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declared the prisoner guilty of manslaughter only, as they would not infer malice except from positive proof of the deliberate use of a deadly weapon in effecting the death.1 This case bears a resemblance to that of Rex v. Oneby,2 given above.

In 1837, the rule was, in general terms, again unequivocally laid down by a no less authority than Mr. Chief Justice Tindall: "The question is whether the offence amounts to murder, or whether it is manslaughter of an aggravated description. . . . 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 an inference from the circumstances of the case that the offence is of a mitigated character, and does not amount to the crime of murder."3 In a subsequent case in the same volume of reports,4 Coleridge, J., expressed the rule as follows: "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 to show that there were some mitigating circumstances which alter the presumed character of the act." It will be seen that the rule as thus laid down contains an important modification by the introduction of the word " wilfully." It requires no demonstration to show that "the act of killing" and " the act of wilful killing " are two altogether distinct expressions, and the distinction will be found to be one which it is important to keep in mind. The wider rule as laid down by Tindall, C. J., was adopted soon after in a case in New York,6 and it was said that "all homicide is presumed to be malicious, and therefore murder, until the contrary appear from evidence." In Virginia, however, under a statute in which murder in the first degree is defined to be " wilful, deliberate, and premeditated" killing, and all other murder to be murder in the second degree,at was held that although every homicide iaprimd facie murder, yet to elevate the offence into

1 Short v. The State, 7 Yerger, 510.

2 Lei. Raym. 1485, supra.

3 Rex v. Gi'eenctcre, 8 C. & P. 35. See also Rex v. Burdttt, 4 B. & Aid. 96, per Best, J.; Rtj. v. Kelly, 2 C. & K. 314.

< Reg. v. Kirkham, 8 C. & P. 116.

6 The People v. McLeod, 1 Hill, 377, 436.

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the first degree the burden is cast on the common wealth, while the burden is on the prisoner to reduce it to manslaughter.1

In the leading case of Com. v. York,"1 decided in Massachusetts in 1845, the learned Chief Justice who delivered the opinion of a majority of the court, seems to have disregarded the distinction between the fact of killing and that of wilful or intentional or voluntary killing, and to have given his sanction to the presumption drawn from either of the states of fact indicated by those phrases respectively. In that case, the court charged the jury that " the rule of law is, when the fact of killing is proved to have been committed by the accused and nothing further is shown, the presumption of law is that it is malicious and an act of murder. It follows, therefore, that in such cases the proof of matter of excuse or extenuation lies on the accused; and this may appear either from evidence adduced by the prosecution, or evidence offered by the defendant. ... If the case, on the evidence, should be in equilibrio, the presumption of innocence will turn the scale in favor of the accused. But if the evidence, in the opinion of the jury, does not leave the case equally balanced, then it is to be decided according to its preponderance." The jury found the defendant guilty of murder, and on a motion for a new trial, argued with great ability and elegance by the counsel for the prisoner, the charge was sustained. In one portion of his opinion, Mr. Chief Justice Shaw thus expressed himself: "I have thus endeavored to establish the proposition . . . that when the fact of voluntary homicide is shown, and this not accompanied with any fact of excuse or 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." Elsewhere, however, he says: "It appears manifest that the fact of killing is primd facie evidence of malice, and unless overcome by preponderating proof the other way, it must be held murder." That these are not identical propositions is apparent at a glance; but a reference to the language of the charge which this judgment sustained will show that the latter is the true statement of the doctrine intended to be laid down, and this is the sense given to it by

1 Hill v. Com., 2 Qratt. 594. See, too, iTCauley v. U. S., 1 Morris (Iowa), 486; The Strte y. Dmvd et at., 19 Conn. 888.

* 9 Mete. 93. See Com. v. Knapp, 9 Pick. 496.

Judge Metcalf in the head-note to his report of the case. Wilde, J., gave a very able dissenting opinion, in which he maintained that the doctrine of the charge was a violation of the maxim that in criminal cases the burden of proof is on the prosecution throughout to make out the whole case; that the presumption as laid down in the charge excepted to, was not supported by any binding authority; that if it ever had any place it could only be in case of "secret homicide, and even there purely by force of authority; and that if a presumption existed it was merely one of fact for the jury, and it was only necessary for the prisoner to raise a reasonable doubt on the whole evidence, as well as to the malice as to the fact of killing, to entitle him to an acquittal. The doctrine of the charge, sustained by the majority of the court in this case, was subsequently relied upon by the government in the same court in the celebrated Webster trial. The court, however, in the charge to the jury, again stated the rule in both forms as follows: "The rule is, that the implication of malice arises in every case of intentional homicide; and, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him to prove the homicide, and the circumstances attending it. . . . But where the fact of killing is proved by satisfactory evidence, and there are no circumstances disclosed, tending to show justification or excuse, there is nothing to rebut the natural presumption of malice."1

York's case was cited as authority for the principle that the presumption of malice arises from the mere fact of killing in two cases decided soon afterwards in Mississippi.2 And in a subsequent case, where nothing but the homicide was shown, the court set aside a verdict of manslaughter, on the ground that the fact of killing, without more, raised a legal presumption of malice which the jury were not at liberty to disregard.8 The rule in Com. v. York was adopted also in two cases in California.4 But in a subsequent case, where the rule was

1 Trial of John W. Webster, p. 457, Boston, 1850. See an able review of Webster's case in No. Am. Rev. vol. Ixxii. p. 178.

* McDaniel v. The State, 8 Sm. & M. 417; Green v. The State, 28 Miss. 687, 698. » Hague v. The Slate, 34 Miss. 616.

1 The People v. Stonecifer, 6 Cal. 405; The People v. March, 6 Cal. 543. See, laid down in the exact words used in Com. v. York, it was held that although the fact of killing raised a presumption of malice and threw the burden of proof on the defendant, yet it was not incumbent on him to produce a preponderance of proof in order to rebut it, but only enough to raise a doubt as to the character of the homicide.1 The same rule was in general terms laid down in the trial of the notorious Laura Fair in 1872.a

The presumption that all homicide is murder has been recognized also in Georgia.8 While in North Carolina the doctrine of Com. v. York was held to justify a charge to the effect that the rule that the jury ought to be satisfied beyond a reasonable doubt of the prisoner's guilt, could apply only to the fact of the homicide, for if they found that against the prisoner, matter of excuse or mitigation ought to be satisfactorily shown by him.4 In many of the cases following Com. v. York the circumstances attending the killing were more or less fully brought out on the trial, and the rule in question seems often to have been laid down as a sort of preliminary, fundamental doctrine of the law of homicide, and applicable in all cases. But in 1855, in the case of Com. v. Hawkins,5 as the counsel for the prisoner was proceeding to argue in favor of the dissenting opinion of Wilde, J., and against the opinion of the majority of the court in Com. v. York, Mr. Chief Justice Shaw stopped him, and remarked that the doctrine of York's case was that where the killing is proved to have been committed by the defendant, and nothing further is shown, the law presumes the act malicious and an act of murder; but that where the circumstances were fully shown in evidence the presumption did not obtain ; and he said to the jury that " if, the'homicide being conceded, no excuse or justification is shown, it is either murder or manslaughter; and if the jury, upon all the circumstances, are satisfied, beyond a reasonable doubt, that it was done with

boweTer, The People v. Gibson, 17 Cal. 283, and The People v. Belencia, 21 Cal. 544, where the presumption is held to extend no further than to murder in the second degree.

1 The People v. Arnold, 15 Cal. 476. 2 The People v. Fair, pamph. p. 323.

'Choice v. The State, 31 Geo. 424, 464; Clarke v. The State, 35 Geo. 75; Cohron T. The State, 20 Geo. 760. Yet see Jones v. The State, 25 Geo. 594, 604; Davit v. The State, 10 Geo. 101.

4 The State v. Johnson, 3 Jones (Law), 266. See The State v. Leak, PhilI . |S. C.) 450.

» 1 Gray, 463. See Com. v. ilcKie, 1 Gray, 61, per Bigelow, J.; Com. v. Fox, 7 Gray, 585.

malice, they will return a verdict of murder; otherwise they will find the defendant guilty of manslaughter."1

This qualification of the rule, however, has not been uniformly regarded even in those cases expressly based on that of Com. v. York. Thus in a case in Maine, in 1857, where all the circumstances attending the homicide were given in evidence, the court charged the jury that " in all cases where the unlawful killing is proved, and there is nothing in the circumstances of the case as proved to explain, qualify; or palliate the act, the law presumes it to have been done maliciously; and if the accused would reduce the crime below the degree of murder, the burden is upon him to rebut the inference of malice, which the law raises from the act of killing, by evidence in defence." 2 For this rule the court cited Com. v. York and Com. v. Webster. So in Illinois, in a similar state of the evidence, the charge was that on proof that the prisoner inflicted the mortal wound, the law implied malice, and it devolved upon him to show justification or mitigation, to reduce the act from murder or to obtain an acquittal;3 while in Minnesota the narrower rule was laid down, that from deliberate and intentional killing the law presumes the act to be murder.4

The distinction attempted in Pennsylvania in an early case 6 under the statute creating degrees of murder, has been substantially continued in later cases. The doctrine as it is now generally stated in that State is, that all homicide is presumed to be unlawful, and the burden is in all cases on the defendant to prove it not so.6 The application of this rule, however; has not been altogether uniform. Thus in a case in 1860, it was said that when a homicide is committed, and the prisoner is proved to have committed it, the crime will amount to voluntary manslaughter, " for every killing of a human being is presumed to be unlawful." 7 But in a later case the presumption was somewhat intensified,

1 The matter seems to have been rendered practically obsolete as to Massachusetts by the Statute of 1858, which provides that the degree of murder shall be found by the jury. Mass. Gen. St. c. 160, § 3.

» The State v. Knight, 43 Me. 11, 137.

» Murphy v. The People, 37 111. 447, 457.

« The State v. Shippey, 10 Minn. 223, 228. Yet see The State v. Laliyer, 4 Minn. 868. See also Smith v. Com., 1 Duvall (Ky.), 224; The State v. Conally, 3 Oregon, 69; The State v. Bertrand, 3 Oregon, 61; The State v. Newton, 4 Nev. 410.

» Com. v. Lewis et ah, Add. 279.

« Dietz v. Langfia, 63 Penn. St. 234; Kilpatrich v. Com., 31 Penn. St. 198, 216. 'Cathcart v. Com., 37 Penn. St. 108.

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