delivered the opinion of the Court:
At the December term, 1871, of the criminal court of Cook county, the grand jury found an indictment against plaintiff in error, charging him with the murder of Daniel O’Brien. After the cause ivas twice continued, it ivas tried at the April term, 1872, and resulted in a verdict of murder, and the jury fixed death by hanging as tlie penalty. When the jury returned their verdict, plaintiff in error entered a motion for a new trial, which was subsequently overruled, and at the same term the court rendered judgment on the verdict, and sentenced the accused to be hanged; and the case is brought to this court on error, and various grounds are urged for a reversal.
The first urged is, that the court had no power to try the prisoner, because there was no order of the court directing the clerk to issue a writ of venire for the jury which tried accused.
So far as we can see, no such order appears in the record brought to this court. But when there is such a writ issued by the proper officer, under the seal of the court, regular in all respects, so far as we know from this record, and as no motion ivas made to quash the Avrit and to challenge the array, Ave must presume that the Avrit Avas authorized, and the proper order was made. Such an order was, we must conclude, general for a jury for the term, and not special for this particular case, and in making the transcript the clerk would probably not, unless required, embody it in the transcript. There is not enough appearing in this case to overcome the presumption that the writ was regularly issued.
Again, the jury were elected and tried by accused, and accepted by him as lawful men, without making this objection. From this we must presume that the objection did not in fact exist, or an exception would have been made, and the facts upon which it was based have been preserved in the record. We are unable to say that this was error.
After the jury had returned their verdict, plaintiff in error entered an objection against the court proceeding further with the case, because he had been, as he alleged, tried at a former term of the court on a charge of having murdered one Michael Beady, and ivas, on that trial, found guilty of murder; and that the verdict in that case fixed his punishment by confinement in the penitentiary during his natural life. It was also said, in the reasons filed, that this indictment grew out of the same affray, and the homicide charged was a part of the same transaction, and that accused had not been sentenced under the prior verdict; and it is urged that the court had no power to render judgment on the verdict in this case until after judgment should be rendered and execution had on the verdict on the former trial.
This record contains no evidence that such a trial ivas ever had or verdict found. But if it did, that would constitute no valid reason for refusing to render judgment on this verdict. It is not pleaded, nor could it be, as a former judgment in bar of this proceeding, and there can be no doubt that, where the people have obtained verdicts against an individual on several criminal charges, they may have judgment on each, or may abandon such as they choose, and have judgment on the others. If the people so desired, they were at liberty to abandon the verdict on the previous trial, if one was ever had, and have a judgment and execution on this.
There is nothing in the record upon which to base this objection, and the reasons suggested by plaintiff in error being-unsupported by any proof, we fail to see any ground upon which it can be based.
Overruling the motion for a new trial is earnestly urged as an error that should reverse the judgment.
The ground assigned for a new trial, that the court refused to quash the indictment, seems to have been abandoned, as no reasons therefor are suggested in argument. We fail to see that there are any objections to it, either in substance or in form. It therefore follows that this ground was properly disregarded by the court below.
As to the question whether the evidence supports the verdict, from a careful examination of all that is contained in the record, we are satisfied that it is sufficient. Whilst it appears that there was but a short space in which to form a deliberate purpose, still, when we can see no such assault as to create a well founded apprehension of great bodily harm, or such provocation as was calculated to produce an irresistible passion on the part of plaintiff in error, as would justify the homicide, or reduce it to manslaughter, we must conclude accused acted with sufficient deliberation, or with such a total disregard for human life as to create the presumption of general malice.
In the absence of apparent well founded danger of great bodily harm, or such provocation as is calculated to • excite irresistible passion, the law implies malice. And in this case the jury were -warranted, from the evidence, in so finding, and if there was malice aforethought, then the homicide, was murder.
To constitute malice, it is not necessary that the party should brood over and meditate upon the performance of the act for a considerable space of time; but it is sufficient if it were deliberate and intentional, without apparently well founded danger of great bodily harm, or where there is not such provocation as in law reduces the homicide to manslaughter; and the jury, as practical men,’must determine whether the act was so deliberately done as to show that there was the steady fixed purpose that proceeds from malice.
Again, the motion for a new trial was addressed to and considered by the judge who tried the cause. He saw all of the witnesses on the stand, heard them testify-, and from their appearance, intelligence and manner, had full opportunity to form an accurate estimate of the character of the witnesses, the worth of their evidence, and the true nature of the charge against the prisoner. On the other hand, we, as an appellate court, only see the language used by the witnesses as it appears on paper, and are deprived of much that always enables those present to judge more accurately of the weight of evidence than others who only see it reported. For this reason the appellate court is reluctant to reverse because a verdict is not supported by the evidence, unless it seehis to be clearly wrong.
The judge who tried this case has solemnly said, by overruling this motion, that he believes, beyond a 'reasonable doubt, that accused was guilty of murder, otherwise he would have granted a new trial; and a majority of the court, after considering the entire evidence as it appears in the record, can not say that he erred.
It is urged that the first of the people’s instructions was wrong, because it fails to inform the jury that they must believe the facts supposed in the instruction to be true beyond a reasonable doubt, before they could find the accused guilty. The law declares the jury must believe the defendant, in all criminal cases, to be guilty beyond a reasonable doubt, before they can convict. The law has always given the prisoner the benefit of such a doubt, and if the jury were not so instructed, it would no doubt be error. And the practice is believed to be general for the court to so state the law in the people’s instructions, and such is no doubt the fairer and better practice. But was its omission from the people’s instructions in this case an error?
On a careful examination of the instructions, ive find that by the fifth of defendant’s instructions the jury are told that unless they believe beyond a reasonable doubt that the defendant is guilty, they should acquit; and they are so informed in his sixth, and what constitutes a reasonable doubt is explained in the seventh. These instructions were all given, and we can not, after so plain a direction on the part of the court, believe that the jury disregarded them.
In the case of Kennedy v. The People, 40 Ill. 498, it was held that if the jury were properly instructed as to a reasonable doubt in a portion of the people’s instructions, it was not error to omit that expression in others given for the prosecution. In principle, this case is like that, and we are unable to distinguish them. Nevertheless, if we were not satisfied with the finding, or should believe the accused had not had a fair trial, we should probably conclude that the want of such a direction in each of those given for the prosecution had led to the unsatisfactory result.
It is again urged against that instruction, that it fails to inform the jury that they must believe that accused killed deceased, with malice aforethought, before they could find him guilty of murder. The instruction requires them to believe that the homicide was deliberately and intentionally perpetrated, in manner and form as charged in the indictment. Where there is no reasonable doubt that there was malice, such an instruction would not mislead; but in cases of doubt, it might be otherwise. In this case, what constituted the crimes of murder and manslaughter was explained to the jury in other instructions, and on the entire record we fail to see that the jury were misled as to what the law regards as to the malice necessary to murder, and what constitutes manslaughter.
We have turned to the record, and read all of the instructions given for defendant below, and are unable to find that the law was not fairly given by them, as they were modified. As drawn, they were inaccurate, and should not have been given without the modifications that were made. The court, no doubt, might have simply refused to give them; but in a capital case, in fact in all criminal cases, it is the duty of the judge trying them to see that the law is fully and fairly given to the jury, that they may act intelligently in forming their verdict. From a careful consideration of all the instructions given in the case, we are unable to say that the jury were not properly instructed, and we are of opinion that no error intervened in giving the instructions.
Mor do we see that the court erred in refusing to give the 11th and 12th instructions asked by defendant below. If for no other reason, because they find there was an assault and provocation, when they were facts for determination by the jury. Again, they are vague in not informing the jury who they should find had committed the assault and given the provocation; whether accused or deceased. Instructions should be so clear as to leave no reasonable doubt as to what they refer to.
Was there error in refusing a new trial because the grand or traverse jury came from the body of the county, instead of from taxable citizens of the city of Chicago? We will not determine whether objections of this character can be raised except as grounds to challenge the array. Did the law require them to be selected from the tax-pavers in the city of Chicago, as had been required in the recorder’s court before the criminal court was established? The 26th section of article 6 of the new constitution declares, “that the recorder’s court of the city of Chicago shall be continued, and shall be called the 'Criminal Court of Cook county.’ It shall have the jurisdiction of a circuit court, in all cases of criminal and quasi criminal nature, arising in the county of Cook, or that may be brought before said court pursuant to law.”
This provision of the constitution invests this court with the same jurisdiction of a circuit court; and all the circuit courts of the State have, and always had, the power to bring their juries, both grand and traverse, from the body of the county in which such a court is held. No one can question this. It then follows that the criminal court became, by force of this provision, invested with the same power. If it be said that the law conferring the jurisdiction and regulating the practice of the recorder’s court required juries for that court to be selected from the tax-payers of the city of Chicago, the answer is obvious, that this provision of that law, being repugnant to the power granted to this court by the constitution, was repealed by that instrument, and that part of the law must give way to its provisions. Whilst some of the provisions of that act may have been still in force, we must hold this one re¡iealed, and in the obtaining of juries for the criminal court, it must be governed by the law regulating the qualifications of jurors, and the mode of their selection, and the manner in which they are summoned for circuit courts. There was, therefore, no error in bringing the jurors, having the same qualifications, from the body of the county, as is required for the circuit courts.
After a careful examination of this entire record, we fail to find any error; and we are satisfied that plaintiff in error has had a fair trial and vyas properly convicted, and the judgment of the court beloty must be affirmed.
Judgment affirmed.