Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1860-04-20


spectators in the Court room, has tagged
noticeably, revives as the case draws
rear its close, an the arguments commence.
The court room 5 this afternoon crowded
with spectators, GLIDING dozen or more
Of ladies. The 4 ;ed and unhappy mother
Of Mcdonnell haa been steady attendant
upon the trial fro the first.
The opening ST. cement for the prosecution
vas made by j. FgENcH, ESQ.
NE. rRENcH's ARGUMENT,
After few intr ,ductory sentences, Mr..
French remarked that the investigation OF
the jury must be directed to the following
points First, they must inquire if any one
has been killed; second, who killed him.
hi - .@e character of the homi-
eide, and fourth. whether there was any ex-
cuse for it. As to the first two points there
could be no question, as he presumed would
be admitted by the defense. Il remained TO
consider the other two questions. Is it muir
der of which Mcdonnell is guilty? The
Court will tell the jury that the fact Of the
homicide being proved makes out the case
for the prosecution, and that the burden lies
upon the defense TO show that 1t was upon
sufficient provocation TO afford ground for re-
ducing the case from murder to MAJ saught-
er, or that he did this deed 10 preserve his
life. or TO rescue himself from great bodily
injury. As to this the testimony was reclt-
cd to show that McKeen could not nave in
tended, and that Mcdonnell could not have
supposed that he intended, to kill tho latter,
or do him any great injury, and if he had 50
intended there was no such imD17n M danger
as 10 make a justification Of the deed. 1t
was urged further, as well settled, law thatit
there had been such danger, it afforded no
attenuation, if the respondent could have
avoided it in any other way. Nothing hin
dered Mcdonnell from averting the danger,
If there had been any, by fight, or from 60
ing home and going to bed. Instead Of that
be went to meet McKeen.
The remaining and important inquiry is
whether this was murder or mauslaughter.
The books define murder to be killing with
malice aforethought; manslaughter to be
killing without malice. The Court will tell
the jury that malice in the LEGAL acceptance
OF the term may be either express or implied;
20 kill, and implied malice being the wiltul
doing Of an unlawful act without sufficient
cause and he argued that il the design u
kill had been harbored bat for an instant
previous, it was enough 70 constitute muir
der.
The State claims that both expr IS and
implied malice existed on the part Of the re
spondent Express malice is shown by Mr.
Johnson testimony and by the circumstan-
ces attending the homicide. Mr.. French
argued that the remark heard by Mr.. John
son LIT us go over and hear what be- has
20 say for himself must have referred to
McKeen and TO the store opposite. The at
tendant circumstances strengthen this sup
position. Why werc these Young men
spending the evening in Fat ; saloon TIL
midnight, guzsling this nasty beer and pl y
iDc -dtelle. unless il was 70 while away
TO ZINE until the streets were clear. and
they could proceed TO their unlawful at
tempt2 Why cross the street when th direct
route TO their homes was on the 9TH side
Balm says it was 70 while away the time
the most silly excuse ever found IN the mouth
Of witness. BAN makes an outrageous
assault upon the door Of the store where
Mckeen and his companions wer5 engaged
IN playing cards, as they had right % be
if they chose. He says be does not know
why be did this. He docs know but he does
not choose to tell. II was 70 draw out the in
mates. When they are called ont NcDJn-
nell assumes Bain's quarrel deliberately ami
with the purpose of doing exactly what he
did do. The circumstances war ant the pre-
sumption that the respondent went there o
commit murder
But II express malice is not clearly shown
there is implied malice. Nj French further
recited the circumstances. and argued
that Med must have have lad Ills knife
drawn before Mex advanced upon him, from
the facts, which he claimed e. be establish
cd, that imme lately upon the parties IN .ot-
ing they com uenced falling, w.ich could
not have taken place as it did without the
use Of the knife, since Mex Sas much TIE
stouter man, and would not have fallen .hus
before Med except through the relaxation
and faintness Immediately Consequent upon
the wound. He ms sted from the testimony
Of Dr.. Thayer and others That the blow Of
the knife was given is the parties were
standing that there was no combat r strug-
gle, since the fall was instantaneous upon
contact OF the parties. and there va, no
two men are clasped in q scufIle.
The evidence OF Balm and Kelly 10 a blow
having been struck by McKeen is to be taken
with deduction, on account Of their posi-
ton of comp nionship with the respondent
Flanagan that no blow was struck, as well as
by the contrary testimony Of three witnesses.
But if there was one blow there was no hot
conflict, and if there had been, and Melon
nell entered the ARRAY with his knife drawn or
relying upon it even if it was not drawn-the
court will tell you that it was murder. II, then,
the facts which we claim, are SO, twill e
your duty, painful as it must be, TO fnd
verdict of guilty.
Mr.. French fortified several Of his points
by citations of authorities, and occupied
something over an hour with his statement
and argument.
1t was followed by Hon. DANIEL ROBERTS,
for the defence.
MR. ROBERTS PLEA.
Mr.. Roberts said the prosecution claim to
have made out here q case Of murder beyond
all guessing or conjecture. We take issue
with them at the outset as TO the existence
Of that malice which is the essential ele-
ment Oh mu1UtIs lou unu nBLnlnE 10 IN
dictate previous hostility or dislike the
parties were strangers to each othor-and
previous to the transactions Of the night of
the 2lst of May, we shall ask the court TO
say 10 you that there is not the slightest
indication of malice or illwll Take then,
the transactions of that fatal night These
three boys, through with the labors Of the
day and OF the week, went to a saloon, and
spent the evening in drinking beer and
smoking cigars and playing bagatelle.
They might have been in better business;
they would have be n, perhaps, had these
beer shops with their temptations to idleness
and debauchery been closed, but there seems
TO be no power in the law to close them, and
thee boys in spending their leisure evening
hours THUS were doing only what probably
hundred other young men were
doing In Burlington that night; it is mon
strous to suppose that their presence and Qe-
cupation in the saloon was an indication of
an unlawful and evil purpose Mr.. johnson
walks in, and he thinks he remem bers hear
ing Mcdonnell saw: +" Let us 90 and sec what