The Portland gazette. [volume] (Portland, Me.) 1818-1824, 1823-05-13

| left him, before SpOllet took hOla cI Ooie'
They were both much exhausted when came ~.
Or. Smith. went into Tire shop and saw d
man living dead. on the floor The handkerchief
on Ills neck n AGxed like moose, ana was 50
| tight that il SsBld not rend. | concluded that
| il had choked him. II was important 70 set i
off as quick as possible. ! did so, with KNIFE,
as soon as INV finger could be inserted under il,
and the blood Immediately recedcd from his face.
The handkerchief was fixed like moose. could
not get my finger under the handkerchief, u was
so tight. twas a sngl light SILK handkerchief,
drawn into a small cord. From an inspection Of
the BODY, | thought he came to his death by
strangpg. There was no fracture nor contu-
sion on the head, only slight one on the nose.
| did not notice any biow on the left SIDE OF the
head
Cross erarniaed. A plethoric man might per
haps have died from such excitement, but think
it was stranglng But think the effect OF the
former cause would have been different. A per-
| son might possibly die by extreme exhaustion,
but think that was not the case here. If the
handkerchefhad been tied tight, before the blood
propelled into the head, it would perhaps have
made it tighter, but thinks this will not account
for the effect here produced.
.1rguinentof Counsel forHe Prisoner.
come to his death, in the course Of the encoun-
ter. The only question was whether it was by
the hand OF tie prisoner. II WIS undoubtedly
occasioned by strangulation; hut he contended
that there was DO proof that Cole at any time
had hrd Of Coombs' neck handkerchief He
had only seized his collar but no witness testl-
fed he had touched the neck-Cloth. The pre-
sumption would be urged, however, by the pros
oCutor that the prisoner must have got his hand
into the ueCkerchiefof the deceased. But there
! was good reason in his mind why such prcsump-
ton sbo1ld not prevail; the high nature OF the
charge. And this presumption, moreover, was
much diminished by considering the circumstan-
Ces. The neck cloth had been put on early ia
the morning. 1t was folded three times round
the neck. Coombs had been hard at work.
From exercise, heat and passion, his blood was
high, his arteries fell, and veins distended. Az
ter a conflict of six minutes, added to the excite
ment and exertions of the day, finding himself
unable 10 cope with Cole and maintain the strug
gle with strength and success, he would natural
" endcaVor to relieve himself of his ncckerchleI,
to give greater freedom to circulation, and more
force aud play 10 his muscles As the knot was
behind, he could not stop to unite il and would
be obliged TO rent it. With his veins swollen,
feeling himself growing weaker, his head becom
ing giddy, in his frenzy and desperation in this
mortal struggle, he would be likely to grasp it in
front with convusiVe agony. Cole never IN truth
had hold of the handkerchief at all lie certainly
could not have had hold Of it all the time He
never relaxed his actual grasp upon COombs' col
lar with one hand, while lie was beating him with
the other. IL Cole had taken bold of the banker
chief at the first Of The conliict Coombs must
have sunk in few seconds DIR. Smiths opinion
IL. 81. Int
utes mast have elapsed during the contest. All
the testimony combined to prove the impossible
ty Of its being by the nand Of Cole The chok-
ing must have been produced in the short inter-
val OF Duniug's absence from the shop If Cole
had been intoat on choking Coombs, he would
not have struck him after he was down. He
would have secn That bis purpose had been sue
cessful. If Cole were really guilty Of the crime
alledged against him, he could have had no wish
to procure his acquittal. Tie order and peace
of society precuded it. Yet if it were pos
sible for the jury TO go into tie provocaton,
ii the positive principle OF law did not prevent it,
the fault would be found to lie at the door OF the
unfortunate Coombs. The dispute arose from
the unfaithful manner in which he had done his
work. The horse was badly shOd. Cole COM
planned that it was nos well done, and said il was
not fair Coonbs said, . If you say 50 again I'll
knock YOU to tho devil Cole advanced to-
wards him with both hands in his brooches pock-
cts, and said, Strike - VIII you lay aside the
law -" Yes will you take no advantage" -
Z" No." The defiance was thus given and taken.
Coombs stripped of his apron, aud Cole threw Off
his coat. The combat commenced; and if death
ensued from the hand Of Cole under such an a.
greement to lay aside the law, it must be man
Slaughter But the whole testimony sheWs that
no mortal blow was given. This IS confirmed
by DIR. Smith. There is no proof that Cole
drew out The handkerchief to the extremity de-
scribed. If there was no positive proof, the jury
was not to convict upon presumption.
The Attorney General, (Foote,) followed Mr..
Orr and closed the prosecution for the govern
ment. He gave the legal definition of man
slaughter, and went extensively and with ability
into an examination Of the evidence, 10 shew
that the death was deaed by the hand of Cole,
and argued To establish the point, that the act
amounted to the offence. lie insisted that Cote
must have had Coombs by the collar, and seized
hold Of the haadkerchief.-tha tue neck cloth
must have been gradually frightened until stran-
gulation ensneJ. The CIRCUMSTANCE Of Coonlbs
being pushed back, was evidence that he was
strangled, being stronger man than Cole.
There could be no question on the minds OF the
jury that Cole was guilty.
Judge Weston delivered to tic jury the legal
definition of man-sanghter, accompanied with
the discrimination by which the offence was dis
tinenished, and the exculpation by which the act
might be extenuated. There were two ques-
tons for the consideration Of the jury. I. Wheth-
er the deceased came TO his death by the hand
Of the prisoner. 2. Whether the act, if commit
ted. was attended with any circumstances Of
excuse. The cause of the death was shewn by