majority">Pbnnewill, C. J.,

charging the jury:

Gentlemen of the jury::—Martin Watson, the prisoner, is indicted for the crime of murder of the first degree.

It is charged that the prisoner, on the sixteenth day of March, 1911, in a house in the city of Wilmington, at 909 Walnut street, known as Johnson Plats, feloniously, wilfully, and with express malice aforethought, made an assault on one George H. Merritt with a blunt instrument commonly called a “running stick”, and by striking and beating the said Merritt in and upon the head with said stick, gave unto him certain mortal wounds, bruises and contusions, of which he the said Merritt then and there died.

The prisoner says that on the night of the fifteenth day of March, 1911,.he was struck, or “hit at”, by a man standing in the hall of the house where the crime is alleged to have been committed, and that he, the prisoner, being so struck at, in self protection struck with his fist the man who attempted to assault him, but insists that he did nothing more than that.

The prisoner also claims, in his defense, that if George H. Merritt died from the blow of the fist inflicted by him, the killing was not effected by a blunt instrument commonly called a stick, and that, therefore, the prisoner cannot be convicted of any crime under the indictment.

The prisoner being indicted for murder of the first degree, it becomes the duty of the court to state to you, as clearly as we can, what constitutes that degree of murder, and we feel it our duty to tell you also what constitutes murder of the second degree, and manslaughter, because a statute of this state provides that: “A person indicted for murder may be found guilty of either degree of murder or of manslaughter.”

[1-5] Homicide is the killing of one human being by another, and is of three kinds: Justifiable, excusable and felonious. The taking of human life is held to be justifiable when done in the execution of public justice, as where the proper public officer duly *276executes a criminal under lawful sentence of death; or for the prevention of any atrocious crime attempted to be committed with force, of which examples need not here be given. Excusable homicide is that which is committed either by misadventure or in self-defense. Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct. Homicide in self-defense is where one is assaulted upon a sudden affray, and in defense of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, kills his assailant.

[6, 7] Felonious homicide is of three kinds: Murder of the first degree, murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or 'of the second degree. Malice is a condition of the mind or heart. As here used this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Whenever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.

[8] Minder of the first degree is where the killing was done with express malice aforethought, or in perpetrating, or attempting to perpetrate, a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design, or purpose, may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such, stealthily lying in wait, preconcerted plans, or the previous procurement or preparation of instruments, contrivances or other means for slaying the victim.

[9] Murder of the second degree is where the killing was done with implied malice; that is, where the malice is not express, as *277in murder of the first degree, but is an inference or conclusion of law from the facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was done without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and reckless disregard of human life, the law implies malice and makes the offense murder of the second degree.

Malice is implied by law from every unlawful and cruel act committed by one person against another, for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously.

[10] Manslaughter is where one person unlawfully kills another without malice. For example', when one in a sudden affray, or fight, in the heat of blood, or in a transport of passion, inflicts the mortal wound without time for reflection or for the passions to cool, that would be manslaughter.

[11] Circumstantial evidence, to warrant a conviction, must be entirely satisfactory, ánd of such significance, consistency and force, as to produce conviction in the minds of the jury, of the guilt of the accused beyond a reasonable doubt. The great rule on this subject is, that when the evidence is circumstantial the jury must be fully satisfied, not only that the circumstances are consistent with the guilt of the prisoner, but they must also be satisfied that the facts are such as to be inconsistent with any other reasonable conclusion than that the prisoner was the guilty party. They must be such as to exclude any other hypothesis or conclusion.

[12] In order to convict the prisoner of either murder of the first degree, murder of the second degree or of manslaughter, it is incumbent upon the state to prove beyond a reasonable doubt, that the deceased came to his death in the manner alleged in the indictment, that is, from a blow upon the head with a blunt instrument commonly called a running stick, for if his death was caused in any other manner than the manner alleged, no convic*278tion can be had. And the state must also prove beyond a reasonable doubt that the prisoner, Martin Watson, is the person who committed the fatal act alleged in the indictment. In this connection the question for the jury to determine, is not the general one,—Who did it? but the specific one,—Did Martin Watson, the prisoner at the bar, do it? This is the real and essential question which the jury must solve by the evidence and answer by the verdict.

We may further say, that if from the testimony the jury should be satisfied that the death of George H. Merritt resulted from injuries received from the prisoner, they must further find that such injuries were unlawfully and intentionally inflicted before they can convict of any crime.

Now, if after carefully considering all the evidence in the case you are satisfied beyond a reasonable doubt that the prisoner killed George H. Merritt in the manner described in the indictment, and that he did it with express malice aforethought, that is, with a sedate, deliberate mind'and formed design to kill, your verdict should be guilty in manner and form as he stands indicted —murder of the first degree.

If you should not be satisfied that the prisoner is guilty of murder of the first degree, but nevertheless are satisfied beyond a reasonable doubt that he did kill George H. Merritt in the manner described in the indictment, but with implied malice, that is, not with a sedate, deliberate mind and formed design to kill, but without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree.

If you should not be satisfied that the prisoner is guilty either of murder of the first or second degree, but are satisfied beyond a reasonable doubt that he did, in the manner described in the indictment, kill George H. Merritt unlawfully, in a sudden affray or fight, in the heat of blood or in a transport of passion without time for reflection or for the passions to cool, your verdict should be guilty of manslaughter.

But, gentlemen, if you are not satisfied beyond a reasonable doubt that the prisoner is the person who killed George H. Merritt, *279or if you believe that he is the person, but are not satisfied that he did the killing unlawfully or in the manner described in the indictment, that is, by striking the deceased on the head with a blunt instrument commonly called a running stick, your verdict should be not guilty.

[13] In conclusion we say, that in every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner, therefore, it is incumbent upon the state to prove beyond such doubt every material element or ingredient of the crime charged. If after carefully considering and weighing all the evidence, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty.

[14] Reasonable doubt, however, does not mean a vague, speculative or mere possible doubt, but a substantial doubt— such a doubt as intelligent, reasonable, and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.

Verdict, guilty of manslaughter.

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