Evening star. [volume] (Washington, D.C.) 1854-1972, 1859-04-16

mi
sets to convict Of adultery under the act; also IA
Pickering, 5I3; Putnam Justice, &c, &c.
The rule is the SINE in other States and In the
Enghsh courts. He referred 10 the State agt
" ailace In 9TH New Hampshire, and from the
case OF tue state agt Croley In 18th Alabama page
Ia also, to the opening of Lord StoweIl in Green
leafs evidence He wonld now ask if the knowl-
edge OF adultery upon the part of the husband is
required to be greater than by Jury RAISING upon
the fact Should an excitabfe husband be rec uir-
ed TO have stronger evidence than calm reflect
ing jury, $50 -
He referred to the case of John. the slave in
North Carolina. who killed his wife he having
no marital rights under the law of that Site
w 0uld there be no distinction in morals between
the case OF white man having marital rights and
feel more.
Coming back to the question of proyocation. he
contended that II this was excluded and the de-
fence were called upon to rely upon proving the
passion, the other side might claim that the pas
sion was feigned or fictitious one He insisted
that the defence had right to show the truth of
tne Provocaton TO rebut any assertion the other
side that the passion was fictitious He referred
to LIST Phillips on Evidence, p. 192; also TO LIST
Greenleaf la. How is jury TO arrive at the fact
whether the passion Is real or feigned unless the
proof. -
He recited the aggravated facts they offered to
prove making up the provocation up to Saturday
eaIg a y, tS SlsS 1he new immediately
Immediately before the killing new provocation
III II Is necessary to show evidence of provocation
and passion, II is necessary to show both. The
Court occupied a position in this case which sci
uoh ieii 10 the lot OF Judge, to apply analy
Sis OF the law to the new aspects Of the case now
at issue. The defence offer to prove the tr,th to
the jury and shall the truth relevant to the fact be
excluded III upon this point there should be any
doubt in the minds Of the Court that doubt should
be in favor Of the prisoner.
Mr.. Graham followed on the same side recapit-
ulauhS the propositions heretofore stated Oh the
part of the defence
The question was, whether the evidence should
be preJudged as TO its effect before it had been re-
ceived! The application of the defence was to
extend the line of proof. The prosecution had ex-
perimented with tile defence, and when thew found
the avalanche descending upon them tney asked
the Court 10 exclude the evidence extending the
evidence OF the commission of the crime of adul-
terry. The defence had shown that immediately
before the commission of the alleged crime. Mr. 8
was In state of evaporation which precuded the
idea OF his weighing the character or effect of his
acs. Inc question before the Court was. whether
the defence should take the parties beyond the
door Of the house where they had been left by the
witness who last testified, and show them i'm the
very act Of adultery,
IL the threshold is once passed there is no no>ver
in this or any other Court to shut the door Ii was
not in the power of the prosecution to experiment
with the defence, and then when finding them
selves carried beyond their depth fall back on the
Court. and in moment Of repentance for their
rashness impOrtune the Court to exclude the de-
fence from continuing their line of evidence be-
yond the door which the prosecution had them
selves opened
Would the prosecution ask the Court to stultifv
itself! for that was the real point at issue now
For the purpose of accomplishing the restraint
ulSeu against the defence, the prosecution had
offered the doctrine that unless the actual Bsne
ton of tue guilt was made by the prisoner he had
no right To slay the man whom lac knew had d.
lowered his wife Of her virtue; that the husband
must see the very fact Of adultery, or he must
stand before this Court in the light OF Il murderer
30 long adultery is pursued ia secret So lone il
VIII be impossible for the husband to have any
sight towards the adulterer of his wife The rnIe
OF evidence was that a chain of circumstances
directly leading to the points in inve alton was
all that was necessary to give justification for any
act Of the husband finding and pursuing this main
OF circumstances. Here Mr. q. read from Cd
Grccnlcaf on Evidence, sections IL and AZ in
illustration Of the proposition
great eilt'rt WAS made on the part of the prose-
cution To excite prejudice against the defence for
the line OF proceeding they had set up. Now for
himself, no matter what was his private opinou
he had carefully avoided claiming that the killinT
In cool blood OF the adulterer JUST fable He
had said. and would say now, that when bus
band catches the adulterer OF his wife i'm the act
OF adultery with that wife, il as to leave
no doubt on his mind Of the act the act of the
husband was but simply the act OF the instrument
Its indignation
The rule that where the husband only finds the
adulterer in the act he is justifable was promul-
gated nearly two centuries ago, and had reference
10 particular act. He denied its applicability to
general cases.
AS in the case of individuals as in the case OF
'mmUnities. there Were cases where it was ne
cessary to take the law into their own hands for
their own preservation. We had an instance in
one OF the States of the Union in one of the prin
cipal cities of which the people had to rise up in
their might and take into their own hands the
laws which they had found were being perverted
by those TO whom they had entrusted them
Here the speaker read from the 18th of Matthew
3Sth verse, in the Sermon on the Mount an an IL
g
say unto yOu that whoever l0Oketh on a woman
to lust after her hath committed adultery with her
already In his heart
lie asked the Court if the law was benign, WAS
it merCiful or lenient? This doctrine of the pros
echtion was based mainly upon the case quoted in
Sd 1redell In that case the relation Of husband
and wife did not exist. 1t would be better for
justice II our judges would restrain themselves
from wandering from the cases presented to out
side and eytraneOus points The decision in the
case quoted utterly excluded the idea of moral in
sanity.
In order to apply that rule to this case the Court
must refer to its origin What were juries, then
They were mere instruments i'm the hands Of the
Court. The jury was not then the grand palladium
IT is now, and which he hoped always TO see II
remain. IL this jury were to pass upon the cues
ton OF intention, would the Court exclude ali evil
dence going to show that intention.
Here the speaker read from Foster Crown Law
to show that that learned authority, far back as
his time, doubted its justice, upwards Of seventy
years after its promulgation
ibis Is tile commentary OF one OF the hi 0heSt En-
glsh authorities, and shows that the law holds
that courts must rigidly conserve Justice Has not
the law progressed since the time Of Hale, Then
insanity to be effective must have been entire
VIII not temporary insanity now he effective un-
der the law, The prosecution will not claim that
Hale and the ideas of law prevailing at his time
the rules of law the prosecution relies on the
law relative to insanity has changed since Hale's
time, why may not the law common with other
things have changed, Ii he does not make the
law for this Court with reference to insanity, he
does not make the law for il with reference to the
rights of the husband.
lie referred To Foster, page Dos, where il was
laid down that an adultertr stabbed by the hus-
band in the act OF adultery was not within the
act, and, if indicted for murder, would be ac
quilted by direction OF the Court TO the iury
While tine British government thus, s.under the
statute OF James the lst," refused to hold him
guilty of murder 1t indicted him under the COM
mon law for murder, and on testimony that the
killing took place when the adulterers were caug ht
in the act, the offence was reduced to manslauGh-
ter. He also referred to ID Lewen's Crown Cases
page 2l6 Parsons case, to sustain his point
He submitted that tue Constitution OF the United
States broke up the old practice of special YER
diets, and that anything tending to show the
adultery was admissible testimony Here he
referred to LIST vol Of Statutes at Large pages IS
and 10 wherein !: f" laid down that all crimes
shall be tried by impartial jury Of the State