Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1865-11-09

reasonable, substantial, honest doubt fairl
arise az to his guilt; or. on the other hand
are you convinced, not TO an absolute ce,
tainty, (which is rarely attainable 10 hums
stfairs) but to q reasonable, moral oertaiDty
Of the truth OF these several averments.
II such reasonable doubt does exist, q
to the truth Of any one Of these averments
you must resolve that doubt In favor of tn
defendant but, IL there 10 no such doubt
ysu will inquirer further
7. Was the wound inflicted by tie dc
fendant, with the intention 10 kill Armstrong
Every person is presumed to conte,nplat
and intend the ordinary aud natural conse
queDces of his acts.
II, therefore, you find that Ensinger rur
posey shot Armstrong in n vital part, an,
that death would naturally aud ordinaril,
result from such a shooting, the presump
ton of law. ia the absence OF other evi
dence, is that Ensinger did intend to Kill
and unless the testimony produced by tn,
State discleses facts which rebut this pre-
sumption, the burden Of proving that ne
such intention to kill existed, is thrown up
on the defendant, and it devolves upon bin
to satisfy you that he had in fact no nten
tion to kiln
II, applying this rule Of law to the ev
dence. you find that there was no intention
to kill, the defendant cannot be convicted
Of murder.
If you find that there was such an inten.
ton to kill, you will inquire next:
s.. Was the killing done by the defen.
dant n,oliciousiy?
Malice characterizes the wilful doing oI
an injurious act, without lawful excuse.
If Ensigner purposely shot Armstrong,
with the intention to kill him, and death
resulted, the presumption OF law. in the
absence Of other evidence, is that the kill
Ing was done mdticiously, and unless the
testimony produced by the State, discloses
facts which rebut this presumption, the
burden of showing that no snch malice ex.
isted is thrown upon the defendant, and it
devoves UPON him to satisfy you that the
killing was not done maiciously.
1t is claimed for the defendant that this
legal presumption of the existence, (if the
the evidence creates such presumption
which is denied. is removed by proof OF
great provpcation. and Of the defendants s
good character. and on the other hand it is
claimed for the State that the existence Of
malice aa we'll as of an intention to kill, is
shown by proof of preparation Oh the part
of the defendant for the commission of the
homicide. The testimony ON these points
may be properly considered by the jury on
these questions.
IL is also claimed that the defendant
even if he did purposely kill Armstrong.
which is denied, had ta,efui accuse for do.
ing so. and upon this point questions are
raised by the evidence, and elaborately and
ably discussed by counsel. as to what cir
pka -
ting homicide in defence Of himself, or Of
a member of his family or in defending or
protecting his dwelling from invasion, or in
ejecting an intruder from his dwelling
house.
Unless the evidence produced by the
STATE shows that the defendant had law.
full excuse, if you find the several charges
to which | have called your attention.
against the defendant, the burden is thrown
upon him to satisfy you by evidence, that
he had such la,ofd ercuse.
What state OF facts would furnish En-
singer with lawful excuse for taking the
life OF Armstrong
!. If Ensinger committed the homicide
in self defence. he is excusable.
The rule of law on this subject, in gener-
al tsrms. is, that when one is assaulted,
and, in the defence OF his person.. where
certain and immediate suffering would be
the consequence of waiting for the assist
ance of the law, and there are no other
probable means Of escape, he kills the as
sailant, the law considers the killing to be
dooe in self defence.
Before finding that. tho defendant was
excusable on this ground, you should be
satisfied that, unless he had killed Arm.
strong, he was in imminent and manifest
danger, either Of losing his own lie, or Of
suffering great bodily harm.
The law, however, goes step farther
than this
II Ensnger was assaulted by Armstrong,
and had reasonable ground for appreben.
sion that he was in snch imminent and man
ifest danger, unless he killed the assailanr,
he is excusable; and the law goes even one
step beyond this.
In determining whether the defendant
had this reasonable ground of apprehen
sion, the law makes some allowance for the
excited state of mind in which he may have
been at the time, if that state of mind was
produced by the misconduct of Armstrong,
and does not demand of Ensnger, under
such circumstances, the same degree OF
calm and considerate deliberation, in de.
termining as to the immnence of his peril,
that it would under other circumstances.
2. A husband, killing on assailant, in
the necessary defence of his wife is also ex-
cussd. Again: stjE,.s. @i
8. IF Armstrong entered, or was at
tempting to enter the dwelling house OF
Ensinger for an unlawful purpose, and En-,
singer killed him in defence of the posses.
sion of his dwelling house, and if no more
force was used, and no other instrument or
mode was employed, that Ensinger had
reasonable ground for believing to be neces
sary and proper for that purpose, he is ex.
cusable.
If Armstrong entered Eusinger's dwell
ling house, and was requested to leave, and
did not comply with the request, Ensinger
had right to attempt to eject him by force
and, if such forcible attempt was resisted,
Ensinger had a right to repel force by force,
even to the taking Of the life Of the tres
passer. if no other instrument or mode was
en- mnloyed than Ensinger (making due al
lowance for any exciting circumstances by
which he may have been properly infiu-
enced) had reasonable ground for believing
to be necessary and proper for that purpose.
II, applying these rules of law to the
evidence, you find that the defendant had
a lawful excuse for taking the life OF Arm
strong, he must be acquitted.
If, however you find that he killed Arm
strong in the manner charged and in this
county, before the finding Of this indict-
ment, and that he slew him both purposely
and maliciously, you must find him guilty