State v. Russo

Citations

• 24 Del. 538
• 1 Boyce 538
• 77 A. 743
• 1910 Del. LEXIS 52

Syllabus

<p>Indictment—Murder First Degree—Verdicts—Homicide—Felonious—Malice—Express Malice—Murder Second Degree— Implied Malice—Use of Deadly Weapon—Presumption of Malice—Manslaughter—Assault—Provocation— Opprobrious Words—Gestures, etc.—Self-der fense—Duty to Retreat—Confession—Evidence—Character of Accused—Conflict of Testimony—Reasonable Doubt—Motion for New Trial —Time to Prepare Case—Continuance —Absence of Witness.</p> <p>1. Under an indictment for murder of the first degree, the jury may find any of four verdicts, as the evidence shall warrant—murder of the first degree, murder of the second degree, manslaughter or not guilty.</p> <p>2. Homicide is the killing of one human being by another.</p> <p>3. Felonious homicide is of three kinds: murder of the first degree, murder of the second degree, and manslaughter.</p> <p>4. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree.</p> <p>5. Malice is a condition of the mind and heart. In the crime of murder the term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief.</p> <p>6. In a prosecution for murder, when it is shown that the fatal act was done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.</p> <p>7. Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death.</p> <p>8. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design be manifested in many ways; as