0978 Page – Leo Frank Georgia Supreme Court Appeals Records, 1913, 1914

Visible Translated Text Is As Follows:

CHARGE OF THE COURT.

State of Georgia, )
vs. ) Murder.
Leo M. Frank. ) Fulton Superior Court.
) Trial: July 28th to Aug. 21, 1913.
Gentlemen of the Jury:

This bill of indictment charges Leo M. Frank with the offense of murder.
The charge is that Leo M. Frank, in this county, on the 26th day of April, of
this year, with force and arms, did unlawfully and with malice aforethought
kill and murder one Mary Phagan by then and there choking her, the said
Mary Phagan, with a cord placed around her neck.

To this charge made by the bill of indictment found by the grand jury
of this county recently empaneled Leo M. Frank, the defendant, files a plea
of not guilty. The charge as made by the bill of indictment on the one hand
and his plea of not guilty filed therefor form the issue, and you, gentlemen of
the jury, have been selected, chosen and sworn to try the truth of this issue.

Leo M. Frank, the defendant, comes here with the presumption of innocence in his favor, and this presumption of innocence remains with him
to shield him and protect him until the State shall overcome it and remove it
by evidence offered to you, in your hearing and presence, sufficient in
strength and character to satisfy your minds beyond a reasonable doubt of
his guilt of each and every material allegation made by the bill of indictment.
I charge you, gentlemen, that all of the allegations of this indictment are
material and it is necessary for the State to satisfy you of their truth by evi-
dence that convinces your minds beyond a reasonable doubt of his guilt before
you would be authorized to find a verdict of guilty. You are not compelled
to find, from the evidence, his guilt beyond any doubt, but beyond a reasonable
doubt, such a doubt as grows out of the evidence, but the evidence in the case, or want of
evidence, such a doubt as would leave the mind of an impartial mind would entertain
about matters of the highest importance to himself after all reasonable efforts
to ascertain the truth. This does not mean a fanciful doubt, one conjured up
by the jury, but a reasonable doubt.

Gentlemen, this defendant is charged with murder. Murder is defined to
be the unlawful killing of a human being, in the peace of the State, by a person
of sound memory and discretion, with malice aforethought, either express or
implied.

Express malice is that deliberate intention unlawfully to take away the
life of a fellow-being, which is manifested by external circumstances capable
of proof.

Malice shall be implied where no considerable provocation appears, and
where all of the circumstances of the killing show an abandoned and malig-
nant heart.

There is no difference between express and implied malice except in the
"mode of arriving at the fact of its existence. The legal sense of the term
"malice" is not confined to particular animosity to the deceased, but extends
to an evil design in general. The popular idea of malice in its sense of re-
venge, hatred, ill will, has nothing to do with the subject. It is an intent to
kill a human being in a case where the law would neither justify nor in any
degree excuse the intention, if the killing should take place as intended. It
is a deliberate intent unlawfully to take human life, whether it springs from
hatred, ill will or revenge, ambition, avarice or other like passion. A man
may form the intent to kill, do the killing instantly, and regret the deed as
soon as done. Malice must exist at the time of the killing. It need not have
existed any length of time previously.
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