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

parent deliberation at part of the boSv
where the wound would be likely to prove
mortal-a. the breast, as testified to by
blershank, corroborated by Fulton, and
afterwards admitted by the prisoner 70
Joseph Alwine, when. as that witness
testifes, he said che was going to sboot
him in the breast, but missed. and shot
him in the Leg" and that he afterward.
Justi1ed the deed, implicitly confessine
Iha1 ne had doneit upon grudge, or in
revenge, when, as William Dysart testi-
fes, be stated that Holmes had been abu.
sing him since he returned from the army.
and declared that ''if the people knew
what was between them, they would say
he was right-he deserved to be shot
All this, 1t is urged on the part of tho
Commonwealth, shows, not only that he
purposed and intended to take the life of
Holmes when he fred the pistol, but that
it was premeditated, and done in reyeupe.
and that 1T was, therefore, wilfnl dei;b,
crate, and preneditated killing, anG mur.
der of the first degree.
For the prisoner, upon this question, it
is argued that he was at the time. and for
some days, In state of intoxication that
he was so at the time Of making tn threats
proven against him, which it is further
argued were drunken bravado, ana all
made in the course of a few hours. and all
made, as well as his subsequent decIara-
tions, under excitement, aud when he wa.
not IN a condition to form and execute a
deliberate purpose to kill, or fully appre-
clate what he had done. And further.
that his threat was to "shoot." and that
1t Is not clear of doubt, in view of his ex-
cited condition, that he intended more
than to wound or cripple. And it is fur
ther argued in his behalf, that he did not
repeat the shot, when he saw no fatal eff.
feet Immediately follow it, and did not at
tempt to discharge any one of the other
i've loads in the pistol, as it is argued he
would have done, when he saw Holmes
pass out OF the saloon, if he intended at
the time, having it in his power, to Kill
him. -g1 7ad
Drunkenness, at the time OF its com.
mission, Is not allowed by the law either
to justify or excuse crime. The degree
OF excitement under which party acts,
either from intoxIcation or any other
cause, is, however, We agree, properly FOR
the consideration of the Jury, when tho
question, as here, relates to the attention
with which criminal act was committed
and SO, gentlemen, the evidence upon this q
subject, is properly for your consideration,
with all the other evidence upon this part
OF the case, IN constituting his previous
threats and subsequent admission, and in
determining the intention with which ha
fired the shot. 1t would seem from the
testimony, that the prisoner was at the
time, aud for some days had been drink
ing, and was at the time, to some extent.
intoxicated. To what extent, it is not so
easy TO determine from the testimony of
the witnesses, who are not at all agreed in
their statements upon the subject. Some
of them represent him as quite drunk:
others, IS under the influence of LIQUOR,
but not SO much so that be did not seem
to know and understand what he was do
ing. It seems that he fell upon the street.
after he left the cellar. Before that, he
seemed to be acting out purpose, which
he ezpressed,-in Patton's shop; and at
Swauks; and is described as acting with
apparent deliberation In the cellar, when
eating oysters, and shortly before, and at
the time of the unfortunate conflict. But,
without detaining you longer with any
comments of ours upon it, we commend to
your careful and deliberate consideration,
the evidence upon this point, and the
whole case. en-
1t only remains for us to give formal
answer to the points submitted by the
prisoners counsel, and which have been
all substantially answered in our general
charge.
EThe court here read, and answered,
The points of the prisoners COUNSEL RI
And now, gentlemen, having stated and
explained to you the law applicable to
this case in any and every aspect OF it,
and indicated the questions arising in it
for your decision, We have performed our
duty. It now becomes your duty to de-
eide the important questions involved in
the issue. We trust that we have been
as we have desired to be, upon
every question; SO that tedious recapit-
ulatiou is unnecessary.
Was the death. of Edward Holmes
caused by the shot fred by this prisoner?
If it was, is the prisoner guilty of murder
or manslaughter IF guilty of murder,
is it murder of the first, or of the second
degree
1t is your solemn and responsible duty
to answer. The result must seriously at
feet the most important interests of tho
prisoner and the public. But while we
say to you that it is your duty to give the
prisoner the benefit of any reasonable
doubt where We. have instructed you he is
entitled to the benefit of it, we remind
you here, as we stated In the outset, that
your duty will be discharged, and only
diaaharoad hv divastipo uo,,rsaluas &C s,r