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156 X. AMERICAN STATE TRIALS.

gree, they are deduced as an implication of law, in the ab-
sence of such affirmative evidence (the killing being only
proved) and to be declared by the Court. Mere presump-
tions of law arising from the absence of extenuating evi-
dence, and where the circumstances attending the killing ere
not fully disclosed, are not allowed to supply the affirmative
proof of the facts and circumstances indicating deliberate
malice and premeditation required in murder in the first de-
gree. The jury must be able to find as an affirmative fact, and
from the evidence alone, that the killing of Mr. Gordon at
that moment of time was deliberately and intentionally done
by the prisoner before they can find him guilty of murder in
the first degree. And if from all the evidence in the cause,
and from the evidence alone, the jury cannot, in the exer-
cise of their natural reason, find as an affirmative fact, that
the prisoner did intentionally, deliberately and premedi-
tatedly kill Mr. Gordon, as charged, then, in the absence of
evidence of extenuation, such as violent passion upon sudden
and sufficient provocation, the law adjudgea such killing to
be murder in the second degree only.

But as there is evidence in the cause conducing to show
that more than one person may have been present at the
supposed killing of Mr. Gordon, and the jury, in consequence
of a possible doubt as to which of the parties may have in-
flicted the mortal wound, may be embarrassed, being ignorant
of the law in such ease, they are farther advised and instruct-
ed, that where there is a common purpose to commit a crim-
inal act, participated and concurred in by two or more per~
fons, and one of them actually commits the act, the others be-
ing present, aiding and abetting him in its accomplishment,
the law adjudges the act of the one who puts hands to and
actually doea the deed, to be equally the act of each and all
so present, siding and abetting in its perpetration. All are
responsible for the acts of each, done in pursuance of and in
furtheranee of the common design, and are held to be equally
the guilty instrument of its perpetration. Nor, indeed, is it
necessary that they should be actually present at the com-
mission of the principal act, if sufficiently near by to render

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