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

the breast where the ball had entered
without any pulse in the wrist, bathed in
cold psrspiration, breathing with much
difficulty, and apparently dying,-a result
which would usually and naturally be ex-
pected to follow such wound in that
part of the body. He rallied little
shortly afterwards, and the doctor ordered
him to be taken to his house, where he
visited him every day, except one, gener-
ally twice day, until his death. At first
ne vomited blood, which led to the con-
ciuslon that the stomach had been pene.
trated; but the course of the bail, and
the work 1t had done, could only be judg-
ed of by symptoms. As death did not
soon follow, hope was entertained by his
friends, and even by his physician, that
ne might reeover but the symptoms af-
terwards became more and more unfavor-
able, and he fingered in low and weak
state, until the 22nd of September, when
he died, about three weeks after -eceiy-
ing the wound. It was disclosed upon
an examination of the body few hours
after death, that the ball had entered the
epigastric region about an inch to the left
of the centre line, and opposite the 7th
rib, had touched without penetrating part
of the stomach, which was found to be in
a highly infamed state, part of 1t gan
grenous, touched the spleen which was
found to be very large aud softened, and
passed through the left lobe of the liver.
A quantity of coagulated or disorganized
blood was found In the abdominal cavity,
and large abscess in the liver, where the
ball had passed through, containing from
8 to 10 fluid ounces of pus. No further
ball, which had lodged In the body, as it
was judged unnecessary, and were dan
.gerous, to do so. These were results, such
as might reasonably be expected to follow
such a wound in that vital region and
we're sufficient, in the opinion of the ply
sicians who made and witnessed the ex-
animation, to cause death while, il was
also disclosed that he had evidently been
a man in pretty good health, and no other
cause Of death could be discovered The
conclusion of DIR. Lowman and DR.. Sheri-
dan, therefore, was, that it had been caused
by the wound and what other conclusion
could they have formed But you, gem
tlemen, will determine this question for
yourselves. If you have reasonable
doubt upon this question, the prisoner is
entitled to the benefit of it. If you have
not, the remaining inquiry is, what is his
crime
If it is made clear that the deceased
was killed By the prisoner, it is not claim
ed that it was, or could be, justifable
homicide. 1t was, in any view of it, an
unlawful killing, and, in legal presump
ton, murder, unless there is something
disclosed, and to be found in the evidence,
to rebut the presumption of malice. Be
sides, there is evidence tending strongly
to show, and which, it is agreed on the
part of the Commonwealth, does show,
express malice. And there are but two
aspects of the case in which the killing
might be only manslaughter.
The prisoners counsel, in the point
submitted, assuming that Holmes was at
tempting to arrest him aud Robinson
without authority, ask US to instruct you
that he was so far justi6able in resisting
that he would only be guilty of man
or of murder on proof of express
malice. We cannot affirm these points in
the terms in which they are stated 1t is
true, if one undertakes to arrest without
he is trespasser, and the at
tempt may be lawfully resisted and, if
sudden conflict ensues, in which, upon the
excitement and provocation of the occa-
sion, the wrongdoer is killed, it is only
1t is our opinion, also,
that Burgess Orr had no right to issue a
for the misdemeanor of resisting
an officer, and that Holmes had no author |
n1k hn. hr,ry 80, &C k1 Al
order given by Mr.. Orr at the time, to
arrest Robinson. You will judge whether
he had or had not authority to arrest the |
prisoner. Assuming that Holmes was |
attempting to arrest Gore, this prisoner,
without authority,-or that he was at
tempting to arrest Robinson alone without |
and that Gore Joined in the
conflict to assist Robinson, and that after
he received blow from Holmes, as testi-
fed by Biershank, (who is not, however,
corroborated in this by the other witnes-
ses,) he, excited by that p:ovoeation, fired |
the shot, and death ensued,-in either |
case it would only be manslaughter, unless |
shere should be found proof of express
malice. In any one of these supposed |
cases, it would have to appear that .he |
killing, to be manslaughter, was prompted
At the time by the sudden provocation
for, if the evidence shew that the deadly |
weapon used had been previously and de-
iberately provided for that purpose, and
he fatal use of it previously contemplated /
and purposed, as this would be proof of /
express malice, the killing would be MUIR
Ter that is, an unlawful killing with
malice