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EDWARD D. WORRELL. 119

any arson, rape, robbery, burglary or other felony. In the
first and second class express malice ie essential, and forms
a necessary ingredient in the offense, while in the third class
it ia not supposed to exist. If A breaks into the store of B
at night with no other intent than to appropriate to himself
the goods of B, and B enters and discovers him in the act,
and attempts to do him bodily harm, and A to protect him-
self kills B, this is murder in the first degree because it is
eommitted in an attempt to perpetrate a felony. Now this
eannot be said to be a killing with deliberation, premeditation
and malice aforethought, for the intent to kill was only formed
when it beeame necessary to his personal safety, yet because
it oceurred while the party was attempting to perpetrate a
felony, the law places it in the firat degree, and makes it a
capital offense.

In this case the theory of the State is that Worrell killed
Gordon and then took and carried away the property, and
not that he attempted first to take his property, and in the
attempt a scuffle ensued which resulted in the death of Gor-
don, The fact that Worrell was afterwards found in the
possession of the property is a fact introduced for the pur-
pose of showing the intent with which the act was committed ;
the motive that led to it. It is an important link in the chain
of evidence to establish malice.

The third ground taken by defendant’s counsel is ‘‘That
there is no evidence of express malice, which is essential to
constitute murder in the first degree.’”

This point has been much labored by the learned counsel
and the manner in which he has presented it evinces to my
mind his entire want of confidence in the success of his de-
fense, for I apprehend it would puzzle the ingenuity of the
gentleman himself to imagine a ease in which malice plays so
prominent a part as it does in this. View it in any stage or
aspect, and the eye must be dull indeed that cannot see the
motive that prompted the erime; but as the counsel has made
the point with apparent seriousness, J will meet it in a proper
spirit.

Malice is a comprehensive word, susceptible of different

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