The Trinity journal., 1856-06-07
Charge Of Judge Pitzer to the Jury
in the case of the People VS.. j Ohm
Fehley. at the present Term of
the District Court,


the District Court.
Gentlemen Of the Jury:-The care Will
which YOU have been selected, the interest
manifested by the public during this trial,
the grave nature of the offence with which
the defendant is charged, and the time oc-
cupied in the trial, must necessarily impress
upon your minds the responsibility OF the
duty about to be committed to your charge
The evidence discoseS facts that require
your calm and deliberate consideration; 10
manifest an indifference to them "ould oe
reprehenSible in you in the extreme "A just
interest in the facts disclosed to you from
the evidence should be of great moment in
your deliberations to enable you to arrive
at a inst conclusion that you may render a
verdict in accordance with truth and the
law governing the case.
The law you are to receive from the Court,
but the facts you are the exclusive judges
Of Applying the rules of law carefully to
the facts in this case / apprehend you will
have but little difficulty in determining
whether the law has been outraged or not
The defendant, John Fehley, is charged
by the indictment with the murder of Den
mis- Murray. BY our statute under this in
dictment it is competent for you to acquit of
murder and convict of manslaughter, or if
the defendant in your opinion is guilty of
neither, to acquit him of both. l propose
then to inquire
LIST. What is murder?
End. What is manslaughter and
3rd. When is homicide justifabe or ex-
cuSable?
Our statute defines murder to be, the un-
lawful killing of a human being, with malice
aiorethought, either express or implied
Malice is essential in murder, and it is this
which distinguishes it from every other de-
scription of homicide. 1t is therefore, gen
tlemen, very necessary that you should un-
derstand the legal Specification of the word
malice. Here the Cour: read from Bou-
vie's Law Dictionary the definition of the
word malice
Malice in its legal sense is very different
from our understanding of it in its common
acceptation. We understand malice in or
dinary affairs to mean ill-will, malevolence
grudge, pique or spite, but in law as Judge
Story expresses it, malice in legal intend
ment, is not confined to that depraved and
deliberate determination, where the mind
has brooded over its prey and marked out
its vengeance in cool blood or with wicked
cunning. Such are cases of death produced
by poison deliberately administered, or by
midnight and solitary assassination. But
the true legal notion of malice extends to
all cases of homicide perpetrated under such
circumstances of wanton cruelty and impla-
cable revenge as evidently flow from a wick
ed, malignant and abandoned heart. or as
Sir Mchall Foster expresses it, "a heart re-
gardess of social duty and fatally bent on
mischief" 2 Wheeler's c. c. 500.
Our statute defines express malice to he
that deliberate intention unlawfully to take
away the life of fellow creature, which is
manifested by external circumstances capa-
BILE of proof And that malice shall be I'M
piled when no considerable provocation ap-
pears, or when all the circumstances of the
killing show an abandoned and malignant
heart
by carefully studying the definitions here
given of malice you will be able to apply
them to the case under consideration with a
degree of certainty that | trust will enable
yon to determine whether it forms one of
the ingredients of the offence laid to the de-
fendant's charge, or not
the unlawful killing of a human being with
out malice express or implied and without
any mixture of deliberation. 1t must be
voluntary upon a sudden heat of passion,
caused by provocation apparently sufficient
10 make the passion irresistible, or involun-
tary IN the commission of an unlawful act,
or lawful act without due caution or cir
cumspection. Here the Court read from
compiled laws, page GAL, sections 23 to SO
inclusive.
The killing being proved, the burden of
proving circumstances of mitigation or that
Justify or excuse the homicide, will devolve
on the accused, unless the proofs on the part
OF the prosecution sufficiently manifest that
the crime committed only amounts to man
slaughter, or that the accused was justified
or excused in committing the homicide.
The killing having been proved, and con
ceded on the part of the defence, the first
thing that you will have to determine, was
it done with malice aforethought either ex-
pressed or implied Malice as | have be-
lore shown you is necessary ingredient to
constitute murder. To reduce the crime
with which the defendant is charged to man
slaughter, it must be shown that the pistol
shot which produced the death of the de
ceased, Dennis Murray was melted by a
sudden transport of passion, apparently ir-
resistable by an ordinary person No time
must intervene for the voice of reason to step
IN and inform the conscience of the accused
That he is doing wrong, but it must be done
upon the very spur of the occasion, or the
Killing must happen without any intention
on the part oil the wrong doer in the COM
mission OF an unlawful act or a lawful act
which probably might produce such con-
sequence III an unlawful manner But this
unlawful act, according to our statute must
not be such an one as in its consequence
naturally tends to destroy the life of a bn-
man being or commit felony