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

36 X. AMERICAN STATE TRIALS.

of facts the circuit attorney frankly admitted to Court and
jury the offense would only be murder in the second degree,
and he relied upon the subsequent flight of Jackson (who did
fly and waa arrested some months after in Iowa), and a former
grudge, as evidence to lift the ease up to the grade of murder
in the firat degree, He put the case to the jury on the ground,
frankly and properly conceded, that a killing, under un-
known circumstances, was only murder in the second degree,
under our statute. In other words, a killing, under unknown
circumstances, rendera express malice impossible in proof. In
such case there is nothing left but malice implied out of which
to make murder at all; and implied malice cannot, as I have
shown, make murder in the firat degree.

In this case, the attempt will scarcely be to rely on flight,
nor on a previous grudge. If the concealment of the body
be urged to elevate the killing to murder in the first degree,
T reply that our Supreme Court has declared in the case, in
the eighteenth volume, before cited, that neither the secreting
the body after the killing, nor the steps which may be taken
by the offender to elude justice, are evidence of murder in the
firat degree. AJ such measures, taken after the deed, spring
from fear of punishment, and from no eriterion of the grade
of the offense. The man who commits manslaughter may,
from the same motive, take the same measures to avoid pun-
ishment,

The learned counsel was chary in laying before you the
law of murder in this state. He did not even glance at the
important distinction between its degrees—a distinction
fraught with so much consequence. He did not run the line
or mark the boundary; or if he did, he only confused the sur-
vey. The Supreme Court of Tennessee reversed a judgment
of death in a case for no other reason than that the court
below failed to tell the jury what was the distinction between
murder in the first and second degree! That tribunal said a
man’s life might hang upon the failure. That was an omis-
sion; the court below forgot to run the line; but the court
above said the forgetfulness was fatal to judgment.

The Deity gives life, but I agree, the government can take