Page:Palmore v. State.pdf/17

264 Rh   to believe that the mere use of a deadly weapon was conclusive evidence that Palmore had committed murder, if they found that he provoked the assault, intending to use the deadly weapon. It is not the intention to use a deadly weapon, but the intention to kill, of which this use is evidence, which constitutes the offense. This should, under the circumstances of the case, have been made clearer to the jury than is done in this instruction, and the court here fails to define the difference in the degrees of homicide, which is not sufficiently remedied by other instructions. This failure to define the degrees of homicide is made the 22d ground of the motion for new trial. While this failure is, in every such case, improper, we would not for this alone reverse, especially as in the 24th ground for new trial and from the record, it is shown that the court read the definitions of the different degrees of murder from the digest. Article I, part 4, chapter 51, Gould's Digest. This was no error, and, being in print, complied with the law which requires instructions to be in writing.

The 5th instruction given for the state was: "If the jury believe from the evidence that defendant entertained a deliberate purpose to kill or do great bodily harm, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately preceded the act, is to be thrown out of the case, and goes for nothing, unless the defendant shows that the purpose was abandoned before the killing was done."

This instruction would have been unobjectionable if it had been qualified in itself, or in a separate instruction with an explanation of the degrees of homicide, except the last clause should have been so guarded as to allow the jury to infer the abandonment of the deliberate purpose to kill, if they so found from the circumstances of the homicide; otherwise, it might