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EDWARD D, WORRELL. 121

vate person endeavoring to suppress an affray or appre-
hend a felon, knowing his authority or the intention with
which he interposes, the law will imply malice. So if one
shoots at A and misses him and kills B, the law implies mal-
ice, though it is evident that he had no malice against B, and
did not intend to do him any bodily harm. So, also, if one
gives a woman with child a medicine to procure abortion, and
it operates so violently as to kill the woman, the law implies
that the killing was done with malice, notwithstanding there
was no intent to take the life of the woman. These and sim-
ilar cages were murder at common law, and the offenders pun-
ished capitally ; but in this country we have modified the rigor
of the common law, and this class of cases falls under the head
of murder in the second degree or manslaughter.

Having thus defined the meaning of the word malice the
next inquiry is, how is malice to be proved? In some few
instances it is established by the previous threats or declara-
tions of the party, but these are rare, for men who intend
to commit erime seldom speak of it in advance. It therefore
necessarily follows that we must look to the facts and cireum-
stances of the cause, and draw our conclusions from these
facts and circumstances, The Killing itself is a fact, as I
have before stated, that may be proved by circumstances, and
often more satisfactorily than by positive evidence. Malice
is another fact to be proved in the same way—in other words,
“every fact necessary to constitute murder in the first degree
(except the death of the party) may be established by cireum-
stances.”

Archbold (vol. 2, p. 212) says: ‘‘When the prisoner’s guilt
is to be proved by circumstantial evidence only, the first evi-
dence given should be the finding of the body, and the state of
it, the next evidence the character of the wounds to prove the
manner in which they were probably inflicted, ag well aa
their being the cause of death; and then the facts and cir-
cumstances from which the jury are to imply that the prisoner
committed the offense; and his motive for committing it.’’
Mr. Greenleaf in his work on Evidence says ‘‘Malice may
be shown from the circumstances attending the act.’’ The

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