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


After n few opening sentences. Mr.. French
remarked that the Invtstigt ion Of the jury
must be directed to the following points q,
| First. thcy must inquire If any one has been
! killed. Second, VINO killed him. Third
what IS the character OF the homicide, and
! Fourth, whether there was any excuse for it.
! As {, the first two points there could be no
question, as he pr Sumed would be admitted
hv the defense II remained to consider the
| o,hor two questions. l. II murd r OF which
! Med Jnnell is guilty? The Court will tell
| the Jury that he fact Of the homicide being
! proved makes out the case for the Vrosecu-
! ton. and that the burden lies upon the De-
| Tense to show that it was in sel-de'ense or
! upon sufficient provocation and af)rdS ground
| for ac1uittal u for reducing the case from
mGrjcr u manslaughter. On this point
Mr.. French cited Russell on crimes and
Blackstone. The only defence then for
Mcdonnell is to show that he did this deed
t. prtserv. his life, or to rescue himself from
great bodily injury. Is to this the testimo-
nv was rrcitcd t. show that McKeen could
not have intended, and that Mcdonnell could
not have supposed that he intended to kill
the latter, or do him any great injury, and
If he had 50 intended there was no such
imminent danger as TO make a justf-
cation of the deed. 1t was urg d
further. as well set led law that
if there had heen such danger, it IF rrded no
cxtcnuation, if the respondent could have
avoided it IN any other way. Nothing him
derod Mcdonnell from avcrtinS the danger.
il there had been any, by flight, or from 90
ing home and going to bed. Instead Of that
he went to meet McKeen.
In this connection MIR. French defined
murder as homicide with malice express OF
implied express malice being premedita-
ted design To kill. and implied malice being
the wilful doing Of an unlawful act without
sufficient cause; and he argued that If the de-
sign to kill had been harbored but for an in
slant previous, it was enough to constitute
murder. He further inferred express malice
fs5n tie conduct of the respondents on the
Saturday evening previous, as exhibited by
the testimony of Howard and Brown. and
from the assault on Mr.. Mosher. which he
claimed to have been committed by resp md
snts, Supposing Mosher tC have been Nc
Keen. This point was urged at some length
Again the Court will tell the Jury that
every man is presumed to intend the natural
conseq uenceS OF his own acts. and that when
a deadly weapon is used. the law infers ma
lice from the fact This implied malice the
counsel argued to exist from the impossible
hty of finding any proper explanation Of the
presence OF the respondents at McKeen's
door, and OF their whole conduct, as exhibit
ed in the testimony.
But the defense may claim that the killing
Was in mutual combat, committed in n tram
sport OF passion, which temporarily d4priy-
ed Med of reason, and thus reduced the
crime to manshughter
Ga this point it was argued that there
was no time Tor Med to have become excited
Mr.. French believed the whole Transaction.
from the time Mex ran from the card-table
nll he fell dying man. was not over three
inmates. He r-cited the circumstances, and
argued that Med must have had his knife
drawn before Mex advanced upon him. from
the facts which he claimed to b. established.
that Immediately upon the parties meeting
they commenced falling. winch could not
have taken pl ICE as it did without the use
of the knife, since Mex was much the stout
er man. and would not have fallen thus be-
fore Med except through the relaxation and
faintnesS Immediately consequent upon the
wound. He insist d from the testimony of
DR.. rhayer and Others that the first blow of
the knife which severed the phrenic nerve
was given as the parties were standing, and
that in the fall the blade was driven home to
Its destination, circumstance in nowise
palliating the crime; that there was no
combat or struggle, since the fall was instan
taneous upon contact ofthe parties. and there
was no such change Of position as always oc-
ours when two men are clasped in scuffle,
and that NJ Donnells own account to Mr..
Pattee. 81 WASH, going to get whipped,
that was why l usod it, showed that
the knife was not used in sell-defense.
There was no need to use the knife at all /;
il he had not Immediately used it as they met.
he would have had no chance, as he would
have been down himself. Ii he had taken the
knife in self-defence, he would have said
Stand off; am armed. Instead of that he
steps halt way to meet McKeen, and inflicts
the wound. The testimony is that McKeen's