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EDWARD D. WORRELL. 33

—implied by the law—a legal fiction—a presumption, made
in the absence of kmowledge—a presumption made because
of the absence of knowledge—a leap in the dark—a guilty
guess as to how and why a killing took place, without knowing
either the how or the why—an arbitrary fiat substituted for
proof and demanding proof to overthrow it—a conclusion
forced on the conscience of a juror which he must take for
trath, and act on as truth, until the accused, by evidence,
shall establish it to be a falsehood. Thus, on a charge of
murder, the common law (as now expounded, however ex-
pounded by Coke and Hale in their day), not knowing the
cireumstances under which A killed B, nor the motive or
esuse of kiliing; not knowing whether he did it by misfor-
tune or under the most grievous provocation, or to save his
own life, or that of his wife or child—implied—presumed
that he did it with malice aforethought—presumed that he
‘was moved to the act, not by any just motive of his nature,
but by the suggestions of the devil, and called on him to prove
the absence of malice, or die on the gallows. That is the thing
named ‘‘malice implied.’’ Malice is a fact-—a state or con-
dition of the mind; and without that condition of the mind
accompanying the act of killing, there can be no ‘murder,’
here, or at the common law. It is the indispensable thing,
without which murder cannot be; and yet that is the very
thing which the law implies did exist, although the law nows
nothing of the actual fact. It says to the killer: ‘‘You had
malice when you killed. If you can prove you had not, the
law will take back its guess; but the guess shall stand for
truth until you do disprove it.”? You perceive the call is
made only when the State don’t know the fact, and can’t find
it out; that it, when it is impossible for the defendant to dis-
prove it.

Now, in this state it is wisely settled that ‘‘malice implied
in the law’’ can’t make hanging murder; and this is the dis-
tinetion which I wish to impress upon you as of the last im-
portance in the administration of the law of criminal homi-
eide. You may send a man to the penitentiary by reason of
this guess of the law imposed on your consciences, but you

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