The daily press. (Cincinnati [Ohio) 1859-1859, 1859-05-24
l. A w II Il Z O r II /.
HAMILTON COUNTY DISTRICT COURT.

wriiS Of error, allowed by tho Supreme Court aud
the Judgment upon the Common Pleas aud the sem
tenGe a,t OF imprisonment for life passed on these
The second degree. The Indictment was for murder
n the first degree, and it charged the homicide as
necessarily somewhat blended and although tho
trials below were separate. the findings separate and
the writs OF error separately prosecuted the Court
so far as 1t was convenient, tho cases would bo
sdered together. II. ~ - I.,''
ter was not pleasant one Where crime Of some de.
gree oil cnormity was committed, it was always q
lease parties from punishment or to delay Il; and he
Judge b. felt Himself compelled TO say, for the
Court felt SO special sympathy for those pc
titioners, and the evidence Of their character and
habits OF dieness, Of drinking, and, above all their
evident familiarity with tho den of tho strange
way to hell leading down to the chambers of death;
all rendered Y very apparent that If II should hap
liberty neither they nor society would he any special
gamers by the restoration unless they materially al
Of criminal procedure established as they had been
IVY the wisdom Of ages for the protection Of limo;
without reference to the circumstances of the partcu
ar case before them they should look to the questions
OF law INVOLVED, without bias or favor. In that
spirit they had endeayored TO entcrupo the consid
ubr ao%s hSG %S@ been raj Sn sesed
by co9nses which the Court did notdeem t necessary
to- notice; They should notice such only as they
First, as to the case of Setter, it alleged tho
10 Inc jury, or rather IN ltt
by counsel for plaintiff in error, The Court hero
rehrarScd IN brcf manner, tho history of the
| remarkng that in order TO proper understanding
ce f9fSGns y ~ 9Hht 6c necessary % to make
!acc3rdlng to the testimony on tho evening when
the homicide occurred.
which was but general, and by no means intended to
Elye the details, that the testimony 10y which the
tho statement Of the inmates of this house. and oi
swift VINO accompanied the parties that were in
therefore, which to he attached to tho testimony
OF swift was matter of vital importance to tho de-
1t Is alleged for error that the Court charged tho
jury thus ut is contended By counsel for the State
that ofan nccomplice in this crime. 1t is for you
say, gentlemen Il the Jury, looking at all the cir
cipie ot Jaw is that tho testimony of an acCOmpcc
IN SImo Q, must be torro19rated 10 make 4 entirely
yiet on the testimony OF an aCcomplce Sunless cor
S1Sas TEo tDcp TIE prnciplg as well agPe to the dc
1t is for you Judge of his credi5iity In reference
to aceompices our Supreme Court uses the following
should be cautiously received and In all cases sus-
peiously scrutinized by jury
lelow erred; and this 'Ourt Is unanimously Of opin-
ion 1t did err 1t Is frequently remarked, and per-
ycton ought not to be on the unsupported testimony
of an aGcomplice. Nevertheless, it would not 6e
~ accomp'ice alone. But be this as it may, the
u
defendant 1t ia rule for the protection OF parties
accused OF crime but il w9s new principle to tho
tho fact OF completely in crime ON the part OF II
witness, was to be determined by u jury, when the
IN this collateral way, if the nry shall irst lind him
tS be an ic aiSso%plce they ,ha disEsgaEd his test
fore in this charge the Court below erred.
Again. in the case Of Setter the Court was request
ed Dy deendouts Counsel to charge tile Jury in these
% Words a "Unless you are satisfied from the evidence
Ihat the defendant, Cock Inflicted the stab (which
n1fn auroa.
ment With Cook was either actually present, or near
intent to render such aid in the act Of homicide you
cannot IN the present issue convict him Of grade
o. h99meide" AL Of which instruction the Judge re
facts that this blow from the knife from which death
the sat ws %css fSd
the instruction here requested by the Counsel and
nsG reiasGd d by ths Court raises o question whether
cipal in a homicide or other criminal nct, when lie
s neither actually nor G9nstrpctVely present, part
tuqily engage IN the criminal act If lie is present
crime he able render asssjance, and with the
view and intent 10 render such assistance should 1t
give alarm in cases Of impending interruption OF The
criminal act, in all snch cases party may be con
but where neither Of these states Of iaGs exist al
though ho may have procured the act to be done he
lie 5 sscdm Il The By rmSs Ad It, @
rrocnrns he act to be done, that BEING substan-
tlIe ana distinct offence from the act itself.
that Setter said to Cook "kill her Charley" ac-
eptLet. if il be- taken for Granted That lie used
TN 1nssS words % @d Of het direction and
10 convicted under the issue made up under this in-
dletiment hut should be indicted and tried for pro-
~. For these reasons the Judgment md ntence of
the Court of Common Pleas in the case of Setter
must DC reversed, the Judgment set aside, and new
II Cooks case the charge Of the Court in respect
tothe creui1iliy of acComplces, and leaving the
question Of factas to whether Swift was or not an
accompice the jury was the same as In the case of
Setter, and the same error interyenes. But there
was an additional assignment of in close CON
neetion with this point in Cooks case. N n n Y.
When swift was ON the stand the question was put
to him 10y Council for the defcn ndant whether tberc
was any previous understanding or concert between
himself and Setter aud Cook, 20 going to the house
of Mrs Davis for the purpose of having difficulty
to which the Prosecuting Attorney objected and the
court sustained tue objection.
Now take thisin connection with the charge of tho
Court In reference to the stJect Of accompccs. 1t
competent witness) as to whether he was accom-
pce or not, or whether there any agreement be-
tween him and his associates, rejected and ruled
OUT He was not permitted to testify that point
and yet in the charge of the Court the jury are told
on his uncorroborated and unsupported testimony.
II seems TO this Court that this Of facts
the prejudice Of defendant; because, by this charge
oi the Court, suspicion, aud even worse than suspi
cion, was thrown ON the credibility of Swift and
yet when the stand he was not permitted to testify
as to the fact ON which his OF credibility was to
The remaining allegations of error IN Cooks. case
are based the charge of the Court on the subject
OF selt-defense The words of the charge were here
quOtedl .HH '.... ... r.
1t is claimed by counsel for plaintiff in error that
charge thedocrine is laid down that In no case can
the Justification or excuse of selGdefense, be made
available IN case Of homicide, unless actual neces-
sity Tor taking life exists, aud that In all cases the
lnry shall he the sole judges of the actual necessity
This Court was not quito certain that this was fair
construction OF the charge IL was susceptible of
such eonstrnetion yet perhaps, 1t was not neces-
sary one, and ON full Hreiection no Judge b. was
not disposed as II was not pecessary, to predicate
error upon IL. The entire Court, however, was OF
opinion that Il somewhat modified statement of the
law ON that point would be necessary TO its full aud
correct understanding and that the excuse of ust-
hcalion OF sefdefenso In cases of homicide might be
made available in some instances whore there was
actual necessity Tor taking lio provided tho PARTY
who resorts to 1t actually and honestly believes that
he in danger OF his life Of great bodily HARM
ana the jury ind that the circumstances of tho case
were such as TO Justify and render rational such
belief, although no actual danger existed Again. IL
was assigned for error thai the Court on the subject
Of set-detense, that party claiming the benefit Of
himself be in the right etc. If the balance of the
charge there did not appear any modification of the
charge thus broadly stated aud by this the
Court thought the jury liable TO be misled left
as II was, without an exeeption because, IL a party
being IN the wrong In the commencement OF a hight
afterwards endeavors, honestly and vigorously, 10
get ont OF the combat and retreats TO the wall while
ana WIN deadly weapons he may in that case make
available TO himself tho right OF sef.defense, even
though he were iginaly In the wrong TI 81. -
For these reasons the Judgment would be reversed
and the verdict set aside. =
Judge Garter, in fey remarks, expressed his dis