Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1869-04-01
and with view Of doing serious bodily
harm if an encounter should occur.

u6 X0tcIumcAt muoI AAdhC Out tuCSc
four propositions from the evidence of the
parties who were witnesses of the afray.
What Horace did before OF afterward
only shows the motives of the act. If
Horace had shown contrition it would have
been much more favorable to him, as con-
triton would have raised an inference that
he had done something not intended by
him If the government fail in making out
either of these four propositions beyond
reasonable doubt, then the homicide can
be only manslaughter, if you find it was
criminal act at all. 1t is not necessary
you should find that Horace had the in
tention of doing bodily harm to any one
when he came into the field but if he
provoked an encounter with the inten-
ton of doing serious bodily, harm if such
encounter should occur, it is sufficient,
and it is of no Importance when that inten-
ton was formed; and if you find that Hor-
ace came there with an intent to do seri-
GUS bodily harm to any one, and in the
encounter which followed he killed Gil
man, it was murder The indictment in
this case charges the crime of murder if
you say guilty, it will be guilty of muir
der; SO if you find in this the respondents
are guilty of manslaughter, you will say
guilty of manslaughter.
If you find this was not criminal
homicide on the part of Horace, then
Ziba and Frederick must be acquitted.
The government claims that Iiba was
present, and before the fatal shot directed
Horace to- fire: this is denied by the re-
spondents; you must find this fact from
a consideration of all the testimony upon
the subject, and if you find that Iiba did
direct Horace to shoot then he il guilty
of the same crime as Horace is you need
of words, but if he gave the order to
Horace in any manner, it is sufficient.
Ii you find that Ziba did not direct Horace
to shoot he cannot be held unless he came
there to de- great bodily harm to- persons
found thsre, and was present when the
ARRAY took place, giving aid and encour-
agement, and ii that is found he is equally
guilty, though ne did not direct the firing
All these facts must be found beyond II
reasonable doubt from what the testi-
mony shows took place there and before
he got there. If you find he said, "for
Gods sake don't fire" before any firing was
done, it might have great weight, but if
he said that after Gilman was shot, il
would not be Of any Importance in the
case.
In order to find Iiba guilty the govern
ment must make out that Horace Is guilty
and that Ziba told him to shoot Gilman, or
that he had concerted plan with Horace
to do great bodily harm to some person.
and it makes no difference whether that
person was Gilman or Balch, or whoever
might be there If Frederick tried
to make Gilman let 30 Of the gun
to enable Horace To- do great bodily harm
to such persons might be present or
any of them, or if he came there on a CON
eerted plan to do serious bodily harm to
any one there, he is guilty of the same
offence as Horace and whether you find
the offence Of Horace to be murder or
ZibA and Frederick are
guilty of the same crime, if they are
guilty at all But Horace may be con
yicted. aud either or both Of the others
be found not guilty but if all are found
guilty, it must be for the sane offence in
zach case
The court here referred t. some - the
.yidcItce under a request of respondents
-uurIscI' ana SAID 70 inc Jury tnat II they
'ound that Butterfly called to Horace TO
get his gun and come along a. Balch was
a the field, and they are going
% have fight, it is no evidence against
Horace unless he heard it, and if lac did
hear it, and cane and had al interview
with Butterfly, it Is circumstance to be
weighed with the other testimony III the
case, but is not conclusive As to the mo-
i've with which Horace went to the place
If the aifray
In the case Of Frederick. the testimony
,hows that Butterfly called to him but
here is 10 testimony to show that Fred
rick heard him, and Frederick testities,
md SO does the Squiers boy, that he did
not hear him; therefore this circumstance
does not prove anything against Frod-
eriek Ent it does appear from the testi
mony Of Sanderson that Frederick knew
there were men in the field, and that
he was going up there for purpose
connected with those men this is a cir
for the consideration Of the
ury.
BY request Of respondents Counsel the
:ourt told the jury that the fact if found.
hat Iiba gave an order to Horace after
iiman was killed, had no tendency TO
Grove 'hat he gave an order before, but
MS conduct after the fatal shot was fired is
o be considered as tending to show which
version of the affrey is the correct one
md that where there Is conflict in testi-
nony as to whether either OF the parties
lid particular act at a particular time,
what he did just before and just after
ward, may be considered as raising prob
abilities of what was done at the time
The Judge was about two hours in de-
ivering the charge, and spoke quite rap
dly, so much SO that it was quite difficult
o keep up with him, and our report,
doubtless, omits many things which were
'aid in the illustration of the points of
aw made in the charge, but we. endeav-
'red to get the substance of what was
said.
The jury took the case at II o'clock. m, l
md have returned no verdict into court {
Of course nothing is known by persons !
outside of the jury room in reference to
the probabilities of verdict, or what it S
will be if one lis rendered The court