The Portland daily press., 1869-09-25
mouv we have relative to his character appears

mony we have relative to his character appears
y b, favorable.
Tnop the stand be has challenged any evil
denee that he has not always been peaceable,
moral and truthfal man. The government
| have not offered any evidence although the op-
| nortuni;y was thus offered them. if ii was A.
their command. Although of course there
| must be a first time when any man commits a
| capital crime or any crime, vet the nrisoner ;s
entitled to the benefit of this positive and neg
alive testimony in his favor Let him have Il
gentleman, giving it its due weight and no
more in this case ~ NV
l nave repeatedly said that the law presumes
fue prisoner innocent until he is proved guilty.
90 not wish to weary you by another repeti-
uon, but feel it my duty to give you one more
caution In this particular, taking the liberty to
quoCe inc appropriate language of learned
member OF the Supreme Bench of this State,
ported.
The presentation of the indict nent, al
though found by the Grand Jury, does not
change this status. He has pleaded that he Is
not guilty, and the law presunses that be IS not
guilty. until the evidence has repelied ;hat pre-
sumption, and established in its stead the satis-
factory evidence required OF his guilt. Inrough-
out the trial. and upon every point IN 1t nee
eSSary for the government to prove, TINS pre-
sumption attends him. Although thus is pro-
position which commends itself to the iudg-
nent of every individual, and one frequently
quoted and universally known, it nevertheless
requires some little effort of the mind to ac-
cord to the prisoner the full benefit of its just
provisions. -i+
The prisoner is brought into Court in charge
Of a careful, vigilant officer; placed in a seat
appointed for prisoners; the charge in specific
detail is read with solemnity and fOrmality. as
an indictment against him by the grand iury of
the county, and he is called upon to plead to
it; all this formal and indeed necessary pro-
ceeding, is calculated to impress the mind, and
often leads rather to the impression that the
prisoner is guilty than that he il Innocent and
6y close careful scrutiny of ourselves we may
nnd following these circumstances the propO-
sltion almost reversed. Against this we should
carefully guard ourselves. We should see to
IT. that we do not look to the prisoner to estab-
,ish his innocence, but to Government to estab-
lish his guilt.
III. In the trial of all causes, civil and
criminal, the jury are the sole and exclusive
Judges of the facts proved. They must deter
mine the weight of the evidence and the cred
Utility of the witnesses. With them rests the
responsibility of a correct determination of the
issues raised by the evidence introduced in the
case. They must determine this from the evil
dence tn the case and not upon that out of it,
and carefully distinguish between what is
proved and what was alleged to be proved, or
what is said could be proved. lJ
Upon the Court devOlves the duty of declar-
ing the law applicable to the facts proved. 1t
Is the duty of the jury to take the law from the
court 1t cannot be, and is not, expected that
they will be SO versed in the rules of law ap-
pilcable to the subject under consideration as
to he able to determine between conflicting
claims of counsel, and they do not only find it
duty but a privilege to receive it from the
court. II the court should err In giving the
law in this case, to the detriment Of the pris-
oner, he can have it reviewed by the full court
sitting for that purpose, and if enormously
gwen, a new trial will be granted.
you assumed to determine the law, and err
roneously determine it, there is no remedy be-
yond, and irreparabls mischief may be done.
1t therefore becomes highly important that
each keep within their own sphere of action.
Your duty is plain, simple and unmistaka-
ole-simply to discover what is proved, regard
ess OF consequences. You are not required
Is men, but simply and plainly to inquire, is
the prisoner guilty or not guilty upon the evil
tence adduced. If he is guilty, he himself has
imposed the restraint upon his liberty-he him
self has forfeited his own lite. The tault is his
and not yours. There are no complications
about your duties; they cannot be well mista-
ken. You are not to be embarrassed by SYM
patty or BIASED by prejudice, but without
fear, favor or affection, you are to declare upon
your oaths, upon the evidence here adduced,
the guilt or innocence of this party. You are
to do it as men-men acting with intelligence
and moral courage, on the evidence according
to the law, unmoved by the desires OF the pris-
oner on the one hand, or the prosecution on
euC OtuCI. Ou nave lupOs Gu upon yOu
duties OF jurors, acting under the oath OF God,
aud to Him and your own consciences you
must answer for the performance of those du-
ties.
have thus, gentleman. endeavored, and at
more length than could have wished, to go
over some Of the leading facts in this case. /
hope that in so doing have not confused you
in regard to what alter ALL seems to me to be
the main legal questions which it was my uty
to give you. To avoid sll misconception, let
m hriQAv nit I'm lott of wh IA
have said. The testimony of the Government
must satisfy you of the death of Murray at the
hands of Murphy. The prisoner has directly
and repeatedly asseverated upon the stand his
with that affair, or to, sum it all up in one
sentence, that the deceased fell down stairs,
and was not thrown down by him. 1t is for
the Government to satisfy you beyond rea-
sonable doubt that Murphy, either alone or
with the aid of somebody else, voluntarily
threw Murray down stairs. II they fail
in that part of the case the prison.
er is entitled to an absolute acquittal. It is
claimed by the counsel for the government that
the evidence circumstantial though it be, of
large number OF witnesses, cOntradicts
Murphy on various important points,
and particularly they contend that it can
not be recOnciled reasonably upon any
Othor hypothesis than that he was thrown down
in other words, that the statement of the
prisoner upon that point is false that is great
question of fact for you to determine. If, gen.
tlemen, you are satisfied that the prisoner
statement is incredible, and are satisfied be-
yOnd reasonable doubt that he was unlawful l.
ly thrown down stairs by Murphy, then, I say,
that the unlawful killing being proved, if there
were nothing in the circumstances of the case
as proved, to explain, qualify Or palliate the
act, the law would presume it to have been
done malciously, and if Murphy would reduce
the crime below the degree Of murder, the
burden would have been on him to rebut the
inference of malice which the law would raise
from the act of killing, by evidence in defence.
That there being evidence in the defence tend
| ing to explain, qualify, palliate or excuse the
act of throwing, if that act has been satisfacto-
| riy proved, you will determine its preponder-
ance. If the preponderance is in favor of the
excuse, or if there is an even balance of testi-
mony, then he is entitled to acquittal If the
evidence prepOnderates in favor of reducing
the offence below the grade of murder, or even
IN equipoise on that point, but fails to excuse
him, then it is manslaughter. If he deliber-
ately designed unlawfuly to kill Murray by
throwing him down stairs aud did thus kill
him, then it is murder in the first degree, al
though the design may have been formed but
for moment. KIDD
You will, therefore, determine whether the
prisoner is entitled to acquittal or is guilty of
murder in the first degree, murder in the sec
ond degree or granddaughter. 1t has not been
my design to recapitulate all the testimony or
to determine any fact, however plain it may
seem, but simply to aid you SO far as in my
power, by arranging some OF them. What the
testimony of witnesses has been, and what
facts are established, either directly or inferen
TALLY, you alone are to determine. The case
has been conducted throughout with signal
ability and by counsel of the very highest emf
nence, all of whom have presented their views
in arguments whose eloquence, ingenuity and
power are seldom surpassed in any court of
justice.
1t has been my endeavor to give you my
views of the law impartally, and with such
clearness as was in my pc wer. You will permit
to say that by the aid of the accomplished
stenographers of this court the time of this
| trial has been greatly reduced. l am satisfied
| that the practice will soon become general, SO
| that in all capital and important cases their
reports promptly printed will be submitted to
the jury, and thus save the counsel and the
| court from a recarpitulatiOn of the testimony.
| it now only remains for you to discharge yours
Gentlemen, in closing I find no words of
my own so fitting as those which borrow
| from Mr.. Justice Rice:
During the progress of this trial you may
have speculated upon portions of the testimony
as it has been produced One fact may have
had tendency on your judgment to inculpate
and another to exculpate the prisoner. These
facts may have been matters of discussion
among you, and from these discussions partial
opinions may have been formed. You would
be something more than human if impressions
thus formed did not remain.
But when you now retire to consider your
verdict, you should at once dismiss all such i'm
look at the whole case, and consider all the
| facts and circumstances as q whole, and in
! view of all the light thrown upon them, you
should examine the case, not with a view to