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

~ ~ a defencs to show that the responi IN
.nvwoere else on that occasion, ana lrou s"o ,bs
ability that those individuals, II 'hey - Enovn
ra.nnndents would have made themselves sno
80, par ,b,n low mistaken supposirlon 70 gu
d.n,or the lives of the accused. lie ihier'eu -
III :, rruIoe ayaiust McKeen, from some 80 80
1rh;cb he bs not been able to ascertain ana me-
was probably known only to respondents M"
McKeen himself e,or, the fact
-L;oh he asssrted 70 be proved, that he was lore
,rost ~ the door of McKeen. was the one W.
sbook the door and used insulting language 'u"'
bs STOOD bv without preventing, and with ST. sns
inc purpose to assist Mcdonnell, ana 'hh' "e
with him THE emotion OF BAN apPa,e;
broken hearted mother, who sat near him during
.I;a o-,;nn If the argument was painful to wilt
nes.1 Against Kelly the case was not 80 oce"i
ID = was their duty to allow him the beneht Oh
In closing he trusted that if by any inadveHc
anea he had for moment overstepped Tue iino u
hi. Imperative ruty, IL would De paiuohcu-
Tho Court then took a recess to the usual aitei
noon hour.
AFTERNOON.
Court opened at two, and Judge Bennett
addressed the Jury, in the lucid charge, OF
which we give an epitome below from the
minutes kindly furnished us by His Honor.
On many of its points the Court enlarged at
more or less |, myth, and the whole occupied
over two hours and half in its delivery The
C,urt room. which has been more and more
crowded, as the trial progressed, was filled
to its utmost, and every inch of sitting and
standing room was occupied with attentive
listeners. a portion of whom were ladies.
CHARGE OF THE COURT.
This case, gentlemen. is an important one:
| and imposes upon the Court and Jury, du,
ties. not only important, but Onerous and
| the State as well as the accused, have right
| to expect yea, to demand of us. a tdnhtW'
IMPARTIAL, and Independent discharge Of those
duties. 80
| The accused stand charged ofhaving killed
/ John T. McKeen ON the night OF the list
| day Of Nav last under such circumstances
| as TO constitute murder.
Ii becomes necessary IN the first instance
to call your attention TO two species OF nom
icide, Familiarity known as murder and man
slaughter and to point out, as clearly as
we can, in what they consist, and the dis
tinctiun between the two offences.
To constitute homicide murder, the
killing must be done with malice prepense
or aforethought but this malice may be
express OF implied and when the act Is
done voluntarily, by the infctlon ola wound
| with great violence, with deadly weapon,
and upon vital part, the malice requisite
to constitute murder will be presumed, for
the law infers that the natural and proba-
BILE result of an act deliberately done was
lust what was intended to be effected by the
person doing the act the burden oil
extenuating the offence is cast upon the ac-
cused in such q case and unless such facts
are proved in trial by the Government wit
ness s. or by witnesses called by the accused,
as woulG extenuate the homicide and re-
duce it to manslaughter, the malice would be
implied from the acts, producing the homl-
eide, in a case like this, when the wound was
inflicted upon vital part with violence, and
with deadly weapon.
| When we speIk of murder being dellb
crate act, the deliberation does not imply
time and reflection: if it did, Il deliberate act
could never be sudden. II the person Kill
ling had time to think and did inten 10 kill,
though 1t WAS but for moment, IT wouI
b a deliberate premeditated killing, cohstl-
tutng murder, as much So as it the DELHI IA
ton had been for an hour or day. No time
is too short for Il wicked man to form IN
| his mind Il scheme Of murder, and 10 con-
trive the means of accomplishing it. Il Haze
P c. note 4j2. Metealt, 1917
To constitute the killing of human being
| murder, il Is not necessary that the person
killing should have an; special and particu-
lar malice towards the person killed
If the killing is attended with cir
cumstances which indicate great wick
edness and deprlvty Of disposition
md Il heart void OF social duty, and fatally
Dent on mischief, the offence will be murder
For the law by the term malice, in the con-
nection in which it may be used relative t
the crime Of murder. means that the cnmmIs-
sion of the offence has tes a tended with sucf
circumstances rs are the ordinary symptom:
of a wicked. depraved and corrupt anC
malignant spirit. (Foster c L. Il Hale, 449
n. 2. And IN trials of this kind
1t is to be borne in mind by the Court
and Jury, that man shall be presumed T.
intend the natural. probable and usual con-
sequences Of his own acts, in the absence Of
evidence 10 show 10 the contrary. (See
Metcalf, 1887.
Manslaughter is the unlawful killing Of
a'man, without malice, and NAV be either
volu1 tarv, as when the act is committed with
a real design and purpose to kill, but through
the violence of sudden passion, occasioned by
some great prococGiion, which, in tenderness
to the frailty of human nature. the law con
siders sufficient to palliate the criminality Of
the offence - OF involuntary, as when the
death of another is caused by some unlawful
act. not accompanied with any intention t.
take life" Is Cush.. 304).
The Characteristic distinction between
i i 1
or implied, and we have before said that the
implication of malice arises in every case Of
homicide. where the fact of killing is proved
to have been occasioned by the violent and
voluntary inhictiOn of q wound by deadly
W apon upon a vital part, which was calcu-
lated to endanger life.
| If there are. in such case, in fact, cir
cumstances of justification, excuse, or pdl,a
fion, they must come from the accused, unle-;
they come out from the examination OF the
,vernme1t witnesses.
But still the homicide would be rldnslauqh-
ter it being unlIwiul, because a man j:
bound to curb his passions, and if he doe:
not. he must answer for the consequences.
What is to be regarded as an adequate
proUocdtion to mitigate and reduce n homI-
eide to manslaughter, which would other.
| WISE COHellIulc 10 QutsliOH upon
which it is the duty of the Count to give you
instructions.
1t is settled role of law that no provoca
ton by words only, however opprobrious
will mitigate what would otherwise be muir
der, to manslaughter. If, upon provoking
language given, the party Immediately re-
venges himself by the use of deadly weapon
likely 10 cause death, as the use of heaug
bh1dceon, an are. or Knife. if death ensues.
IT is homicide by mn ice dforethougM within
the true definition of murder, and is not
by the circumstances mitigated to manslaugh-
ter.
The words "malice prtpense or afore-
thought " in the description of the crime OF
murder, do not imply deliheration or the
lapse of any considerable time between the
malicious intent to take life, and the execu-
ton of the intent. They are used rather to de-
note purpose and design, in contrldistinction
to accident and mischance. Is Cush 305 J