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

Here is the translated text as follows:

30 X. AMERICAN STATE TRIALS.

In the hierarchy of offenses, and among murders recognized by common law, as well as by the codes of Pennsylvania, Tennessee, and New Jersey, some are classified as manslaughter, while others are deemed excusable or justifiable homicide. The remainder constitutes murder in the second degree.

You will notice from the reading that one class of murders is designated as murders in the first degree because they are committed in the attempt to perpetrate a felony. However, the defendant is not charged with such a murder; and not being charged, he cannot be found guilty of such murder. I submit it as a legal proposition to the court that to find the defendant guilty of murder in the first degree under that clause of the statute, he must be charged with murder done in the attempt to perpetrate, or in the perpetration of, a felony.

It is not within the power of the prosecution to ask you to find a capital murder in this case because it is a murder done in the perpetration of a felony. Even if the fact were so proven, they could not ask it, for that is not the murder charged in the indictment. The legislature deemed it appropriate to provide that every murder (not every killing) committed in the attempt to commit a felony should be ranked as murder in the first degree for that reason. The fact of the attempted felony is what determines the grade of the crime, and it is therefore a material fact. I shall not trouble you with any question of variance between the proof and the charge; that is a question for the Court after the verdict, involving the fate of the prosecution. However, I shall ask the Court to instruct you that in this case, the prosecution cannot demand that you find a murder in the first degree for such a cause.

There is good reason for this. Your lives and liberty would be in peril if you could be found guilty of an offense not contained in the indictment found against you. The principle is not technical; it is a bulwark essential to innocence. You are entitled to a clear, distinct, and specific accusation so that you may come prepared to meet it. The right is fundamental. The utmost that can be claimed for the testimony of the State is that Worrell had knowledge of the killing at the moment.