The weekly Butte record., 1866-08-11

With the qualifications thus given you, viii
eive you certain instructions of defendant:
II the jury believe from the evidence that the
prisoner was laboring nader some controlling dis
ease Of mind. which was in truth the acting power
within him. which he could not resist at the time
Of the killing Of Mr. Hastings; or. in other words,
if you believe from the evidence that he was Ia
boring under that species Of insanity which salts
6es you that he was quite unaware of the nature,
character and consequences of the act be was COM
hitting, or was under the influence Of diseased
mind and was really unconscious At the time be
was committing the act that it was 3 crime. then
you viii find the defendant not guilty.
from the whole evidence, the jury believe that
the prisoner committed the act but at The time of
doing 50 was under the influence Of diseased
mind, and was really unconscious that he was
committing crime. be is not, in law, guilty of
murder.
If the jury believe that, from any predisposing
cause the prisoners mind was impaired, and at the
time of killing Mr.. Hastings be became. or was
mentally incapable of governing himself in refer
ence to Mr.. Hastings as the debaucher of his wife.
and at the time of committing said act was. by
reason of such cause unconscious that he was COM
hitting crime to said Hastings be is not guilty
of any crime whatever.
The second defence is that of self-defence. The
law in relation this defence is plainly given by
the statute that you will need no comment 1.-THE
Court here read the statute defining what should
constitute self-defence.l
Justi6able homicide is the killing of human
being in necessary self defence. or in defence Of
haA.s -,
maniestly intends. or endeavors either by violence
surprise, to commit felony; and in this case if
the jury shall find that defendant killed deceased
under circumstances Of danger urgent and press
ing as to make it absolutely necessary. either to
his own life or to prevent his receiving great
bodily harm, then they will find the defendant not
guilty.
base fear of any Of these offences, to prevent
which the homicide is alleged to Have been CON-
mitted shall not be sufficient justify the killing
but it must appear to the jury under all the cir
cumstances proven in the case taken together. that
such facts and circumstances and the relation and
condition of the parties at the time of the homicide
were sufficient to excite the fears of reasonable
person, and that the defendant really acted under
the influence of those, and not in spirit of re-
venge; and if the jury find that defendant did so
act. and under such circumstances, they will ind
him not guilty.
You tco are here to judge of the necessity of tax
ing the life Of Hastings by the prisoner from the
circumstances surrounding them at the time; what
the position of the parties; did Hastings actu-
ally make an attack upon the prisoner; was Has
tings armed was the defendant armed if Has
tings did make an attack, could the prisoner have
defended himself. or have escaped fromthe attack
of Hastings, without his taking the life of Has
tings! You are the reasonable persons who are to
judge of these facts. The bare fear the prisoner
might have had that Hastings about to in j'lre
him, is not sufficient to make the killing justifabe
The circumstances of the attack, must be shown to
you to have been sufficient to excite the fears of
reasonable person. and that the prisoner acted IN
der the influence of such fears.
Again the statute defines the crime of manslaugh-
ter. THE Court read the law defining manslaugh-
teri
You will perceive, gentlemen of the jury, that to
reduce the killing from murder to manslaughter,
the killing must be done at the time OF the wrong
done. There must be no time left for reflection no
time for the passions to COOL it becomes murder
Under the law gentlemen, even if true that Has
tings did have criminal intercourse with the wife
of the prisoner ard had killed him in the very act.
the act would not be wholly justiable; but the law
has that respect for human passions as to mitigate
the cri me from murder to manslau shter. But as
above stated, the killing must be done at the instant
before the passions have time to cool-hefore the
mind has time to regain its reason or the crime
will still be murder.
Of the testimony of the witnesses and of their
credibility you, gentlemen the sole judges. The
prisoner himself has been called upon the stand,
and under our law as it now is, was permitted to
testify in his own behalf. You are to judge of the
credbity of this evidence the same of the 9TH
ers, taking into consideration the situation of the
prisoner accused of crime punishable with death;
and his evidence is given as to circumstances that
would excuse or justify the crime charged against
him. In the examination of testimony of the wit
nesses, or of any one of them. you may receive or
reject so much of their statements as in your best
judgments may seem proper-not wantonly and
without cause-but it, from the manner of the Wit
ness-the appearance upon the stand-or from
Trajectory statements made by others-you should
not believe the evidence. or any part of it, then
you would be entitled to reject it. And in regard
to the statements of the prisoner. you can take
those portions which charge him. and under the
rule above given, reject those which would excuse
OF justify him. i
The killing being proved, the circumstances
which will excuse, mitigate or Justify the crime,
will devolve upon the accused. The prosecution
must prove each proposition they make, to convict
the prisoner to the killing. malice and intention,
SO as to coviuce your minds beyond a reasonable
doubt. The defendant, to establish fact or cir
cumstance to excuse justify the killing, can do
simply by preponderating evidence, as in civil
case
The law OF evidence in regard to this point is.
that the prosecution, in presenting their to
the jury, raise doubt as to whether the homicide
was justi6able. excusahle, then the prisoner is
entitled to the benefit of that doubt. But when the
killing, with malice and generalization, has been
proved beyond reasonable doubt by the prosecu-
ton, then any circumstances of Justification of
excuse or Of mitigation, must be shown by defen-
dant by preponderance of proof.
A reasonable doubt is not mere suspicion; il is
= want of conviction of mind. The object of evil
dence is to convince the mind Of the truth or un-
truth of some proposition; and whenever the evil
dence does so convince the mind. that would
act upon the convictions in the highest concerns of