Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1859-10-07
..;on- he attacks his assailant even

ri. situation, he attacks his assailant even
-;,b a deadly weapon calculated to en-
danoer life. and death ensues: the act wouin
10 reoarded as done through heat Oi oiood
md violent anger. and not through Malice
that cold tloOded desire of revenge when
constitutes the emotion or feeling OF malt
c;ou, passon; and in such case, the onense
,rould be reduced to manslaughter
Rut If the provOcation is sought ny the
rerson accused, to be made the occasion o'
Gratifying a vengeful spirit: 1t VIII not eA-
tepuate the offence however grlevous sue,
nrovocation may be. and the homie,de wouiu
be murder. wharton Section 91l-
So if a homicide occurs in mutual eoh''a'
attributable to sudden and violent anger oo
roaioned bv the combat, and not to maiice' '''e
nfflncr would be but mansllughteI; Us N
combat between two persons, who meet at t''T
same Mace, not intending to quarrel, anu
ongrv words suddenly arise. and a conflict
snr;nrs M. in which blows are gwen on
18th sides it would be regarded as nlu-
,,,ol eon,bnt without much regari u VINO
,ras the assailant But in order u bring the
c,se within the rule relating to mutuai
co,nbat 80 as to lessen the crime to man
slaughter. it must appear that no undus da-
,.on,noe was sought or taken on either slue-
(Foster 295-l
Tho occasion of this mutual combat must
not only be sudden: but the party first as
sailed must be upon an equal f'oting VI
,oint Of defence, at the outset; ana this Is
Ppo.rI;arlv requisite, where the attack is
nude with deadly or dangerous welp ms.
The true principle is well laid down I'D
Wharton on Homicide, T. l92.
You will, Gentlemen. no doubt, JtTSS COR
sider the case as 10 Mcdonnell.
\, question can be raised, but what Nc
D1nne1l KILLED McKeen ON the 2lst of May
last. and that the killing was an unJ'''tlna-
BILE homicide. and the real question IS was II
murder. or only manslaughter. We APP re-
bend there is no ground to de>lre that NC
Donnell should be acquItte entlreiy Oh the
charge against him.
have not usually been IN the hahlt oil re-
citing the evidence verbatim and with great
narticularitv. to jury ,deeming 1t IN ordIna'
Y cases not necessary but IN a case OF thi'
inheritance feel it to be duty.
BEFORE proceeding further, will read you
the minutes of the testimony OF Wight, Bliss
Logan and Thayer.
7The Judge here recapitulated the princi-
pal evidence given.)
From the evidence in the case, the govern
ment claims that this is a case not SIMPLY
Of implied malice, but case OF cypress mai
ice. e.,
They relv upon having shown that an Il
and maleyolent feeling existed. especially or
the mart of Med onnell and Balm, towards th'
deceased.
FIRST. as being evinced from the transac
tion ON the night of the 18th of May, ut the
store door of McKeen.
Second. From the encounter with Mosher
Third. From the t,stimony OF johnson
Fourth. From the facts and character o
the transaction on the night OF the fatal ira
gedy.
From the mannerof going TO the door, an'
making an assault upon 1t. From the ap
probrious and insulting language used.
From the manner in which theg cam
down, and stopped; and commenced the al
| fray.
That the ARRAY was sought by the accused
to give an opportunity to crafty reckless
and wanton spirit of wick ,dness OF malevO-
ence towards McKeen. If 81, no proyOca-
ton or heat OF blood would mitigate The
homicide TO manslaughter.
That uIder color OF having mutual
comb upon equal term. one of the parties
was possessed of Il deadly weapon. unbeknOwn
to McKeen, and that he intended to use 1t at
the beginning of the aft ay. If this is 50, II
Is rank murder, Use: Wharton on HOmi-
eide. 1927 No matter n such Il case in what
stage of the affray it WAS in fact used, If tie
| intention to use it existed when the afray
| began.
But the government claim that Melon
nell no: only intended to, but did in Tact
use the knit. un Ter color Of having mutu-
al combat upon equal terms, at the very threS
| mold of the parties coming together. Ii 50
| tins is murder.
| |. TINS is inferred from the proximity of tint
in which McKeen fell after their meeting.
| 2 No other cause Is assignalle why he thu:
| fell at the hand OF the assassin.
| 3. No BODY saw or heard Of any blows be
tween them, or any tripping. it there hac
| been, the Government claims that Wight
Bliss and Logan must have both seen th'
striking and heard the blows, as they wer
directly in front o! the door, and the ligh
Inning upon them.
4. No marks upon the body of Mckeen
not even d scratch, save the bruise of the
I =
| and hat was made by the fatal knife.
). There was no scratch OF marks OF RIO
| lence, as we have right to presume, upon
the body of Mcdonnell. If there had been
we can well presume we should have heard o
| it in this trial.
6. The manner in which the knife entered
the breast bone of McKeen.
I. The impracticability that the knit,
could have been driven through the bon,
while the parties were in close contact.
| s. The wound could not be given Will,
| both parties were down.
! The wound must, it is claimed by tht
Government, have preceded the fall Tor tn,
above reasons and because there Wa, no othe
adequate cause for his tall.
! II Mcdonnell Intentionally, without JUST
| fcation OF excuse, stabbed Mckeen with tn,
| knife, and it is found by the Jury, that it wa
a dangerous weapon, and likely to destrO-
| lite, and the wound given in a vital part, AM
with the intention To do McKeen some grea
bodily harm, without any definite intention
to take his life, and that Mcdonnell. regard
less of consequences, so far plunged the nil
into the breast-bone of McKeen as to occasion
| his fall upon the knife, by which means i
was driven home to its destination, by mean
of which the death of McKeen ensued, i
would be murder, as much so as if it haC
been done under an actual and declared pur
pose of taking his life. Is Cush., 306.)
If two persons have a mutual combat on
| equal terms and there is an interchange o
blows and one of the parties on sudden anC
without any such intention at the commence
ment of the afray, snatches up a deadly
| weapon and kills the other party with IT, sucl
killing will only be manslaughter. (Whar
| ton on homicide, 1872.
In order to convict Balm and Kelly on eth
err of these. the jury must be satisfied thai
they were associated with Mcdonnell IN thi,
atfray, and present, aiding, encouraging
or aoetting Mcdonnell; and if 50 all ar,
principals in this transaction, and must stanC
ON the same ground. In such case the ac
OF one is to be regarded as the act of all.
The connection between the accused il
this atfray, if there was one. is to be made
out by circumstances, and the concurrine
conduct of the accused (See Wharton SIC