SECTION 1 - COLQUITT
Jury Instruction - Homicide
[Ala. Code, tit. 14, §§ 314-20 (1958 recomp.) (repealed)]
MURDER IN THE FIRST DEGREE
Murder in the first degree is the wilful, deliberate, malicious and premeditated killing of a human being. Malice, wilfulness, premeditation and deliberation, these four things, must co-exist before a defendant can be convicted of murder in the first degree. And the burden is upon the State of Alabama in this case to convince you gentlemen of the jury beyond a reasonable doubt, and to a moral certainty, that these four elements did co-exist before the defendant can be convicted of murder in the first degree, the highest degree of unlawful homicide.
Wilfulness, as an ingredient of murder in the first degree, means governed by the will without yielding to reason it means intention. Malice, in law, does not necessarily mean hate or ill-will, but it is defined as any unlawful act wilfully done without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.
The law presumes malice from the use of a deadly weapon, and casts on the defendant the burden of repelling the presumption, unless the evidence which proves the killing shows also that it was perpetrated without malice, and whenever malice is shown beyond a reasonable doubt, and is unrebutted by the circumstances of the killing, there can be no conviction for a less degree of homicide than murder. For instance, if a killing is done with a deadly weapon, such as a pistol, the law authorizes the jury to presume malice from the killing, unless the evidence which proves the killing shows that it was done without malice. But to sustain a conviction of murder in either degree there must be malice in the killing as I have defined malice to you.
Premeditation and deliberation, as elements of murder in the first degree, mean simply that the defendant before he fired the fatal show intended that he would shoot at the time he did so and that death would be the result of the shooting. It may have been entertained only for an instant of time before the shooting; it may exist for only a moment before. It is for you to say whether or not it was entertained before the shooting, and whether or not it did exist at the time of the firing of the fatal shot. Premeditation and deliberation as here used do not mean that the man-slayer must ponder over the killing for a long time. It does not mean that he must sit down and reflect over it, or think over it for any appreciable length of time; but it may exist and may be entertained while the man-slayer is pressing the trigger that fired the fatal shot, even if it be only for an instant of time, it is the premeditation and deliberation constituting an element of murder in the first degree. So, remember, gentlemen, that to constitute murder in the first degree in Alabama, the killing must be wilful, deliberate, malicious and premeditated, as I have defined these terms.
MURDER IN THE SECOND DEGREE
Murder in the second degree is the unlawful killing of a human being with malice. but without premeditation and deliberation. And whenever one person unlawfully and with malice aforethought, but without premeditation and deliberation, kills another person it is murder in the second degree. Premeditation and deliberation, as I have heretofore defined these terms, while necessary to constitute a homicide murder in the first degree, are not essential elements of murder in the second degree, which is simply the unlawful killing of a human being with malice, but without premeditation and deliberation.
MANSLAUGHTER IN THE FIRST DEGREE
Manslaughter is the first degree is the unlawful and intentional killing of a human being, but without malice, and whenever one person unlawfully and intentionally, but without malice kills another person, the homicide is manslaughter in the first degree. Now malice is not an ingredient or essential of the offense of manslaughter in the first degree. In manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which ordinarily, in the course of events, death or great bodily harm may ensue. In order for a homicide to be reduced from murder to manslaughter, there must be no malice in the killing. In other words, it must not be malicious killing. If the killing is malicious even if it is done in the heat of passion, it is murder. Even if a killing is done in a sudden heat, excited by sufficient provocation if there is malice in it, it is murder, and if deliberation and premeditation are present, then it is murder in the first degree. Anger and rage do not reduce an unlawful killing from murder to manslaughter, if it has the other elements which are necessary to constitute murder, but if a killing is done in a sudden heat of passion, and the reason of the man- slayer is distributed or swayed by that passion, and this passion is excited by sufficient provocation, such as a blow or a threatened blow, and the killing is without malice, then it is manslaughter in the first degree, because such passion under such circumstances has disturbed the sway of reason.
MANSLAUGHTER IN THE SECOND DEGREE
Manslaughter in the second degree is defined as the unlawful killing of a human being without malice either express or implied, and without intent to kill or to inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the improper performance of an act lawful in itself. Manslaughter in the second degree may be committed by the doing of an unlawful act, or the doing of a lawful act in an unlawful manner, although at the time the defendant did not actually know that the act would result in homicide, and this notwithstanding, after the act was done, or while in progress the defendant used ordinary care to prevent the taking of human life; nor is the intention to take life necessary in a prosecution for this offense.
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