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

382 X. AMERICAN STATE TRIALS,

8 firm of pork packers at Washington, and one of the firm
only makes the contract with you, that contract binds every
member of the firm, because each member has made every
other member an agent to act for him. Thus the act of any
one member becomes the act of all, and all are therefore re-
sponsible. That is partnership. And so there may be part-
nership in erime. Jf two men agree to commit murder, one
to do the deed, and the other to stand by and help if need be,
or to watch—if they agree in a common design, and assign
the share of each in its execution, that is partnership, and
that agreement makes each the agent to act for the other, s0
that the act of one is the act of both. But there must be an
agreement to do the murder, and also presence at the murder,
to make the accessory guilty of the murder. It is in such case
only that the accessory becomes a principal.

T have told you that express malice must be found as a fact
to make murder in the first degree under our law. We have
no murder here which was not murder at the common law.
We have not been guilty of the cruelty of making murder
here of what was only manslaughter under the bloody and
indiscriminate code of England, so that it becomes necessary
for you to understand what did make murder at the common
law. .

I approach now a subject which touches every man in the
land. The fate of the prisoner, however momentous to him,
and to the parents who sit by him, sinks into subordination
to the greater interest of society in the law of homicide. A
false principle established in his ease may involve a whole
people.

By the common law of England, murder is defined to be
‘the unlawful killing of ‘a human being, with malice afore-
thought, express or implied.’’ The indispensable element of
murder, at the common law, is malice aforethought. But
malice waa of two kinds, and either kind would make murder,
and all murder took the life of the offender.

“Implied malice’? is a constructive thing, a creature of
the courts, not a fact proved in evidence, and found by the
jurors, whose province it is to find facts; but an implied fact