State v. Smith

Citations

• 78 Kan. 179
• 96 P. 39
• 1908 Kan. LEXIS 28

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder — Malice—Question for the Jury. Malice is a material and important element in the crime of murder, and every defendant charged with that offense has the right to have the question of whether or not the act was actuated by malice submitted to the jury whenever there is evidence from which its absence can be inferred.</p> <p>2. -Proof of Malice. Where a defendant is being tried for murder in the first degree, and the circumstances surrounding the homicide are shown, from which it appears that the accused fired the fatal shot immediately after being violently assaulted by'the deceased, who was, when the shot was fired, apparently approaching the accused with a deadly weapon, it is error for the court to charge the jury that “proof of an unjustifiable killing is sufficient evidence of malice.”</p>