Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1868-11-19

4 faf aimed aud intended TO mt whcre II
would be less dangerous or deadly in It's
effects. lie must be responsible for the
consequences Of his illegal act.
The Counsel for Prisoner requested the
following Instructions:
IF the defendant. under the natural effect
of the excitement aud passion caused ny
Trans blow, upon the groins. actually
believed from Uran's acts and position that
great bodily violence of the kind that had
already injured him, was imminent. he
W ould he excused in striking such blows
as any person in such condition would
at the moment, ordinarily believe 1t
necessary TO avert such violence which
il given with thi. atldiion,-"prcvided
lac uses all the means in his POW er, reason
baly consistent with his own safety, to
save hi. life. or prevent tire intended harm.
The jury came into Court after being
out about an hour, and delivered a YER
! dict of Guilty. ="
On Thursday morning the County At
torney moved that the Court pass sem
/ tCt.Cc. lNCht. s"b-
tence, made the following remarks.
"rhc res sondcnt has been found guilty Of
mauslaughter. The question before me i.
the extent ofthc punishment.
The law Ia. fixed the penalty of death
to murder IN the first degree, and Of in-
prisoument for life for murder in the Sec
ond degree. These penalties are fixed alb
solutely, and no discretion Is allowed to
the Court. But the law has given great
la,itudc to the Court in this respect on q
conviction for nsansiaughter. 1t may I'M
pose a nero nominal fine of one dollar,
or ms, sentence TO Imprisonment fr ten
years. os fix on any intermediate punish
ment. The reason for giving to the Court
this unusual discretion, doubtless was
tina, there are SO many grades in this Of
fence. differing so materially from each
other in the extent of the actual guilt.
some cases which are found to be man
slaughter, verge very nearly on muir
Ter, aud but a single line divides them.
Uther cases arc hardly distinguishable
from ~cusab homicide. and exhibit but
few poinls of aggra,ation or evil intent.
The law The, store, leaves this large dis
seution In Tn. curt, Ia be exercised ac-
,ordiug 10 the fact. III each case.
In tho present case. While there Is no
doubt that The accused caused the death
by q blow inflicted by him, there s not only
the absence Of any proof Of. .aaiice' aiorc-
thought, either express or m.'lied. but
clear proof that up 10 the moment before
the fatal blow, the relation of intimate ana
nnbroktn Fl iend.lIip existed between tie
parties. Neither entertained for the Other
any fcelngs-esen of dislike. but on the |
cont 2ry. from boyhood they had been n-
innate. and always on very friendly terms.
1he act wa. done exactly within the def
milton in the statute. 1t was the "unlaw
fal killing Of : human bein. in the heat
of passion on sudden proyocatio on, without
express or implied malice aiorethoueht.
IN satisfied that the prisoner did not
intend 10 Kill. When ne struck thu blow,
and doubt whether it would have pro-
dufed that cil'rc:, if the deceased had not {
suddenly changed his position. The blow
was unlawful. violent aad dangerous. and
thc rri,Jner Is inexeusablc for layiuy
struck il. But there Was not. in the mo-
ment of his highest anger, any murderoGs
iG:ent. The sudden proyocation was the
blow gwen by the deceaSe with his goad
stick. This blow was clearly. no! one Civ
ell in decided anger, but rather in slight |
vexa'ion-produced by the somewhat
rough play of the respondent. But I'M
idcaily il struck the prisoner in very |
tensitiye part Of the human hody-pro-
ducing for the instant cXcruciatihg pain, /
and arousIng the passions.
1t is clear tina. it did produce a sudden
paroxysm Of almost ungovcrnahle passion.
This was enhanced by the unfortunate
tauniins speech of bye standcr.
In this State of affairs the fatal blow
was struck. | see no gfonud to believe .
that the deceased intended to make any |
assault. at the time. The plea OF self-de
fence was not supported by the evidence.
But it should not be ftrgotton that the
ucccd>eu ictudsiS lnHlcttu tue liTst DlDW !
that partook in any degree of anger or
veXation. lie intended no serious Injury
aud clearly did not intend to strike any !
particularly sensitive part. But he did, |
and that blow was in its effects for the time |
serious and irritating. | impute no blame
to the deceased but it is but just to the
respondent TO bear in mind the nature, ex
tent, and actual effect upon him, OF the
sudden proyocation.
be measured by the unfortunate result OF
the uhlawful act.
Every one, conyersant with the proceed
ings in our courts, has witnessed many
cases of assault and battery. where the re
! suit has not been fatal, and yet where the
evidence has exhibited unmistakable evil
denee of previous malice. malignant in
tent, or shocking brutality and unrelcntinc
cruelty. But as death did not ensuc, the
crime in law could only be punished as a
simple assault and battery. In other ca sex
single blow, struck in sudden anger. at
random, has caused deatL by an unfUrtu-
nate concurrence of circumstances. Ii is
the duty of the Court, in awarding SEN
tence, TO fairly consider all the attending
circumstances.
The conduct and language Of the accus-
ed immediat,.ly a0er tke saI rarnl,