Gentlement of the Jury:

The .prisoner has been indicted by the Grand Jury of the county and charged with the murder of Richard Smith. , To the indictment the prisoner has pleade d not guilty.” The issue thus formed, whether or not he is guilty of the offense charged against him, or of any other offense which is necessarily included in that with which he is charged in the indictment, you have been emp&nneled as a jury to try and determine by your verdict.

It is my duty to declare'to you such matters of law gs I may think pertinent to the issue, and necessary for your information ¡ ^nd although I can state the testimony, it is exclusively your province to -consider, judge 'of, and apply the facts as disclosed by feat testimony.

If you come to the conclusion that deceased earn® So Ms death from, the immediate effect of a wound, inflicted wife a knife Toy the defendant, then,he must be guilty either of murder in the first degree? murder in the second degree, manslaughter? or excusable wjmtifiiaMe honir ieide. These are severally defined by our statute law as fellows; (which the court here read to the jury).

In, a criminal action the defendant is presumed, to be innocent until fee contrary be proved, and in case of a reasonable doubt as to whether .* not. his guilt be reasonably shdwn, he is entitled to be acquitted ; Mat if the "tilling be proved, then the burden of provipg circumstances si mitigation, or that justify or excuse the homicide, devolves on the defendant, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or "feat the defendant was justified or excused meommitting the homicide. •JByreasenaMe doubt, is not meant a mere suspicion that the defendant ¡may be innocent or guilty, or feat any theory of fee defense or prosecution may be correct, but a reasonable émbh oí fee defendant’s guilt, after considering fee whole testimony. ■ The question is rather, is fee judgment convinced ? have you come to a eonelusion in your own *237 minds as te A© graft or' Hmosease of ft© party t or is there, after a review of th© testimony, ® reasonable doubt, and your judgment is not entirely satisfied ? The' defendant is ©affiled to the benefit of gpft doubts if they exist.

Malice aforethought, according te> its legal memrag, is not confined to murders committed ia. cold blood, with settled detemmation. and premeditation, but extends to all eases .of homicide, however sudden the -occasion, where the act is done with such ©riel eircumefsnogs: an ere the -ordinary indications of a wicked, depraved, .and abandoned, heart; as when the punishment Inflicted by a party, ©ven upon some, sudden provocation, is outrageous in its' nature sad continuance, and beyond" all proportion to the offense, so that it is rather to be attributed" to malignity and brutality, than to human infirmity.

Express malice is the deliberate intention unlawfully to take away ft® life of a fellow < creature, which is manifested in external cirsumatances, and capable of proof.

Malice is implied where no considerable provocation appears, or where all. the circumstances of the killing show an abandoned ¿ad malignant heart. The malice necessary to constitute ft® crime -of mwier is hot confined to an intention to take away the life of a person, or to spite, malevolence, or revenge, which may be manifested by external acts and declarations, but also includes an intent to do am unlawful act, which may probably end in depriving a person of life. Where ño malice is expressed the law will sometimes imply that there was malice, as, by way of ^lustration, where a person willfully poisons anofter i .or if the killing be done without a considerable provocation | for ®o person, unless of an abandoned and malignant heart, would be guilty of such an act upon.® slight, or no apparent cause,

(The court then stated the testimony,)

How it is not controverted but that the deceased died from ft© wound received, and you will probably have no difficulty sp coming,to a conclusion upon that point.

The next question for you to determine is, by whom was this wound Inflicted; or rather, does the testimony point out the prisoner as th© guilty perpetrator of this act ? Is your judgment. satisfied, from the acts, position, and declarations of the prisoner, the Hood and cuts op®i his person, as disclosed by the evidence', or from any ether prsrea *238 acts, that he inflicted the mortal wound ? or are you unable to come to a conclusion in your own minds, and do you entertain a reasonable doubt of the prisoner’s guilt, or a belief that some other person did the deed ? Gan you explain the circumstances against the prisoner, and find them consistent with Ms innocence ? How came those cuts and blood, and why did he reach down into Ms pantaloons ? These are questions and circumstances to be passed upon by you. It is not necessary that you should only consider the positive or direct proof, in arriving at a conclusion; you may infer, or presume, guilt from circumstantial evidence alone, and, in arriving at a verdict, you are at liberty to take into consideration any circumstances in evidence, either for or against the prisoner.

It is natural and reasonable to suppose that a criminal, as far as possible, would conceal the positive proof of his guilt, and if convictions could only be had upon positive proof, it might be difficult, in some of the plainest cases, to bring the guilty to justice.

In regard to what has been termed the confessions of the prisoner, I will charge you as follows.

(The court read from 1 Greenleaf on Ev., §§214, 215.)

Your verdict, if general, should he either guilty, or not guilty. If the prisoner is neither guilty of murder in the first or second degree, nor of manslaughter, your verdict should be not guilty. If your verdict should be guilty, you must specify the degree of guilt, or rather, the particular grade of crime. If you should come to the conclusion that, the prisoner unlawfully killed the deceased, and that the killing was willful, deliberate, and premeditated, you may, by your verdict, find Mm guilty of murder in the first degree. If you should come to the conclusion that the prisoner, with malice, either express or implied, unlawfully killed the deceased, but that the act' was not willful, or was without deliberation or premeditation, you may find Mm guilty of murder in the second degree. You may also, if you should so find, render a verdict, guilty of'manslaughter.

In conclusion, gentlemen, permit me to remind you of the important, the solemn duty that now devolves upon you. Human life is involved In the issue submitted to you, and whilst attentively examining the evidence, and seeking for every circumstance that, will extenuate or excuse the offense charged against the defendant, you must, not forget *239 that in the - very heart of oar city, in one of our most public streets, a citron has been deprived, of life by the hand of violence; and whilst you should be cautious that you do not condemn the innocent, you should also be cautious that you do not set the guiliy free, and fix upon our land the Hood of a murderer.

With these remarks I leave you to your deEberations, in full confidence that you will he able to agree upon such a verdict as will be sustained by'the evidence and your own consciences.