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

402 X. AMERICAN STATE TRIALS.

Express malice is that deliberate intention unlawfully to
take away the life of a fellow-ereature, which is manifested by
external circumstances capable of proof.

Malice shall be implied where no considerable provocation
appears, and where all of the circumstances of the Killing
show an abandoned and malignant heart.

There is no difference between expresa and implied malice
except in the mode of arriving at the fact of its existence.
The legal sense of the term ‘“‘malice’’ is not confined to par-
ticular animosity to the deceased, but extends to an evil de-
sign in general. The popular idea of malice in its sense of
revenge, hatred, ill will, has nothing to do with the subject.
It is an intent to kill a human being in a case where the law
would neither justify nor in any degree excuse the intention
if the Killing should take place as intended. It is a deliberate
intent unlawfully to take human life, whether it springs
from hatred, ill will or revenge, ambition, avarice or other
like passion, A man may form the intent to kill, do the kill-
ing instantly, and regret the deed as soon as done. Malice
must exist at the time of the killing. It need not have ex-
isted any length of time previously.

‘When a homicide is proven, if it is proven to be the act
of the defendant, the law presumes malice, and unless the
evidence should relieve the slayer he may be found guilty of
murder. The presumption of innocence is removed by proof
of the killing by the defendant. When the killing is shown
to be the act of the defendant, it is then on the defendant to
justify or mitigete the homicide, The proof to do that may
come from either side, either from the evidence offered by
the state to make out its case, or from the evidence offered
by the defendant or the defendant’s statement.

Gentlemen of the jury, you are made by law the sole
judges of the credibility of the witnesses and the weight of
the testimony of each and every witness, It is for you to
take this testimony as you have heard it, in connection with
the defendant’s statement, and arrive at what you believe to
be the truth,