Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1865-12-23

the Language OF another, It means thai
malignity, that disregard of the
lives and safety of others which proceeds
from d heart void of just sense Of social
duty, and fatally bent on thischieE.
This legal malice may be promoted as
well by motives of a~yarice, bigotry or jeal-
ousy, as by hatred, revenge or cruelty. If
one human being voluntarily and unlawful
ly takes the life of another from any unlaw-
full and improper motive, it is done, in legal
contemplation, maiiciOusly.
Malice may also be Express or implied.
Express malice is where one person kills
with d sedate, deliberate mind and
formed design-which formed design is usu-
ally evidenced by external circumstances,
discovering or indicating that inward pur-
pose. r
This kind of malice is usually shown BY
lying in wait, anteeedeht threats or menaces,
evidence of former grudges, connecting
schemes, or providing means or weapons to
the death of the party slain. Seek
ing one with q view to kill him, or by an
unusual degree Of cruelty, deliberation and
precision attending the act of killing. This
is the kind or degree of malice which must
be proven to make the case of marder in the
first degree.
IMPLIED OR c0EsTRucTIvE MALICE
Is where there nav Dteu no UI6NlUO5 L1TedlSs
menaces or preparation, but where there are
such circumstances attending the act ofkill-
ing as. are the ordinary indications Of q
wicked, malicious and bio6d-thirsty spirit,
as when one person kills another suddenly,
without provocation, or without any consid-
cradle provocation, or when a person in a
sudden ARRAY, without necessity, makes
use of adeadly wespot and kills an adversary
Herewith, from the proof Of such eifeum-
stances the law implies that kind Of malice
which is a necessary ingredient in the
crime of murder in the second degree.
When malice is once shown to exist to-
ward the person titled, it is presumed to
have continued down to the preparation of
the meditated act, unless there is evidence,
or some circumstance in the case repelling
or overcoming such presumption.
Evidence tending to prove that the pris-
oner and Tamzen Parsons were found to-
gether in Pittsburgh, and Of the statements
and conduct of the prisoner whilst there,
has been given by the prosecution, and al
so evidence of the arrest of the defendant
in this city for some alleged ~offense, or
some indignity to her or her family after
his return to this city.
But; gentlemen, this evidence was not
admitted as tending to prove the defendant
guilty Of bigamy, forgery, adultery, ASSAULT
and battery, or immortality, and you have
no right to entertain it or consider it for
any such purpose; nor Should it in the least
affect the general character of the defen-
dant in your deliberations, serving and ac-
cepting so much of it as was called GU by
the State in cross-examination of witnesses
who were called in behalf Of the prisoner,
to testify TO his character as a peaceable,
l~aw-abiding citizen.
That evidence was permitted to be given
for the sole purpose of enabling you to
Judge of the relations between the prisoner
and Tamzen Parsons, that you may the bet
ter understand their relations to each other,
and the history of their intimacy, and as
afording you the means to judge of the in
tentiOhs, motives and sentiments of the de-
PENDANT toward her, as affecting his guilt or
innocence of the crime charged sginst him
in this Indictment, and you are not at lib
erty to use it for any other conceivable
purpose.
INSANITY.
The defense of insanity is interposed in
behalf of the prisoner, and if this defense
is clearly made out, to the satisfaction of the
jury, by the weight of the evidence, or, in
other words; by d ptepOnderahce of the evil
dence in the case, it is a perfect bart6 aeon-
viction for any crime whatever under this
indictment.
But in reference to this defense it is met
upon the threshold with legal presumption
that the accused is of sound mind that his
mind is not so diseased or alienated as to ex-
onerate him from punishment or the COM
mission of a criminal act. This legal pre-
sumption of sanity you are not at liberty to
disregard. 1t is essential to justice and to
the safety of society, that you should enter
tain this presumption of sanity and act upon
it, until you become satisfied from the test
mony and circumstances of the case that
the defendant was of unsound mind at the
time of the killing, and therefore not re-
sponsible for his conduct
1t is not necessary, however, that insanity
be established beyond a reasonable donbt;
it is sufficient if it is shown by clear and
satisfactory evidence; by a preponderanee
of the proof that he was in fact insane at
the time of the commission of the act.
Bat it is not sufficient to show that posi-
bly, the prisoners mind was so far diseased
or alienated as to render him incapable of
committing crime. Nor is it sufficient, if
the evidence merely shows that it is probG
bic that his mind was in such a condition /;
but to make evidence of insanity available
as a defense, it must be such as to reason
ably satisfy your minds that the defendant
was in fact insane at the time of the COM
mission of the act. Nevertheless, evidence
of drunkenness, anger, jealousy, morbid
conditions and nervous excitement is ad-
missible as affecting the question of inten-
ton, deliberation and reconciliation.
EXPERTS.
For the purpose of improving the condi-
ton of the defendants mind at the time of
the commission of the act, it is competent
for the prisoner to call witnesses who are
familiar with his peculiar mental charac
teristics under the influence of intoxicatiOn,
and also to call physicians and others,
whose professions and associations in life
are such as to have made them familiar
with the faculties and operations of mind,
and these persons may testify to matters of
opinion or science in reference to the prob
able condition of his mind at the time of
tbs commission of the act.
The jury retired, and the court adjourned
till two o'clock. A tremendous crowd fill
ed the room at that hour. The prisoner was
brought in, and sat with irons on his wrists.
1t was reported that the jury had agreed.
A hush was on all lips, and in all hearts a
sitting sense of the awful solemnity Of
the occasion. The suspense was dreadful.
The air seemed thick with vapors of death,
aud all breathed poison. At precisely
three o'cl0cE the sheriff led in the
jury. The moment crushed th-spee
tators like an avalanche. The roll was
called. The court said, Z" Gentlemen of the
jury, have you agreed2" The foreman, DIR.
Marius Moore, replied, eve have" "What
verdict do you return ?" Guilty of murder
in the first degree" The prisoner was not
visibly affected. Not a muscle moved, not
a nerve twitched, the color did not come or
90 il his face. He is made of iron. Only
once did we perceive an effort IN his part
to nerve himself up. There was a convul-
sive pressure of his left forefnger on his
hand. AS the sheriff stood beside him, the
prisoner looked up as if to read on his pale
face the verdict before it was spoken.
The prisoner was remanded to jail, and
walked out firmly, bearing the ~profoundest
pity of the spectators.
NJ. S. Castle, Esq, gave notice of intro
ducing a motion for new trial. 1t was or
dered filed.
The Court thanked the jury for their idel-
ity in the discharge of their solemn duty,
when they were discharged from further at
tendance at this term of court.
The trial has been a long, but not unin-
teresting one. The Court has been free