Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-07-03
Gnion aud Smftiran.
THE MCGANN CASE.
JUDGE swANN's CHARGE.

From the Knoxville Commercial Of Saturday.
The following is the written charge OF
Judge Swami:
The Stat rs. j. r. .acCaan and others.
The defendants stand charged with the
murder Of A. G. HAUNN, and the first count
in the indictment charges that the defend
ants murdered JACOB HARMON. The second
count charges that they were present, aiding,
abeiting, and consenting unto his murder
Murder by our law is thus defined: "If any
person Of sound memory and discretion IN
lawfully kill any reasonable creature in be
ing under the peace Ofthe State, with malice
aforethOught, either express or implied, such
person shall be guilty Of murder"
Every murder perpetuated by means Of
poison, lying in wait OF by any other kind
Of wilful, deliberate, malicious and premedi-
tated killing, or committed in the perpetra-
ton Of, or attempt 10 perpetrate any arson,
rape, robbery, burglary or larceny is muir
der in the first degree. All other kinds Of
murder shall be deemed murder in the
second degree. All persons present, aiding
aud abeiting, or ready and conserving to aid
and abet, Ia any criminal offence. are deemed
in law principal offenders, and are punished
a7 such. II several persons set out together
or IN small parties upon one common design,
be II murder OF other felony, or for any pUr-
pose unlawful in itself and each takes the
part assigned him, some 10 commit the fact
others TO watch AZ proper distances 10 pre-
vent a surprise, or 20 favor if need be the
escape Of those more Immediately engaged,
they are all, provided the fact be committed
in the eye Of the law, present at it and all
would be guilty rs principals There must
be participation in the act, and if man
be merely present rs a bvstLnder and have
no connection with those engaged in the act.
he would not be guilty.
To constitute the crime Of murder there
mast be malice and malice in law is not
confined 10 a particular hatred or i'll will 10
the deceased, bat il extends 10 an evil de-
sign in general, wicked and corrupt motive,
a heart fatally bent in mischief, an intention
20 do evil, the result Of which is fatal and
wherever the killing is proved the law the
presumes the killing 10 be malicious, and
the party killing will be held prima face TO
be guilty Of murder If the weapon or in
strument used be such as likely to produce
death, and death ensue from the use Of the
weapon or instrument, the law prcsumes
malice. Express malice Is where a delibe-
rate intention Is evinccd 10 take the life Of a
particular individual, which may be shown
by former grudgcs, aEimositios, concerted
plots or the nature Of the act itself
To constitute the crime Of murder In the
first degree, the killing must be done will
fully, that Is, Of purpose, with the intent
that the act should have the effect 10 take
the life Of the individual. The killing must
be done deliberately, that is, Of cool pur-
pose IL must be done maliciousiy, that is
Of malice aforeth0ught and premediately,
that is, a design must be found in the mind
10 kill before the act by which life is taken
is performed. An Of these requisites must
exist to constitute the crime Of murder in
the first degree. In other words, proof
must be adduced to satisfy the minds Of the
jury thu the death Of The party slain was
the ultimate result which the concurring
will, delibention and premeditation Of the
party accused sought
Murder In the second degree is when the
killing is done with malice aforethought
bat does not possess some Of the other re-
quisites of deliberation, premediation DC.
Manslaughter is the unlawful killing Of
another without malice, either express or
implied, which may be either voluntary,
upou q sudden heat, or involuntary, in the
commission Of some unlawful act.
4 homicide may be justiiiable or eNcusa-
BILE A UNSUITABLE homicide is when life is
taken in the advancement Of public justice
iau instance the execution Of one lawfully
condemned 10 be hung or to prevent some
atrocious crime as when one kills another
who is attempting 90 rob him. Then the
killing is done without any design or ieloni-
Gus desire
Isycusable homicide is of two kinds lst
Ey misadycnturc. ID Homicide in self de-
tense. Homicide by misadventure is when
the killing happens in the doing of some
lawful az, without any intention, but when
in doing such act one unfortunately kills an
other without intention. Homicide in self
defense is when, upon a sudden ARRAY the
SLAYER has not begun the fight, or having be-
gun, cudeavors 10 decline any further strug
gle and afterwards being closely pursued by
his antagonist, kills him 20 avoid his own
destruction.
II the proof shows a want of malice or Of
a concurring will, OF deliberation, OF pre-
meditation. the killing would not be muir
der There must be an evil intention, and
all whose corrupt intentions contribute TO
an evil act, In due course Of its execution,
are equally guilty. II one man sets in mo-
ton Criminally the physical power OF anoth-
er, he is guilty for the results of such power.
II he contemplated the result he Is answera-
bic. though il was produced In a manner not
contemplated.
Il several are doing an unlawful act, and
another comes and joins I'M IL, before II is
fully executed he is Just rs guilty as the ORR
majors of the design.
The defendants by their counsel, insist
that in no event can they be found guilty;
for II YOU should be convinced from the
proof that ;hc defendants were ON the court
martial. called bv General CARROLL, in No
ycmber or December, 1861, they would be
guilty of mo- Ofeuso In their acts on such
court-martial because the rebel government
had a RICH: 90 create the court-martial and
90 try and hang citizen offenders.
The Court charges You, gentlemen Of the
Jury. that rs the rebels were engaged in an
unlawful act in lcvying war against the
United States that they cannot Justify one
wrong with another; and hence if the rebels
take upon themselves 20 establish a court
martial for the purpose of trying and hang
ING citzcns-such tribunal is unauthorized
bv law-and under such unlawful tribunals
Il q citizen shall be tried, condemned and
hung. IL would be murder In all who took
any necessary part therein.
Treason is the most enormous crime
known % the laws Of the land, or which is
within the power of man 20 commit and
being ~nch. iu Its nature. the law cannot
lool, upon 10 with the least allowance, nor
,qn The crime of murder or any other felO-
nv be justified by the crime OF being wrong
fully. viclcdlv. malicluully and traItOrously
lowing war against the State or the United
States
The law holds ont mo- iuduccmcnt 90 Of
Tenders 60 commit crime, and offers no en-
enlargement 90 them; but on the contrary,
the object of the law is 90 stop and prevent
the commission of crime. 10 is set up in
argument Tor the defendants rs a defense,
that. although the past rebellion was wrong,
vet II the rebels acting in their own wrong,
succecded in carrying on their trasonahle
purposes against the Government OF the
United States So FAR that the United States
were compelled 90 accord &C. them, for he
purpose of humanity, during the war, the
right Of belligereuts. that the defendants and
the rebels cannot be punished for ANYTHING
they did in carrying on the rebellion, by the
civil tribunals of the country. The court
charges Won that this is not the law; that one
wrong cannot Justify another The law will
not hold out inducements or offer premiums
for crime % be continued and 70 be persc-
ycred In. The counsel for the defendants
that while rebellion is In ats commence
mcnt, assuming only the proportions of an
iusurrectiun, that then all who are concern