Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1859-10-07

were falling. As they went over the N"'o
was driven in and he cried out. 1t the
wound W IS inflicted half a minute after they
met. 1t would have been given in different
manner.
Arain. there was no provocation exfit'ng
NcD nnnell to n temporary loss OF reason.
Mr. French read from Russell on Crimes. to
show that no trivial provocation is snfnc'ent
extenuatinn. There was no low struck
nv McKern even if there had been. 1t is
m1xim of law that a guilty partv cannot
allere for exsenuation provrcat'on lnduceh
nv his own act. No miti alton can he
claimed, either. If the cuiltv party has undue
advantage. Here McKeen was without coat
or hat. AMI unarmed, while Mcdonnell was
armed with knife.
II remains to show, If either of the Others
was implicated in the act. Logan swe RS that
Pain was the first who spike. Why did he not
keep awav? why did he step up to the
two? Mcdonnell commits murder and Bun
stands nv AM SOS it done. His conduct can
mot he exnlainnd except ON the s1pnHslti"h
that hn entered tn the crime with Melon
nnll. IF parties combine for unlawful intent.
they cannot he sheltered from the conSeqnpn-
ces. These nartips came out OF tith with
n general malice intending to assault any
body they met. selected McKeen as the httest
hiert and went there to get up row.
Mr.. French here cited authorities to show
that all who ahet n murder are to be conSld-
cred ne principals.
This is case of deep interest to the COM
mun,tv. It is tn he decided by the verdict
Of 10 men if such transactions are to he up
held A man against whom no suspicion
had been hreathed has been cut of. The
circumstances and vour DUTY, Gentlemen OF
Of the Jury. require that you should hold all
! concerned to the stricte3t Accountability.
The hour of twelve ha7ing been reached,
the Court here took recess till one O'Clock.
AFTERNOON.
Court opened Mt the hour and Mr.. emit
tenden addressed the Jury for the Defence.
Mr.. CnrrrExDFv' PLEA.
He said this was no ordinary case. 1t is not
often that twelve men are brought here to SIT
in Judgment on the life of a fellow being. 1t
is IN unwelcome duty, hut one that must ne
discharged But when we are dealing with
the lives Of men it becomes us to h. cautious
to be at least sure at we are making no
mistake-for n mistake committed IN snch
a matter cannot be corrected. Before you
bring in a verdict of guilty of muir Ter you
must he sure that the law requires the lie
of the accused And the law has provided nu-
merous safe guards; one OF them Is the
provision that so long as there remains Il
remnant of a reasonable doubt OF guilt IN
the mind Of any one Of you. the accused must
have the benefit of il Each one must say
In M Judgment there is no doubt that these
men or that man in the words of the indlct-
ment with malice aforethought instigated ny
the devil AMI with wicked and malicious dis
position has taken the life of his fellow man
That the State have shown such cas-
admits of doubt There is another truth
hearing on the matter viz that 1t is better
for many guilty TO % free than for one lnno-
cent to he condemned.
The council who opened for the State, and
| must say that he did it fairly and impar-
tally rs he could. told Won that the first
thing waste show thatthe killing was murder
and that whatmurder iSall know; it is taught
MS in the common school, and Won under
stand it rs well rs his honor on the bench
II is the felonious killing Of another man
deliberately, with malicious and wicked IN
tentIon 1t is this intention alone, this pre-
neditated malice. that makes the killing
murder. There is no mystery ahnnt 1t
There is no mystery either in the term ma
lice. We do indeed find in the law hpOk'
many maxims which neither you or | car
understand. and we are tod that there Is an
jnlDked malice which is not actual malice
Gent nen. | deny that the law can find ma
lice where Won or any unlearned man cannot
find it-that there is any ise at least in
Vermont where lawyer can fin malice and
4 Juror cannot.
The murderer must he wicked man. a
felon and the killing must he done delIh'r-
atelv. in cpld hi ,od. while not und-r sudden
nrovocatIon All these things must o~cur
Gentlemen. look at these boys Is. l6 and
10 wears old. Bows of whose viciousnes'
previous to the II of Nay last you ar moi
/ word: they are Young men who had their
lawful avocations and were engaged on then
to the close Of the day on which this trans
action occurred. Can you see in their faces
the evd nee of guilt?
Gentlemen. the law SAYS that every mar
placed on trial is presumed to have a gooC
character until the contrary is proved.
A good deal of law has been read to you
and YOU are to Judge of both law and facts.
| will also give my idea Of murder and vii
read in support Of it from the same authority
Mr. Chlttenien here read from Russell or
crimes) | shall ask the Court to charge
that the burden of pr ,of of malice rests on the
State. and unless it is proved, the killing j;
not murder in this State. whatever it may
be in Massachusetts,, or elsewhere
The first inquiry with you, gentlemen
ought to be why should either Of the re
spondents have wished to kill McKeen? The
evidence shw no motive under Heaven.
Go into murder cases from the earliest re-
cord, and you cannot find a conviction with
out the proof Of some motive. There was
difficulty between them no quarrel, and
all. as Mcdonnell said, grew out of moth
ing.
Again these bows were not round for the
purpose Of getting into difficulty. The ar
gument of the State is founded in the char
acter Of the instrument used. But this was
not a pist ] or bowie knife. 1t was a com
mon pocket knife, no more formidable than
may be found in any mans pockets. There
is nothing extraordinary in its shape or des-
cription, and it was one which the respond
ent used daily in his business.
The counsel for the State claims conviction
for all these BOYS alike. All, he says, deserve
the halter 1t is not and cannot be claimed
that Balm and Kelly were guilty of man.
slaughter. If guilty at all, they are guilty
Of murder, and you are asked to believe that
they are banded together in a conspiracy for
some unlawful purpose of assaulting and kill
ing this man. My theory is quite another
from that of the State. 1t seems to me that
here were three boys, through with their
weeks work, and spending their Saturday
evening in the SLloons-a practice which
don't justify though better men do IT. They
started home; rs they came out Of the Saloon
they saw light across the street. where
Mckeen and his friends were playing
cards; it was but natural that they should
% over 10 see what was gong on
one shook the door and asks what 5
trump was it malice or mere boyishnesS.
| hrli-ve the latter.
McKeen comes to the door, Violent Ian
guage is used on both sid S. they had a
clinch there was a scuf1e and if it lasted
half IA minute, that Is long enough for the
: purpose Of my theory Mcdonnell received a
blow, and was in the grasp OF stronger
man finding himseli overpJwered, he drew