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EDWARD D, WORRELL. 29

be murder in the second degree here; or to state the case more
clearly, what is murder in the second degree in those states
may be here only manslaughter, or justifiable or excusable
homicide, Amidst this confusion, one thing is certain, mur-
der in the first degree—capital murder—can’t be made out
of malice implied. Nothing but express malice proved as a
fact, and so found by the jury, can make capital murder in
thie state. I do not now comprehend in this proposition a
class of murder in the first degree made ao and elevated to
that degree by reason of being committed in the attempt
to perpetrate a felony. That class stands by itself on inde-
pendent ground; but it is certain, that of all other murders
in this state, to constitute them capital, the element of express
malice must appear in proof, and be found as a fact by the
jary. We have no murder in this state which was not murder
at the common lew. In England, by the common law, no
grades pertained to murder, The only line run through
¢riminal homicide was that which divided murder from man-
slaughter; and all murder there was hanging or quartering
murder. The code was a bloody code—too bloody for our
people; and we changed the system at the eall of reason and
humanity. All murders are not alike in turpitude, tried by
any moral test. If you, sir (speaking to a juror), are lying
on a bed of sickness and prompted by an old grndge, masked
in the disguise of sympathy, I approach you, proffer
my assistance, gain your confidence, tender you medicine, five
grains of arsenic (which I have substituted for twenty grains
of calomel, the prescription of your physician), and you take
it from my friendly hand, am I not, in the sight of heaven
and earth, « different criminal from the man who, in the flush
and transport of passion kills for bitter, burning words of
contumely, spoken against the honor of his wife or daughter!
Yet, by the common law, both of these supposed homicides
are murder, and both capital. By our law it is otherwise.
‘We do not live under a system which confounds distinc.
tions, dictated aa well by the enlightened reason, as by the
ingtineta of man. We have divided murder into two degrees,
and manslaughter four—adopting different penalties to each

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