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

28 X. AMERICAN STATE TRIALS.

dence, I submit that the proof has not established the prop-
osition.

The indictment contains two counts, On ita face, want of
knowledge of who killed Gordon is manifest, Without knowl-
edge it is framed to meet contingencies. In the first count it
is charged that Worrell killed him—killed him with a pistol
—and that Bruff was by, aiding and abetting only. No sconer
has the pleader drawn the charge than he reverses the ac-
eusation, and declares in a second count, that it was not Wor-
rell who killed Gordon—that be was only present at the deed,
and the killing was the act of another party. The indict-
ment shows ignorance of the alayer of Gordon; and this ig-
norance is not dispelled, except by the statement of the de-
fendant, which the State has made evidence.

1. My first proposition of law and fact is, that Worrell
did not kill the deceased, as charged in the first count. The
proof is to the contrary.

2. The second proposition is, that the second count is not
proved. If Bruff killed the deceased, as charged, it is not
proved that the defendant had knowledge of his design before
the act, and agreed to aid and abet its perpetration; and that

"ig essential to make him responsible for the act of another.
There is no proof that he incited to the deed, so as to make
him responsible as accessory before the fact; nor is it eatab-
lished that he was accessory at the fact.

3. If the evidence can be regarded as affecting the de-
fendant with the homicide, the crime of murder in the first
degree is not established against him.

This brings me to the distinction between murder in the
first degree and in the second degree. The line is difficult to
draw. It has not been drawn by any clean survey in our
statute, and judicial construction has clouded the boundary.
Our statute has not marked the division, nor run the line, as
it was run in Pennsylvania, Tennessee and New Jersey; it
makes the division at quite another part of the territory of
erime; and yet our judges have been trying to follow the
Pennsylvania, Tennessee and New Jersey surveys. What is
murder in the second degree, in those states, may or may not