Murder, first degree. at the time and place of the assault, and the assault must be made in execution of that purpose, in order to constitute the crime of murder in the first degree. But it is not essential that the person assaulted should then and there die, or that the slayer intended that the death should take place then and there. If the assault be made for the purpose of killing thereby, it matters not that the slayer hoped and intended that the person assaulted would languish, and languishing would live, even so that the intended death might occur on a future day, and at another place. (Rufer and Egner v. State, 25 Ohio St. 464.) Purpose to kill must be averred in indictment.-It is essential to the sufficiency of an indictment for murder for first degree, that it contain a direct and specific averment of the purpose or intent to kill, or intention to inflict a mortal wound, in the description of the crime; and the omission of such an averment can not be supplied by any rule of evidence applicable to the proof on the trial, or be cured by the legal conclusion of the grand jury, usually inserted in the closing part of such an indictment, drawn from the antecedent averments descriptive of the crime. (Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 306; Hagan v. State, 10 Ohio St. 459.) Insufficient averment of purpose to kill.—An averment that the accused "purposely, and of deliberate and premeditated malice, did strike" the deceased, thereby inflicting a mortal wound, of which the deceased afterward died, is not a sufficient averment of the purpose to kill; for, though the accused may have purposely and maliciously struck the deceased, it does not follow that the stroke was given with a design to produce death. (Hagan v. State, 10 Ohio St. 459; Fouts v. State, 8 Ohio St. 98; Kain v. State, 8 Ohio St. 306.) Sufficient averment of purpose to kill.-The intent or purpose to kill need not, however, be averred in the identical words of the statute. An averment, therefore, that the accused "purposely, and of deliberate and of premeditated malice, assaulted, cut, and stabbed M. N., thereby then and there purposely, and of deliberate and premeditated malice, giving to the said M. N. a mortal wound," etc., of which mortal wound the said M. N. then and there instantly died, is sufficient-the intent to inflict a mortal wound importing, ex vi termini, an intent to kill. (Loeffner v. State, 10 Ohio St. 598.) Averment of purpose to kill at time of the assault.-An indictment, wherein it is charged that the accused, on a certain day, and at a Murder, first degree. certain county named, "in and upon M. N., then and there being, did unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice make an assault, in a menacing manner, with intent him, the said M. N., unlawfully, purposely, willfully, feloniously, and of deliberate and premeditated malice to kill and murder," shows with sufficient certainty that the purpose to kill was in the mind of the accused at the time and place of the assault, and that he thereby intended to kill and murder M. N. (Rufer and Egner v. State, 25 Ohio St. 464.) Proof of purpose to kill.-The purpose or intent to kill, in general, is proved by the circumstances, by what the party does and says, the manner of inflicting wounds, the instrument used, and its tendency to destroy life; if palpably calculated to take life, the party is presumed to so intend. (Gardner v. State, Wright, 392.) Intent directed toward the person killed; not necessary to prove.—A blow given with deliberate and premeditated malice, and with the intent and purpose to kill another, if it accomplish its purpose, can not be said to have been given without malice, and unintentionally, although the person striking missed the person against whom the blow was directed, and it took effect upon another. (Wareham v. State, 25 Ohio St. 601.) Intent to kill any particular person; not necessary to prove.-The purpose or intent is defined to be "to kill another," not to kill any particular person. (Wareham v. State, 25 Ohio St. 601.) General intent to kill sufficient.-As a rule of evidence, a party is presumed to intend the natural consequences of his own acts. And if, in shooting into a crowd, he deliberately and maliciously intend to kill any person he may happen to hit, without having any particular person in view, his intention to kill being general, and directed against each person in the crowd, he may be fairly taken to have actually compassed the death of the person he has killed. (Robbins v. State, 8 Ohio St. 131.) Malice.-Malice is the dictate of a wicked, depraved, and malig nant heart. It is not necessary that the malignity should be confined to a particular ill-will toward the person injured. It is evi denced by an act which springs from a wicked and corrupt motive, attended by circumstances indicating a heart regardless of social duty, and bent on mischief. Malice is said to be express, where the cruel act is done with a sedate and deliberate mind; with settled and formed purpose. This kind of malice is generally ovidenced by the circumstances preceding and attending the transac Murder, first degree. tion complained of, as by threats, menaces, former grudges, lying in wait, concerted schemes to do injury, or by an unusual degree of cruelty attending the act. Malice is implied where the killing is sudden, without any or great provocation; and also where the act done necessarily shows a depraved heart, as the giving of poison. (State v. Turner, Wright, 20.) In common parlance, we are apt to associate the idea of malice with the passions of anger, hatred, or revenge; but malice, in contemplation of law, may exist without the presence of either of these passions. Indeed, the fact of suddenly excited anger oftentimes rebuts the presumption of malice; as in the case of an unpremeditated fight or affray; and some of the acts esteemed in law among the most deliberately malicious, are committed without anger, revenge, or hatred. Thus, the highwayman, who slays the traveler of whom he knows nothing, not out of anger, hatred, or ill-will, but merely to obtain money, is guilty of a deed considered by the law as in the highest degree malicious. So, if a man willfully lay poison for A., and B. take it, and die thereof, such killing is malicious. murder, although the prisoner had no ill-will toward the deceased. For malice in law is a willfully formed design to do another an unlawful injury, whether such design be prompted by deliberate hatred or revenge, or by the hope of gain, or springs from the wantonness and depravity of a heart regardless of social duty, and fatally bent on mischief. (State v. Gardner, 9 Western Law Journal, 411.) Malice presumed from fact of killing.-When the fact of killing is proven, malice is to be presumed, and all the circumstances of justification, excuse, or extenuation must be made out by the accused, unless they appear from the evidence adduced against him. (Davis v. State, 25 Ohio St. 369.) Extent of presumption of malice.-As an abstract proposition, where the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly weapon, the jury may, from such fact alone, infer both malice and a purpose to kill. But where the attending circumstances are shown in detail, some of which tend to prove the presence of malice or purpose to kill, it is misleading and erroneous to charge a jury that in such a case the law raises a presumption of malice and intent to kill from the isolated fact that death was caused by the use of a deadly weapon. In such case the presence of malice or intent to kill must be determined from all the circumstances proven, Murder, first degree. including, of course, the character of the weapon. It may indeed be said, with much reason, that the use of a deadly weapon in the taking of life raises the same presumptions whether other attending circumstances be shown or not; and that when other facts and circumstances are shown, they either strengthen or rebut the presumptions so arising from the character of the weapon. (Erwin v State, 29 Ohio St. 186.) · Deliberation and premeditation.-To constitute deliberation and premeditation, the intention to do the injury must have been deliberated upon, and the design to do it formed, before the act was done, though it is not required that either should have been for any considerable time before. This supposes that the party by reflection understood what he was about to do, and intended to do it in order to do harm. (Turner v. State, Wright, 20.) Duration of deliberation and premeditation.-If the person has actually formed the purpose maliciously to kill, and deliberated and premeditated upon it, before he performs the act, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time of deliberation and premeditation that is requisite, but simply the actual existence of the purpose, malice, deliberation, and premeditation ; and it matters not how short the time, if the party has actually turned it over in his mind, weighed, and deliberated upon it. (Shoemaker v. State, 12 Ohio, 43.) Time in which deliberation and premeditation may be accomplished. -It is error to charge that deliberation and premeditation may be accomplished in a very short time-in a moment-so swift is thought. The case of Shoemaker v. State (12 Ohio, 43), holding that the fact of deliberation is to be made out to the satisfaction of the jury, and that the law fixes no time during which it shall continue, goes to the extreme verge of the law, and should not be extended further. (Burns v. State, 3 Western Law Journal, 323.) Deliberation and premeditation must be established affirmatively.The fact of killing being proved, the presumption of law in Ohio is that it was done with malice, but without deliberation or premeditation; and consequently that it is murder in the second dogree. To convict of murder in the first degree, premeditation and deliberation should be established by affirmative evidence. (State v. Turner, Wright, 20; State v. Town, Wright, 75.) By means of poison.-The overt act of homicide by administering poison, within the meaning of the law (S. & C. 401), consists not Murder, first degree. simply in prescribing or furnishing the poison, but also in directing and causing it to be taken. (Robbins v. State, 8 Ohio St. 131.) Act of administering poison, what it is.-Neither fraud nor deception is a necessary ingredient in the act of administering poison, within the meaning of the first section of the crimes act. (S. & C. 131.) To force poison into the stomach of another; to compel another by threats of violence to swallow poison; to furnish poison to another, for the purpose and with the intention that the person to whom it is delivered shall commit suicide therewith, and which poison is accordingly taken by the suicide for that purpose; or to be present at the taking of poison by a suicide, participating in the taking thereof, by assistance, persuasion, or otherwise, although the party so present and participating at the time intends and agrees himself also to commit suicide--each and all of these are forms and modes of "administering poison," within the meaning of the act. (Blackburn v. State, 23 Ohio St. 146.) Poison must be administered with intent to kill.-Where a drug is administered to a woman pregnant with a quick child, with intent not to kill the woman, but to produce abortion, and the woman dies from the effects of the drug, the offense can not constitute murder in the first degree under the criminal statute of this state. (Robbins v. State, 8 Ohio St. 131.) Not necessary to allege that the poison was administered maliciously. -In the case of homicide effected by administering poison or causing the same to be done, the danger and atrocity of the means and manner of the killing supplies the place of the deliberate and premeditated malice made a distinguishing feature of the first class of homicide mentioned in the statute. (S. & C. 401.) Indeed, intentional killing, by means of administering poison, includes, and per se implies, malice; so that it would be mere tautology to mention malice as a distinguishing feature in the definition of it. And the atrocity of this kind of homicide precludes the necessity of the inquiry whether the malice which it imparts is deliberate or not. It must be conceded that the disjunctive connectives inserted in the clauses descriptive of the several classes of homicide defined, do exclude malice as a distinctive ingredient of the offense committed by administering poison. (Robbins v. State, 8 Ohio St. 131.) Other acts of poisoning.-On an indictment, charging the prisoner with poisoning A., in December, 1851, it is error to permit |