The weekly Butte record., 1866-08-11

fContinued nom Fi..t pase.1

Trial q Jacob Smith for the Murder u ".
| n. Hassangs.
tcoatinued from Fin pasel
kitchen. Don't think wa away from her for i've
minutes. Hastings left soon after dinner. and be
could not have been in Mrs. Smiths room without
my knowledge. The last evening in September
uas At home. Hastings frss vent to bed, sbcu. :
or 8 in the evening; defendant vent next-say in
half n hour; be did not come back 10 the ROOM
Mrs. Smith went to bed just before nine. went to
the room with her: BE Vas sick, and bad been for
for soDe days took the light to her room. De-
PENDANT did not 60 to her room that night. took
the coffee to her room; the defendant did not; he
was not there; he was not in the room at all
was the last one up; helped her to bed; put down
the window and fixed the curtains. After that
locked the front and kitchen doors. Hastings slept
in bed room. he could not get in the bed room Of
aunt, nor in the par,or.
M HARVEY sworn: / know Mrs. Clark; saw
her last November in Nevada. was at her house
when she got letter from her father; he was then
in jail She said to her brother Henry-the family
has been dsgraced enough. and We had better clea
him at all hazards.
Ahe teeAinnouJ vi Aiouku ouu SucIuuau SWiiu '
sons Of the defendant. was oorroborsti We Of that
given by Anna Taylor. and closed the evidence in
the case.
/ The argument Of counsel occupied Thursday. and
Friday. until about three P. NJ, when the Court
gave the case to the jury under the following
CHARGE.
GENTLEMEN OF THE jury:
In the business of life and among the many du-
ties devolving upon Is citizens in our social re-
lations. there are times when thoae duties may
bear heavily upon us, and We feel to shrink from
the burden imposed; but we have no choice between
the good and evil of life-or between pleasnt and
unpleasant things-we can only meet the unpleas
ant of the business of life with camness, frmness
and deliberation-to exercise our reason and judg
ment fairly snd dispassionately, and then whatev.
er may be the result, we feel that We have done
our duty, and with that consciousness We may rest
fully content.
We have now one Of those duties to perform
The prisoner at the bar, Jacob Smith, has been in.
dicted for the murder Of Hastings, on the 9TH
of October last and to this indictment the prisoner
has plead mot guilty." and the issue thus formed
you have been called to try-to decide by your YER
dict whether the prisoner is guilty or not guilty of
the crime charged.
To aid you in your deliberations the Court will
endeavor to charge you upon such principles Of
law as may have bearing upon the case, and which
you will apply to the facts Of the case as they have
been presented to you.
[Court read the Statute defining murderl
AL murder which shall be perpetrated by means
Of poison. lying in wait, torture or by any other
kind of wilful deliberate and premeditated killing,
or which shall be committed in the preparation or
attempt to perpesrate any arson. rape. robbery or
burglary, shall be deemed murder Of the first de-
gree. And all other kinds of murder shall be
deemed murder in the second degree. And unless
the jury in this find that the defendont Smith
killed Hastings, the deceased, in some way within
the designations set forsh ia this instruction, then
they cannot find him guilty Of murder in the first
degree: Therefore, if the jury shall find the defen-
dant guilty of any murder, they will say whether
in the first second degree.
Manslaughter is the killing of human being
any mixture of elaboration; it must be voluntary
upou sudden heat of passion, caused by provo
cation apparently sufficient to make the passion
irresistible, or involuntary in the commission Of
unlawful act or q lawful act without due caution
or circumspectiou.
Any kind Of wilful deliberate and premeditated
killing, by any means which produces death, is
murder Of the first degree.
This grade of murder il made up Of two ingre
dents, malice and generalization in the commits
sion or the act; or malice toward the individual
to take le-the generalization of the act of kill.
ing-may be formed in one moment, well in
one hour, or month. If the inteution to kill is
formed in the mind but one instant before the ia.
tai blew was given. it will constitute that deliber-
alton and premeditation which makes murder in
the first degree.
The broad distinction between murder Of the
first degree and murder Of the second degree is the
difference Of intention to take life, or of premedi
tation; the malice must be present in both cases:
but when there is the deliberation, the premedta-
ton. to take life in giving the mortal blow, the in
tention to take life-the killing-becomes murder
of the first degree.
But where there is malice shown in the act. but
no elaboration generalization Of killing is shown,
then the crime becomes murder Of the second de-
gree.
Your first inquiry then In going into your jury
room, will be is Hastings dead; and if dead. did be
die by violence; and if SO. was that violence com.
mitted by the prisoner At the bar If you find then
that the prisoner at the bar did kill Hastings then
We inquire the manner, and the intention Of the
prisoner in committing the fatal act. The inten.
ton of mind with which the act was committed,
may be judged of from the time the place, and the
weapon or means used.
The defendant does not in fact deny the killing
of Hastings, but presents tn you three detenses:-
The first presents insanity the .econd, a
justification Of killing in selfdeicnce third justi
cation for the seduction of his wife.
First. then. as to insanity: A person who Is &C.
tually insane is not responsible to punishment for
his acts while in such stste Of insanity. The Law
presumes every man to be of sane mind. and le-
gay responsible for his acts, until the contrary is
shown. And if the killing has been proved to you
beyond reasonable doubt then the proof of insan-
NV or of any excuse for the commission of the act
devolves upon the defendant.
In considering this question Of insanity, you must
be careful to distinguish between mere men.
tai excitement. no matter how great it may be
whether caused by intoxication. or by passion, or
from any other cause. Insanity is not mere mental