2. Murder.

This is the unlawful killing of another with malice aforethought. There are two meanings included in the expression "malice aforethought." One—when the malice is outwardly expressed. Another—when it is latent within, implied. It is so expressed, when malice on the part of the slayer to the individual slain is evident. It is implied, when malice is assumed from the act itself; as when a gun is fired at a number of persons, and one of them is killed; or when a person on slight provocation kills another; or when a person kills an Officer of Justice while engaged in the execution of his office; or when a person, intending the commission of another felony, contrary to his intention and undesignedly, kills another.

Most cases of Homicide are malicious, and amount to Murder. Those cases must be excepted which have been specified above, and which do not amount to Murder, viz.:—Cases of Homicide which the Law justifies; cases which the Law excuses; and cases of Manslaughter.

The accused must show clearly to the Court and to the Jury all the circumstances of the case,—that is, all the evidence which may tend to justify a verdict of justifiable or excusable Homicide, or Manslaughter. It is for the accused to take care that all such evidence is produced and clearly set before the Court. It is the province of the Jury to look at the evidence, and decide whether it be true or false. The province of the Court is to decide how far that evidence reduces the magnitude of the offence; for the Law presumes all Homicide to be Murder, or to be malicious, until evidence is adduced to show why it should be regarded as less than Murder.

In the Law of Moses the distinction was very clearly drawn between Murder and Manslaughter on the one hand, and Homicide which the Law excuses, oh the other.

"He that smiteth a man, so that he die, shall surely be put to death." Exodus 21.12.

"But if he thrust him of hatred, or hurl at him by laying of wait that he die; or in enmity smite him with his hand, that he die; he that smote him shall surely be put to death; for he is a murderer." Numbers 35. 20, 21.

This is murder.

"But if he thrust him suddenly without enmity, or have cast upon him anything without laying of wait, or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm: then the congregation shall judge between the slayer and the revenger of blood according to their judgments. And the congregation shall deliver the slayer out of the hand of the revenger of blood." Numbers 35. 22–25.

This is not Murder.

Again—"Whoso killeth his neighbour ignorantly, whom he hated not in time past, as when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of those cities and five: lest the avenger of blood pursue the slayer, while his heart is hot, and overtake him, because the way is long, and slay him; whereas he was not worthy of death, inasmuch as he hated him not in time past." Deuteronomy page 37 19. 4, 6. "But if any man hate his neighbour; and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities: then the elders of his city shall send and fetch him thence, and deliver him into the him of the avenger of blood, that he may die. Thine eye shall not pity him, but thou shall put away the guilt of innocent blood from Israel, that it may go well with thee." Deuteronomy 19. 11–13.

Let not these words be forgotten by any one:

"He was not worthy of death; inasmuch as he hated him not in time past."