The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-04-19
Especially reported for the Daily Exchanged
TRIAL OF DANIEL E. SICKLES,
FOR THE
MURDER OF PHILIP BARTON KEY
THIRTEENTH DAYS PROCEEDINGS
CRIMINAL COURT OF THE DISTRICT OF CO.
LUMBIA-JUDGE THOS. H. CRAWFORD,
PRESIDING.
WASHINGTON, April lS. !


LUMBIA-JUDGE THOs. H. CRAWFORD
PRESIDING.
WASHINGTON, April 1s, 1859.
The Court met at 1920. The prisoner was brought
in and the usual formalites gone through with.
The Judge dismissed the Grand and Petit Juries
Tor two weeks. The District Attorney resumed his
argument.
Mr.. Ould.-May 1t please your Honor, at the
time Of the adjournment of the Court on Saturdav y
was endeavoring to show that the facts which
were offered in evidence upon the part of the de-
fence did not amount to legal provocation, and
therefore, of course, to justification; that the
questions of provocation, of justification and of
cooling time, were questions of law generally, and
that in the form in which they were presented
IN this application, they were necessarily So At
that point of the argument | was inter
rupted-politely, of course, l mean-by the learned
gentleman upon the other side, (Mr Brady !
who asked this question-if the question OF
provocation, the question of justification, and
the matter of cooling time were all cues
tions OF law, upon what the jury had to
pass! Now, your Honor pleases if the subject be-
fore the Court and jury involves the matter of kill
lng the matter of provocation, the matter of usti
hcation, and the matter of cooling time it is the
DUTY OF the jury to pass upon the facts connected
WIN the Killing, and to apply the law enuncia-
tea by the Court reference to the matters of JUS
tlhcatlon, of provocation and of cooling time for
the purpose of ascertaining the guilt or
OF the accused; for that is their whole pur-
pose If the subject under the consideration OF
the Court and jury involves no other oues-
tion than this matter of justification, of prov
ocation o?.cation and Of cooling time, each one has
its specific functon,--the Court has its,
and the jury has its. And if there were no
other questions involved in the case-there NAV be
others-the question of insanity may be involved.
which is for the jury-but if there be no others it
is the fault of the case that happens to be one of
a phaof 70 h.,
an Indictment charges party with poisoning, will
my learned friend upon the other side contend that
there is ANYTHING to decide except the mere matter
OF gulltf Does not the law decide that there can
De no Justhcation-that there can be no provoca-
ton which will be admitted as an excuse in the eve
OF the law? Does not the law decide that there
can be no cooling time? And what practically has
tne jury to pass upon except the fact to the
KilllngI And so with reference to anv 9th
er indictment which charges the murder of
any person, there always questions both
OF law and of fact. 1t can never be other
wIse and it is the duty and function of the Court
to decide upon all questions of law, but of
the Ju"y to decide upon all questions of fact under
instructions OF the Court. The jury never does
ana never can pass upon the question of suiciency
OF facts They pass upon their truth. Their suffi-
cency IN law is question exclusively for the
Court. If the Court decides that they are sufficient
In law, the question of their truth goes before the
jury; if they are not sufficient in law they OF
course do not go before the ury and if there be no
other question than that, the jury is necessarily
confined to the naked and simple question of kill
ing, connected with such presumptions as the law
necessarily attaches to that act and fact of killing
Is not this so in practice well as in principle of
law After all the evidence has been introduced
before the Court and Jury, is it not competent for
elther party to raise the question of justification
upon all the facts which have been offered in evil
dence? Is not that the constant practice before
this Court and every other Court in the United
tates-ls 1t not the constant practice of this very
tha cfrffiof ,roF@ a.
ton and the cooling time?
The Court.-"At different stage from this"
Mr.. 0uld.-"Yes, sir; that only vndicates the
proposition that it is a question of law'
MIR. Brady.-We utterly refuse to enter into the
discussion OF any question at this me except what
relates to the particular point before your Honor
for decision. We offer to prove habitual adultery
now, and restrict our argument to that point; as
10 the questions OF justification, of provocaton and
of cooling time we shall ask instructions from your
donor at future time We mean to insist that
the jury are Judges OF the law well as of the
facts' but the time has not arrived yet
Mr.. Ould said that in that case he had misunder
stood the argument. He had understood Mr.. Phil
lips to say that these facts were Justification in
law, and were legal provocation
Mr. Phillips replied that it was not necessary for
the defence to argue whether it amounted to
complete justification, for that was for the iury to
determine; but if this evidence was relevant and
had tendency to show justification, it was admis-
sible on that ground.
ntfprI
with any such views, for it neither goes to show
Justlhcation nor legal provocation. Mr. o refer.
RED to Addison's Reports page 16O the case of the
State OF Pennsylvania u.s. John Bell where it was
ruled that II the killing has been proved the law
presumes malice unless it can be shown that the
Killing was reasonably provoked. Man is free
agent, and if he do act of this Sort it will be
presumed to be done in malice unless the contrary
De De proved; and the provocation must be reasonable
Inc same construction Of law is found in 9Th Ire
dell page l72 ct seq, the of the State vs John
T: Creighton. 1t is there ru! ed that the question
M OF ProVocation IS proper for the decision Of the
court; Tor, undoubtedly, whether certain facts
amount to sufficient provocation to palliate The
killing from murder to manslaughter, is entirely
question OF law On page 178 of the same case
J}udge }g Foster Foster was quoted with appreciation by
Juoge Ruf1in. MIR. U. read several extracts from
that page as well as pages ISL, 1874 and 1856.
Now In the very case which the counsel on the
other SIDE says Is the authority from which has
flowed the doctrine which has been recognized from
,4e tlne OF Lord Hale, down to the present, namely
Mannlngs case-there the question of provocati0n
was before the Court, and the Court in delivering
It's determination in the case said what was under
certain circumstances a provocation and to what
extent, and what under other circumstances could
De no pr0vGcation at ALL Did not the Court in thai
case exclusively determine upon the lepaitv or in
other words upon the suficiency of the proyoca.
ton! And does not every Court wherein the oues
ton OF murder Is determined, necessarily decide
upon the question of the sufciency and legaItv of
any evidence which may be offered particnlarlv
when 1t is made in the form of distinct applics-
ton, as it is in this case? Mr.. Ould quoted from
Selirldge's case, and from I'd Archbald's Criminal
Practice and Pleadings W aterman's notes Here
it is laid down that deliberate homicide, upon the
principle OF revenge, is murder. No man under the
protection OF the law is to be the avengcr of hi.
own wrongs. If they are of nature for which
the law of society will give him an adequate reme
dy, thther he ought to resort; but be thew OF what
nature soeyer, he ought to bear them with pa-
thence, and remember that "vengeance beloppeth
only to the Most High"
The gentleman on the other side (Mr Phillips
In the course OF his argument, had said that the
evidence which was now proposed to be offered was
competent Tor the purpose of rebuttng malice II
seemed to Mr.. o. that this was begging the oues-
ton. The very question for the Court to determine
was on an application before the Court, whether
1t be competent for that purpose Before il be-
competent for any such purpose, it must be lepaly
sufficient The question is therefore raised at the
very thresholds the evidence. offered of such a
nature as would, In the presumption of law rebut
the presumption of malice? and before it can be
offered for that purpose, its legal effect must be
determined by the Court. He also saws it tends tn
explain the motive, whether it be real or feigned
II 1t should be shown that this evidence although
true, was incompetent, what difference did it make
WHETHER the party were really affected or ony pre-
tended to be affected by this provocation =? Or
whether, real or feigned it did not tend to iusif-
cation or legal provocation, it was immaterial for
the jury to find out whether it was real or whether
IL was felgned, because the same law and the same
effect would be attached to it, whether it were one
way or whether it were the other. The counsel
Iurther SAID IN the course of his argument that Mr.
hey was giving her an invitation to repeat the act
OF adultery, and that fact appeared in this very evil
dence But did that vary the case :? Did that
alter the law that properly belonged to the case
H. as the prosecution contended, adultery itself was
neither justification provocation did an invita-
tlon TO commit adultery at future time amount
TO Justlhcatlon or provOcation Was the doctrine
to be carried further than it was carried by the
learned gentleman who opened the case and were
we to be told that not only past act of adultery
was to be visited with death, but that even the in
Vitatlon TO commit adultery in future was to be
visited with the same punishment? Was there any
authority, human or divine, ancient or modern for
a doctrine of that kind? Mr.. Graham had said
that 1T appeared by the which had been quoted
upon the part of the prosecution, that all this evil
dence was before the Court, and therefore he in
ierred that the evidence was properly and legally
before the Court. In point of fact, was that so :?
ne only case which has been referred to where the
question was distinctly presented to the Court was
the case in Sth Iredel; and that was the only case
where the question was made before the Court. In
that case the decision was upon the question of ev-
ldence. The defendant below offered the particu-
lar matters which are relied upon here in ustifica-
tlon as mitigation of the offence from murder to
manslaughter, and the question came up whether
that evidence was competent for any such
purpose, and the Court holding it as legal
principle that it could have no such effect under
the decisions that had been made before, decided
that 1t could not be offered as evidence tending to
that end, and therefore excluded it. That seems to
De the only case which has been referred to upon
eltner SIDE where the point distinctly presented
to the Court with reference to the question of evil
dence. 1t may not have been absolutely necessary
N pas for