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

384 X. AMERICAN STATE TRIALS.

ean’t send him to the gallows upon it. It is a libel on our
nature to presume without knowledge that every killing ie
with malice. Although man is capable of cold-blooded assas-
sination, yet naturally he recoils from the deed; and for one
murder done in cold blood, there are a hundred killings the
result of misfortune, or great provocation, giving rise to sud-
den passion, or the instinct of self-preservation. If any pre-
samption must be made by the law, the presumption should
be more in harmony with reason and experience. But why
presume at all; why not probe every case by ita circumstances,
many or few, subject to the inferences of fact, which is the
very province of a jury to determine. In the essence of the
thing, it is an invasion of the function of a jury, and must
be either useless or hurtful. If the presumption of the law is
a reasonable and natural inference from the facts proved,
the jury are better able to draw it, because they are supposed
to be better judges of the motives of human conduet than the
eourts; but if, on the other hand, the presumption of the law
is arbitrary, technical, artificial, for that reason it should not
be drawn at all. It is cruel, as well as unwise, to make such
presumptions. Call them truth, and by them determine the
destiny of a human being. The invasion is, however, a suc-
cessful one. Malice implied by the law has a legal existence
in our law of homicide. The courts ‘‘proclaim it;’? but they
also proclaim you shan't hang a man upon it.

Two decisions—18 Mo. State v. Jennings, and 18 Mo. State
vy. Dunn—reverse what is sometimes supposed to be the de
cisions of the same court in the fifth volume Mo, Reports
State v. Bower, and adopt the doctrine maintained by the
dissenting judge in that case. Under those decisions, to make
murder in the first degree, express malice must be proved,
and found by the jury as a fact. It is not a thing, the exist-
ence of which is guessed at by the law; it is a thing proved—
proved by the evidence which you hear; a thing found by
you as jurors. The Court may tell you what the thing is, but
the Court cannot find it. You are the only tribunal that can
determine whether it is a thing proved—proved to your sat-
isfaction. Your consciences are involved, and you can’t shift