The national Republican., 1866-06-11
The Tri., OF benjamin y. Housh for Murde,

In the Criminal Court, on last Saturday, the
trial Of Benjamin y. Hough. indicted for the muir.
der Of Samuel Z. Gaskins in Georgetown, was re-
sumed. After the arguments by Messrs. johnson
and Riddle, counsel for defence, and District At
tornsy Darlington, Judge Fisher charged the jury
follows:
Gsntlsnsn of the Jnrys You arc now approach
ing the close of tedious and laborious trial, In
which the highest earthly interest Of Benjamin y.
Hough the prisoner at the bar is to be left to your
arbitrament. You are to decide whether the doors
Of his prson-house 10 be thrown open and him
self restored to his friends and his family whether
he shall be consigned for years to the dismal and
dsgraceful cells Of penitentiary, at future
day not far distant shall BE- taken from felons
dungeon TO receive q feon's execution, and be con-
signed to the lasting infamy Of feon's grave. II
is fOryOu to say whether he shall ever again return
to make happy the home Of his wife and prattlng
babes, or in the full hush and bloom Of mature man
hood shall be sent all unanneAled TO that unknown
mysterious land from whose bourne no traveller has
ever yet returned. j. i
The accents which fall from your foreman's lips
when you shall to return into this hall jus
tice from the solemn chamber Of your deliberations,
will to him be either sweet as the music Of the
seraphim or q thousand times more terrible than
the fearful creakngs Of tho illomened birds Of the
night. ...... "a d
But, gentlemen, solemn and painful as your duty
may be- you cannyt escape Its responsibility You
must decide the future Of the prisoner at the bar
whether II be for veal for woe and for the true
and faithful manner In which you discharge IL you
are To your God and mine at the great day
when He shall come to judge the quick and the
dead.
In the discharge of this duty you have been
warned by the counsel for the Government that you
in nowise to listen to the gentle whisperngs Of
the angel Of mercy, but you by the oath which
you have taken bound to heed alone the hoare voice
Of justice, sternly speaking to you from the flaming
summit Of Mount Sinai. You have been reminded
- IL
respect to the crime Of murder. He has read to
you from the elementary books OF common law,
which guides to correct conclusion, passages
instructing you that tho law always presumed
every homicide to be murder until the contrary
shall be made to appear that the law always pre-
sumes that malice exists in the heart Of him who
takes the life Of another by the use Of deadly
weapon; and that the slayer Is therefore In all srch
cases to be deemed guilty Of murder He has also
| told you that when the Government has once es-
tablished, by the testimony in the cause, to your
satisfaction tho fact of the homicide II has made
| out the charge Of murder, and the burthen Of
proof is shifted from his shoulders upon those OF
the prisoner at the bar to satisfy you clearly that
the offence Is of q milder character, that tho prs
oner must show you by evidence either that he did
the act Of killing in self defence which will enttle
him TO aoquittal that at the time Of inicting
| the deadly blow he was smarting under great and
sufficient proyooation and driven by tho impulse
Of sudden passion, which would Justify verdict Of
manslaughter only. That no words, however in
suiting will be regarded In the law as provoca,
tion sufficient to this sudden gust Of passion
and that assault Of trivial nature, however In
sulting II may be, will justify the Of deadly
weapon; but that II two engage in mutual combat
and one Of them without being pressed to the
wall and in imminent danger Of his life Of reeeiv
ing great bodily harm, should q deadly weapon,
| he will be guilty Of murder. ..u.. q
It Is true, gentlemen, that II there be evidence
| Of a satisfactory character that the party when
killing another was prompted by preoonceived
malice the law declares this to be murder BY ex-
press malice aforethought. ...... ..
1t Is true also that in the absence Of evidence Of
this preeonceived malice, openly expressed, as by
lying in wait by antecedent threats to take
life or anterior grudges or preconcertsd
scheme to do the deceased some great bodily harm.
the law will imply malice that is to say II the
killing be done without any proyocation
whatever. or be done upon q slight proyoca
ton not sufficient to arouse great passion, even
with passion and provoeation, but in SO cruel and
brutal manner as to make 1t impossible for jury
to conceive how such diabolica act could be per.
petrated unless he who did 1t was moved and Sc
duced by the instigations Of the devil aotuated by
malice ranking in his bosom, or man Of such
cruel, wicked, and depraved heart, regardless Of
social law and the value Of human life as To
make him an enemy Of mankind at large, and there
fore unworthy to be permitted to live In ciyliIed
socisty-homicide, committed under such circum-
stances, Ia deemed in the law TO be malicious muir
der.
IL Is also true tnht Wnon tn0 TACT OF kllunB mas
been made out to the satisfaction Of the jury
from the evidence in the cause, they are bound by
the law to presume that II was done maliciOusy
until the contrary be made to appear until such
evidence shall be addueed 10 shake their conyio-
tion that the deed was the result Of q malicious
purpose.
II Is equally certain that to reduce the killing to
manslaughter there must be proof that 1t was done
under the influence Of sudden passion, excited by
sufficient pr0VoeatiOn.
I all lfaH nKtna tnIa 60 IL. annA In
all tho text books, and which commend themselves
to the common sense and common justice Of man
kind.
But there are also other principles of law alike
familiar, and which equally commend themselves
to our sense of justice, as we'll as our sense Of hu
manity and mercy, and are equally we'll recognised
by writers Of the highest authority. rlf,...
1t Is principle which no honest man Of ordinary
humanity can gainsay deny, that the forfeit Of
mans life ought never to be made unless the jury
who try him are satisfied beyond reasonable doubt
that he has committed crime for which the law de.
mAnds that forfeit. As that holy volume of inspi'
ration, the fountain and source from which all ouJ
laws derived teaches us that there Is more JOY
in Heaven over one sinner that repenteth
than over ninety and nine just men who need no
repentance, so those volumes Of human wisdom
which we all consult when in search Of legal In
formation instruct US that 1t Is better that ninety
and nine guilty persons should escape the Just pun
ishment due TO their crimes rather then that one
innocent man should be made to suffer the extreme
t penalty of the law.
/ 1t was for some time doubted whether If the man
who takes the life Of another entertains a reasonA
BILE and honest apprehension Of such attack frou
the person who Is killed as would be likely to result
In the death Of the slayer or In great bodily harm
to him, such might result in death, the slayer
was not guilty Of murder but 1t has been at length
settled that such killing Is not only not murder bu
is not even mRnslaughter. II has also been de-
termined that in judging as to whether the appre
hension Of such dangerous attack Is honest and
reasonable the jury are to take into consideration
all the circumstances with which the party Is sur
rounded. Whether the attack was about to b,
made by man far more powerful than himself Of
5 by number Of mem all the acts and conduct O.
! the parties their comparative strength and mum
hara and aua.u anakiar aiIAndlna unnn tha alIna