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the completion of the sale of the mines and the have been compelled to accept the title and pay organization of the proposed company. But it the value of the stock and bonds they had conwas dependent only so far, that if the sale of the tracted to issue to Shotwell, and to discharge the mines had failed without the fault of either, lien of $16,000, as they had contracted to do. neither could have enforced it against the other. This would not have enabled Shotwell to comply It was not, however, so far dependent that either with his contract with Burton; but we certainly might, by his voluntary act, defeat the proposed will not, in order to relieve Shotwell from a consale, and thereby relieve himself of the obligations tract he has deliberately violated, presume that the imposed by the dependent contract.
purchasers of the mines would have subjected The parties having contracted with reference to themselves to the consequences of a refusal to the proposed sale of the mines and organization comply with their contract, rather than voluntaof the corporation, and their contract being de- rily to perform it by the organization of the propendent upon the completion of that scheme, it posed corporation, and the issue of the bonds and was implied in that contract that each of the con- stock contracted to be delivered to Shotwell. He tracting parties would, in good faith, carry out is not in an attitude in this record to escape from the scheme, so as to put himself in position to the obligations of his contract upon conjecture and perform his dependent contract.
speculation. He has not done more than manifest It is true Shotwell had a right, as between him- a bare probability that if he had done what he self and the proposed purchasers of the mines, to might and should have done, he would still have withdraw his offer to sell at any time before it been unable to perform his agreement; and we can was accepted in writing by all those to whom it not do otherwise than hold that his inability is the was made. But, as between himself and Burton, result of his own conduct. he had no such right. To do so was a violation His counsel next insist that he can not be comof the contract between them.
pelled to perform the contract because of a want But his counsel argue that, although it may be of mutuality. true he thus violated his contract with Burton, The general doctrine seems to be, that an execstill he is not to be taken to have been the author utory contract can not be specifically enforced by of his own inability to perform his agreement. one party, unless at the time of its execution it is. To support this proposition they introduced evi- capable of being so enforced by either party. dence conducing to prove that Peter and Smith, Fry on Specific Performance, sec. 286. And this two of the proposed purchasers, had an under- rule applies as well to the remedy as to the oblistanding or agreement with Kelsey, one of the as- gation of the contract. Cooper v. Penar, 21 Cal. sociates in the enterprise, at or before the time 404. when they signed the acceptance of Shotwell's That there was the requisite mutuality in the offer, that they were not to be compelled to guar- obligation of the contract in question, is clear. Wasantee the bonds to be issued by the proposed cor- there mutuality in the remedy? It is contended poration to Shotwell, and that they would have there was not-first, because, as claimed by counrefused to do so. Upon these facts counsel argue sel, a court of equity will not specifically enforce that Peter and Sinith would have refused, and a contract for the transfer of stock in a corporacould not have been compelled, to perform their tion; and secondly, that Shotwell never having agreement, and that, therefore, it never was in had the stock contracted to be transferred, it was Shotwell's power to perform his part of the con- impossible to enforce compliance with his contract tract with Burton, and never would have been if to transfer it. he had not withdrawn his offer.
Whatever may be the rule in regard to the speHe adınits that he became dissatisfied with his cific enforcement of a contract respecting the contract with Burton, and withdrew his offer to shares of a private corporation, when such shares sell the mines in order to defeat it, and it may well constitute the sole and entire subject matter of the be donbted whether a court of equity ought, at his contract, we think there can be no doubt that a instance, to enter into an inquiry whether the con- contract to exchange such shares for real estate tract for the sale of the mines could have been en- may be enforced at the instance of either party. forced against Peter and Smith. It is, however, The chancellor can not decree the specific perentirely clear that no contemporaneous verbal un- formance of a contract to pay money for a mere derstanding or agreement between them and their chattel, by compelling the purchaser to accept the associate, Kelsey, could have defeated Shotwell in title and pay for it; but he will enforce a contract an effort to enforce the contract against them. to pay money for land by compelling the purchaser
But it is doubtful whether, from the nature of to receive the title and pay the price. It is the the contract, it could have been enforced specific- land that gives jurisdiction to the court to enforce ally in all its provisions. There can, however, be the contract. So in this case, the chancellor, having no doubt but Smith would have accepted the offer, jurisdiction to enforce the contract in respect to and thus completed the contract for the sale of the the real estate, would have had jurisdiction, at the mines, if the offer had not been withdrawn. His suit of Shotwell, to compel Burton to accept the acceptance, notwithstanding the withdrawal, is stock and convey the real estate; and at the suit of conclusive of that fact. If, then, it had not been Burton, to compel Shotwell to accept the title and withdrawn, Shotwell could have tendered perform- transfer the stock. ance on his part, and if the purchasers had refused That Shotwell did not have the stock did not to perform their part of the contract, they might render the contract unenforceable. We have seen
JUDGE DILLON ON THE FEDERAL JUDI
that his failure to get it is to be taken to be the result of his own conduct in withdrawing his offer to sell the mines, in violation of his duty under his contract with Burton. He is, therefore, in the same position he would have occupied if the scheme for organizing the corporation had been carried into execution, and the stock had been issued to him, and disposed of so as to put it out of his power to transfer it to Burton. In that case, there can be no doubt but he would have been compelled to accept the conveyances of the real estate, and pay the value of the stock in cash.
The contract describes the real estate in Kentucky as a brick house and lot” situated in Louisville, “ on Main street, between Floyd and Preston, the same bought by Burton of Mrs. Gray, about March, 1871; also two cottages on Floyd street, and two cottages on Washington street, built by Burton on the land above referred to as bought of Mrs. Gray.”
In the deed tendered by Burton, there is reserved to Mrs. Louisa S. Gray, Burton's vendor, and her heirs forever, the free and uninterrupted use and enjoyment of an alley-way four feet wide, and extending back from Main street forty-three and onehalf feet, on the west side of the lot. The same reservation is contained in the deed from Mrs. Gray to Burton. Burton's contract bound him to convey to Shotwell all he had purchased of Mrs. Gray, and, in our opinion, his deed is a compliance with his contract. The evidence shows that Shotwell examined the property before he entered into the contract, and that the alley-way was then open and in use under the reservation, and he must be presumed to have bought with a knowledge of its existence.
This brings us to the consideration of the criterion of recovery.
Shotwell having, by his own act, put it out of his power to comply with his contract to transfer the stock, is liable for its value. The contract shows that the parties estimated the mines, which were to be the basis of the stock, at $216,000; to be paid $16,000 in cash, $100,000 in bonds bearing ten per cent., and so secured as to be equal to cash, and $100,000 in the shares of the corporation. The mines were to be stocked at $300,000. Practically, Shotwell was to sell two-thirds of the mines for the equivalent of $116,000 in cash. Estimated on this basis, the cash value of the mines was $174,000, and the cash value of $55,500 of stock was $32,190; and for that sum, with interest from the commencement of this suit, Burton is entitled to judgment.
In response to the suggestion of Shotwell's counsel, that the deeds not having been recorded within the time prescribed by law after their acknowledgment by Mrs. Burton, will not bar her potential right of dower, we remark that no judgment should be rendered in conformity to this opinion until the deeds are re-acknowledged by her.
Judgment reversed, and cause remanded for further proceedings in conformity to this opinion.
At the annual dinner of the Chicago Bar Association held on the 27th ult., Judge Dillon, in reply to the toast of “ Lawyers on the bench and at the bar," spoke as follows:
“MR. PRESIDENT AND GENTLEMEN: In briefly responding to the sentiment just offered to a guest who is personally a stranger to the most of those present, and who is here almost by accident, my first duty is to express my cordial acknowledgments for the kindness and warmth with which I have been received. Your hospitality aud genereus welcome bas touched my heart and filled it with thankfulness. I beg also to express my satisfaction that this great city has in active and useful operation an association of the members of the bar, organized and sustained for the improvement of the laws, to secure their just and pure administration, and to advance legal and judicial science.
“ Justice is the highest interest of man on earth, and the members of the legal profession are its natural guardians. The state rests upon law, aud it can have no other solid foundation; and the laws of the land have no other end than to secure enlightened, equitable, and even-handed justice to all persons, natural and corporate, rich and poor, high and low, in equal measure, without fear or favor. If the laws are suffered to fall into decay, if their administration is permitted habitually or generally to fall into unworthy hands, there remains for the state but one alternative -reform or death.
“ Such an association as this does not exist for its members alone. In this country our material inter. ests are so closely interlaced as not to be marked or defined by municipal or state lines. Whatever good fruit you secure for yourselves, you inevitably secure for all. The republic of law knows, indeed, no boundaries, and, whether we live on the ocean, on the lakes, on the Missouri, or in the shadow of the mountains, we are equally interested in all that pertains to the highest good of our profession and of the country. De Tocqueville is right. The lawyers are the great conservative and conserving power in the country. If Peter the Great ever made the remark attributed to him in one of the regular toasts, it was doubiless when he saw the swarm of lawyers in Westminster hall. His astonishment is natural enough. But his threat to hang one of the only two lawyers in his country is the barbarous utterance of an autocratic ruler of barbarians. The Czar of all the Russias has not in the vast expanse of despotism which lies between Siberia and the Crimea, one such monument to the glory and freedom of his country as Westminster ball. That is the product of a free and enlightened people, with courts and juries and lawyers.
"On such occasions as this. Mr. President, it onght not to be forgotten that there are many causes in this country which operate with great force to produce an imperfect system of jurisprudence; and therefore the duty of the lawyer and the judge to guard, as far as possible, against such a result, is a duty of imperative obligation. I shall mention only one or two of these causes. One of them grows out of our duplex sygtem of state and federal government, and is unavoidable. Forty state courts of last resort, and as many federal courts sitting in the same states with concurrent jurisdiction, can not, without great learning and infinite care, build up a harmonious and symmetrical system of jurisprudence. The difficulty in the way of the judges is seriously increased by the burdensome and exacting pressure of their duties. They lack, in general, neither learning nor industry; their chief want is the want of time.
“I shall not speak of myself, but in illustration of
Wiies a lawyer draws a conveyance, he may be said to “ work like a horse."
what I am saying I may, perhaps, fitly refer to the na
NOTES OF RECENT DECISIONS. ture and extent of my judicial labors. The other circuits are in the same situation. The lawyers who DIVORCE-CHILDREN CAN NOT SET ASIDE Di. practice in Judge Drummond's court need no infor- VORCE OF PARENTS.-Baugh v. Baugh. Supreme mation concerning his great labors.
Court of Michigan, 1 Monthly Jurist, 573. Opinion by “The trans-Mississippi federal circuit embraces seven CAMPBELL, J. No matter how much the interests of states, and extends in an unbroken reach of territory children may be affected, they have no legal right that from the British possessions on the north, to Louisiana will enable a court of equity to set aside a decree of diand Texas on the south-from the Mississippi on the vorce at their instance, on the ground of collusion on east, to and including the Rocky Mountains on the the part of their parents. west. It comprises the States of Minnesota, Iowa, Ne- “ CIVIL DAMAGE" LAW-JOINT LIABILITY OF braska, Kansas, Missouri, Arkansas and Colorado. In SELLER AND OWNER OF PROPERTY-PROXIMATE each of these states there are two terms a year, and in AND REMOTE CAUSE-VARIANCE.-Schroder v. Crawone of them lour terms, making sixteen terms annually. ford. Appellate Court of Illinois, 1 Monthly Jurist, With the exception of Arkansas and Colorado, I have 574. 1. A saloon keeper and the owner of the building for the last eight years attended twice a year the terms where the same is kept are jointly liable for injuries of courts in each of these states and in Arkansas, and arising in consequence of sales of intoxicating liquors in Colorado since its adınission, invariably once each made by the former. 2. Where a person keeps a dram year, and sometimes twice. The distances actually shop in the vicinity of several railroads, and causes traveled are immense-not less than ten thousand miles the intoxication of a person by the sale or gift of intoxa year. The distance from St. Paul, where one can icating liquors, and, in consequence thereof, such peralmost cast a stone across the Mississippi, to Arkan- son is run over and killed by the cars, held, that the sas, where the stream has broadened into a mighty and result being one which might reasonably or probably majestic river, bearing the commerce of twelve states, follow as a result of such sale, the seller will be held and on whose lordly bosom hostile fleets have con- responsible, and that the cause of action is not too retended, is vast. And the distance from the great city mote. 3. The plaintiff averred that deceased met his of St. Louis to where Denver serenely sits, sentineled death“ without any fault on the part of said railroad and begirt by the lofty andsnow-clad peaks of the Rocky company,” but introduced no proof to sustain such Mountains, is scarcely less.
allegation. Held, that in torts the plaintiff is not re“ TI dockets are crowded with causes, original and quired to prove all the allegations of his declaration. appellate, of great variety and importance-civil and If enough is proved to support the charge it is sufficriminal, at law and in equity, in admiralty and in cient. bankruptcy. And this is only typical of the condition Liquor Laws–ILLEGAL SALE BY WIFE-AUTHORof the other circuits. With so much work, and with so ITY OF HUSBAND. State v. McDaniel. General Seslittle time for deliberate and, sedate consideration, sions of Deleware, 5 Rep. 8. A person prosecuted for mistakes must be numerous. But the fault lies not so selling liquor without license can not defend by showmuch with the over-worked judges, as with the faulty ing that it was sold by his wife in a part of the house system which imposes such vast labors upon them. ' used by her as a store. “ The legislature has not yet, The state judges generally are almost equally over- and if the peace of families and the welfare of society burdened. Hence we inevitably have a constantly in- are to be considered, it will be a long time before it creasing mass of decisions, state and federal, many of will take away the husband's control of his own family. which must be erroneous, and which, while standing It is absolutely necessary that some one should as precedents, bear pernicious fruits.
have control of the household; and in all ages, and "Judges, state or federal, do not forget the weighty among all nations, this authority has been reposed advice of old Bulstrode, so quaintly expressed in the in the husband. And the legislature in authorizing dedication of his second volume, in the time of the married woman to do business on her our accommonwealth, over two hundred years ago,' that as count, never meant to enfranchise her, or to interfere laws are the anchors of the republic, so the judicial with the domestic relations in any manner whatever. reports are as the anchors of the laws, and therefore And if the defendant in this instance had so willed, he ought to be well weighed before put out.' Judges do might have shut up the house and forbidden his wife not forget this advice, but the trouble is that they find to sell liquor or anything else in it. Or he might have it impracticable, for want of time, to follow it. The re- carried the liquor into the street and poured it out sult is tbat the supreme court has nine hundred cases without let or nindrance by his wife, or any one else." on its calendar, and, with all the industry of its judges,
EXHIBITION OF WILD ANIMALS ON STREETSis three years in'arrears.
FRIGHTENING HORSES-LIABILITY OF CITY.-Little “Feeling, as I have felt for years, the force of the evils, v. City of Madison. Supreme Court of Wisconsin, 1 private and public, which inevitably spring out of this Montbly Jurist, 537. Opinion by COLE, J. If a municicondition of things, I have learned with extreme satis- pal corporation license a person to exhibit on its faction that, so far as the federal courts are concerned,
streets bears or other things tending to frighten an eminent citizen of this state, who for many years
horses, it will be held responsible to persons for damadorned its bench, until he was transferred to the Su
ages caused by the frightened horses. It is the duty preme Court of the United States, and wiso is now a of municipal corporations tokeep their streets free from senator in congress, is actively lending the weight of
all obstructions and nuisances. If the corporation, by bis great character and ripe experience to a needed its license, sanctions the exhibition, orits officers know reform,
that its streets were thus obstructed, it will be held "And the only practical point to the remarks which I
sufficient knowledge to make it liable. am having the honor to make in this distinguished
CONTRACT BETWEEN SCHOOL DIRECTORS AND presence is, that I trust the Bar Association of this
TEACHER-DISMISSAL OF LATTER FOR ALLEGED INimperial city will pronounce its judgment in favor of
COMPETENCY MEASURE OF DAMAGES. Ering v. the proposed legislation of Senator Davis, and warmly
School Dircetors, Appellate Court of Illinois, 3d Disaid him in securing its adoption."
trict. i Ch, L. J. 140. Opinion by HIGBEE, C. J.--1.
A was employed by B to teach a school for eight months A JURY of five lawyers tried a case in the Superior for $313.75. The written contract provided that in case Court of New York city last week by consent, all the A was dismissed from the school by B for any violaregular jurors being engaged in other cases.
tion of the contract, then the certificate of A should
be annulled, and A should not be entitled to receive any right to lay the pipe under plaintiff's grant was fixed compensation from and after such annulment or dis- by the act of the grantee and the acquiescence of the missal. A taught the school under this contract three grantor to the place taken, and it can not be exercised and one half months, and was then dismissed by B for in any other place across plaintifl's land. But why is alleged incompetency, and paid for the time taught. A. not the right also fixed for the same reasons as to the brought suit against B to recover for the balance of the size of the pipe and the quantity of water to be ditime mentioned in the contract, and recovered a judg. verted? I can perceive no reason for confining the opmedt for one dollar. The principal question in the eration of this rule to the mere place where the right case was whether A was incompetent within the mean- is to be exercised. There is the same reason for aping of the contract and the school law, and therefore
plying it to the entire right granted. In Bannon v. improperly dismissed. No evidence was offe; ed tend
Angier. 2 Allen, 128, the same learned judge again ing to show that A engaged in any other business after said: “Where a right of way or other easement is A's discharge and before the expiration of the time A.
granted by deed without fixed and definite limits, the had agreed to teach, nor that A could by any effort
practical location and use of such way or easement by bave obtained similar employment in that neighbor
the grantee under his deed, acquiesced in by the hood. On the contrary, the testimony showed that A.
grantor at the time of the grant, and for a long time was ready at all times before the contract expired, to
subsequent thereto, operate as an assignment of the teach, but that A had made no effort to get another
right, and are deemed to be that which was intended school, because it was in the middle of the term when
to be conveyed by the deed, and are the same in legal the dismissal occurred, and there were no other
effect as if it had been fully described by the terms of - schools then wanting teachers. Held, that under this
the grant." evidence, if the jury found for A at all, it was their duty, by law, to have assessed A's damages at the amount fixed by the contract for the full term of eight
BOOK NOTICE. ·months. 2. An instruction to the jury, “that if they
HUBBELL'S LEGAL DIRECTORY, for lawyers and busbelieve from the evidence that A was dismissed from
iness_men, containing names of Attorneys throughthe school in question by B for incompetency, then A
the United States and Canada; a Synopsis of the is not entitled to recover any compensation from and Collection Laws of each State; Synopsis of the Bank:after such dismissal,” was calculated to mislead the rujt Law, etc. J. H. HUBBELL, Editor and Comjury, and should not have been given. Neither the piler. New York, 24 Park Place. 1877. school law nor the contract authorized B to dismiss A The eighth annual volume of this directory is an imunless A was in fact incompetent. A was not barred of provement on the former volumes, and is a valuable a right of recovery simply because B thought A in- book of reference for both the lawyer and the business competent, if in fact A was competent at the time. In- man. It contains a list of attorneys, a concise synopcompetency, un'ler such circumstances, is a fact to be sis of the laws of each state and territory and of Canfound by the jury from all the evidence before them. ada, relative to the Collection of Debts, Execution and
EASEMENT-LIMITATION OF BY ACTS OF GRANTEE. Acknowledgment of Deeds and Wills, Taking of Dep-Onthank v. L. S. & M. S. R. R. New York Court of
ositions, Insolvent Law, Descent of Property, InterAppeals, 16 Alb. L.J.429. Opinion by EARL,J. Plaintiff,
est, Tax Law, Mortgages, Claims against Estates, etc. by written instrument, gave defendant a right to lay
It likewise contains a Digest of the Bankrupt Law, and maintain across his land a pipe to convey water
and a list of the state and federal courts, the times from a spring. The instrument did not specify the
when and places where held, and the names of the size of the pipe or where it should be laid. Held, that
judges and officials. The digest of the state laws apby laying pipe of a particular size across plaintiff's
pears to be prepared with accuracy, and to be as comland, defendant fixed the size, and was not entitled
plete as possible. The book contains 778 pages, and is thereafter to replace it by pipe of a larger size. “ After
well printed and bound. the grantee bad once laid his pipe and thus selected the place where it would exercise its easement thus granted
CORRESPONDENCE. in general terms, what was before indefinite and general became fixed and certain, and the easement could
THE DEGREES OF MURDER. not be exercised in any other place. This is confessedly so in reference to rights of ways granted in similar
To the Editor of the Central Law Journal : terms. Wasbb. on Easem. 225, 240; Wynkoop v.
I was impressed with the clearness with which Burger, 12 Johns. 222. And the same rule of construc- the law of murder is stated in " A Review of the Law tion was applied to the right to lay an aqueduct from a of Murder and the Gassert ase, by Judge W. C. spring granted in general terms, in Jennison v.Walker, Jones of the Criminal Court," published in the 11 Gray, 423. In that case Bigelow, J., said: "Where
Missouri Republican of the 17th inst. To my mind an easement in land is granted in general terms, with- the decisions of our Supreme Court in defining the out giving definite location and description to it, so tbat the part of the land over which the right is to be exer
distinction between murder in the first and second cised can not be definitely ascertained, the grantee
degrees, are in much confusion, and it is refreshdoes not thereby acquire a right to use the servient
ing to meet with a statement of this distinction in estate without limitation as to the place or mode in so clear and forcible a manner as Judge Jones has which the easement is to be enjoyed. When the right presented it. But it is somewhat chilling, even to granted has been once exercised in a fixed and definite one who has not made “ the criminal law a study course, with the full acquiescence and consent of both
of a life-time," to see how the judge applied these parties, it can not be changed at the pleasure
principles in practice in the Gassert case. of the grantee.' 'This rule rests on the principle
It is sufficient for the present purpose, without that, when the terms of a grant are general or indefinite, so that its construction is uncertain
giving the definition of murder at common law, to and ambiguous, the acts of the parties contempora
state that “Murder is distinguished from other neous with the grant giving a practical con
kinds of killing, by the condition of malice." -struction to it, shall be deemed to be a just exposition
Whar, on Hom., sec. 3. of the intent of the parties'. It is clear, then, that the By the Missouri statute, murder is divided into
two degrees. Every murder not of the first, is of exist in a particular case, before they can find guilt the second, and the judicial mind should have no in the first degree. trouble in drawing the correct distinction between Judge Jones, in his review, says: “ A homicide, them in practice, as well as in theory. I do not which at common law would be murder, will, know that I can add to the force of the judge's under our statute, be murder in the first degree, theory, but before I confront his theory with his when it is done wilfully, deliberately and premedpractice I may be permitted to express some itatedly. To constitute the crime, these three elethoughts on this distinction.
ments are as necessary as the element of maliceEvery killing of a human being with malice, is a necessary ingredient of all murder.” After elamurder, and every murder is in the second degree, borating these principles, and illustrating them except where committed by means of poison; by with great force, the judge applies them to the lying in wait; in the perpetration, or attempt to Gassert case, and after stating the facts of the case perpetrate a rape, arson, robbery, burglary or other and stating that the jury were instructed as to the felony, or which shall have been a wilful, delib- law of murder in the first and second degrees, rate and premeditated killing. In practice, in says: 6. The instruction as to murder in the second ninety-nine cases out of a hundred, the indictment degree being as follows, to-wit: is for a wilful, deliberate and premeditated killing, • The distinction between murder in the first and the confusion, if any exists, has arisen in cases degree and murder in the second degree, lies in thus charged. An unlawful, malicious killing is the intention with which the act is done. Where murder in the second degree. An unlawful, mali- a homicide is committed, and there was an intent cious, wilful and deliberate killing is murder in the to do the act, then, in the absence of any circumsecond degree; but an unlawful, malicious, wil- stances of excuse, justification or extenuation recful, deliberate and premeditated killing is murder in ognized by the law, it is murder in the first degree. the first degree. And the court which instructs a But if the party killing did not intend to kill, but jury, in a case where a wilful, deliberate and pre- assaulted and killed with malice, as that term is merlitated killing is charged, that they may find known to the law, then the offense is murder in guilt in the first degree, upon any facts short of a the second degree.” It will be observed that this wilful, deliberate and premeditated killing, does instruction is, mutatis mutundis, the same which violence to any reasonable construction of the was approved in State v. Joeckel, supra; but how statute; and that, too, in a case where a human Judge Jones can conclude that the rules of law life may be the forfeit of the blunder. The lan
which he recites justify the instruction as given, guage of the statute is, “ or by any other kind of
is past my comprehension. In the recital of the wilful, deliberate and premeditated killing." In State rules of law, it is stated, in substance, that in V. Joeckel, 44 Mo. 234, the court instructed the murder in the first degree there are three elejury on this distinction as follows: “ Where a ments, viz: wilfulness, deliberation and premedihomicide has been committed, and there was an tation, as essential as malice, which, he says-and intent to do the act, then, in the absence of any cir- in which I concur-is a necessary ingredient of all cumstances of excuse, justification or extenuation murder; and yet he tells the jury that the distincrecognized by law, it is murder in the first degree. tion lies in the intention with which the act is done. But if the party killing did not intend to kill, but Can it be that the judge will insist that an intent assaulted and killed with malice,
then to kill includes the elements wilful, deliberate the offense is murder in the second degree." and premeditated? Such a position, it is conceived, Here, if I can understand the language employed, would be wholly untenable. Wilful-governed by the distinction is sharply drawn by the court, and the will, without yielding to reason. Deliberate—to stated to be the intention with which the act was balance in the mind, to weigh, to consider. Predone. The is wilful” of the statute is preserved, meditate-to think on and resolve in the mind bebut the terms “ deliberate” and “premeditated forehand, to contrive and design previously; as to are as wholly ignored as if they had no place in
premeditate, theft or robbery-Webster. The in. the section; and Judge Wagner, speaking for the struction says the distinction lies in the intention court in the case, says: “ The instructions state the
with which the act was done. Intention means law with clearness and precision, and point out intended, designed, and not accidental, and it the distinction between murder in the first and
may be admitted that the term exhausts the elesecond degrees." This case has been the rule of ment “ wilful ”as used in the statute, but it wholly murder trials, to a large extent, since 1869, while, ignores the other two elements, “ deliberate ” and to my mind, it presents a palpable disregard of a “ premeditated," each of which is as essential to plain provision of the statute.
murder in the first degree as malice itself. I have It does not detract from the force of the argu- not had the advantage of an examination of the rement that our Supreme Court has approved an in- cord nor of the decision of the Supreme Court in struction that “ the deliberation and premeditation
the Gassert case; nor do I known what instruction necessary to constitute murder in the first degree,
was given in respect to murder in the first degree; may be inferred from the circumstances connected
but I submit that the instruction above set out, with the killing; and if they existed for a moment, while it is claimed to be in relation to murder in as well as an hour or a day before the killing, it is the second degree, undertakes to set out the dissufficient." State v. Hays, 23 Mo. 287. Certain it tinction between the two degrees, and to state the is, that these facts must exist, and the jury must elements of each, and, as such, it is fatally erroneous find, and that from the evidence, that they did and cruelly dangerous to him whose life depends