The Trinity journal., 1856-06-07

| finds malice. because the reckless and wan
ton act indicates a depraved and malignant
heort-one devoid of social duty and fatally
bent on mischief AL the circumstances at
tending the killing are to be carefully con-
sidered by You, such as the place where the
act was committed, the time of committing
it, and the instrument with which death was
produced. If you find that all these circum-
stances attending the killing indicate heart
devoid of duty, and fatally bent on mischief,
your duty is plain one, and you cannot
avoid doing it without violating the oath
that you have taken as Jurors.
The defendants counsel have endeavored
to excuse or in some degree pallate .he acts
of the defendant by showing that he was
under the influence of intoxicating liquor
Drunkenness. says our statute, shall not be
an excuse Tor any crime, unless such drunk
enness be occasioned by the fraud contriy-
ance or force of some other person or per-
sons, for the purpose. of causing the perpe-
tratlon OF an offence, in which case the per-
son or persons so causing said drunkenness
Tor such malignant purpose shall be consid-
cred principal or principals, and suffer the
same punishment as would have been in
tllcted on the person or persons committing
the offence, if he, she, or they had been pos
sessed of sound reason and discretion. It's
not pretended that any person procured the
defendant to drink single drop of liquor
Oh the day the killing occurred, or that he
was under the influence of liquor sufficient
to deprive him of his reason He knew his
friends very readily, and directly after the
shot was fired, when the sheriff remarked
that one load had been shot out Of the pis-
tol, he Immediately accounted for it by say
ing that he had shot it off that day behind
his cabin, or something to that effect. Then,
gentlemen, you are to disregard the evidence
in relation to his drinking entirely, unless
you believe that his mind was in state of
unconsciousness that deprived him of reason
and then it would not excuse the act.
defendant in a criminal action is pre-
sumed to be innocent until the contrary be
proved, and in case Of reasonable doubt
whether his guilt be satisfactorily shown, he
Is entitled to be acquitted.
1t is for you to determine whether the
difficulty at the butcher shop with Fitzgerald
and the defendant was the cause that led the
defendant to commit the homicide; if so,
was that sufficient provocatiOn to reduce
the crime from murder to mansaughter.
The evidence shows that the killing oc-
CURED a sufficient time after to allow the
voice of reason to be heard. The parties
had talked together about the difficulty, and
the defendant from the evidence seemed to
be less excited after the difficulty with Fitz-
gerald than before it. He remained at the
al,
after Fitzgerald left the shop and went
down street. Defendant was at the Arcade
some time before the fatal shot was fired
ample time for the voice of reason to throw
oil the transport of passion. This difficulty
at the butcher shop with Fitzgerald is the
only one that the evidence discoscs the de-
iendant identified with, on the night the
Killing occurred, so that proyocation cannot
De brought to the aid Of the defendant if he
had time for reflection.
If, gentlemen, from all the evidence before
you, you believe the killing was involuntary
on the part Of the defendant, without any
intention on his part, in the commission of
an unlawful act, or lawful act, which might
probably terminate fatally to the life of
human being performed in an anlawlul man
ner, it may reduce the killing from murder
to manslaughter-but the acts, in the com /
mission Of which death ensued must not be .
such that the natural consequence of the
commission would be to produce death or
commit felony, Here the Court read from
the statutes. If therefore you find the kill
ing has been done without any intention on
the part of the defendant III the commission
of an act as laid down by our statutes and
the books from murder TO mansaughter,
you will find the defendant not guity Of mur-
der, and render ii special verdict in accord
ance with the facts, And, of course, if you
find that the homicide was justifable or ex-
cusable, you will acquit the defendant alto
gether
Gentlemen, the patient attention with
which you have listened to the evidence and
the argument of counsel during the inyesti-
CATION Of the cause assures me that | am
about to commit this case to faithful breasts
for final determination, so far as it can be
done at this time Again, gentlemen, let
me urge upon you to carefully and calmly
consider all the circumstances attending the
homicide under consideration as stated to
You by the witnesses for your guide in de-
lberatng and rendering your verdict No
outside influence OF arguments of counsel
not based upon the evidence, should have the
slightest weight with you in your delibcra-
tions, but seek the truth and nothing but
the trutq. And when you arrive at that
conclusion declare it, If You believe the de-
iendant guilty of either murder or man
slaughter so declare-and equally so, if you
believe him innocent, acquit the defendant
Do your duty according to what you be-
lieve to be right according to the evidence
and the law as | have given it you, regard
less of any consequences that may follow
With after consequences You have nothing
to do, save your own conScienceS.
Gentlemen, the case is with you
|. c. WooDs.-The following extract from
a letter received in San Francisco from Iiy-