in giving the cause to the jury, adverted to the importance of the case, and instructed them in their duty. He read the three first sections of the crimes act (29 O. L. 158), and defined—
1. Murder in the first degree to be, when one purposely, of deliberate arid premeditated malice, kills another.
2. Mwrder in the second degree to be, the intentional killing with malice, where the mcdice, or evil disposition of mind, operates suddenly upon some recent impulse, and had not been premeditated or deliberated upon.
3. Manslaughter. The unintentional killing, without malice, where the slayer is in the commission of some unlawful act, or the intentional killing, upon a sudden quarrel.
All homicide, he said, was in law presumed to be malicious, and it lay upon the accused to adduce the circumstances of mitigation or excuse he relied upon, to reduce it from the second degree of murder to manslaughter. Malice hedefined tobe an evil design, the-influence of a wicked, depraved, malignant heart, bent on mischief. It was of two kinds, express, or implied in law. Express, where one-with a sedate deliberate mind and formed design, kills another, and the design is evinced by external circumstances, discovering the 77] *inward intention ; as, by lyingin wait, antecedentmenaces, former, grudges, concerted schemes to do bodily harm. Implied, or by construction of law, when d.eath ensues from some unusual act of' aggression, or enormous act of cruelty, though there be no previous-grudge or enmity, as the killing an officer in the discharge of his dnty, or the administration of poison, or killing without any or considerable provocation; because, no person, unless possessed of an-abandoned heart, would deprive a fellow-being of life, upon slight or without apparent cause.
The deliberate purpose to kill, necessary to constitute the crime of murder in the first degree, is that deliberation used in the formation of the evil design, before the aggressive act is actually committed. Where the purpose is coolly and deliberately formed, and time has elapsed since the receipt of the provocation, if any, far passion *78to subside, it is a question for the jury to decide, -whether the slayer was influenced by healed passion, or by a deliberate and malicious artifice, to effect the destructibn of his subject.
There is no evidence in support of the third and fourth counts of the indictment, for killing with an ax, and stamping with the feet; and, upon those two counts you can acquit the prisoner at once. The first charge is for killing by strangling with yarn about the neck; the second, for killing by suffocation with a pillow. The death is a fact not disputed. If the jury is satisfied upon the evidence that he came to his death by strangling, or smothering, or through the application of yarn to his neck, or a pillow or other substance to his mouth and nostrils, by the prisoner alone, or by him in conjunction with any other person, he is responsible on this indictment. One may be present in the eye of the law, though not actually present: as, if several confederate to do a deed of death, and one keeps guard at the door, while the other inflicts the wound, the one on guard is present in legal contemplation participating in the act done, and is equally responsible with those actually present doing the act.
On this indictment, the jury should acquit altogether, or find the prisoner guilty of murder in the first or second degree, or of manslaughter, and should, under our law, express in their verdict which offence they find; 29 O. L. 142. They should only convict when convinced beyond a reasonable doubt of guilt. The uoubt of any one of the jury, honestly entertained upon the evidence, should acquit the prisoner. [The judge explained the difference between positive and circumstantial evidence, and adverted'to the circumstances relied upon on each side.]
*The jury retired at nine o’clock, P. M. At eleven o’clock they [78 sent for the court, and received instruction upon a point of law and again retired. At eight o’clock the next morning, they were allowed refreshment, and a physician was allowed to examine and prescribe for one of the jurors that was sick. At nine o’clock, they again appeared in court, and were instructed upon a question of law, and Killough, a witness, was re-examined, when they again retired. At half-past ten o’clock, they returned a verdict of guilty generally. They were polled at the instance of the defendant.
The prisoner’s counsel were preparing affidavits to ground a motion for a new trial upon, when
THE COURT informed them that the verdict must be set aside; because it did not specifically find what offence they found the prisoner guilty of — whether of murder in the first or second degree, *79or of manslaughter, which they were instructed to do, and is required by law; and because the jury had found the prisoner guilty upon the last counts without any evidence. New trial granted.
At August term, 1833, Town was again tried before Judges Weight and Wood, with but slight variation in the evidence, and acquitted.
Intent in manslaughter, dist; Montgomery v. State, 11 O. 424, 426. Verdict must specify degree of homicide; Dick v. State, 3 O. S. 89, 95; Parkes v. State, 3 O. S. 101, 104.