
    FAYETTE COUNTY,
    December Term, 1794.
    Pennsylvania v. John M‘Fall.
    This was an indictment for the murder of John Chadwick, on 10th November, 1794. In the morning of this day, M‘Fall was drunk, came to the house of Chadwick, who kept a tavern, and got some liquor there. One Myers, a constable, came there. M‘Fall had expressed resentment against Myers, for having taken him on a warrant, and had threatened to kill or cripple him, the first time he met him. When M‘Fall saw Myers he jumped up, and said he would have his life.—Chadwick reproved M‘Fall for this. M‘Fall rubbed his fists at Chadwick, and said he was not so drunk but he knew what he was doing. Myers soon went away. M‘Fall went out after him, and again said he would have his life. Myers rode off. M‘Fall returned to go into the house again. Chadwick bade him go home; for he had abused several people that day, and had got liquor enough. M‘Fall shook hands with Chadwick, and went away. Chadwick shut the door. About two minutes after, he returned. Chadwick rose to keep the door shut. M‘Fall jerked it off the hinges; dragged Chadwick out; and struck him several times with a club on the head.—His scull was fractured by the blows; and he died the second day after.
    
      H. Ross, for the defendant.
    Murder in the first degree must be premeditated. M‘Fall was drunk, and thereby incapacitated to form any previous purpose of malice. He is only guilty of murder in the second degree, a killing in passion, not of malice. I submit it to the jury on the facts whether it be more than manslaughter.
    
      Galbraith, for the state,
    argued, that it was murder in the first degree.
    3 St. L. 599. 3 St. L. 601.
   President.

The malice necessary to make an unlawful killing murder, may be either express, as plain marks of a deliberate design; or implied, from the aggravated nature and cruelty of the killing.

It seems to be the intent of our act of assembly to use the distinction between express and implied malice, for the purpose of discriminating between the murder which shall be punished by death, and the murder which shall be punished by confinement to hard labour. Murder committed with malice express, as by poison, lying in wait, or any other premeditated murder, or in commission of rape, burglary, &c. is stiled murder in the first degree, and punished with death. Murder committed without previous design, but from implied malice only, as in the heat of passion, and the killing undesigned, though without reasonable provocation, with a weapon likely to kill, is murder in the second degree, and punished with confinement to hard labour.

Manslaughter, though distinguished into voluntary and involuntary, in other respects remains here as in England: so that whatever would be manslaughter there, is here also manslaughter, either voluntary or involuntary: but here involuntary manslaughter may be proceeded against as a misdemeanor.

In this case, the killing is clearly more than manslaughter: for every unlawful killing is presumed murder, unless the person accused can shew such circumstances, as will reduce it to a lower degree of homicide. The defendant has shewn no such extenuating circumstances; no provocation, no assault; nothing done by Chadwick, to lessen the crime of M’Fall. Therefore the killing is clearly murder.

What facts constitute one kind of homicide or another, is a question of law purely. Whether the facts exist; or whether they proceeded from such a purpose; is to be ascertained by the jury. When ascertained, nothing remains but a question of law to be decided by the court.

The facts here, which stand altogether uncontradicted, amount then clearly to murder. The question is of what degree.

If of the first degree, it must be because premeditated. It cannot come within any other of the definitions of murder of the first degree.

To make it premeditated, it is not necessary, that the design should be long formed. If the design of killing be formed previous to the act, I am inclined to believe it is the true meaning of the law, that it is murder in the first degree.

Drunkenness does not incapacitate a man for forming a premeditated design of murder; but frequently suggests it. A drunk man certainly may be guilty of murder. But as drunkenness clouds the understanding, and excites passion, it may be evidence of passion only, and of want of malice and design. This I leave to you.

If you believe, that M'Fall returned to the door, with a purpose of killing Chadwick; or gave the stroke, with a purpose of killing Chadwick, it is murder in the first degree. If he had no such previous purpose, still it is murder, but of the second degree.

The jury found him guilty of murder in the first degree. He received sentence of death, and was hanged.  