Hendrieth v. State

I am constrained to disagree with my astute colleagues in their decision in the above and foregoing cause of action against George Hendrieth, alias George Taylor, because I am firmly of the opinion that the following instruction is erroneous:

“The court instructs the jury for the state that malice aforethought mentioned in the indictment in this case may be presumed from the unlawful and deliberate use of a deadly weapon.”

As I see it, this instruction is not only erroneous, but is harmful and reversible.

This instruction has had a long and turbulent history shown by the judicial opinions of…