The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1850-04-02
The Defence.

Mr.. SonIEn made the opening argument
for the prisoner on Wednesday afternoon
After warning the jury Of the interests at
stake, cautioning them as to the fatal conse-
quences of error and entrea,ing them to take
special care to free their mind OF prejudice,
he proc eeded TO say
have thought it my duty. in the first
place, TO call your attention TO the rules of
law which describe the offence charged
Second, to the indictment. Third, to The
govcrnme nt's case, viz TO the nature of cir
cumstantial evidence. Lastly, to the facts
we intend to prove.
First The offence charged--it is murder.
Murder is a division of the general term OF
homicide. Homicide is divided into murder
and manslaughter-th first crime punisha-
bic capitally, the second, not being punisha-
BILE capitally. Murder is the taking of life
with malice prepensc, either express or i'm.
piled. BY "cxpress is meant what we
mean by it in the general acceptation of the
word. The definition of implied malice is
not so easy. 1t is the theory of the law to
punish the disposition OF the mind as much
as the overt act. The law has consequently
established certain rules by which to judge
of the motives; and under certain crcunl-
stances implies malice. A deliberate overt
act, without any or considerable provocation,
is malicious one. Manslaughter is not an
overt act-it is not without provocation-it
is done in the heat OF blood.
The line may seem narrow one, hut it is
the line of life or death, and never to be lost
sight Of.
What is sufficient provocaiion TO reduce
murder TO mansaughter? To settle this
point, the weapon used must be ascertanel,
and considered in the first place
What is reasonable provocation when
done with a deadly weapon? ANY saut
or indignity TO the body, if resented at the
time.
But if not done with dangerous weapon
words, insulting actions or gestures are
sufficient. Malice is to be judged of by the
manner of death-and provocalion by the
weapon used. The government must then
show the MANNER in which DIR. Parkman
WAS killed.
2d-The Indictment. IL matters not what
crime a man has committed, if he has not
committed the particular crime set forth
opportunity must he given counsel for the
defence, by setting forth the crime fully,
formally and substantially. The first count
sets forth that the prisoner killed George
| Parkman by striking him with Il knife. 2d
That lie killed him by striking him with n
hammer. Sd. That he killed him by strik
ing him with his fists and feet. and by s,rik-
ing him upon The floor. 4th. That he killed
him by striking him by some means and in
struments to the Grand Jury unknown.
invite your attention first TO the means
of death SET forth in the three first counts
The government must set forth their mean:
of death, and prove it as set forth. The
government need not specify the instrument
used-ihe weapon being Of no consequence
But an allegation of having killed by stri-
king, is supported by proof of d ath by
poisoning or drowning.
The three first counts allege the death tC
be by striking The fourth count. We say
is wholly insufficient, and the goyernmrn
has 80 right to introduce evidence under it
There is no precedent or authority for sucl
n eouni---on the contrary, the authorities arC
against it,
Authorities were here cited, to prove The
insuiliciency OF the last county
II the Jury arc left in doubt as TO the
means used in killing. the prisoner is entitled
| 10 an acquttai III - aHegeu that uehlh Wal
produced by striking aud il must be proved
or the prisoner must be acquitted. The
MEANS Of killing must be proved prov
cd beyond u reasonable doubt.
am aware there is al impression in the
conim0nity that this matter Of REASONABLE,
doubt 10 a gratuiiy given 10 the prisoner ,ant
by which the guilty often escape. Nevel
was there a greater mistake than this, W.
take q man from his family, lock hin up il
a Jail, and tell him to prepare for his defence
Ez parte proceedings are instituted; he i
tried before the Coroner's Jury; the public
opinion is accumulated and lastly, the pris
oner is put to the bar, and witnesses set upoI
him malicious witnesses, interested witness
es, perhaps. He cannot open his mouth il
his own defence. To these things, check
and counierbalanceS are and must be pro
vi,led.
You may be charged with committing
crime ybers no hIman oye saw you, wheri
mistakes s,ay be made as to identity, an'
YOU have nothing 40 rely upon bot your goo
character and this reasonable doubt il i