The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-09-24
Trial of Francis Musphy
FOR THE
Murder Of Patrick MURRAY,
Col. A. w. Bradbury,s Opening for ,b
Defence

Jury: '"" 0o''''e"'e" =" "''
ihere is probably no sentiment more deep
y implanted in the popular heart than the
UVe OF justice: and yet, paradox as it may
seem. justice never springs direct from the
IONS OF the people, The love of justice in
the people incites the mob to deeds of violence
ana dictates the rulings OF Judge Lynch.
Popular love of justice leads to thousand
crimes and sacrifices a hundred lives that one
fault may be expiated. Well might we ex-
claim of justice as Madame RowI7nd, when
she was being borne to the scafiold apostro-
phlzed the statute of Liberty-"O, Justice
How many crimes have been perpetrated in
thy namew But, more than six centuries
ago the fathers of the common law gave the
people in certain instances, trial by jury: and
later, in the struggles which convulsed the
mother country, the wise heads and honest
hearts Of the leaders of the people directing
the popular enthusiastic love for Justice eX-
torted from an irresponsible despotism the
right OF trial by jury which has existed unim-
paired to this day.
mention this, gentlemen, because, when
IN community like ours a deed OF violence
has been done which has involved the life OF
fellow creature, all men are startled. They
are acquainted or think they are acquainted
with he facts of the case, and sides are in
stantly taken. But when, as in this case, a
stranger has met his death almost upon our
very threshold as he entered among us. this
strong sense of justice and love of Justice in
the people, goes out to the man and a cry goes
out Tor vengeance upon his murderers. In
this case the popular mind has been excited
and at no time since the unfortunate occur
renee by which the deceased came to his
death would it have been safe to trust to the
unrestrained Judgment of the people decision
OF the case of this accused. At no time would
II nave been safe to trust to the love of JUS
tice and to believe that the people would adj
minister it pure and simple.
You, gentlemen, are sitting upon this case,
embodying in yourselves the wisdom, the love
OF Justice, the integrity and purity of the great
people; and yet you are apart and widely dis
severed from them in that you are sitting here
your minds free from bias and prejudice
as you have stated upon your oaths-calmly,
candidly, purely and-no less than the people
whose representative you are-with that in
tense love ofjustice which inspires them, and
under the solemn impress of your oaths, to
pronounce between the people and the pris-
Oner at the bar.
Thus early in the case, may it please your
Honor and gentlemen of the jury, / shall pre-
sent for your consideration the propositions
OF law upon which we rely and read to you
so tar as necessary from the standard authors
in support of these propositions.
1t must have been observed by every man
who has had occasion to examine into cases
OF this kind that the many works which have
issued from the pens of modern writers upon
criminal law all 60 back to ancient times and
find basis and authority for what they say
in those great lights which burned so brightly
in ages past, and which to-day illumine the
sombre pages of our criminal law.
The prisoner at the bar, gentleman OF the
jury, is the proprietor of hotel in Portland,
and, being in such position, he is possessed of
certain rights OF the landlord and of the
householder. These rights are similar in
their nature, and 1 may say, if there be any
distinction between them, that the greater 1e-
sponsibilties and the more important duties
devolve upon the landlord of public house
than upon the private householder in his own
house: for the former has not only himself
and his own property Use ct sua) to protect
and defend, but he has the lives and the prop
erty of his guests within his keeping.
Russell on Crimes, p. 602) Patterson, J.. -..
'The landlord of an Inn or public house. or the
occupier of private house, whenever a person
conducts himself the plaintiff did is justified in
telling him to leave the house. and if he will not do
3d. he Is Justified in putting him out by force and
may call in bis servants to assist in SO doing.
Russell on Crimes, p. 6O3.) Parke, B.
"There Is no doubt that landlord may turn out
aperson who is making a disturbance in a public
breach Of the peace. To do this the landlord may
lay hands on him, and In doing. the landlord Is
not guilty OF any breach of the peace. But if the
IS an unjustifable assault upon the landlord and
nthe watchman in this case saw such assault com
mitted, that would make out the plea"
Russell on Crimes, p. 662)
If A., in the defence of his house, kill B.. tres
passer, who endeavors to make an entry upon it, it
is at least common man-saughter; unless, indeed
there were danger OF his life. But if b. enters into
the house, and A having first requested him to de-
out, and then b. turn upon him and assault him,
and A, then Kill him, it will be de teade,do sup
posing that he was not able by any other means to
avoid tue assault, or retain his lawful possession
And 50 it will be, if b enters upon A and assault
him first, though NOT intending to kill him, but on
y as trespasser to gain the possession for in such
case, If A, thereupon kill b. it will only be Sc defen-
dendo, and not mansaugnter. q Edw 8. Coran,
30. Crampt q b. Hale 1861
And it seems that in such a case A, being In his
own house, need not fly far he can as in other
cases of Sc deendendo fo he has the protection of
his house, to excuse him from flying, as that would
De TO give up the protection OF lis house to his ad
versary by his f. ght."
IL. Hales Pleas of the Crown, 4S5-4s6)
ia. kills B. in defence of his house it is
neither justifabe nor within the privileges of Sc
defendendo, for he entered only as trespasser and
therefore it is at least common manslaughter; this
was Harcourt's case, Crosupt 27.-a who being in
possession OF house by title as it seems endeav-
Ored to enter and shot an at them within the
house and Harcourt from within shot an arrow at
those that would have entered and killed one of the
company; this was ruled manslaughter, Eliz. and
it was not Sc defonendo because there was no dan
ger OF his life from them without.
But II had entered into the house. and Har-
court had gently laid his hands upon him to turn
him out, and then A. had turned upon him and as
sanlted him and Harc0urt had killed him, it had
Deen Sc dejendendo and Sc it had been if A. had
entered upon him and assaulted him first, though
he intended not to kill hin; yet if Harcourt had
thereup0n killed A. 1t had been only Sc defendendo
and not manslaughter, though the entry Of A. was
not with intent to murder him, but only a tres
passer to gain the possession, e L. ) Coraw, So
CrOmD. ID Gas Ha
court, bel in his own house. need not fly ia as
he can in other cases ofsc defendendo for he had
the protection OF his house to excuse him from ay
ing, for that would be 60 give the possession of his
house to his adversary by his flight.
Russell on Crimes L. p 664
Upon an indictment for mansaughter it appeared
that man and his servant had insisted upon pac-
ing corn in the prisoners barn. which she refused
allow; they exerted fsrcej scufie took place in
which the prisoner received blow on the breast,
whereon she threw stone at the deceased, the
MASTER which killed him.
Horoyd, j. 'The case fails, as it appears the de-
ceased received the blow in attempt to invade the
prisoners barn against her will She had right to
reasonably necessary for that purpose; and she is
not answerable tor any unforeseen accident that
may have happened in so doing" (Hinchcliffe's
case, Lew l6l. Holroyd, J.) .... .g.
-'at when Justifabe.l
(Russell on Crimes. 1, P. 667.)
A man may repel force by force, in defense of his
person, habiiation or property, against one who
manifestiy intends and endeavors, by violence or
surprise, to commit known felony upon either
In these cases he is not obliged to retreat but
may pursue his adversary till he finds himself out
of danger; and it, in a conflict between them he
happens to kill, such kilingis justabie. Fost 273
Russell on Crimes. ], P 670.)
Where known felony is attempted upon any one,
not only the party assaulted may repel force by
force, but his servant attending him, or any other
person present, may interpose to prevent the mis-
chief; and if death ensue, the party interposing
will be justified: II. Hale 49,, 4S4. Fost. 279. And
in Handbook, Baker and others. 2 Bos. 81 Pull
1855. Chambre j. said, at is lawful for private
person to do anything to prevent the preparation
of felony."I
So, where an attempt is made to commit arson, or
family, or even lodger may lawfully kill thu as
saants in order to prevent the mischief intended.
lasts Pleas of the Crown /, PLY
/. man may repel force by force in defense of
his person, habitation or property against one who
manifestly intends endeavors, by 6tOle'ce or sur
prise, to commit a knoacn felony, such as murder,
rape, robbery, arson, burglary, and the like upon
either. In these cases he is not obliged to retreat,
but may pursue his adversary until he has secured
himself from all danger.
(Gabbett on Crime Law. 1, 494.)
acide in sef-defence (sect sua defcndendo) is
sometimes innocent and justiiable, and in other
cases barely excusable Thus it is justifable to re-
PEI lorce by force in defense of mans person. hab-
caooh VI property, against who manifestly in
tehuetn and endeavoreth by violence or surprise TO
Gommt Known felony upon either, (Fost. 273,
East. p. q. 27l. '' N"s'' -'"'
But there must be felony ;n,onaos = 40
come to beat another or to take b;s I'D - ~ o
trespasser, though the owner NAV iuatits IL, o..
ing OF him, 80 as to make him desist yef - 10 lii
him it is manslaughter. wv Al no Kills
Il Hale 49, East p. O 272.)
'"There must be an avert act Indicative NJ a.. :.
tenton to commit the felony; Tor the bare snnra
hension danger will not warrant a man i'm Litti
another by WY OF proVocation and the term kao,rs