Mr. Wharton, tbe able author of the works on Criminal Law, and on Homicide, bas contributed an article to tlie “Forum,” April number, 1875, in which he attempts to show that there has been a revolution in criminal law, in the matter of presumed malice. In his work on Homicide, 2d ed., § 671, he asserts the same doctrine, and says, “ If it be said that the use of a weapon, likely to inflict a mortal blow, implies, as a presumption of law, in its technical sense, a deadly design, this is an error ; and a fortiori is it so, when it is said the use of such a weapon implies a malicious design.”
Malice, design, and motive, are, as a rule, but inferential facts. They are inferred from facts and circumstances, positively proven. If direct, positive proof of them were required, it could rarely be given. Still, we know they exist; and-when sufficient facts are in evidence to justify us in drawing such inference, we rest as securely in the conviction, as if it Avere forced upon us by positive proof. The measure of evidence, however, to justify such abiding conviction, must be very full, — so full as to exclude every other reasonable hypothesis.
That every one must be held to intend the known consequences of his intentional act, is a recognized canon of moral accountability, and of municipal law. Malice, as an ingredient of murder, is but a formed design, by a sane mind, to take life unlawfully, without such impending danger, to be averted thereby, as will render it excusable, and without such provocation as will repel the imputation of formed design. Hence, when life is taken by the direct use of a deadly weapon, the canon, stated above, comes to its aid; and, if there be nothing else in the transaction — no qualifying or explanatory circumstance — the conclusion is irresistible, that the killing was done pursuant to a formed design; in other words, with malice aforethought; for malice, in such connection, is but the absence of impending peril to life or member, which would excuse the homicide, and of sufficient provocation to repel the imputation of its existence.
In Foster’s Crown Law, it is said, “In every charge of murder, the fact of hilling being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily jxroved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth; and very right it is that the law should so presume.” The *38same doctrine is affirmed in all tbe older writers and adjudications on criminal law.
Sir ¥m. Blackstone (4 Com. 201) says : “We may take it for a general rule, that all homicide is malicious, and, of course, amounts to murder, unless when justified, excused, or alleviated into manslaughter; and all these circumstances of justification, excuse, or alleviation, it is incumbent on the prisoner to make out to the satisfaction of the court and
In the case of Webster v. Commonwealth, 5 Cush. 206, the case stood on the naked proof of the homicide, without any of the attendant circumstances. Ch. J. Shaw declared the law as above quoted.
The case of People v. Schryver, 42 N. Y. 1, is a very careful and full collection and collation of authorities, English and American, and fully sustains the doctrine above declared. See, also, Tweedy v. State, 5 Iowa, 433; Silvus v. State, 22 Ohio St. 90. The case of Stokes v. The People, 53 N. Y. 164, properly understood, is not materially opposed to this view. The charge of the judge in that case invaded the province of the jury; and, in addition to this, the case was made to turn materially on the statutes of New York. The charge in that case went much beyond the principle above copied from the old authors.
The charge in the present case is precisely that which was given in the case of Murphy v. The State, 37 Ala. 142. In that case, this court held, that the charge was free from error. We are unwilling to depart from that decision, and, in doing so, from an old landmark which has, for centuries, withstood the test of time, and the combined wisdom of jurists on both sides of the Atlantic. There is a lamentable and growing laxity in the administration of the criminal law, which is seen and deplored by all good men. Life is not sufficiently cared for; its destruction not punished with sufficient severity. Until the reckless and rash are taught, by firm judges and stern juries, that the slayer of his brother can invoke the shield of self-defense, only when, without sufficient provocation from him, his life was in peril, or his body exposed to grievous injury; that homicide by him cannot be mitigated to the lesser offense of manslaughter, unless the jury are convinced that the killing was unpremeditated, and the result of sudden passion, excited by present injury more grievous than words — we fear that the calendar of bloody crimes is destined to know no diminution in its numbers. The terrors of certain punishment are the only sure means of restraining the evil-minded.
2. The evidence offered of the character of the accused *39was properly rejected. Tbe witness admitted be did not know tbe general character of tbe prisoner in tbe neighborhood in which be lived. Such knowledge is a necessary predicate to tbe introduction of evidence of character. 1 Brick. Dig. 513, §§ 910, 914. This knowledge of general character may be acquired, and frequently is, without hearing the subject discussed by a majority of the neighbors. Still, the witness must be able to say he knows the general character, before he can be allowed to speak of it.
3. We can perceive no principle, or reason, why the records of the civil suits, offered in evidence, should have been received. They could not have shed any legitimate light on the merits of the rencontre, which was the subject of inquiry. The verdict and judgment in the prosecution could not be evidence for any purpose in the civil suits. Neither do we think the institution or pendency of those suits, at all affected the credibility of the witnesses. The parties had the clear legal right to bring the several suits ; and if they succeed in convincing the juries that the several homicides and assaults were unlawful, they will be entitled to recoveries in their several actions. Otherwise, they must fail. The statutory right to sue would, probably, exert as great a bias on the witnesses, if it exert any at all, as would the pendency of the suits.
There is no error in the record. The judgment of the Circuit Court is affirmed, and the sentence of the law must be executed.