Fremont journal. [volume] (Fremont, Sandusky County [Ohio]) 1853-1866, 1853-07-02


The Court charged the Jury as follows
Gentleman of the Jury IL ask your careful
attention while j give you my views of the
law as applicable 20 this case. Every
consideration inconsistent with your duty ns
Jurors should be banished from your minds
The law and the testimony only are the pron
err subjects Of consideration. Your duties are
simply to find The truth; with the consequent
ses arising from your verdict, you have nothing
to do-the law determines that when you
have done your part.
David @. Rose, the defendant in this case
is charged in the indictment with the crime
Of murder in the first degree; in unlawfuly
lpurposely and of deliberate and premeditated
malace, taking the life of Emanuel Elwanger
by means of lcaden bullet fired from pis-
tol by the defendant, on the 23d day Of Au-
gust, 1852, in this county.
1t maxim of the common law which has
prevailed for centuries, and which you will
apply in this case, "that the law presumes
every man innocent of crime until proved
guilty.
Under the indictment in this case, you may
find the defendant guilty of either of three
crimes if either be sufficiently established by
the testimony
lStIMurder in the first degree, which in
general is an unlawful killing, purposely, and
of deliberate and premeditated malice.
2nd.'-Murder in the second degree, which
is an unlawful killing, purposely, and malc-
iousiy, but without deliberation and premed-
tation.
3d.-Manslaughter which is an unlawful
killing without malice, either upon sudden
quarrel or unintentionally, while the defend
ant is in the commission of some unlawful act
In forming your verdict in this case, it will
be proper for you to consider these questions
1st-Is Emanuel Elwanger dead
2nd.-Did he come 10 his death by means
of a leaden bullet. fred from pistol by the
hand of David G. Rose. If you find that
Emanuel Elwanger is dead and that he came
to his death by reason Of the discharge of
pistol in the hand Of David c. Rose Then
you will inquire
3d.-Was the pistol discharged by the de-
fendant, purposely, aud of deliberate and pre-
medtated malice.
As you are simply to End the facts in the
case, and receive the law under the direction
of the court, it becomes necessary for me to
explain the meaning of the terms made use
Va III lbS oldbutC uHuSI WulCu lne ueleUQduI
is indicted, and now stands upon trial
Pwposely as here used signifies Intentionally
or with design.
Delberation and premeditation signifies
Preconcieved plan, design, cody and dliber-
ately formed
No certain length of time is required, but
there must be some time. If the design to
kill bo formed and delibcrated upon for any
time before the act, the law holds that to be
an act of deliberation and premeditation
"Malice, in law, is wlfully formed design
to do another an injury, whether such design
be prompted by deliberate hatred, or revenge,
or by the hope of gain, or from the wanton-
ness and depraviiy of heart regardless of
social duty and fatally bent on mischief"
(The.State of Ohio vs. James Summons, Wes-
stern Law Journal, vol. 4, p 4l1.) Therefore,
10 constitute the statutory crime of murder in
the first degree, it is necessary that the act
should have been purposey and Intentionally
done-with deliberaton and premeditation,
that is, from design cody formed, plan
preconceived and with malice
1t may be necessary here to remark that
malice may be to some extent regarded as
transferable in two cassco of cases.
lst When the act dictated by malice to
one individual, falls upon another-as ifC,
having malice against A., misses him and kills
B.. This is murder in G. Also if A. put
poison into wine with intent to kill B., and
G. drinks thereof and dies, A. is guilty of the
murder of G. If A. shoot at b. with intent
to kill him, but miss him and bit c. and kill
him, it is no less a murder than if he had hit
and killed B.
2d.--When the malice is general and ars-
es from depraved inclination to do evil--as
if person cody discharges gun among the
multitude and death be the consequence, the
act it will be murder. Or if man resolves
to kill the next man he meets and does kill
him, although he knows him not this is MUIR
der-for it is universal malice falling upon
particular individual.
With these views of malice as your guide,
if you find from the evidence in the case that
the defendant did purposely and Of deliberate
and premeditated malice discharge pistol,
whereby Emanuel Elwanger came to his
death, the laws of the State pronounce him
guilty of murder in the first degree, and you
should so find. But if you are not satisfied
beyond a reasoabe doubt that the defendant
is guilty of murder in the FIRST degree-or if
the State has failed to establish any essential
ingrediedient in this grade of crime, you will
of course acquit the defendant of murder in
the first degree and pass TO the next.
:. Murder in the second degree which differs
from murder in the first degree only in this i;
that it expressly dispenses with deliberation
and premedtation. The act must be done
purposely with intention to kill and malicious
lly. which has been said heretofore concerning
murder in the first degree and malice gener-
ally, with the exception of deliberation and
premeditation) is equally applicable to the
crime of murder in the FIRST or second degree.
, Ifyou are satisfied beyond reasonable
doubt that the defendant did purposely, un-
lawfully, maliciously, but without deliberate
premeditation, discharge the pistol which
caused the death of Emanuel Elwanger, the
laws pronounce the defendant guilty Of
murder in the second degree, and you should
so find. But ifynu are not satisfied that the
defendant is guilty of murder in the second
r-.l. II 4.