The Ebensburg Alleghanian. [volume] (Ebensburg, Pa.) 1865-1871, 1866-01-11

warrant was afterwards put in the hands
OF the policemen to execute, and was seen
by Mr.. Linton In the hands of Holmes
that morning, and was, it would seem, In
his hands when he attempted Co arrest the I
| prisoner that morning at the barber-shop,
when Robinson rescued him. If Holmes
had that warrant, he had authority TO ex-
ecute 1t; and, if the prisoner knew, in any
| way, that ne had it, his resistance was an
unlawful act. A policeman, or even
| private person, may lawfully arrest upon a
warrant for felony. Does the evidence.
| or does 1t not, shew that Holmes had such
warrant, and that he was attempting, in
fend's saloon, to arrest this prisoner as
We'll as Robinson 2-and does it, or does it
not, shew that the prisoner knew this p
| and does It, or does it not, shew, that, in
any aspect of the case, the shooting was
with MALICE? g -
We refer you, as tending to shew all
this, to the testimony of Mr. Linton -
the evidence of what occurred ac the bar
| ber-shop, when the prisoner was arrested
by Holmes, and rescued by Robinson -
| OF the procuring of the clubs at Patton's
! shop, aDd the threat there made by the
prisoner that he would buy pistol and
shoor Holmes ;-of the attempt to procure
billy by Robinson at Swank's, and the
buying OF the pistol there at the same
time, and loading, or getting it loaded, by
this prisoner ;-of the apparent concert
between this prisoner and Robinson in
Fend's cellar, before the commencement
OF the conflict ;-the testimony of Esquire
Palmer, upon whose information the war
rant for Larceny had been issued, that the
prisoner, after the shooting, called to him
On the street, "Palmer, where are YOUR
police officers now ?"-addlng, with an
oath, Gall the police officers you have in
Johnstown can't arrest me; I don't regard
them and threatening profauely to
'fatten6 to his case alter a while ;"-to the
testimony of John Ashcom, that the pris.
oner afterwards stated to him that he had
shot Holmes, and holding up his revolver,
said, Sand there's the barrel shot him
with, adding, "I'll shoot any other son
of bitch that goes to arrest me %
the testimony of Joseph Alwine. that
Gore told him he had shot Holmes, that
'he was going to shoot him In the breast,
but missed, and shot him in the leg p
and 20 the testimony of VIM. Dysert that
the prisoner, when told by some one at
the lookup that Holmes was dead, iusti-
fed the deed, saying that "Holmes had
been abusing him ever since he returned
from the army serving his country" and
declaring "if the people knew what was
between him and Holmes, they would say
he was right-he deserved to be shot"
1t, we repeat, the prisoner shot and
killed the deceased when attempting to
arrest ham on the warrant issued bV JUS
tice Mckee, knowing at the time the
authority under which the deceased was
acting, the killing was murder. If tnat |
was not the ease,-but you find that the |
deceased was shot in an illegal attempt to
arrest the prisoner, or if you believe that |
the killing happened in an attempt to ar |
rest Robinson alone, and under the prov
ocatiou of a blow from the deceased, it
plain prooe of express malice. But if, In
any aspect of the case, the shooting was
preconcerted apd premeditated, il would |
still be, and was, and is, MURDER. The
questions of fact il is for you to decide
We have stated to you the only aspects of
the case in which the prisoner would be
only guilty of manslaughter If you have
a reasonable doubt upon this part of the
case, the prisoner is entitled to the benefit
of that doubt.
If your minds ara free from all doubt
here, and you find the prisoner guilty of
murder, the remaining inquiry is, and it
is your duty to ascertain and find in your
verdict, whether it is murder of the first
or of the second degree. We have already
explained to you the distinction, in case
like this, between the two degrees of
murder. Every malicious homicide is to
he regarded as simply murder, or murder
of the second degree, unless it is plainly
shewn to be of a class which the statute
declares to be of the first degree and 1t
is for the Commonwealth always to shew
this beyond reasonable doubt If it is
shewn TO have been committed "by means
of poison" or 'tlying in watt" or "in the
perpetration or attempt to perpetrate any
rape, arson, burglary, or robbery" it is
shewn to be of the first degree Where,
as in this case, it is not classed or included
with those specified and defined, but is al
legged, as here, to be included and described
in the statute as ''dny other kind Of ,riztul,
deliberate, and prenaeditatea ki2ting,"
whether 1t is OF the first or second degree,
is, as we have seen, question of inten-
tion. Did the prisoner, at the time the
fatal shot was fired, deliberately aim at
life, and intend to xiii p If he did, no
matter how suddenly the purpose may
have been formed, it was, upon the well
settled construction Of the Act of Assem-
bly,, "wilful, deliberate, and premedita-
ted killing" and murder of the first de-
gree while, if such intention at the time