Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1869-04-01

reason to DeueNo, ahu o'0 0Ao'o Ao " 90
in such danger, if so he had right to de-
fend himself
The testimony OF the respondents tends
to show that this homicide was committed
under such reasonable apprehension OF
life as to make it justiiable, while the
testimony of the government tends to
show that Horace was not attacked, and
there was nothing to give him any appre.
hension of personal danger, and they also
show in evidence, acts of his before and
after the ARRAY, inconsistent with the
theory he sets up in his testimony, the
jury must look at all this evidence, and
find the fact, beyond a reasonable doubt,
that he was not acting i'll self-defence,
when he fired the fatal shot.
The fact that this respondent was armed,
is not of much weight against him, as he
habitually carried arms, and had for sew
eral wears, as did most of the others in
that neighborhood, and though it may be
reprehensible, and tend to destroy the
peace and order of community to have
people carry arms habitually, yet it is a
legal right of person to carry arms.
The Government claims that Horace made
au attack on Gilman, Jr. If Horace pro-
voked this encounter with a view of do
ing serious injury to the person of Gill
man, the plea of self-defence must fail to
the ground if Horace was fred on by
Winn first, he was justified in returning
the fire; and the question of whether he
fired at VIM first. or Winn at him, Is
not conclusive of whether Horace was
acting in self-defence, but it character
ICES the act, and is to be weighed with
the other evidence. The condition of
things, and of feeling between the Plum
ley and Balch families, or previous threats
cient justification for the homicide; the
apprehension of danger to Justify homi-
eide must be present, imminent danger;
one arising from present acts, and there
must be no time for the blood to cool, or
for escape from the danger, but it must
be so imminent az to raise reasonable
apprehension, and must be a present dan
ger.
If this homicide was not committed in
,elf-defence, it was criminal, and either
was murder or manslaughter. Man
slaughter is of two kinds, voluntary and
involuntary, and the intent is not always
the certain criterion by which to Judge
whether 4 homicide is murder or man
slaughter 4 homicide with intent to
kill may be- only mansltughter. as if a
man fires a fatal shot under provocation
with an intent To kill, yet if the provoca-
ton i great, and lie supposed he was in
danger though the damage was not such
as to amount to reasonable apprehension
of being killed or suffering grevious bodily
injury. II would be manslaughter But
another without intention Of killing, but
with an intention of doing grevious bodily
harm, and death i thereby caused, it is
murder. 1t appears in this case-thc par
IeS WERE very near together NiieI horace
fired, that he aimed at vital part of the
body, and the other circumstances of the
ent onnter, and the conduct of Horace be-
fore and after the affray are what you
must judge of his intention by. He does
not state what his intention was, and if
you find he intcntially killed Gilman. it
is murder, unless in sclf-defcnce, or upon
sufficient proyocation to reduce il to man
slaughter This provocation must be
such that Horace WAS in fact in present
fear. \ trespass upon the Land of the re-
spondaut Is no sufficient proyocatlon Tor +
his using deadly weapons. nor would any
story which Butterfly could have told
him been such provocation as to reduce
the crime to manslsughtes Buttertiy's
story, tie fact-that Gilman WAS trespas-
ser, the state II feeling between the
parties, may each and all be
considered a. tending to influence
the feelings, ana might render less as
sault sufficient proyocation for the homi-
eide to reduce ii below the crime of muir
der than would otherwise be required
If Horace allowed the. sight Of B4lch's
faction upon the ground, to work him
into passion and under the influence of .
that passion lie committed the homicide,
it does not palate the offence from muir
der to manslaughter, However if you
find that Horace vas fred on first and
that he spprehended danger in fact, from
Gilman, or that he apprehended that
Gilman was helping the attacking party,
such apprehension would palate the Of
fence to panslaughter on the other hand
e Horace soqgh. the encounter to do in
urv If physical character, and be pro-
yoked t, e Selling of the gan, the killing
wa. murder There was great deal OF
violence ten ling To show that Horace
md Gilman had an encounter about the
yun and they al agree that Gilman
seized hold Of the gun, the government
witnesses all say that the gun was point
ed at him befor. he took hold of 1t; while
on the Other hand III" respondents all say
it was not pointes Al bin. Now you must
find from all the teSutnohy "he.hei ~
was pointed at him by Horace before he
seized it, and if you find that Gilman
seized hold of the gun without provoca-
ton and Was striving to take it away from
Horace. and Gilman was killed in the en-
counter. being shot by Horace in the heat
of the moment, though without the APP
prehension of personal danger, the homi-
eide would be only manslaughter; but II
Won find that Horace pointed his loaded
gun at Gilman in a menacing manner,
before Gilman seized it, it will be an I'M
portant fact in coming at a conclusion In
the case. and will make Horace the ag-
gressor in the struggle which sub |
seouently ensued. The court here
e %r,l