004

10)

Objected To

Refused

The Court instructs the jury that it is incum-
bent on the prosecution not only to prove
the killing, but it must also establish by
proof beyond any reasonable doubt that
the killing was done with malice
prepense or aforethought, and without
the concurrence of both, the crime cannot
exist; and as every man is presumed to be
innocent of the offense of which he is
charged till he is proved to be guilty, this
presumption must apply equally to
both ingredients of the offense, ---to the
malice as well as to the killing. Hence
the burden of proof as to each, ---the
killing and the malice--- rests equally
with the prosecution, and the jury
cannot imply malice from the mere
killing.