State v. Brooks

Citations

• 26 Del. 203
• 3 Boyce 203
• 84 A. 225
• 1912 Del. LEXIS 20

Syllabus

<p>1. Homicide—Witnesses—Dying Declarations—Admissibility.</p> <p>A statement claimed by the prosecuting attorney to have been made to him by decedent and reduced to writing by the prosecuting attorney, but not signed nor sworn to by decedent, may be used by the prosecuting attorney to refresh his recollection in testifying to what decedent told him; but the instrument is not admissible as a dying declaration, though the prosecuting attorney testifies that the statement was read to decedent and he stated that it was correct.</p> <p>2. Homicide—Murder—Elements.</p> <p>Malice is an essential element of murder in the first or second degree.</p> <p>3. Homicide—“Malice”.</p> <p>“Malice”, in homicide, is a condition of the mind or heart, and is not restricted to spite or malevolence toward decedent, and includes that general malignity and reckless disregard of human life which proceed from a heart fatally bent on mischief.</p> <p>4. Homicide—Malice—Presumption.</p> <p>A homicide committed deliberately or without adequate cause is presumed to have been malicious, and the burden is on accused to show from the evidence, or by inference from the circumstances of the case, that the act was not malicious.</p> <p>5. Homicide—Malice—Evidence.</p> <p>Malice, in homicide, is implied from every unlawful and cruel act committed by one person against another; and when a killing is shown to have been done with a deadly weapon, it is presumed to have been done maliciously.</p> <p>6. Homicide—“Deadly Weapon”.</p> <p>A “deadly weapon” is a weapon likely to produce death.</p> <p>7. Homicide—“Murder in the First Degree”.</p> <p>A homicide committed with express malice aforethought is “murder in the first degree”.</p> <p>8. Homicide—“Express Malice Aforethought’'.</p> <p>“Express malice aforethought” exists only when one person kills another with a sedate, deliberate mind and formed design, evidenced by lying in wait for decedent, or by antecedent menaces or threats that disclose a purpose o