The Portland daily press., 1869-09-25

When the killing is unlawful and neither
express or implied malice exists, the crime is
red uced from murder TO manslaugh'er.
But in all cases where the unlawful killing
is proved, and there is nothing in the circum-
stances of the case as proved, to explain, jus
tify or excuse the act the law presumes it to
have been done maliciousIy; and it the accus-
ed would reduce the crime below the degree
of murder, the burden is upon him to rebnt
the inference of malice which the law raises
from the act of killing, by evidence in de-
fence.
1t is competent for you to find the prisoner
guilty of murder of the first degree, OF murder
OF the second degree, of maDslaughter, or not
be.
III yon ind the prisoner guilty of murder,
YOU you VIII enquire, and by your verdict aseer-
frst d mnsoner ne De guilty of murder oil inc
hr ~, uegiee, or OF the second degree.
Inc prisoner is by law presumed to be inno-
reasonable doubt e'' ~
Of av wlll add that this presumption is matter
oi eVluehee which accompanies the prisoner
through every stage of the trial until The final
VeIdlct' anu is only to be overcome NV nroof
of his guilt beyond reasonable doubt. p'O'
Reasonable doubts are such snbs,ox.;I
doubts as intelligent men, with enliobtanad
conscerces, acting upon principles Of sonnd
common sense, upon matters OF highest mo-
ment, would regard. In the language Of Prof
Greenleaf "rhe circumstances must be sl,ffi.
common man; and so convince him that he
would venture to act upon the conviction in
matters of the highest concern and Importance
to bis own interests. 49,
The late learned Chief Justice Shaw, of
Mass, in the memorable trial OF Professor
Webster of Harvard College, thus defines a
reasonable doubt: at is not mere possible
doubt; because everything relating to human
affairs, and depending on moral evidence, Is
open to some possible or imaginary doubt.
1t is that state of the case, which after the
entire comparison and consideration OF all the
evidence, leaves the minds of jurors IN That
condition, that they cannot say they feel an
abiding conviction, to moral certainty OF
the truth of the charge. The burden OF PROOF
is upon the prosecutor. All the Prescriptions
Of law, independent of evidence are in favor OF
innocence; and every person is presumed to be
innocent until he is proved guilty.
If, upon such proof, there is reasonable
doubt remaining, the accused is entitled to
the beneht OF 1t by an acquittal. For it is not
sufficient to establish probability, though
strong one, arising from the doctrine OF
chances, that the fact charged Is more likely
to be true than the contrary; but the evidence
must establish the truth of the fact to a rea-
sonable and moral certainty; certainty that
convnces and directs the understanding and
satisfies the reason and judgment of those
who are bound to act conscientously upon it.
This we take to be proof beyond a reasonable
doubt, because If the law, which mostly de-
Ponds upon considerations of moral nature
should go further than this, and require abso-
lutte certainty, it would exclude circumstantial
evidence altogether. s
am not prepared, gentlemen, to say that in
cases OF pure mathematics the human intel
lect trained and disciplined is not capable
OF arriving at absolute certainty; if SO it is
not perceived how our Creator can with His
omnlsclence be any more certain than such a
mind SO disciplined would be of the truth of
mathematical proposition. The familiar illus
tration that twice makes is one of those
demonstrations which does not seem capable
of further or higher certainty than we feel
conscious OF, but when we come to moral ques-
tions that sort of certainty which is expected
and required in mathematical propositions can
not be expected as ordinarily attained. There
is but one Being that can solve with certainty
moral questions.
ale knows the secret thought
TITS He alona decidedly can try
He knows each ehord-its various tone;
| Each spring--its various bias"
With this general view of the rules of law
upon which this prosecution is based, aud by
which it is to be controlled, proceed to call
your attention to the propositions which it is
neces sary tor the government to establish, in
order to entite it to a verdict
In the first place You must be satisfied of the
death of Murray, that he did not die natural
death; nor by accident; but that his death was
occasioned by the violence of another. and that
said violence was Inflicted by the prisoner as
charged in the Indictment. The death of Mnr-
ray is not denied. Have you any reasonable
doubt that he died from violence?
You have heard the testimony of physicians
and surgeons, called both by the State and by
the defence, commencing with the casual ex-
animation by Dr.French at the prisoners hotel
immediately alter the affair on the stairs, then
he visit of DR.. Small 1T he Police Office in
this building after Murray's fall from his chair,
next the operation performed by Drs. Small,
Gordon and Tewksbury, and ending with the
post-mortem examination by Drs. Small, Cor
den and French, ii 4 recOllect correctly. These
eminent medical gent emen have gwen YOU
their professional opinions which are evidence
in the case. Taking their testimony and that
of the other witnesses, have you any reasona-
BILE doubt OF the cause OF Murray's death?
Evidence has been introduced about q fall
on board the Steamer Cariotta the Tuesday
previous: as reasonable men you will ldge
and determine whether Murray could have
fractured his skull and partially severed an
| artery at that time by such u fall as has been
proved on the steamer or at any other time
prior to the affair at Bradley's Hotel and then
| by mental emotion or other cause for which
the prisoners not responsiblea fatal lesion had
taken place at or about the time of that affair
whether his death was occasoned by the fall
from his chair at the Police Station or wheth-
er the evidence does not satisfy you beyond
reasonble doubt that Murray was killed by the
fall down stairs ON Friday evening at Bradley 5
Hotel. .1
do not deem it necessary to dwell any long
| you are not so satisfied the government fails.
| If, however, you have no reasonable doubt on
i that point, the government must next satisfy
l you that Murray did not fall down that stair
way accidentally, or by his own voluntary act,
l or without the voluntary agency Of the prison
| er; but that he was thrown down by the vol
untary act of Murphy. Here We approach
what perhaps you may consider one of the
great questions of the case. The prisoner, you
will remember, admits that he alone removed
Il the deceased from the fnrf her end af
| age or corridor around the head of the stairs
and that he started one step down with Muir
ray in bis power; but he denies any voluntary
agency in his fall. On the contrary he testifies
that Just at the moment when he had begun to
entertain the superstition that Murray would
deslst from his resistance and suffer himself to
be taken quietly down stairs to be delivered up
to an officer to be dealt with for his previous
cOnduct-the prisoner says at that moment M
the top of the staircase Murray suddenly made
q violent effort to pull the prisoner after him
down stairs, and that in breaking Murray's
hold to prevent this catastrophe, Murray tom
pied over backwards striking first on the bal
ustrade and then the lower partlof the stairs.
If the evidence fails to satisfy YOU beyond n
reasonable doubt that Murray was Voluntarily
thrown down that staircase by Murphy, the
prisoner is entitled to an acquittaL OF this 1
shall speak hereafter. But if you are SO salts
fled, that is to say, fit is proved that Murray
was killed by the accused, and nothing further
were shown, the presumption of law would be
that 1t is malicious and an act of murder IL
follows, therefore, that in such case the proof of
matter Of excuse or extenuation would lie on
the accused; and this might appear, either from
evidence tending to show excuse or extenua-
ton or from evidence offered by the prisoner.
But when there is any evidence tending to
show excuse or extenuation, it is for the Jury
to draw the proper differences of part from the
whole evidence, and decide the fact ON which
the excuse or extenuaton depends according to
the prepOnderance of evidence. IL the evidence
Is equally balanced, then the presumption of
innocence will turn the scale in the prisoners
favor. -,
IL Is conceded that Murphy was the lawful
proprietor OF Bradley's hotel, and that Murray
was his guest, boarding and lodging in his
house. Both then had "a right up to the begin
ming OF the disturbance to remain in the hotel
As proprietor, Murphy had an undoubted right
to be III any part OF the house, except the apart
ments assigned expressly to his guests, and
Murray as guest, had a right to the exclusive
occupation OF his own room, to q seat Mt tho
public table, to access to all the public rooms
to pass through the passages aud corridors for
proper purposes at proper times, as long as he
continued to conduct in suitable manner.
Murray had no right to enter any private
apartment but his own without the consent of
the occupant, nor to secrete himself there or
in any corridor for any improper purpose /;
neither had he any right to attempt foTcible
or violent entrance into any other dodgers
room for any purpose. Any such unlawful at
tempt would authorise the immediate interfer-
ence of the landlord or clerk, and the forfeit
ure of his privilege as guest TO remain longer in
the house. 1t directed or requested by the
landlord or his clerk under such circumstances
o leave, 1T would be his dnty 10 obey at once.
onoulc he refuse, the landlord or clerk wouh