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

against him in this prosecution, n this
presumption Of innocence you were to ad-
here to and entertain until it should be
overcome or rebttted By evidence tending
to prove guilt. And 50 long as there il d
reasonable doubt of guilt in your minds,
YOU are to give him the benefit of that
doubt. The doubt, however, which should
work an ~acquittal of the defendant should
be a reasonable, actual and substantial one
not a merely speculative or possible doubt,
for which NO reason can be assigned.
IT, after you have carefully and impair
tally weighed and considered all the evil
dence,, and all the circumstances of the
case, as they have been given in evidence,
you do not feel an abiding conviction; a
moral assurance of the prisoners guilt,
your verdict should be not guilty. But,
upon the other hand, if you are assured
from the evidence that the defendant is
guilty as charged in the Indictment, or that
he is guilty Of murder in the second degree,
or of m~anslaughter, no sentiment of tender
ness or sympathy with the defendant,
should prevent y6u from rendering a YER
dict in strict accordatee With your honest
convictions and judghtent in the premises.
Under this Indictment the defendant may,
upon proper evidence, be convicted of either
"murder in the first degree, murder in the
second degree, or of manslaughter," as the
charge for the higher or greater crime en-
braces charges for both the lower or minor
grades of homicide. The, better to appre-
bend the sense and theaniha Of either of
these crimes, it will be we'll to give your
attention to a brief analysis of each.
The LIST section of the Crimes Act defines
the crime of murder in the LIST degree as fol-
lows =" If any person shall purp0ssly and
of deliberate and premeditated malice, Tor
in the preparation or attempt to perpetrate
any rape, arson, robbery or burglary, or by
administering poison, or causing the same
to be done,) kill another, every such person
shall be deemed guilty of murder in the LIST
degree, and upon conviction thereof shall
suffer death"
der in the I'd degree, provides that if any
person shall pGrposel5 and maticiousty, but
without elaboration and generalization, kill
another, every such person shall be deemed
guilty of murder in the I'd degree, and upon
conviction thereof shall be imprisoned in the
penitentiary and kept at hard labor during
life"
The Sd section, defining manslaughter,
provides "that if any person shall unlaw-
fully kill another tsithoRt malice, either upon
a sudden quarrel, 6r unihtentionally while
the slayer is in the commission Of s6tne I'M
lawful act, every such person shall be
/ uctIutu guilty. Ol Iud1SltuEuJcIr anu upOu
conviction thereof shall be imprisoned in
the penitentiary and kept at hard labor not
more than ten years, nor less than one year."
. Murder in the first degree under our stat
ute embraces two classes of cases
LIST. Killing Purposey and of deliberdte and
preateditated malice.
I'd. Killing purposely in the preparation
or attempt TO perpetrate a rape, arson, rob
beryor burglary, or by administering poison,
or causing the same to be done.
As it is not claimed in this case that the
prisoner was perpetrating, or attempting to
perpetrate, either of the crimes named in
the second class Of cases mentioned in the
statute, it is not necessary to ask your at
tention further to this class of cases.
The ingredients of the crime of murder in
the first degree in the class of cases with
which we have to do, are:
LIST. The killing of one human being by
another.
I'd. The purpose or intention to kill.
Sd. That the killing be done of deliberate
and premeditated malice.
Murder in the I'd degree is when one person
kills another purpoSely and malicieusly but
without detibcrdtioH and b+esieditttton.
Manslaughter is the Intentional killing OF
another without malice upon a sudden quar-
rel, or the unintentional killing of another
while the SLAYER is in the commission of
some unlawful act.
The first subject for investigation in pros
ecution for murder or -manslaughter usually
is whether one person has been killed by
another, but in this case it is admitted that
Tamzen Parsons was killed by the prisoner
at the bar, on the 9th day of August last.
This being admitted, you will proceed to the
consideration of the circumstances preceding
and attending the homicide, and determine
r. 81
of any crime, and if of any, of what crime is
he guilt?
Intention.-You nave seen from the read
ing of the statute that to justify a conviction
for murder in the first degree you must find
from the evidence that the prisoner intended
to kill the deceased Tamsen Parsons; and
to justify a conviction of murder in the I'd
degree, you must be satisfied from the evil
dence that he intended to kill some human
being, and did, in fact, kill Tamzen Par
sons.
The purpose or intention to kill can only
be directly shown by the declarations of the
prisoner previous to or at the time of the act,
or by his subsequent confessions.
But whilst this is the direct means OF
proof, it is not by any means the only evil
dence by which the intention or purpose to
kill can be proved. The manner and pur-
pose of the killing may afford as satisfactory
and conclusive violence of a PURPOSE to kill,
as the voluntary confession of the party.
If a rational person voluntarily shoots an
other through the brain or heart, or other
vital part with a pistol, musket or rifle ball,
or stabs another with a sword or dagger in a
vital place, or cleaves the skull with an axe
or heavy iron bar, it is almost impossible to
avoid the conviction that the perpetrator OF
such an act of deadly violence intended to
kill. The relation between such acts and
the intention or motive which prompts them
is well recognized, that the law implies or
presumes the purpose from the act. In the
language of the books, the law presumes that
every man intends the natural and probable
consequences of his own voluntary acts.
And this legal presumption but expresses
the sense and judgment of every intelligent
mind.
If, therefore, you should find from the evil
dence in this case, that the prisoner at the
bar voluntarily used such a kind and degree
of violence towards Tamzen Parsons as
would necessarily or in all probability result
in her death, you will be justified in pre-
suIuInS Odd ling by your verdict that he
| intended TO kill her.
You will take into consideration all the
facts and circumstances of the case which
go to show the intention or purpose of the
defendant in doing the act which resulted
IN the QeaJn oil 1anZen PARSONS at the Tune
and place charged, and if in your judgment
they prove beyond a reasonable doubt that
the defendant then and there intended to
kill her, the State has made out this element
of the crime Of murder in either the LIST or
I'd degree; but if the intention to kill is not
so proved the prisoner is entitled to- verdict
of not guilty.
DELfBERATIoN AND FERMENTATION.
In order to constitute a homicide, or the
killing of one human being by another,
murder in the first degree in this class of
cases, there must not only be clear and sat
isfactory proof of an Intentional killing, but
the evidence must show that it was done of
deliberate and premeditated malice.
Deliberation and generalization are acts
ofthe mind, requiring the exercise of reason,
reflection, Judgment and decision, and these
cannot exist in any case where the faculties
of the mind are deranged, or destroyed to
such an extent as to deprive the party of
his free agency and render him incapable
of understanding the nature and conse-
quences of the act he was doing, or about to
do, or of discriminating between right and
wrong.
Although deliberation and generalization
are necessary ingredients in the crime of
murder in the first degree, it is not necessary
that it should nave been meditated and de-
liberated on, for any particular length of
time. 1t is sufficient if the intention or pur-
pose to commit the crime has been distinctly
formed in the mind before its execution,