People v. Barry

By the Court, Currey, C. J.:

The defendant was indicted for murder, to which he plead not guilty. Upon the trial he was found guilty of murder in the second degree, and was afterward sentenced to the State Prison.

At the instance of the District Attorney the Court instructed the jury as follows : “ Malice is implied even in cases of mutual combat from the use of deadly weapons; and when one uses superior weapons to those possessed by the party slain, malice may be inferred, and the killing amounts to murder.”

The evidence is not contained in the record before us. Without it we are to presume the…