061 Page – American State Trials 1918 Volume X Leo Frank Document

Here is the translated text as follows:

EDWARD D. WORRELL. 29

What may be considered murder in the second degree in other states may only be manslaughter, or justifiable or excusable homicide here. Amidst this confusion, one thing is certain: murder in the first degree—capital murder—cannot be made out of implied malice. Nothing but express malice, proven as a fact and found by the jury, can constitute capital murder in this state. I do not include in this proposition a class of murder in the first degree that is elevated to that degree by reason of being committed in the attempt to perpetrate a felony. That class stands by itself on independent ground; but it is certain that for all other murders in this state, to constitute them capital, the element of express malice must appear in proof and be found as a fact by the jury.

We have no murder in this state that was not murder at common law. In England, by the common law, no grades pertained to murder. The only line drawn through criminal homicide was that which divided murder from manslaughter; and all murder there was hanging or quartering murder. The code was a bloody code—too bloody for our people; and we changed the system at the call of reason and humanity. All murders are not alike in turpitude, tried by any moral test.

If you, sir (speaking to a juror), are lying on a bed of sickness and prompted by an old grudge, masked in the disguise of sympathy, I approach you, proffer my assistance, gain your confidence, tender you medicine—five grains of arsenic (which I have substituted for twenty grains of calomel, the prescription of your physician)—and you take it from my friendly hand, am I not, in the sight of heaven and earth, a different criminal from the man who, in the flush and transport of passion, kills for bitter, burning words of contumely, spoken against the honor of his wife or daughter? Yet, by the common law, both of these supposed homicides are murder, and both capital. By our law, it is otherwise.

We do not live under a system which confounds distinctions, dictated as well by enlightened reason as by the instincts of man. We have divided murder into two degrees and manslaughter into four—adopting different penalties for each.