Edmonds, J.,
in charging the jury, said, that the first question for them to determine was, whether the prisoner had fired the pistol. This was sworn to positively by two witnesses: Shea, the father, and Clara King, a girl of the town, who was passing at the moment. The testimony of the father was not to be relied upon. His character, his intoxication,'his strong feelings and the falsehoods which had been proved against him, forbid the idea of giving much credit to .him. The testimony of the girl, however, had not been impeached, but had been corróbo-[164]*164rated by several independent circumstances in the case, and particularly by the facts that all the witnesses unite in saying, the firing was from the very spot, where all agree that the prisoner was at the time; that the pistol when found was bloody, and that he alone of all the party was bleeding; that he had an inducement to do it, whether from motives of revenge or in self-defence; that the direction of both shots was from where Austin was, back upon those who had beat him; that the pistol was found at a spot which he had just passed; that he who fired the pistol wore a white hat, and that the prisoner alone had such a hat that evening. From these considerations, the jury must determine whether it was not the prisoner who fired the pistol, and in determining it, they must bear in mind that the evidence to satisfy them must exclude, to a moral certainty, every hypothesis but that of guilt, that the conviction of guilt must flow naturally from the facts proved and not by a forced or strained construction, and be consistent with all the facts, for 'if any one fact is utterly inconsistent with that conclusion it can not follow; and that, in case of doubt, it is safest to acquit, for the protection of innocence has an equal claim upon the administration of justice with the punishment of guilt.
If upon this question, the conclusion of the jury should be adverse to the prisoner, the next inquiry would be into the nature and quality of the act which should be thus established against him, and whether the homicide was justifiable or excusable, or was murder or manslaughter.
The homicide would be justifiable under our law, only in case it was committed by the prisoner when there was reasonable grounds to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplished. But of this the jury were to be judges, not the prisoner, and it was for them to say from all the circumstances proved before them, whether there was reasonable ground for such apprehension, and whether there was, at the moment the fatal shot was fired, imminent danger that some great personal injury would have been done to the prisoner.
This would depend mainly upon the facts when and from [165]*165what position the pistol was fired? If fired after the prisoner has escaped from the party in the house and after he had reached the sidewalk, it may have flowed from a spirit of revenge for the injuries under which he was smarting.
But if he fired before he had extricated himself from the party, who had thus forcibly drawn him into the building, and had there displayed towards him such unjustifiable violence, he might at the moment have very reasonably apprehended farther personal injury and might be justifiable in using the means at hand to protect himself from it.
There was, however, another view of the case in which the prisoner might be justified, even if he had fired the pistol after he had left the basement. One of the witnesses had testified that the prisoner had been followed from the basement by one of the party inside, and had been struck with a chair while ascending the steps on his retreat. If this were so, then the apprehension of personal injury would not cease with the prisoner’s leaving the basement, and the imminent danger in which he had been placed might have continued up to the moment of firing the pistol, and thus he be justified in firing it.
If the jury were not satisfied that it was justifiable, they were next to inquire whether it was excusable. It is so under our law when committed by accident or misfortune, in the heat of a passion upon a sudden and sufficient provocation, or upon a sudden combat without any dangerous weapon being used. The nature of the weapon used, and the manner in which it was used, must be mainly instrumental in determining this question.* Thus if, in the heat of passion, upon sufficient provocation or upon a sudden combat, a man had used his walking stick, or a butcher in his stall had used his knife that lay near him, or a cooper used the adze with which he was then at work, and had given a blow which was fatal, but without any intention to take life, the homicide might be excusable. But that could hardly be where the weapon used was of a dangerous character, constructed solely for the purpose of taking life and which could scarcely be fired off without hazarding it. If in the melee the r risoner had used the pistol as he might any other [166]*166hard substance found at the instant in his pocket, by striking a blow with it calculated rather to w*und than- to kill, but had killed, it might be attributed to accident or misfortune. But that could not with propriety be predicated of the act of intentionally firing the pistol and unless such firing was justifiable, it was either murder or manslaughter.
Whether the act was murder or manslaughter under our statute, depended entirely upon the existence of an intention to kill either some particular person, or generally some one of a number of persons against whom in a mass the fatal act is perpetrated. There is only one homicide known to our law which becomes murder in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. Except in that one case, no homicide is murder without an intention to kill and with such an intention, every homicide, with the single exception already mentioned, unless it be justifiable, is murder, whether the intention is formed on the instant or has long been entertained.
Such intention may be inferred from the act itself, for it may be one which of itself plainly indicates a heart regardless of social duty and fatally bent on mischief, and men are to be presumed to intend the natural and inevitable consequences of the acts which they willfully perform, but unless there be such an intention, the act can- not be more than manslaughter.
It would readily be perceived that this view of the statute had entirely superseded many of the rules of the law of homicide as it existed in England and which had been quoted on this occasion, and among them the whole doctrine of implied malice and the power of recent provocation to reduce the act from murder to manslaughter.
The English law provided very slight punishment for manslaughter, sometimes as low as the fine of a shilling and never beyond a year’s imprisonment. To remove from the operation of so inadequate a penalty acts of peculiar barbarity, such as that of the schoolmaster who whipped a scholar until it died, and that of the master chimney-swreeper whose boy stuck fast in the chimney and was killed by the violent manner in which [167]*167he was pulled from the place, the English courts adopted the principle of implying malice, where there was. in fact no p.re? meditated design to take life.
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Edmonds, J.,
in charging the jury, said, that the first question for them to determine was, whether the prisoner had fired the pistol. This was sworn to positively by two witnesses: Shea, the father, and Clara King, a girl of the town, who was passing at the moment. The testimony of the father was not to be relied upon. His character, his intoxication,'his strong feelings and the falsehoods which had been proved against him, forbid the idea of giving much credit to .him. The testimony of the girl, however, had not been impeached, but had been corróbo-[164]*164rated by several independent circumstances in the case, and particularly by the facts that all the witnesses unite in saying, the firing was from the very spot, where all agree that the prisoner was at the time; that the pistol when found was bloody, and that he alone of all the party was bleeding; that he had an inducement to do it, whether from motives of revenge or in self-defence; that the direction of both shots was from where Austin was, back upon those who had beat him; that the pistol was found at a spot which he had just passed; that he who fired the pistol wore a white hat, and that the prisoner alone had such a hat that evening. From these considerations, the jury must determine whether it was not the prisoner who fired the pistol, and in determining it, they must bear in mind that the evidence to satisfy them must exclude, to a moral certainty, every hypothesis but that of guilt, that the conviction of guilt must flow naturally from the facts proved and not by a forced or strained construction, and be consistent with all the facts, for 'if any one fact is utterly inconsistent with that conclusion it can not follow; and that, in case of doubt, it is safest to acquit, for the protection of innocence has an equal claim upon the administration of justice with the punishment of guilt.
If upon this question, the conclusion of the jury should be adverse to the prisoner, the next inquiry would be into the nature and quality of the act which should be thus established against him, and whether the homicide was justifiable or excusable, or was murder or manslaughter.
The homicide would be justifiable under our law, only in case it was committed by the prisoner when there was reasonable grounds to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplished. But of this the jury were to be judges, not the prisoner, and it was for them to say from all the circumstances proved before them, whether there was reasonable ground for such apprehension, and whether there was, at the moment the fatal shot was fired, imminent danger that some great personal injury would have been done to the prisoner.
This would depend mainly upon the facts when and from [165]*165what position the pistol was fired? If fired after the prisoner has escaped from the party in the house and after he had reached the sidewalk, it may have flowed from a spirit of revenge for the injuries under which he was smarting.
But if he fired before he had extricated himself from the party, who had thus forcibly drawn him into the building, and had there displayed towards him such unjustifiable violence, he might at the moment have very reasonably apprehended farther personal injury and might be justifiable in using the means at hand to protect himself from it.
There was, however, another view of the case in which the prisoner might be justified, even if he had fired the pistol after he had left the basement. One of the witnesses had testified that the prisoner had been followed from the basement by one of the party inside, and had been struck with a chair while ascending the steps on his retreat. If this were so, then the apprehension of personal injury would not cease with the prisoner’s leaving the basement, and the imminent danger in which he had been placed might have continued up to the moment of firing the pistol, and thus he be justified in firing it.
If the jury were not satisfied that it was justifiable, they were next to inquire whether it was excusable. It is so under our law when committed by accident or misfortune, in the heat of a passion upon a sudden and sufficient provocation, or upon a sudden combat without any dangerous weapon being used. The nature of the weapon used, and the manner in which it was used, must be mainly instrumental in determining this question.* Thus if, in the heat of passion, upon sufficient provocation or upon a sudden combat, a man had used his walking stick, or a butcher in his stall had used his knife that lay near him, or a cooper used the adze with which he was then at work, and had given a blow which was fatal, but without any intention to take life, the homicide might be excusable. But that could hardly be where the weapon used was of a dangerous character, constructed solely for the purpose of taking life and which could scarcely be fired off without hazarding it. If in the melee the r risoner had used the pistol as he might any other [166]*166hard substance found at the instant in his pocket, by striking a blow with it calculated rather to w*und than- to kill, but had killed, it might be attributed to accident or misfortune. But that could not with propriety be predicated of the act of intentionally firing the pistol and unless such firing was justifiable, it was either murder or manslaughter.
Whether the act was murder or manslaughter under our statute, depended entirely upon the existence of an intention to kill either some particular person, or generally some one of a number of persons against whom in a mass the fatal act is perpetrated. There is only one homicide known to our law which becomes murder in the absence of an intention to effect death, and that is when the act is perpetrated by one then engaged in committing a felony. Except in that one case, no homicide is murder without an intention to kill and with such an intention, every homicide, with the single exception already mentioned, unless it be justifiable, is murder, whether the intention is formed on the instant or has long been entertained.
Such intention may be inferred from the act itself, for it may be one which of itself plainly indicates a heart regardless of social duty and fatally bent on mischief, and men are to be presumed to intend the natural and inevitable consequences of the acts which they willfully perform, but unless there be such an intention, the act can- not be more than manslaughter.
It would readily be perceived that this view of the statute had entirely superseded many of the rules of the law of homicide as it existed in England and which had been quoted on this occasion, and among them the whole doctrine of implied malice and the power of recent provocation to reduce the act from murder to manslaughter.
The English law provided very slight punishment for manslaughter, sometimes as low as the fine of a shilling and never beyond a year’s imprisonment. To remove from the operation of so inadequate a penalty acts of peculiar barbarity, such as that of the schoolmaster who whipped a scholar until it died, and that of the master chimney-swreeper whose boy stuck fast in the chimney and was killed by the violent manner in which [167]*167he was pulled from the place, the English courts adopted the principle of implying malice, where there was. in fact no p.re? meditated design to take life. On the- Other hand, lest such a principle should extend too far, they adopted another principle, which gave to recent provocation, and the fact that the passions had not time to cool, the power o| modifying the acts from murder to manslaughter.
All this had been done away by- our statute. If the homicide had been perpetrated without an intention to kill it would be manslaughter and no more, except in the single case of its perpetration by one engaged in committing a felony. B.ut if perpetrated with an intention to kill, no matter how recent the provocation or how high the passions, it was murder. An act of homicide perpetrated with a premeditated design to effect death, though in the very highest flight of passion, and springing from even an existing provocation, can find no resting place in our statute except under the definition of murder or justifiable homicide, and the intention to- kilt being established, there is no degree or description of manslaughter in this statute which can embrace it.
That this is the intention of the statute is manifest not only from a careful perusal of all its enactments relative to homicide, but also from the recommendations- of the revisors. They proposed that murder should include a homicide when perpetrated from a premeditated design to do some great bodily injury, although without a design to effect death,, thus recognizing and adopting the principle of implied malice and defending it on the ground that the transaction would be such as would ordinarily lead to the result of taking life. But the legislature refused to adopt the suggestion and enacted a section, which, in the language of the revisors was “ founded on the great principle that to constitute murder there should be an express design to take life or such circumstances as to induce a very strong presumption of such a design.”
This view of the law will commend itself to our favorable regard, not merely because it confines the crime of murder within its legitimate bounds of a premeditated design to take [168]*168life, but because it effectually destroys the doctrine of allowing sudden provocation and heat of passion to mitigate the offence, a doctrine most dangerous in its operation, because it tolerates the practice of carrying arms, and takes from the sudden use of them the consequences that ought justly to follow. No man can under our laws go habitually armed and in an affray use those arms with an intent to kill, without incurring the hazard of a conviction for murder, and no violence of provocation, no height of passion can mitigate or extenuate the offence. It will be murder if there is an intention to kill, unless self defence demands the sacrifice. The practice out of which this dase has sprung is ‘too pernicious to be tolerated. No life would have been taken, if the person who fired the pistol, whoever he might have been, had not gone into the affray with so deadly a weapon. The same remark is applicable to the last case tried in this court and the sooner this law becomes well known, and understood, and rigidly enforced, the better; for far better the land though stricken with poverty, where the unseen majesty of the law affords its sure protection to all,' and where the atmosphere of its supremacy pervades every tenement however humble, than that where gold may be gathered at every footstep, but where every man is armed to the death against his fellow, where every breath is drawn amid the rattling of armor, and every pulsation beats with the apprehension of instant conflict.
The inquiry, therefore, would be, was there a design to effect death? For if there was, however recent in birth, the offence was murder, but if there was an intention to wound only — a design to do some great bodily harm and not to kill, it was ’ manslaughter and no more.
The prisoner was acquitted.