062 Slide – American State Trials 1918 Volume X Leo Frank Document

30 X. AMERICAN STATE TRIALS.

grade of offense, and of murders known to the common law,
and to the eodes of Pennsylvania, and of Tennessee and New
Jersey, some constitute here manslanghter—some excusable
and others justifiable homicide. The residium left makes
murder in the second degree.

You perceive in the reading one elass of murders, which
are declared to be murders in the first degree, because done in
the attempt to perpetrate a felony. Now the defendant is
not charged with such murder; and not being charged, he
eannot be found guilty of euch murder. I submit it as a
legal proposition to the court, that to find the defendant guilty
of murder in the first degree under that clause of the statute,
he must be charged with murder done in the attempt to per-
petrate, or in the perpetration of a felony.

Tt is not in the power of the prosecution to ask you to find
a capital murder in this case, because of its being a murder
done in the perpetration of a felony. If the fact were 50
proved, they could not ask it, for that is not the murder
charged in the indictment. The legislature thought proper
to provide, that every murder (not every killing) committed
in the attempt to commit felony should take the rank of mur-
der in the first degree, for that cause. The fact of the at-
tempted felony is the fact which determines the grade of the
crime, and it is therefore a material fact, I shall not trouble
you with any question of variance between the proof and the
charge, that is a question for the Court, after verdict, in-
volving the fate of the prosecution; but, I shall ask the Court
to instruct you, that in this case the prosecution can’t de-
Mand at your hands the finding a murder in the first degree
for such cause.

There is good reason for this. Your lives and liberty would
be in peril if you could be found guilty of an offense not con-
tained in the indictment found against you. The principle is
not technical. It is a bulwark essential to innocence. You
are entitled to a clear, distinct and specific accusation, that
you may come prepared to meet it. The right is fundamental.
The utmost that ean be claimed for the testimony of the State
ig that Worrell had knowledge of the killing at the moment