The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-04-11

presence OF man whom you mad invited TO your
hreside as a friend whom You found canvassing the
charms of your wife or daughter to excite the SEN
suaity of his nature? The man who comes into
your house with an unclean heart, and looks with
lustlul eyes ON yours is trespasser, and you can
repel him with violence.
1t was an aggravated feature in the case of Kew
that he into the house of Sickles as his friend
| and we will show you by the testimony that their
relations were almost as close as brothers The
hearts of these two men had beaten almost "a closely
together did those ofthe two remarkable men who
were linked together by indivisibIe tie This
man Key had tresspassed upon his friends rights
and he held that If wife consented away her yir-
tue, the husband had the same right to defend il as
If against ravishment; that if the adulterer cannot
be repelled by the wife, he can be violently re-
PEELED BY the husband. though the latter consents
| Mr.. Graham here read from the case of the Peo-
pie against Ryan, wherein he held that thu iudoa
left it to the jury to decide whether the husbands
| act of killing, in n similar case was murder man
slaughter or justifable homicide; and that though
the woman consented away her chastity, the hus-
bands right to punish the offence against himself
was perfect as to defend it against his wife, q
| ravishment. He again reminded the Jury that their
hndlng for the prosecution might come back WIS.,
ltaton on their own family rights. If they decided
that in like this the injured husband should
be handed over to the law, they would have MANY
more, and the poisoned chalice might be COM
mended to their own lips. Mr.. Graham said he
would now proceed to examine the American law
with reference to homicide, and would divide the
inquiry into seven heads follows:
L. low lar the government is bound to make out
the case against the defendants what it must prove
and what the jury must be satisfied Of and how sat
isfed, before conviction for any offence can be
| rendered
2. How far the old rule that malice is presumed
from the fact of killing obtains at the present time
in the administration of criminal Justice, and how
far such presumption is controlled by the great
fundamental presumption of the law that every one
is supposed and deemed to be innocent until proved
| to be guilty.
A., 81 I.
cation-how 1t regards it in connection with the
act caused by it.
A. The reason or principle of the old rule that a
homicide committed by husband on discovering
his wife committing adultery, either in Staying the
| adulterer or adulteress, is manslaughter
5. What is the effect of the rule which lowers or
reduces such killing to manslaughter to show that
] it was equivalent to an acuuittal
3. How far the proyocation furnished bv the de-
ceased to the defendant acted upon or affected the
| defendants mind in reference to generating him
from any legal consequence by reason of the killing
IN question:; whether it did not render the defend
dant for the time being insane, have a tendency
to operate such state of mental unsoundness as to
| relieve his alleged act from all criminaity-suppos-
| ing the act to have been Immediately or directly
prompted and occasioned by it, in other words
whether this act is one of pardonable and excusa.
| bic unsoundness of mind, or wanton and ungovern-
| able passion
Z. Whether, viewing the case as one of ungov-
ernaole passion or as of resentment produced
by passion, tn re sufficient time for the de-
tendants passion to cool and for reason to get the
Detter OF the transport of passion so that the de-
| tendant had time to deliberate before the mortal
| wound was given to the deceased
In regard to the first point, how far government
is compelled to make out case against the defen-
cant. he held 1t must be made out by proof and
not by presumption. The fact of killing is not pre-
sumpive evidence of malice, and uries cannot con-
wet upon presumption. He here read from I'd
Smith, pp 81 and 6e, in the of the People Us.
/ yvbn alA hot -
| the prosecution to prove their whole case This
opinion was given by Justice Brown If the pro
secution charge that Sickles killed Kew in wanton
ness they must prove it. Murder by the common
law rs where the killing is with malice arore
| thought and the person killing is one of sound
| memory and discretion. All this it was the duty
OF the prosecution to show beyond reasonable
| doubt. He would show after awhile that the time
When the fact OF Killing was evidence of malice
was during the period of special verdcts He in.
sisted that upon the evidence of the prosecution a,
1t stood, they could now ask verdict of acouitta
for the prisoner, and unless their hearts were OF
knarled oak, they could not deny it.
Twelve Indians, upon whom the light of civil
Zatlon mad never broken, would reco from con
| vlctlng man under the circumstances in which
this defendant ST ~; for even after the act of kill
| ing, when the light OF reason gradually be
ginning to steal over the mind of this defendant ht
exclaimed in the agony of his heart she has defet
my bed" The sanity of the prisoners mind is
| under all the conditions of the crime to be made
| The law presumes from the killing that certain
state of facts exists, but the jury are not to make
| their verdict from the presumptions. The Jury
are to go behind the presumption and ascertain
| these facts exist.
2ndly. Was the rule of imnl;ad m ,I;co ro,r NM
of the criminal iurisprudenca of on nonn+npS p'
There the speaker read from Mordridge's case sew
enth statute trials page co. to explain the origin
this rule; also as to this point from First Black
stone, page 1922
| In New York this rule had been completeIv nx
poded. If the District Attorney in his Stata wer,
to prove nothing but the killing, the Court woult
order the jury to acquit him instantly on the spot
In his State the highest court of the State ha,
reversed the action of a court below where conyic
tion had been had, on this very ground. Hewoul,
give history of this point to show how it bappen
ed formerly that malice Inferred from the ac
OF killing. At the time England was overrun by tn
Danes, the latter constantly being assassinate
by the people who of course abhorred the former a
lntruders. They put stop to it. The law was tha
whenever man was found slain, the SLAYER mus
be produced, or the UH be subject to amercement-
After William the Conqueror overrun England tn
Normans suffered in the way, and the oil
Danish law was revived The conviction of felon
then became one OF the sources Of revenue to tn
crown the property and lands of the convicted mar
ty being forfeited; and it thus became the interes
of the authorities to manufacture all the felons the
could
If the District Attorney were to rest the cas-
where it stood now. in his State the Judge woul
mitted or proved, the prosecution must show tn
elements OF the intention-must show the anin,u
of the slayer. The question here was, did the vii
join with the act, or was Sickles the creature G
impulse and instinct 1t NAV he tragic IN To L
human blood, but is it less so to deprive man c
that which is dearer to him than life? The adul
terer dies as justly as did those men who Yesterday
in a neighboring citv expiated their crime on II
scaffold. They were condemned for sbeddina h,
man blood; but that was not greater crime tha
adultery. The government had proved here by il
own witnesses that Daniel E. Sickles had declared
tones OF agony, that Philip Barton Key had dehle
his bed, and there was not evidence to overcom
that. Is there any evidence to prove that false
But it would put speedy stop to this trial to adm
that fact. He held that p. Barton Kew had seduce
the wife of Daniel E. Sickles. and for that offanc
Daniel E. Sickles had sent him to his long accom-
Upon that simple fact thew MIGHT now snbmit N
case to the Jury Just as it stands. 1t remained fo
the prosecution to disproye it.. He desired I
make no reflection upon the District Attorne,
whom he respected as a lawyer and gentlemai
but he wished to know whether the evidence W.
to be fitted and cut so as to make out this convic
tion of murder? Were the iury to find yerdir
with handkerchief tied over their eyesP The d
fence was not bound to show that Kew was an adu
terer; but they could show the fact in all its di
gusting details. They would show that he had a.
Powered the confidence of his friend. They woul
show that he had committed double crime
Treachery to friend was damned enoupb but wbe
IL reached that frienPs wife II ,vos douhI domna[
He desired as much as any one tn sneak GOOD Of n
dead. ba conld NOT orotn;tonsI os,toraa e VI ~
d;stnrb him ,yharo 6a siunbon hp .ne unau
Rarton Kew was fact i; t3;s ooso ;a.;". @ 90 -. IN. ~
living reo1iraS that The ,ruth M 70 ~ u
known. " 1'
| II was no dasre of d;st;nct;on that bod nro,,n,o
him IN antar unon Ali, ,oso Jrb ooIJ Patp ~