The Jasper weekly courier. [volume] (Jasper, Ind.) 1858-1922, 1859-05-04

!, the passion Of ihs prisoner was real or feigI
?, ed. Il was immaterial for the jury to fin
? out whether Il wus real or fegned. II ha
d been also argued that tha deceased wa
: giving the signal Of adultery, and that ihcr,
fore the evidence was competent, but If, a
y the prosecution held, the adultery itself wa
not legal pruvocalion Or justification, ho,
c could an invitation 10 adultery BET TIL
other learned counsel (uraham) had argue
that the evidence Of adultery was al
: ways properly before the court. That VIA
? NOT 60. lie contended that where sucl
evidence was admlttedt was admitted on
/, as part Of the Res Gesir
Judce-In the case OF Fisher Is Caring
ton g. Paine,) the whole case is detailed
: the inierv lew between the father and ths
man in whose house the crime was CONT
ted. Il was committed more than once ant
yet oil the circumstances were gone into
so that there Il was mps ssible that the facts
proved could have been part Of the Res
Gcsie.
District Atlcrncy--T'he case in Iredell
was precisely the kind Of Gaze alluded to.
Griham--There all the proofs were got
i'm.
District Attorney. They were made a
art OF the evidence Of prosecution and
we're put in as evidence come cted with the
homicide.
Counsel challenged The defence 10 point
oui case where objection made ~ such
and not sustained.
Mr.. Would Il BE- proper to kill
"a man 70 prevent him committing assault
and battery
The District Attorney proceeded 10 argue
that the testimony in regard 10 the handker-
chief did not connect the parties with adj
ulterous intercourse; this was, therefore.
no. a proposition 70 continue evidence al-
reaLy partially given, but 10 give new evi
dencs on distinct point; he held to his po-
siton that il was for the court and the
court alone 10 pass upon the nature Of evil
dence offered; il was only for the jury tol
pass upon the facts allowed to be given in
evidence. The trial by jury is a creature Of
the common law, and when the Constitu-
ton Of the Upited States gave to the ar.
raigned the privilege Of trial BY jury, Ill
gave him the trial by jury in accordance
with the course " the common law, and inl
no other wav; that common law had been
bv Hale and Foster and East
aud Others. and what he contendcd for now
was one OF the principles Of that common
law.
The Judge has ,sf delivered the opin.
ion Of The Cuuri, dcclaring The evidence
showing the siulter, Us communication ex.
sting Lsiwcen Mr.. Key and Mrs. Sickles
! adn:~sable. Mrs. Nancy Brown was sc-
recalled 1t had been alleged by
ielrnse that the case now presented was an
,lagous to that Of Jarboc; ie proceeded to
how that no such analogy existed in the
,ase now before Court The prisoner made
lecIara ion II the time of homicide. /" lie
,as drfled my bed" The declaration of the
,risprer explained itself, and therefore no
evidence was necessary TO elucidate IL The
acts themse Ives carried no further impress
ion 10 human mind lh,n the expression IL ,
ELF docs.
HE Honor, in llerberrs case, drew dis. 4
inction between declarations made by the
deceased and those made by the prisoners:
therwise party might manufacture tes,i- 4
nony in hls own case, while no such OBJ
sciion could possibly apply to the decara- a
ion OF The deceased. He insisted that the h
Instruction of the Court in Jarboc's c,se
pplied to this case here-namely, that the i
acts did not justify the act or constitute
rgal proyocation, and that the killing was b
murder. The last ground on which this 1
vidence had been urged on the ground OF !
Is being "Res Gus'g"--that IL was compe- Il
rnt as expeiuing the declaration Of the n
rsoner that the deceased had violated his
ed. The declaration itself was part OF the 81
les Gusla, and was not receiv able, but the I,
vidence Of the truth Of the declaration was o
OF Res Gus'H, and was receivable. The
udge delivered bis opinion. declaring the
vidence admissible. Il
Mrs. Nancy Brown was accordingly re- a
alled and examined by Ratchf: Was suf- n
ciently acquainted with Key 10 know him; "
he lsst time saw him was on "Wednesday 4
eiore he wus shot, when he went into the ID
he house on Fifteenth sret; saw him take n
key out Of his pocaet, unlock the door r,
nd 90 In; he cane out in about an hour. - v
am acquainted with Mrs. -; saw him 90 a
ackward and forward after saw her 20 10 O.
nd then out the hack way; he would not II
ONE out the front door. "
Question How lcng were they in the
ousci r'
Answcr-About an hour.
Question How did you know Il was Mrs.
\! =,
Answer-T inquired at different times; ] :,
Nv Mrs. s., at her own house after that; !
leh other persons were present; she was n
le lady had seen 20 IN the brick house.
Question How often had you before that =,
'ednesday seen her 90 into that house Il
1 L.. ko. VI