Wright, J.
explained the different counts of the indictment to the jury, and read to them the sections of the statute on which they were called to act, (22 O. L. 158). He said the indictment charged the defendant with three offences, of one of which they must find him guilty upon the evidence, if they found for the state, viz: murder in the first and second degree, and manslaughter.
Murder in the first degree, he said, is the intentional unlawful killing, by one reasonable being of another, in the peace of the state, of deliberate said premeditated malice. Murder in the second degree, is the intentional, malicious, and unlawful killing, by one reasonable being of another, in the peace of the state, without deliberate ox premeditated malice. Manslaughter, is the unlawful killing, by one reasonable being of another, in the peace of the state, without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act.
Malice, and a design to kill, are essential ingredients in the crime of murder, in either degree, while the first ingredient is altogether excluded from the crime of manslaughter. The intention, or design to kill, is also excluded from the crime of manslaughter, where the death result from an unlawful act, designed to effect another object; but, if there arise a sudden quarrel, and one, under great provocation, instantly kill another, intentionally, it would be manslaughter. Malice is the dictate of a wicked, depraved and malignant heart. It is not necessary that the malignity should be confined to a particular illwill towards the person injured. It is evidenced by any act which springs from a wicked and corrupt motive, attended by [28]*28circumstances indicating a heart regardless of social duty, and bent on mischief. Malice is said to be express where the cruel act is done, with a sedate and deliberate mind — with settled and formed purpose. This kind of malice is generally evidenced by the circumstances preceding and attending the transaction complained of, as by threats, menaces, former grudges, lying in wait, concerted schemes to do injury, or by an unusual degree of cruelty attending the act. Malice is implied where the killing is sudden, without any or great provocation; and, also, where the act done necessarily shows a depraved heart, as the giving of poison.
We understand it to be a rule of law, in England, that any person who deliberately does an act which apparently endangers the life of another, and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him, with malice, prepense, or aforethought, (1 East. C. L. 225.) In every charge of murder, in that country, the rule is, that when the fact of killingis established, the law presumes the killing founded in malice, aforethought, until the contrary is made to appear; therefore, in that country, the circumstances relied upon by way of justification, excuse, or alleviation, if they do not arise out of the proof for the prosecution, must be introduced and proven on behalf of the accused, or he is held guilty of murder, (1 East. C. L. 340.) The presumption of the English rule, we think, should be carried no further under our law and practice, than to raise from the fact of killing, the presumption of murder in the second degree, if there be no explanatory circumstances in the evidence introduced- by the state, and none are proven by the prisoner. Such legal presumption ought not to be carried to take away life, if it can be avoided. To establish premeditated malice, some affirmative evidence should be introduced by the prosecution. But the evidence as to this, as well as all the other ingredients of crime, or other thing connected with human transactions, may be either positive, or circumstantial. Whichsoever kind is resorted to, however, should be of a nature to convince the understanding of the jury. Circumstantial evidence is often the most convincing. It is difficult to fabricate the connected links in a chain of circumstances, so as to preserve the semblance of truth. It is more easy, where perjury is intended, to fabricate positive facts. When the circumstances detailed are real and natural, they will correspond with each other: when they are inconsistent with each other, or irreconcilable with admitted or proven facts, there results a plain and almost certain inference, that artifice has been resorted to, and that the tale is not true. All the evidence, whether positive [29]*29or circumstantial, should be deliberately weighed, with great care and caution. The law presumes every individual innocent of crime, and requires proof to satisfy the minds of the jury that a defendant is guilty before they are warranted in pronouncing him guilty. The prisoner is entitled to the benefit of this presumption, and it should be yielded against him only when you are convinced by the evidence, of his guilt.
Counsel have addressed you at length on the subject of your doubts. If you entertain a reasonable doubt as to any one of the essential facts which constitute the crime of murder in the first degree, you should acquit the prisoner of that crime, as it is the humane rule of the law that no one shall forfeit his life for a crime when there exists a reasonable doubt whether the crime has been committed. But that is a rule of. law adopted in favor of life, and is therefore, in this case, only applicable to the charge of murder in the first degree — it does not apply to either of the other offences embraced in the indictment. It is impracticable to attain to absolute certainty in human affairs. In the nature of things, we can only attain to reasonable certainty. A juror is not authorized to raise an artificial or captious doubt, in order to acquit the accused; the doubt he relies upon should be real, and honestly and fairly entertained, after all reasonable efforts have been made to find out the facts. Although the rule of law on the subject of doubts does not apply to crimes not punishable with death, yet in all criminal cases the jury should scrupulously examine all the circumstances and facts in proof for and against the accused, and hold him innocent until he is proven guilty; and if, upon a candid examination of the evidence the conviction results that he is guilty, a jury should so find — in so doing they will discharge their duty.
To warrant you in finding the defendant guilty of either of the offences described in this indictment, the evidence must satisfy you of three general facts: 1st. That Samuel Turner is dead. 2d. That he came to his death by a wound upon the neck, inflicted by some sharp instrument. 3d. That the defendant inflicted the wound when of sound mind. To determine these questions, you should carefully consider all the evidence, with the attending circumstances, and the arguments of counsel on both sides. There seems no room to doubt of Samuel Turner’s death. Was his death occasioned by cutting the throat? Did the prisoner do the act? Was he then of sound mind? These questions you must answer upon the evidence given you in court. If in your opinion the proof fail to establish any one of these three essential ingredients of the offences charged [30]*30upon the prisoner, you should acquit him at once. But if you are satisfied of the death, that it was occasioned by the wound in the neck, and that the prisoner inflicted it, then you will have occasion to examine further.
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Wright, J.
explained the different counts of the indictment to the jury, and read to them the sections of the statute on which they were called to act, (22 O. L. 158). He said the indictment charged the defendant with three offences, of one of which they must find him guilty upon the evidence, if they found for the state, viz: murder in the first and second degree, and manslaughter.
Murder in the first degree, he said, is the intentional unlawful killing, by one reasonable being of another, in the peace of the state, of deliberate said premeditated malice. Murder in the second degree, is the intentional, malicious, and unlawful killing, by one reasonable being of another, in the peace of the state, without deliberate ox premeditated malice. Manslaughter, is the unlawful killing, by one reasonable being of another, in the peace of the state, without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act.
Malice, and a design to kill, are essential ingredients in the crime of murder, in either degree, while the first ingredient is altogether excluded from the crime of manslaughter. The intention, or design to kill, is also excluded from the crime of manslaughter, where the death result from an unlawful act, designed to effect another object; but, if there arise a sudden quarrel, and one, under great provocation, instantly kill another, intentionally, it would be manslaughter. Malice is the dictate of a wicked, depraved and malignant heart. It is not necessary that the malignity should be confined to a particular illwill towards the person injured. It is evidenced by any act which springs from a wicked and corrupt motive, attended by [28]*28circumstances indicating a heart regardless of social duty, and bent on mischief. Malice is said to be express where the cruel act is done, with a sedate and deliberate mind — with settled and formed purpose. This kind of malice is generally evidenced by the circumstances preceding and attending the transaction complained of, as by threats, menaces, former grudges, lying in wait, concerted schemes to do injury, or by an unusual degree of cruelty attending the act. Malice is implied where the killing is sudden, without any or great provocation; and, also, where the act done necessarily shows a depraved heart, as the giving of poison.
We understand it to be a rule of law, in England, that any person who deliberately does an act which apparently endangers the life of another, and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him, with malice, prepense, or aforethought, (1 East. C. L. 225.) In every charge of murder, in that country, the rule is, that when the fact of killingis established, the law presumes the killing founded in malice, aforethought, until the contrary is made to appear; therefore, in that country, the circumstances relied upon by way of justification, excuse, or alleviation, if they do not arise out of the proof for the prosecution, must be introduced and proven on behalf of the accused, or he is held guilty of murder, (1 East. C. L. 340.) The presumption of the English rule, we think, should be carried no further under our law and practice, than to raise from the fact of killing, the presumption of murder in the second degree, if there be no explanatory circumstances in the evidence introduced- by the state, and none are proven by the prisoner. Such legal presumption ought not to be carried to take away life, if it can be avoided. To establish premeditated malice, some affirmative evidence should be introduced by the prosecution. But the evidence as to this, as well as all the other ingredients of crime, or other thing connected with human transactions, may be either positive, or circumstantial. Whichsoever kind is resorted to, however, should be of a nature to convince the understanding of the jury. Circumstantial evidence is often the most convincing. It is difficult to fabricate the connected links in a chain of circumstances, so as to preserve the semblance of truth. It is more easy, where perjury is intended, to fabricate positive facts. When the circumstances detailed are real and natural, they will correspond with each other: when they are inconsistent with each other, or irreconcilable with admitted or proven facts, there results a plain and almost certain inference, that artifice has been resorted to, and that the tale is not true. All the evidence, whether positive [29]*29or circumstantial, should be deliberately weighed, with great care and caution. The law presumes every individual innocent of crime, and requires proof to satisfy the minds of the jury that a defendant is guilty before they are warranted in pronouncing him guilty. The prisoner is entitled to the benefit of this presumption, and it should be yielded against him only when you are convinced by the evidence, of his guilt.
Counsel have addressed you at length on the subject of your doubts. If you entertain a reasonable doubt as to any one of the essential facts which constitute the crime of murder in the first degree, you should acquit the prisoner of that crime, as it is the humane rule of the law that no one shall forfeit his life for a crime when there exists a reasonable doubt whether the crime has been committed. But that is a rule of. law adopted in favor of life, and is therefore, in this case, only applicable to the charge of murder in the first degree — it does not apply to either of the other offences embraced in the indictment. It is impracticable to attain to absolute certainty in human affairs. In the nature of things, we can only attain to reasonable certainty. A juror is not authorized to raise an artificial or captious doubt, in order to acquit the accused; the doubt he relies upon should be real, and honestly and fairly entertained, after all reasonable efforts have been made to find out the facts. Although the rule of law on the subject of doubts does not apply to crimes not punishable with death, yet in all criminal cases the jury should scrupulously examine all the circumstances and facts in proof for and against the accused, and hold him innocent until he is proven guilty; and if, upon a candid examination of the evidence the conviction results that he is guilty, a jury should so find — in so doing they will discharge their duty.
To warrant you in finding the defendant guilty of either of the offences described in this indictment, the evidence must satisfy you of three general facts: 1st. That Samuel Turner is dead. 2d. That he came to his death by a wound upon the neck, inflicted by some sharp instrument. 3d. That the defendant inflicted the wound when of sound mind. To determine these questions, you should carefully consider all the evidence, with the attending circumstances, and the arguments of counsel on both sides. There seems no room to doubt of Samuel Turner’s death. Was his death occasioned by cutting the throat? Did the prisoner do the act? Was he then of sound mind? These questions you must answer upon the evidence given you in court. If in your opinion the proof fail to establish any one of these three essential ingredients of the offences charged [30]*30upon the prisoner, you should acquit him at once. But if you are satisfied of the death, that it was occasioned by the wound in the neck, and that the prisoner inflicted it, then you will have occasion to examine further. Much has been said to you about the drunkenness of the prisoner, as conducing to show that he was of unsound mind. No reliance can be placed upon drunkenness as establishing the insanity of a person, which excuses him from accountability for crime. The habit of intoxication is highly immoral and vicious, tending to the destruction of the best interests of society — the severance of the dearest relations of life. He who takes an intoxicating draught, voluntarily makes himself mad, and the law, by reason of such madness, will not excuse him from responsibility for crimes, committed under its influence. If it were otherwise, the most hardened criminal would escape punishment; and the corrupt, and profligate, and revengeful, would only have to intoxicate themselves, to be exonerated from liability for crime, and to acquire the right to commit any act, however shocking and horrid, with impunity. In our opinion the law does not afford to bad men such protection.
To convict of murder in the first degree, you must in addition to the points I have mentioned, be satisfied, 1. That the prisoner perpetrated the act purposely. 2. That he did it with intent to kill. 3. That he did it of deliberate and premeditated malice. To constitute deliberate and premeditated malice, the intention to do the injury must have been deliberated upon, and the design to do it formed, before the act was done; though it is not required that either should have been for any considerable time before. This supposes the party, by reflection, understood what he was about to do, and intended to do it in order to do harm. If these things are all proven, and you find the defendant guilty of murder in the first degree, you need examine no farther. If not proven to your satisfaction, you will then examine further.
To convict of murder in the second degree, you must be satisfied of the general facts common to all the offences, which I have stated, and also of the following: 1. That the prisoner perpetrated the act purposely and maliciously. 2. With intent to kill, and 3. Without deliberation ox premeditation. If you are not satisfied of the concurrence of these facts, you should acquit him of murder in the second degree, and will be under the necessity of examining further.
To convict of manslaughter, you must be satisfied by the evidence of the three common facts stated to you; and also, 1. That the act was done unlawfully. 2. Without malice. 3. With intent to kill, formed in the heat of a sudden quarrel, or, 4. Without intent to kill, [31]*31while the prisoner was engaged in the commission of some unlawful act. If in your opinion the act was done maliciously, whether the malice be either express or only implied, the offence, whatever it is, is not manslaughter: so, if you find an intention to kill, and that there was not great provocation, or a suddenly excited passion, the crime, if any has been committed, is not manslaughter.
[The judge here briefly recapitulated the circumstances relied upon, for and against the prisoner, and continued:] You will, gentlemen, examine all the circumstances with a sincere effort to learn the true state of facts in the case, and if it shall appear to you, that the prisoner destroyed the life of his brother, by violently and deliberately cutting his throat, with intent to kill him, his crime is murder in the first degree. If he intended to kill, although he formed the design coolly but a moment before he struck the fatal blow, the law esteems it a premeditated killing; (2 Stark. Ev. 965.) If it shall have been proven to you that the defendant purposely cut the throat of his brother with intent to kill him, but without deliberating upon the act or meditating upon it before it was done, his crime is murder in the second degree. But if it shall appear to you that the death ensued solely from a sudden quarrel, while the defendant was under the transport of violent passion and provocation, or that the deed was done without any intention to kill, while the defendant was performing some other unlawful act, his crime is manslaughter.
It is your peculiar province to judge of the facts. It is ours to advise what the law is, but in this class of cases you can, if you choose to do so, judge of the law as well as of the facts of the case. When the facts are ascertained, the law determines the grade and name of the offence, and affixes the punishment. With the punishment you have nothing to do. You pronounce upon the simple question of guilt or innocence as the facts, are disclosed in the evidence. It then becomes our duty to proclaim the sentence which the law affixes to the crime found. Both you and the court is bound by the law, and we have no right to substitute our own opinions of what the law ought to be for what we think it is — the safety of the community depends upon our declaring what the law is. If the law is impolitic, or the punishment too severe, the legislature should alter it, not the jury or the court.
If you find the prisoner guilty, you will state in your verdict whether you find him guilty of murder irf the first, or second degree, or of manslaughter.
The jury retired about an hour, and returned a verdict, guilty of murder in the first degree.
Swan, for the prisoner,
now moved in arrest of judgment, because,
1. The indictment was found, if at all, in the Court of Common Pleas, and the certificate of the alleged proceedings in that court has no seal, and was not made out and transmitted forthwith according to the law.
2. The proceedings, if properly certified, confer on the court no authority to try the prisoner, because they do not show who the judges of the Court of Common Pleas were, or who the jurors were, or whether there was a competent number of judges or jurors.
3. The certificate from the clerk of the Court of Common Pleas filed since the verdict, will not avail the state, because the Court of Common Pleas must certify up a more complete record, on a certiorari, if the entries can be amended, but in criminal cases no amendment is allowed; 1 Ch. C. L. 69; 1 Saund. R. 249, n. a.
4. It does not appear that the indictment was recorded in the Common Pleas.
Hunter and H. Stanberry, for the state,
insisted that the objection was one of mere form, and the prisoner had waived it by going to trial. The certificate is not required in the law to be under seal. The original indictment is here, and the trial has been upon that. It is now immaterial what proceedings were had on that indictment in the Common Pleas; 1 Ch. C. L. 356.
T. Ewing, for the prisoner, in reply,
insisted that by the constitution and laws the Common Pleas alone had jurisdiction, and the only question was one of jurisdiction.
Wright J.
The constitution of Ohio gives the judges of the Supreme Court power to take jurisdiction of such criminal cases as shall be pointed out by law, and to exercise it in such way as the law may point out; O. Con. 3 A. sec. 4. The act of assembly passed under this clause conferred upon the Supreme Court original jurisdiction in all offences, the punishment whereof is capital; 29 O. L. 56. The act pointing out the mode of trying criminals; 2 Ch. O. L. 1334, provides that the person accused of an offence, the punishment of which is death, when he has the indictment read to him, may elect to be tried in the Court of Common Pleas, and if he do not then so elect, the clerk of Court of Common Pleas, where the indictment is found, shall truly record the indictment, and forthwith make out a transcript of the same, with the proceedings of the court on such indictment, under the seal of his office, and forthwith deposite such transcript, with the original indictment, in the office of the clerk of the Supreme Court, &c. who shall proceed to trial [33]*33and judgment in the same manner as if the indictment had been found therein.
The indictment in the case before us was found in the Court of Common Pleas. Of this we can know nothing, except in the way-provided by law. In that way we can take jurisdiction of a crime indicted in another court, but in no other. The proceedings in the Court of Common Pleas we had not examined, and no objection was made to them at the trial. It is in our estimation essential to cur jurisdiction that we know the proceedings of the Court of Common Pleas when the proceedings originate there. The law expressly provides that they shall be certified by the clerk of that court under the seal of Ms office. The papér offered here as the certificate has no seal. In a crime involving the life of a fellow being, courts proceed with great caution, and hold parties to a strict compliance with the law. We are authorized to proceed in cases so brought here, but have no .authority to proceed against, try, and sentence to death an individual who comes here for that purpose by his own •agreement, or being here otherwise, waives his right to object. Neither the express consent of the party nor his waiver of the right to object can confer upon us such power. We can know the proceedings of the Court of Common Pleas only when certified under their seal. The certificate filed by the state, made out and dated since the verdict, cannot help the proceedings. If disposed in any case to allow a clerk thus to patch up his proceedings, and remedy defects arising from his negligence, after they are pointed out, we have no disposition to do so in a capital case, where the life of a fellow creature is in jeopardy. We are of opinion that the proceeding in this case so far, has been without authority of law, and improvidently had. We can go no further in the case as it now-stands, and order the cause struck from the docket. If the sheriff haye any authority to detain the prisoner, he can look to him. We at present make no order about him.
The sheriff detained the prisoner upon his original commitment. The prosecuting attorney, the next Court of Common Pleas, non prossed the indictment, and sent up to the grand jury a new one, which was returned a true bill. On the prisoner’s arraignment he stood mute, and therefore the Court of Common Pleas determined it had no jurisdiction of the case, because the former indictment was still pending in the Supreme Court. The Supreme Court at its next term in Bank, granted a rule to show cause why a writ of mandamus should not issue, commanding the Common. [34]*34Pleas to proceed in the cause; 5 O. R. 543. After this, the prosecutor non prossed the count in the second indictment for murder in the first degree, and the defendant pleaded guilty to the count for murder in the second degree, and was sentenced to the penitentiary for life.