Statement of the Case.

"The grand jurors for the state of Kansas, and in and of the county of Leavenworth, duly empaneled, sworn and charged to inquire within and for said county, upon their solemn oaths do present, that Carl Horne, late of said county, at the county of Leavenworth aforesaid, and within the jurisdiction [*43] of this court, on the 30th day of August, A. D. 1861, in and upon one Philip Friend, in the peace of God and this state then and there being, unlawfully, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault; and the said Carl Horne, with a certain axe made of iron and steel, which he, the said Carl Horne, then and there in both of his hands had and held; the said Philip Friend in and upon the back and front part of the head of him, the said Philip Friend, and in and upon the breast of him, the said Philip Friend, then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did strike, thrust, and penetrate, giving to the said Philip Friend, then and there, with the axe aforesaid, in and upon the back and front parts of the head of him, the said Philip Friend, and in and upon the breast of him, the said Philip Friend, several mortal wounds, of which said mortal wounds, so given as aforesaid by the said Carl Horne as aforesaid, he the said Philip Friend then and there, to wit, on the 30th day of August, A. D. 1861, at the county of Leavenworth aforesaid, and within the jurisdiction of this court, instantly died; and so the grand jurors aforesaid, upon their oaths aforesaid do say: That the said Carl Horne, him the said Philip Friend, in manner and form aforesaid, unlawfully, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

The defendant, having been arraigned, and, before pleading, by his counsel moved the court to quash the indictment, because it did not show that the offence charged was committed within the jurisdiction of the court, nor punishable therein. Motion overruled and exceptions taken.

After the jury was sworn, the prosecution gave evidence tending to show that on or about the month of June, 1861, the

4-1 KAS.

Horne v. The State.

defendant became a boarder at the house of Philip Friend, [*44] the alleged murdered man; that Friend's family consisted of himself, his wife and a son about five years of age; that some time towards the last of the month of August, 1861, Friend was missing, and about ten days after the remains of a human body were found under some hay near the dwelling of Friend; that up to the time at which Friend was missing, the most friendly relations had existed between the defendant, Friend, his wife and son; that defendant, about two days before the remains of the body were found, left the premises in company with the wife of Friend, went to the city of Leavenworth, and were there married. And evidence was also given of certain statements of defendant in relation to the whereabouts of Friend, and that the defendant and the wife of Friend went to the city of Elwood, Kansas, on their way east; that they were there arrested by the police officers of the city of Leavenworth, and brought back. The defendant produced several witnesses who testified to the general good character of the defendant.

At the conclusion of the evidence the defendant's counsel requested the court to instruct the jury as follows:

First. The jury cannot convict the defendant of murder in the second degree.

Second. The defendant is presumed to be innocent until his guilt as charged is established by legal evidence; [the law presumes innocence of the act done, and innocence of the guilty intent.]

Third. The hypothesis that the defendant committed the act charged, must exclude every reasonable hypothesis that it was committed by any other person.

Fourth. Before the jury can convict the defendant, they must be satisfied, from the evidence, that no other person could have and did possess the opportunity possessed by the defendant to commit the act.

Fifth. Before they can convict they must be satisfied, from the evidence, that no other person committed the act.

[*45] Sixth. Under the statute, before a person can be convicted of murder in the first degree, express malice must be proved, to the satisfaction of the jury, beyond a reasonable

Statement of the Case.

doubt. In other words, the statute limits the signification of the term "malice aforethought" to what is known as express malice.

Seventh. The hypothesis of the defendant's guilt must be so fully established, and so conclusive, as to exclude any reasonable hypothesis of the defendant's innocence.

Eighth. If the prosecution have failed in establishing, beyond a reasonable doubt, any one fact material and necessary to be proved, they must find for defendant.

Ninth. The jury cannot convict the defendant under the indictment for murder in the first degree, unless they are satisfied, from the evidence, beyond a reasonable doubt, that the defendant wilfully, deliberately, premeditatedly and felonously, and of his malice aforethought, killed Philip Friend. Tenth. If the prosecution have failed to satisfy the minds of the jury upon each and every one of these points, then they cannot find the defendant guilty of murder in the first degree.

Eleventh. To convict of murder in the first degree, under the law of this state, the jury must be satisfied, from the evidence, that the defendant premeditated the murder-that he deliberated upon it beforehand.

Twelfth. If the jury find that Philip Friend came to his death from violence, inflicted by the defendant in the heat of passion and without deliberation or premeditation, they should not find the defendant guilty of murder in the first degree.

Thirteenth. Before the jury can find the defendant guilty of murder in the first degree, the evidence must reasonably exclude the hypothesis, that the cause of the death of the deceased was inflicted by the defendant in the heat of passion and without premeditation, not in self-defense.

But the court refused to charge as so requested, upon the first and so much of the second as is included within brackets, [*46] the third, fourth, fifth and sixth points as above mentioned, and exceptions were made. The court, after giving the seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and so much of the second as is not included in brackets, proceeded to charge the jury as follows.

Horne v. The State.

First. If the jury believe, from the evidence, that the facts in the case are all consistent with the supposition that the prisoner is guilty, and he can offer no resistance to that except the character the prisoner has borne, and except the supposition that no man would be guilty of so atrocious a crime as that laid to the prisoner, they are warranted in returning a verdict of guilty.

Second. That circumstantial evidence is sufficient, as to any material fact in this case, upon which to predicate a verdict. Third. That the woman and this defendant may both be guilty as principals in this murder.

Fourth. It is not necessary to prove the corpus delicti by direct and positive evidence; presumptive proof may be made in criminal as well as in civil cases.

Fifth. The court also charged the jury verbally, (as the court claimed,) "as to the definition of malice, deliberation. and premeditation; defined the distinction between murder in the first degree, murder in the second degree and the several degrees of manslaughter, and instructed the jury that, if the evidence warranted it, the defendant, although charged in the indictment with murder in the first degree, could be found guilty in the second degree, or any one of the degrees of manslaughter, because the indictment, in construction of the law, charged as well murder in the second degree and the several grades of manslaughter; that before the jury could convict the defendant of murder in the first degree, the evidence must satisfy them, beyond the existence of a reasonable doubt, that Philip Friend was dead; that he came to his death by violence inflicted by the defendant; that he did it wilfully, [*47] that is, intentionally; that he did it deliberately; that he did it premeditatedly, that is, that he reflected upon it beforehand deliberation and premeditation being almost synonymous; that he did it feloniously, that is, unlawfully; and that he did it maliciously."

And the court then defined the meaning of malice, and instructed the jury how it could be proved. The court charged the jury:

"That each and every one of these elements were necessary to constitute murder in the first degree, and that it devolved

Statement of the Case.

upon the prosecution to make out each element of the crime, to the satisfaction of the jury, beyond a reasonable doubt." In relation to malice, the court charged the jury:

"That malice was either express or implied. That express malice was evidenced by threats, lying in wait, former grudges, and the like. That malice was implied in law, from the circumstances of the killing, the use of weapons," etc.

Each of these charges were excepted to.

Sixth. The court also charged the jury, (reading the charge of Judge Shaw in the case of the Commonwealth v. Webster, 5 Cush.,) in which, among other things, he said:

"The distinction, then, between direct and circumstantial evidence is this: Direct or positive evidence is, when a witness can be called to testify to the precise fact which is the subject of the issue on trial; that is, in a case of homicide, that the party accused did cause the death of the deceased; whatever may be the kind or force of the evidence, this is the fact to be proved. It is therefore necessary to use all other modes of evidence besides that of direct testimony, provided such proofs may be relied on as leading to safe and satisfactory conclusions; and, thanks to a beneficent providence, the laws of nature and the relations of things to each other are so linked and combined together that a medium of proof is often thereby furnished, leading to inferences and conclusions as strong as those arising [*48] from direct testimony. On this subject I will once more ask attention to a remark in the work already cited. (East Pleas of the Crown, ch. 5, § 11.) "Perhaps,' he says, 'strong circumstantial evidence, in cases of crimes like this, committed for the most part in secret, is the most satisfactory of any from whence to draw conclusions of guilt; for men may be seduced to perjury by many bad motives, to which the secret nature of the offense may sometimes afford a temptation; but it can scarcely happen that many circumstances, especially if they be such over which the accuser could have no control, forming together the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous.'

"In a case of circumstantial evidence, where no witness can testify directly to the fact to be proved, it is arrived at by