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the prisoner actually killed the person whom he is charged with having murdered, but that the act was done with such an intent, disposition, or state of mind, as, in law, would make it murder. Is it law that, on proof of the fact of killing, and no more, the criminal intent is to be presumed, so that, as matter of law, the government may demand a conviction, unless the defendant overthrows that presumption by establishing positively an absence of such intent? If we consider that the effect of a presumption of law is to transfer the burden of proof upon the party against whom the presumption is drawn, the importance of the question becomes apparent. And when, in a case of the utmost consequence in point of public example, we see the court of last resort unanimously of opinion that the learned judge who presided at the trial laid down the rule altogether incorrectly, it becomes interesting to kuow whether the law furnishes any warrant for such a vital difference of opinion, or affords- any explanation of the possibility of its existence.

For this purpose, it will be convenient in the first place to trace the doctrine through the various cases where it has been elevated into a definite rule, in order that it may be seen what its various forms have been and how it has been from time to time modified, and then to examine its historical foundation and explanation, and its character in reference to the general principles and analogies of the law.

The first case of which we have any record where a rule of law is found distinctly laid down is given in Kelyng's Reports, as having been decided in the year 1662. In that case, "one John Legg, being indicted for the murder of Mr. Robert Wise, it was upon the evidence agreed that if one Man kill another, and no suddain Quarrel appeareth, this is Murder, as Co. 9 Rep. fol. 67, b., Makelly's Case. And it lyeth upon the Party indicted to prove the suddain Quarrel."1 Kelyng is held to be one of the best authorities,2 and the book was edited by Lord Holt himself, so it would seem safe to accept this report as accurate. The next case was the leading one of Rex v. Oneby, decided in 1727.s That was a case of a special verdict, in which the jury had in substance found that a quarrel had begun in the presence of others between the deceased and the prisoner, in

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which the prisoner was the aggressor, that the fight continued some time, and was then partially allayed, but that the prisoner continued to give evidence by threats and otherwise of a malicious disposition towards the deceased in spite of offers of reconciliation on the part of the latter, until the others departed, when the door of the room in which the prisoner and the deceased were was suddenly flung to, and a clashing of swords was heard, and on the door being opened, the deceased was found slain. The jury found that the prisoner inflicted the mortal wound, and that there was no reconciliation between the prisoner and the deceased from the first falling out and the aggression by the prisoner. Upon this finding by the jury, the court, consisting of Lord Raymond, C. J., Fortescue, Reynolds, and Probyn, JJ., held the prisoner guilty of murder. The counsel for the prisoner objected that after the closing of the door a new-sudden quarrel might have arisen in which the deceased was at fault, for ought that the special verdict showed. "The answer to which is," said the court, "what is said in Legg's case, that 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." Of this case it may be said that it was no very violent presumption that the state of things existing the instant before the door was shut, continued an instant after the door was shut; and as it is pretty plain that the prisoner was revengeful and disposed to fight up to the moment of shutting the door, while the other was inclined to be reconciled, it seems plain the jury would have been justified in drawing a plain inference of fact from the circumstances of the case without referring it to the judges. Indeed, that point does not seem to have troubled them; but they were unable to determine whether the original provocation on the part of the deceased, consisting of exasperating words and conduct, was sufficient to reduce the subsequent act of the prisoner to manslaughter or not, and that was the main point determined by the judges.

In 1794 the rule was laid down in a case in this country in these terms: "Every unlawful killing is presumed murder unless the person accused can show such circumstances as will reduce it to a lower degree of homicide."1 There was a statute of the i Penn v. McFatt, Add. (Penn.) 255.


state existing at that time in which murder perpetrated with mitigating circumstances was called murder in the second degree, and in a case tried two years later, it was said that although in every killing malice was presumed till want of malice was shown, because the law held the person of a man sacred, yet under the statute "an unlawful killing, though it may be presumed murder, will not be presumed murder in the first degree." 1 The degree was to be expressly found. This modification of the rule in cases arising under statutes establishing degrees of murder really marks a departure from the rule as stated in the English cases, since there is the same reason for saying that at common law manslaughter only shall be presumed from the bare fact of killing, inasmuch as manslaughter is only one degree of felonious homicide, just as is murder in any degree less than the first under the statutes. We shall see, however, that the distinction is attempted in many other cases. It will be seen, too, that the use of the word "unlawful " in these cases indicates a material difference in the state of facts from which murder is to be presumed. In Legg's Case,2 the basis of the presumption is stated to be "if one man kill another."

In 1804, in a case in Tennessee, the doctrine was again stated broadly that "homicide is presumed to be murder" unless extenuating circumstances are produced by the defendant;s and ten years later, in an important capital case in the Circuit Court before Davis and Story, JJ., the former charged the jury in these terms: -" Whenever the fact of killing is proved, the law presumes it to be founded in malice, until the contrary appear, and of course all circumstances relied on in justification, excuse, or mitigation, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him."4 Mr. Justice Story did not lay down the law in the same terms, but he remarked in beginning his charge, that so entirely satisfied was he with the charge of his learned brother, and so entirely did he subscribe to his doctrine that it seemed to him nothing further needed to be said.6

1 Penn v. Lewis et al., Add. (Penn.) 279. 'Kelyng, 27.

* State T. Anderson, 2 Tenn. 6.

* U. S. v. Trovers, 2 Wheeler, Cr. Ca. 490.

5 The case being one of the use of a deadly weapon, Judge Story went on to lay down rules for the guidance of the jury in considering that fact, instructing them in substance that it' was a pure question of fact, like any other, whether the prisoner

So in 1817, on a murder trial in Massachusetts, Parker, C. J., told the jury that " 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."1 And in The People v. Tuhi? in 1820, Thompson, C. J., laid down a similar rule in his charge to the jury. And although this and the two preceding cases were at Nisi Prim merely, yet the great reputation of the judges who presided entitle their opinions, even thus expressed, to great weight as evidence of the prevailing law. In The State v. Zellers,9 in 1824, the same doctrine was laid down. "While in two cases in Ohio, in 1831 and 1832, under a statute creating second and third degrees of murder, and leaving the first degree substantially as at common law, it was held that the rule that all homicide is presumed • to be malicious still obtained in that state, but that it should not be held to warrant a conviction beyond murder in the second degree.4 We have already met with a case of this singular nature.6

Thus far, as we have seen, the general doctrine of the cases has been, with one or two unimportant attempts at modification under statutes, that the fact of killing, without more, raises a presumption of law that such killing is murder, and unless this presumption is broken down by positive proof of the absence of malice, judgment must be given for the prosecution. But we come now to a well-considered case in which that doctrine appears to have been for the first time doubted, and in which it was somewhat modified." The charge excepted to was as follows: "In the first place, the law presumed the defendant innocent, and that presumption stood until the fact of killing was clearly made out by proof, and if they entertained a reasonable doubt as to the fact of killing by the defendant they should acquit

used the weapon in a proper manner or not. The conclusive presumption to be drawn from its deliberate use, of a malicious intent to kill, laid down and strangely illustrated by Greenleaf, in 1 Ev. par. 1, chap. 4, § 14, was not hinted at.

1 Com. v. Phillips, pamph. p. 45. So in Selfridge's Trial, pamph. p. 5.

'2 Wheeler, Cr. Ca. 242.

'2 Halstead, 220, 243.

« The State v. Town, Wright (Ohio), 75; The State v. Turner, Wright (Ohio), 20. > Penn v. Lewis et al., Add. (Penn.) 279. « Coffee v. The State, 8 Yerger, 283.

him. But if the fact of killing by the defendant be proved, the law presumed him guilty of murder, unless the proof clearly and satisfactorily showed the offence was one of less magnitude; and therefore if they entertained doubts under the testimony, whether the act amounted to murder or manslaughter, they were bound to find the defendant guilty of murder, as it lay upon the defendant to show clearly and beyond a reasonable doubt, that the offence was not murder, but manslaughter, unless it appeared otherwise in the testimony of the state." This charge was held erroneous. Catron, C. J., said, "If from the whole body of the evidence they [the jury] are convinced of the killing, but are not convinced that it was done with malice, they ought not to find the defendant guilty of murder. . . . Suppose they had returned a special verdict that they found the defendant slew the deceased as laid in the indictment, but of the fact that he slew him with malice they were not convinced, could the court lawfully have pronounced judgment of death upon this finding? I think clearly not. Yet the reverse of this is the plain consequence of the charge." Green, J., delivered a concurring opinion, in which the presumption of malice from the fact of killing was expressly admitted, but it was maintained that in order to overthrow that presumption, the defendant needed only to produce evidence sufficient to raise a doubt in the minds of the jury as to the presence of the malice thus presumed. If no evidence in rebuttal was produced, the presumption would avail to convict the prisoner of murder. In a subsequent case,1 Judge Green took occasion to say that Coffee v. The State supported the doctrine of the presumption of malice from the fact of killing, yet in that case a new trial was granted on the ground that the judge erred in charging that "the killing being proved, the law presumes it was malicious, and that it was incumbent on the defendant to show by proof matter in alleviation or that it was a less offence." It was held that the jury could not find a verdict of murder in the first degree without affirmatively finding malice. So also in the same state in 1835, where the jury found a special verdict that there was a sudden quarrel, and the. prisoner struck the deceased and killed him, but that, although the prisoner had a deadly weapon (a gun) in his hand when he entered into the fight, they did not find whether he used it or not, the court

1 Mitchell v. The State, 5 Yerger, 840.

VOL. viil. 4

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