The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-02-04
La w INTELLIGENCE.

last, of Christian Fischer, by shooting him with
pistol, infficting wound on the right side of tn
breast OF said Fischer, of the width of half an Incl
and of the depth OF three inches, of which wound
he, the said Fischer, instantly died. j. r. Kenly
| Esq, appears for the defence
, On the opening of the Court Yesterday morning
the Jury in the above case, who had been out al
night came into Court and took their seats
| The prisoner then placed in the box.
Observation-Disclosures of the Jury, have you agreed
| upon your verdict"
Foreman-"We have not agreed. We have a
communication for the consideration of the Court -
| The paper was then handed to the Judge.
Judge Stump-"I would state to the counsel for
the State and Defence that last night | received a
note from the Jury, which / will now read 1t is
| as follows:
BALTIMORE, Feb. 9, 1859.
TO the Hon. Henry Stump Judge of the Criminal
Court Of Baltimore caty
- Dear Sir:-ln order to aid the jury, now in de-
liberation in the of the State of MARYLAND ps
Henry Duval, and facilitate verdict. it has be-
come necessary for us to have before us clear e-
gal definition of what constitutes
Flrst-Murder in the first degree
Sec0nd.-Murder in the second degree
Thlrd.-What constitutes forcible or illegal en-
try and completely Herewith
Very respectfully yours
JONATHAN Fl. ELLICoTT, Foreman
"To that communication | then replied; which re-
ply will also read:
TO Dir. John II. ERicott, Foreman, and other qenae
men Of the Jury:
You will please come into Court tomorrow and
bring there your request that YOU wish nv opinion
on the points herein stated; that is on the other
side of this page stated, and | will read
it in open Court to the counsel and then and there
give you the best opinion l can form, or have
formed, on the matters you enquire about frankly
and lmpartlally as to the law. AS the ury are the
judges of the law and facts in criminal cases by the
new Constitution, consider it proper that you
should request the opinion of the Court before
give any, as the counsel for the State and the de-
fence submitted the case to you without argument
Please comply with this manner of eliciting nv
opinion, and will give it to you in open Court
after hearing before you what the counsel on both
sides of the case can adduce; otherwise it might be
construed into an unauthorized interference on nv
part.
With sentiments of great respect, I remain
yours, truly, HY STUMP
Judge of the Criminal Court Of Baltimore
g! have done this because the Constitution makes
the jury the judges of the law and the facts had
wished this case argued before the jury, and so ex-
pressed myself Yesterday, but Mr.. Whitney and
MAJOR kenly, thought proper to submit it without
argument. An unfortunate conflict has sprung up
between the Court of Appeals and This Court, and
they have Undertaken to upset the verdict and
Judgment OF this Court, of recent trial. and there
fore the Court declined giving any instructions to
the jury at the time of receiving this communica-
tion. If had done so, the counsel perhaps would
nave moved for a new trial and taken out a
writ of error, and the Court of Appeals would
nave ordered me to give the prisoner a
a new trial, as it did in Ford's case This Court
does not know what influences have been brought
to bear upon the Court of Appeals, but they h ave
thought hit to upset the verdict of this Court, and
order TINS man to be tried again. As the Jury here
want to know the law, as bearing upon this case
and as the case was submitted to them without any
argument, now order that the case be argued be-
fore the iury.'
Mr. Whitney.-f1 don't understand the iurv to
say that they want the case argued before them:
they wish to be instructed by the Court upon the
law bearing upon the case.''
Judge Stump.-"But | want it argued. What
objection have you to arguing the case?'
Mr.. Whitney.-"I stated my objections Yesterday
against arguing the to-day. There are six
murder eases here yet to be tried, and several hun
dred indictments already found. Every body is
pressing me to go to trial in these cases. and i am
to be complained of for not bringing them to trial
For myself, am willing to consume the whole
term IN trying one case and let the responsibility
rest upon the community. Mr.. Crier discharge
the witnesses in all other cases until further no.
tice.''
ihe witnesses were discharged as directed
MIR. Whitney:-"Mr. Sheriff, how many witnesses
We're summoned here this morning?"
Deputy Sherif-''About seventy sir
Judge Stump.-"Well, Mr.. Kenly do YOU wish
to be heard?"
Mr. Kenly.-"I have nothing to say in reply to
the question put by your Honor"
Foreman OF the Jury.-"The jury only want to
know the law of the case as applicable to the
facts.''
Another Juror-"We want the law; we have
the facts as presented by the evidence but wish
be instructed how to apply these facts. We have
no objection to hearing any argument"
Mr. kenly-"As understand the purport of that
paper the jury only want to be instructed by the
Court on the law as relating to the case; they have
the facts and can apply them | protest against
the case being now argued to the jury. After the
jury have been out all night celebrating upon the
case, and come in with desire to be instructed bv
the Court, then to have the case opened again. is
against all law. / again protest against anv thing
being said to the jury by counsel"
Judge Stump-s'Well, Major, if you don't want
to be heard, let Mr.: Whitney go on"
Mr.. Whtney-"I have sent for the books by
which can explain the law
After some conversation between Mr.. Whitney
and MIR. kenly, the former arose and said:
"May it please the Court, find myself placed
here IN very delicate position. Yesterday after a
consultation with my friend, the other side Mr..
keny, we made the arrangement to submit the
case without argument; under these circumstances,
L do not think that, as an honorable man, | could
consistently argue the case before the Jury. | am
willing to go before the Court upon the law and
show the authorities applicable to the matter at is
sue; the Court then can instruct the Jury, they
have desired"
Mr.. Kenly:-M protest against this course; the
jury are the judges of the law and the facts, and the
Court should instruct them upon the law
Foreman.-"Ihe jury are not by any means anx-
ious to have the case argued"
Judge Stump.-"But / am-the Court of APP
peas may upset the verdict, and say that the case
was not tried in proper manner"
Juror.-"We want to know what the law is;
we are not lawyers; we have deliberated upon the
facts; we want to know the law to apply the facts.
Mr.. Whitney.-(to the Court 81 now understand
the jury to say that they only want the law ex-
planned to them; they do not say that they the
argument. / have sent for the books
Judge Stump.-"Well, will hear you read the
books"
Mr.. Whitney.-'1 would rather the Court would
read them. Bring the act of lSO9;" taking the
book. ''If your Honor please"
Mr.. Kenly.-"I object"
Mr.. Whitney continued.-'I now refer the Court
to the Act of Assembly of 1909, and will read ii
without any comment"
This Act explains what constitutes murder in the
first or second degree. Mr.. Whitney then read
from Wharton's American Criminal Law in rela
tion to the definition OF murder in the first degree;
and from Greenleaf on Evidence as to the legal
signifcation Of the word malice which constitutes
one OF the ingredients in making murder in the first
degree; he also read from authorities to show the
distinction drawn by the books between murder in
the first second degree; he also cited cases to
show that what was called murder sometimes at the
common law, was by the statute of Maryland
made murder in the second degree he read author
degree was, when, from the facts, the
guilty intent to take life was apparent
before the deed was committed he also read au.
thorites to show how this intent to take life is to
| be implied-as when man a deadly weapon
and is presumed to know what would be the proba-
Bile consequences of his act in using such
weapon, the law looks upon this murder in the
| first degree.
After reading the authorities, Mr.. Whitney sub
mitted the books to the Court
Judge Stump-"Mr. Kenly, the Court would be
glad to hear you, if you have anything to say"
| Mr. kenly-"This proceeding is so manifestly
unjust and cruel against the prisoner that | shall
say nothing. | again protest against this proceed
ing. had authorities here yesterday, where other
writers lay down the law differently from them
here produced by the States Attorney, and which
would impress the minds of the jury differently
| objections to writing"
Judge Stump.-"The Court don't know what you
mean by cruel. If you had authorities yesterday
| why not produce them to-day? The Court wanted
| you to argue the before the jury, and said SC
! yesterday. The Court wanted to know il you had
anything to say, because the Court don't want YOU
to interrupt it, while it is giving its opinion to the
| jury. addressing the jury The Court will now
define what constitutes murder in the first Sc
cond degree, and in doing so, the Court will con
fine itself strictly to the act of Assembly of 1909
! The Court would here state, that by the common
law all felonOus killing divided into murder il
the first degree, and mansaughter by the act o
Assembly of 1909, the Legislature of Maryland
| divided and made distinct degrees of murder, tha
is murder in the first and murder in the second de
grees; the former punishable by DEATH the othe
! by Imprisonment in the penitentiary. The Cour
will now read the section of the act defining tht
degrees of murder. 1t is as follows, section third
'.That all murder which shall be perpetrated b,
means of poison, or by lying in wait or by any knC
| of wful, deliberate, and premeditated killing, o
which shall be committed in the perpetration of, o
| attempt to perpetrate, any arson, to burn an,
| barn. tobacco house, stable, warehouse clubhouse
not parcel of any dwelling house, having therein
any tobacco, grain, hay, horses, cattle, or goods
| and merchandise, rape, sodomy mayhem