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

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When such design, or intent to kilt, is not
shewn beyond a reasonable doubt, or
when there is o reasonable doubt whether
the murderer, at the time the mortal
wound was inflicted, intended anything
more than to do great bodily harm, it is
murder in the SECOND degree. A Eomi-
eide may be, and frequently is, murder,
when there is no intent to Kill. IF done
with malice it is murder. To determine
whether the crime is murder, the question
is, was it malicious? To determine
whether homicide with malice, which is
murder, in case like this, is murder of
the first or second degree, is question of
intention and, the test-inquiry is, did the
prisoner, at the time, deliberately aim at
life and intend to kiRs tT
A response TO this inquiry must be
given by the jury, from all the evidence.
| Such deliberation and design may be
| shewn,-and it is for the Commonwealth
always to make it out beyond reasonable
doubl,-by express evidence of such de-
sign, or by conduct and circumstances
which necessarily imply it. 1t may be an
inevitable inference from the weapon used,
and the manner of It's use. IF. for exam
pie, one deliberately aim aud discharge a
loaded pistol at the head or breast of an
other; or if, with deliberate aim, he
cleave the skull with an axe, it could not,
ordinarily, admit of a moments doubt.
that he intended to kill; for such would
be the natura!, if not the almost certain
result; and every one, in the exercise of
his natura. faculties, it is reasonable to
conclude, contemplates the usual result of
his acts. The design may also be proven
by other evidence such as the deliberate
preparation of deadly weapon, specific
threats, and the like. And, if the party
! had time to deliberate and form such de-
sign, though but for minute, and Gi6
so, 1t as toilful, Deliberate and oremedita-
ted killing, an6 murder of the first degree.
! This has been the uniform construction
| OF the statute; and, with the report of
the commissioners to revise the penal code
before them, that no attempt had been
made to interfere with the law of murder
as it bad existed since the act of 1894"
| fer the reason that 1t had been $50
thoroughly considered, and its construc-
ton and Its meaning SO entirely settled
by long course of judicial decision" the
Legislature, in 1860, adopted, without
! the change OF a word, the old statute.
A homicide, indicted as murder, may
be reduced to n,anslaughter, by evidence
| which rebuts the legal presumption of
malice or to no offence at all, by evi-
dence showing it to be justtjiaJle or er-
cusabLe.
MANsLAUGHTER is the unlawful kill
ing OF another without ntalice This is
the distinction between murder and man
slaughter: the one is an unlawful killing
with, and the other without malice The
latter is killing which usually happens
In sudden heat and quarrel, and upon
sudden provocation. The law, from ten
derness to human infirmity, considers
homicide committed iC passion, and upon
what it judges sufficient provocation, as
committed sCtttout malice, and therefore
only MANsLAUGHTER. Passion, without
sufficient provocation at the time inciting
it, is not sufficient. Passion, without pro-
vocation, is malice. And proyocation,
such as will avail for the purpose, has a
defined legal Specification. No breach of
a mans word, no trespass to his lands or
goods, no insult by words, no matter how
provoking or insulting they may be, will
free party killing from the guilt of muir
der. And this is especially true where
the party killing upon such provocation,
makes use of deadly weapon.
This is the law of homicide, SO far as it |
is necessary 20 state it, at least at present,
in this case; and VIC now turn to the evl-
dence to which the law is to be applied.
introductory to the statement of the |
questions to be determined in this case, |
we recur to the general facts in evidence |
Immediately connected with the death of
Edward Holmes, which is averred in the |
indictment as having been maliciously |
caused by the prisoner and Charles Rob |
inson, jointly indicted with him. In this |
brief general summary, your recollection
will supply omissions Of details in the ey-
dence calculated to throw any light upon !
the whole transaction, and, the questions
arising in the case. |
It seems from the evidence, that about /
the 29:h of August, or day or two be-
fore the shooting of the deceased, war
rant was issued by Justice Mckee against
the prisoner and others, on the informa-
tion of William Palmer, Esq, for larceny.
1t was directed to Constable Davis, but
was put into the hands of r. 2. Linton,
also constable. who made an unsuccessful
attempt to execute it, the prisoner eludiDg
him and effecting his escape. He then,
as he testifes, gave the warrant to Edward
Holmes (the deceased) and Joseph Oster,
poilcemen of the borough of Johnstown,
and who, he says, agreed to execute 1T.
de does not remember to which OF them ne |
gave it-they were together at thetime-
huk he bo acr, Ill houo ~ the |