Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1866-06-29
THE OLMSTED TRAGEDY.
CLOSE OF THE ARGUMENTS.
CHARGE OF JUDGE FOOTE.
Deliberations of the Jury.

DCAIUOA eStAOAAC vi eAS
The closing argument for the State was
concluded by Prosecuting Attorney Castle
at half past four o'clock yesterday alter
noon, having occupied five hours.
We append the charge of Judge FOOte to
the jury. It will be read with interest and
may afford some clue to the verdict of the
jury:
cHARG BV JUDGE FooTE.
[stenographica1ly Reported for the LEADER by E.
D. Stark, Esq, Attorney at Law.l
In submitting this case to you, gentlemen
of the Jury, it is important in the first
place to ascertain precisely what the case
is, and, having ascertained that, to settle
the principles of law applicable TO the case
and their relations, and to the principles to
which we must adhere in determining
their application, and then looking care
fully into the whole case and at the evi-
dence for the purpose Of making up your
final opinion on the case.
The case is one of great Importance, one
which requires a careful consideration II
any case can require it. 1t involves great
interest on the part of the public and very
great on tbs part of the defendant. Tn
charge against him, as 1t appears in the in
dictment, is that upon the 24th of last March
he committed the crime of murder by beat
ing and striking Rosa Colvin upon the head,
and that he did his of deliberate and pre-
meditated malice. This charge, as stated
in the indictment, covers no contemplation
oflaw moro than a single offence, that is to
say under it the defendant may be found
guilty, according as the proofshall warrant
Il, ofseither of three distinct offences by
homicide, and also supposing the circum-
stances TO be such and the evidence to war
rant it he might be found guilty Of Q sin
gle assault and battery.
Homicide is killing a human being, and
there are three species of homicide known
to the laws of Ohio, and no more, as crimi-
nal acts.
The first is demon; mated murder in the
first degree, and that is killing a human
being purposely and with deliberate and
premeditated malice, or killing q human
being purposely and in the perpretration
or attempt to perpetrate any one of speci-
fed crimes, namely arson, burglary, rape
or robbery, or administering poison or caus-
ing it to be done. The offence charged in
this indictment being that of killing a hu-
man being ~purposely with deliberate and
premeditated malice. We have nothing to
do with the othor cases Of murder in the
first degree provided for in the Statute.
The second class of cases is murder in
the second degree, and that is killing q hu-
man being purpOsely and m~aliciously, but
without elaboration and generalization.
The distinction, therefore, between murder
of the first class, or that class to which the
charge in this indictment belongs, and muir
der in the second degree, is simply IN the
circumstance OF deliDeration and premedI-
tation-the first being a killing with deli
beration and premedItated malice, and IN
the second degree by maliciously killing
without deliberation and generalization.
The other class Of homicide is termed
manslaughter, and that is q wrongfully
killing, without malice, either upon a sud-
den quarrel or unintentiOnally while the
slayer is in the commission Of q
wrongful act. In this offence malice
Is not essential, aud If we might
suppose a case of unintentiOnal kill
ing maliciously, that would also be q case OF
manslaughter. But malice is not essential
to this style eff crime, or 1t Is indifferent
whether malice accompany thekilling or not
But it must be a wrongful killing without
the intention Of killing, and on a sudden
quarrel, or while the party Staying Is IN the
commission Of an unlawful act. Each and
all of these offences include an assault Of
some sort, and if the proof is such as t.
warrant it an assault, battery simply may
be found, Notwithstanding death also ap-
pear in the case, provided the death doe:
not arise from the assault and battery, and
something else is shown to relieve the de
PENDANT from the charge of causing the
death. In that case he might be found
guilty of simply the offence Of assault ano
battery.
fthe death ensue without any intention
it would DE q clear case of manslaughter
and under this charge, therefore, being {
- .----.1r I,l1Tn- Of An1Tharafs
, and premeditated malice, you would be war
!, ranted according as the facts should seen
TO you) to sustain either Of the four offences
I have described to you.
I Now it is apparent from the statement o
what goes to make up the offence as l have
giyen it TO you, that in order to convict {
: person of murder in the first degree an in
l %tention to kill must be proved, for the kill.
ing must be purpOsely done 1t must be IN
tended; and not only must 1t be intended
but it must be a malicious intention, anC
| that intention characterized with the quality
of malice-must nave been premeditated-
must have been deliberated and ~premedi'
tated. Now it becomes important to ascer'
tain exactly and bear in mind what is the
difference between murder in the first AND
murder in the second degree, and it lies, a!
before intimated, simply in this, that the
Intentional and malicious killing which
makes murder in the second degree, mus
| have added to it delJerGtea and premeditatol
!, malice to make it murder in the first de.
4 gree. And we must, therefore, find what ii
meant by elaboration and generalization
= An act lone under the influence Of mere
passion without consideration at all, is not
a deliberate act. There must be some con
, sideration of the matter. DeliberatiOn is an
act of the mind, and in celebrating
. mans reason is called into exercise. He
, must consider what he is celebrating upon
= in order to be said TO have deliberated al
all, There must be q degree nf-eo0fnesS
and disnassinnateno5s 50 that he can de-
mberate and can consider. As l before
l said, an act lone under the influence Of
strong passion is not a deliberate act. 1t is
= an act of the reason-an act in which the
mind looks at something and considers IT.
and approves of it, or disapproyes of it
determines in favor of it or against it that
makes a deliberate act. There must be
something Of this deliber6tinn in the case.
and where the act and the design are not
to be separated from each other, when it if
| a thought and an act done simultaneously,
} without reflection or consideration, it is not
a deliberate act. Now, if the intention to
kill comes into existence together with the
very act of killing, there Is neither deliber-
alton nor generalization.
The malice SPOKEN OF as constituting
part of this offence is simply adesign to dc
wrong; as applied to killing, it is al inteu-
ton to kill from badness and desperation,
and not necessarily from spite or ill-will to
the person. In the eye of the law it is
simply a wilful wrong-dOing, and if it is
in killing it is a wilful killing wrongfully.
Malice is an intention to do wrong, or it is,
perhaps, rather quality of the intention
than anything else, and as applied to kill
ing, it is an intention to kill Wrongfully, OF
ratheI u wrongful intention 20 kill. In that
expression you have both the intention to
kill and the intent TO do a wilful wrong,
which constitutes malice; and having this
wrongful intention To kill, you must have,
also, deliberation and reconciliation, that is
to say this intention to take life must have
been formed considerably and coolly, and
1t must have been done before the act OF
killing is committed; and if it is not fond
before the act of killing is committed, but
is simply contempoIaneOus with it, it can
not be considered a premeditated and deli
berate act of killing. Bat it is not neces-
sary that any particular length of time
should have transpired between the forma-
ton of the design to kill and the actual
killing. The execution, however, must,
in my judgment, lave been at least
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