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conviction in the minds of the jurors. But the language used in the present case, we think, contains no such instruction; the words used by the court are "convince you by a preponderance of testimony." In the Graves case, supra, the rule laid down by this court as to the burden of proof in cases where insanity is set up as a defence, is that "the defence must be proved to the satisfaction of the jury, and it may be established by the preponderance of proof." One of the principal definitions of the word "convince" is "to satisfy the mind by evidence" (Encycl. Dict. 1225), and this, we think, is the sense which it conveys in the connection in which it was used by the trial judge. Substituting this synonym "satisfy" for the word "convince," the language of the instruction is almost identical with that used by this court in the Graves case. The rule there laid down by us, although not in harmony with that existing in some of our sister states, has been steadfastly held to by our courts ever since the decision in the Spencer case in the year 1843, and is too firmly imbedded in our law to be subject to alteration or modification by judicial decision. The criticism upon this portion of the charge is, in our opinion, without merit.

Error is also assigned upon the instruction of the court to the jury as to the presumption which may arise from the use of a deadly weapon by a person charged with criminal homicide. Upon this point the court charged as follows: "The intention to take life may be presumed from the use of a deadly weapon, a weapon calculated to extinguish life. It is to be presumed that the person who uses the weapon intended to execute the work which the weapon was calculated to accomplish, that is, if a person fires at another with a pistol, and kills him, and there is nothing else shown, the presumption is that he intended to do just what the weapon was intended to do, that is, to kill. This presumption, however, may be overcome if the circumstances leave a reasonable doubt as to whether the intent was to kill." It is contended by counsel that this instruction violates the presumption of innocence, shifts the burden of proof from the state, and makes the presumed or artificial intention to kill, rather than

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the actual intention of the person charged with the crime, decisive of one of the vital elements of first degree murder; that its effect was to convey to the minds of the jury that they must find that the defendant had a specific intent to kill from the mere fact that he used a deadly weapon. If the instruction has the effect-conveys the idea-attributed to it by counsel, it is clearly erroneous. A careful analysis of it, therefore, is required. The first statement which it contains is that the intention to take life may (not must) be presumed from the use of a deadly weapon. This deliverance seems to us to be incontestably sound. Whether or not such a presumption does or does not arise must, ordinarily, depend upon the facts of the given case. For instance, if A, armed with a pistol which he knows to be loaded, deliberately places the muzzle of the weapon against the temple of B, or against his body in a line with his heart, and intentionally pulls the trigger, the conclusion is irresistible that his purpose is to kill. On the other hand, if he fires at an inanimate target, B being well outside the line of fire, and the ball glances from the target and enters the body of B and kills him, the conclusion is equally irresistible that he did not fire the shot with the intention of killing B. In a case like that first instanced an instruction to the jury that the use of a deadly weapon by A in the manner indicated raised the presumption that he intended to take the life of B would be absolutely unobjectionable, while a similar instruction given in a case presenting the facts secondly instanced would be legally indefensible.

The instruction then proceeds with the statement that it is to be presumed that the person who uses the weapon intended to execute the work which the weapon is intended to accomplish. This is not the statement of a legal rule, but the exemplification of an abstract principle which seems to be applicable, not only to the use of weapons, but to every article manufactured for use. Standing alone it is unobjectionable. The court, however, proceeded to put a meaning upon it which the language itself does not express, by saying "that is, if a person fires at another with a pistol and kills him, and there is nothing else shown, the presumption is that

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he intended to do just what the weapon was intended to do, that is, to kill," and it is this part of the instruction more than any other which is made the basis of attack by counsel. We are not prepared to say that a charge to the effect that proof of the mere fact of killing with a deadly weapon, nothing more being shown, raises the presumption that the slayer intended to take life, is erroneous. It is justified by the following statement of Chief Justice Shaw in the case of Commonwealth v. York, 9 Metc. 103: "A sane man must be presumed to intend the necessary natural and probable consequences of his own acts. If, therefore, one voluntarily or willfully does an act which has a direct tendency to destroy another's life, the natural and necessary conclusion from the act is that he intended so to destroy such person's life." It is also supported by the case of State v. Brown, 12 Minn. 538, in which it was held that where the mere fact of killing a human being is shown, and nothing more, the presumption is that it was intentional. Other authorities hold that such proof indicates the intention of the person using the weapon to take life, or inflict severe bodily harm. We find it unnecessary, however, to decide which of these presumptions follows from the mere use of a deadly weapon, nothing more appearing, for the reason that in the case before us all the circumstances under which the killing occurred, and the manner in which it was done, were fully described to the jury. The instruction, therefore, as to what would be presumed from the mere fact of a homicide with a deadly weapon, where nothing else was shown, was a matter which the jury were not called upon to consider, and an erroneous expression upon that point could not have misled them, or affected them, in their determination of the question before them for decision, namely, whether the circumstances under which, and the manner in which, the shooting was done, showed beyond a reasonable doubt that it was the intention of the defendant to take life. We conclude, therefore, that if error occurred in this portion of the charge to the jury, it was harmless, and affords no ground for reversal of the conviction under review.

Attorney-General v. McGuinness.

We find nothing in the other assignments of error which calls for comment. It is enough to say that we have examined them and find them without merit.

The judgment under review will be affirmed.

78 N. J. L.




Argued June 16, 1909-Decided February 4, 1910.

1. The so-called "Civil Service law" (Pamph. L. 1908, p. 235) is not vitiated by the fact that with respect to those municipalities which properly adopt its provisions. the act confers a participation in the local government upon a commission not chosen by the several municipalities affected nor from among their citizens or inhabitants.

2. The constitution of this state does not guarantee to the people of the several political divisions of the state the right of loca! self-government, so as to disable the legislature from providing for the government of those divisions by commissions chosen otherwise than by the people themselves.

3. The constitution of this state, as amended, prohibits the passage of local or special laws, but not of general laws, "appointing local offices (sic) or commissions to regulate municipal affairs." 4. In the exercise of the judicial function of declaring an act of the legislature unconstitutional, the ultimate question is not whether the court regards the constitution as permitting the act, but whether the constitution permits the court to disregard the act; the test being not the court's judgment as to the constitutionality of the act but its conclusion as to what judgment was permissible to the legislative branch of the government in which the constitution has reposed the duty of making such judgment as an incident of the lawmaking power; hence, if there be a

49 Vroom.

Attorney-General v. McGuinness.

permissible doubt as to the existence of the constitutional limitation invoked against the validity of an act, the courts will not declare the act to be contrary to the constitution.

5. The legislature may impose its will as law upon municipalities, but, if some other will is to intervene, it must be that of the people who are to be governed by such municipal law and not an alien will, even though it be that of the governing body for the time being of such municipality.

6. The distinction observed between legislative acts requiring acceptance to become municipal charters (i. e., referendum statutes) and those conferring legislative powers to be exercised (or not) by the local legislative bodies (i. e., statutes delegating powers of local government); and the further distinction observed between the acceptance of referendum statutes by the people at the polls and the exercise of delegated power by the local legislative body. 7. A statute in the nature of a supplemental charter that is enacted to take effect upon its adoption by the governing body of a municipality is not a constitutionally enacted law.

8. The so-called "Civil Service law" (Pamph. L. 1908, p. 235), in so far as its operation is made to depend upon its adoption by the governing body of a municipality, is unconstitutional.

On error to the Supreme Court.

For the plaintiff in error, Herbert Boggs and Frank H. Sommer.

For the civil service commission, Edmund Wilson, attorneygeneral, and Nelson B. Gaskill, assistant attorney-general.

For the defendant in error, Munn & Church.

The opinion of the court was delivered by

GARRISON, J. This was an information in the Supreme Court in the nature of a quo warranto, wherein the issues were by consent of parties tried before Mr. Justice Swayze without a jury. The learned justice found that McGuinness had usurped the office of county collector of the county of Essex to the exclusion of the relator, Booth, who was lawfully entitled thereto. Judgment to that effect was rendered by the Supreme Court upon the postea, and this judgment is now under review by writ of error.

The facts were that McGuinness was appointed county col

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