett Crim. Law, 455.

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homicide, as well as the cases in which it is justifiable or excusable, as those in which it amounts to murder or manslaughter; for homicide

In The Queen v. Kirkham, (8 Car. & P. 116, 117,) Coleridge, J. says, as soon as it is ascertained that one individual, in the possession of his reason, has wilfully taken away the life of another, the law's first presumption is, that the party is guilty of murder." "The law requires from him and will allow him to show that there were some mitigating circumstances, which alter the presumed character of the act.”

I will cite only one other recent English case, to show how uniformly this rule of law is applied there, in like cases. In The King v. Greenacre, (8 Car. & P. 35,) the question was whether the offence was murder or manslaughter. The homicide was committed in secret. Lord Chief Justice Tindal told the jury thus: "There are several principles of law relating to this subject, one of which is perfectly clear, viz. that, where it appears that one person's death has been occasioned by the hand of another, it behoves that other to show from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated charactor, and does not amount to the crime of murder.

This rule has been adopted and sanctioned, almost in the same terms, in this Commonwealth, and in several of the States. In Commonwealth v. Phillips, in this county, in the year 1817, Parker, C. J. thus laid down the law: "When a homicide is committed, the law implies malice. It is incumbent on the person who committed it to prove the absence of malice, by evidence produced in his defence; or the proof may arise out of the evidence on the part of the government." Pamphlet report of Phillip's trial, p. 45.

So in New York; The People v. McLeod, (1 Hill, 436;) and in New Jersey. The State v. Zellers, (2 Halst. 243.) So in Pennsylvania, by the common law. Pennsylvania v. Honeyman, Bell McFall and Lewis, Addison, 148, 161, 257, 282. Since the statute of that state, passed in 1794, the burden of proof is on the government; and unless the circumstances of malice are proved, it is murder only of the second degree. 1 Whart. Dig. (4th ed.) 327. I have thus endeavored to establish the proposition, and it seems to be most abundantly proved, that when the fact of voluntary homicide is shown, and this not accompanied with any fact or excuse of extenuation, malice is inferred from the act; that this is a fact which may be controlled by proof; but the proof of it lies on the defendant; and if not so proved, it cannot be taken into judicial consideration. This is expressed in a variety of forms, a variety so great as to preclude the supposition that it depends upon a form of words or mode of expression transmitted by one writer or jurist to another, but recognized, for a long series of years, as a rule of judicial decision founded on the principles of evidence and confirmed by a long course of practice.

In Legg's case, the words are, "it lieth upon the party indicted to prove the sudden quarrel." So in Oneby's case, "where a man is killed, the law will not presume that it was upon a sudden quarrel, unless it is proved so to be." Foster says, the defendant "must prove his case to the satisfaction of his jury. The presumption of law is against him, till it is repelled by contrary evidence." Blackstone says, "it is incumbent on the prisoner to make out," &c. East says, the circumstances are to be satisfactorily proved by the prisoner." Starkie says, the defendant "must prove his case." Coleridge, J. says, "the law requires from him to show," &c. Tindal, C. J. says, "it behoves him to show," &c.

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These various expressions we consider as meaning substantially the same thing. Now, whether it be regarded as a presumption, to be rebutted by proof, or a change of the burden of proof, or an inference of fact, to be controlled or disproved by evidence, as applied to this subject, it makes little difference. It is evidence of malicious homicide, which must have its effect, until the malice is disproved by satisfactory proof of circumstances of extenuation. It is hardly necessary to cite authorities to the very familiar principle, that when a fact is to be proved, it must be by evidence sufficient to lead a jury to believe it to be true; and that, for this purpose, it must outweigh or overbalance the evidence which it is brought to control. I will simply allude to two recent cases of great interest, in this court. In Commonwealth v. J. F. Knapp, 9 Pick. 496, the prisoner was charged with aiding and abetting in the murder