The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1869-06-22


to instruct YOU as to the application Of
the law 10 facts.
Upon retiring to your room, the first
question for your determination is:
Did the defendant, James n, Kennon,
take the life of Benjamin L. Sire?
Should you find from the testimony
that the accused did not take the life of
the deceased, your deliberations will
there end, and you will return into.
Court 4 verdict Of not guilty.
But should you find that the defendant
did commit this homicide, other grave
questions will arise, demanding your
most thorough and careful considera-
ton.
You will, Of course, at once lay aside
all partiality and all prejudIce,if any you
may have, leaving your minds perfectly
free to follow the dictates of law and
justice to correct conclusions. 1t would
even be well, if possible, that you should
Danish from your memories everything
you have known or heard of this case,
except the legal testimony presented
here, the law as laid down by the Court,
and the arguments Of counsel, SO far as
they have correctly stated the law, and
the testimony.
As before observed, it is the duty of
the Court to present to You the rules Of
law governing the case. To these rules
your duty is to apply the facts proven
by the witnesses, and from the whole
draw your conclusions as to the inno-
cence or guilt; and, if necessary, the de-
gree of guilt of the accused.
Homicide in our State may be murder
in the first degree; or murder in the sec
ond degree, or manslaughter; or it may
be excusable or justifable homicide.
In the case before us the Grand Jury
have charged the defendant with the
crime of murder in the first degree. The
several propositions presented to you, to
be determined from the testimonv,in their
proper order are these:
l. Is the defendant guilty of murder
in the first degree?
2. Is the defendant guilty of murder
in the second degree?
8. Is the defendant guilty of man.
slaughter? ..
4. If homicide has been committed,
is it excusable or justitiable
These are the several questions pre-
sented to you for your consideration un-
der this Indictment. The statute upon
which this indictment is found reads as
follows: x Here the Judge
read the statute.
Now in order that the killing of per
son be crime in our State, the circum-
stances of the killing every essential ele-
ment Of the crime, must come fairly
within one of these sections j failing in
this, such killing, however reprehensible,
is not punishable by our laws, and the
defendant must go acquit.
For the purpose of this investigation,
we may obtain clearer perception of the
application of the first section Of the
statute to the case before US, by reading
it in this way:
That if any person shall purposely
and of deliberate and premeditated NAL
ice kill another, * such person
shall be deemed guilty of murder in the
first degree.
Several of the terms here used have
legal. technical meaning, distinct from
their popular signification; and it is this
technical meaning which must govern
in arriving at your conclusions.
"Purposcly," implies the act of the
william intention, design to do the
act 1t presupposes the free agency of
the actor.
"Deliberation" and generalization"
require action Of the mind. They are
operations of the intellectual faculties,
and require the exercise of reason, re-
fection, judgment and decision, and
cannot happen in any case where the
faculties of the mind, at the time of the
commission of the homicide, are de-
ranged, destroyed or do not exist.
The crime of murder in the first de-
gree can, therefore, only be perpetrated
by a free agent, capable of acting or alb
staining from action free to embrace
the right ard reject the wrong.
"Dehberation' and ''premeditation''
are the distinguishing characteristics of
murder in the first degree; without them
the homicide must be something less than
that crime.
When the purpose to kill with delib-
Grafton and premeditation is formed, the
length of time between. the design to
kill and the execution of the deed is i'm
material but the actual existence of such
purpose, malice, delibcration and pre-
meditation constitute the crime of mur-
der in the first degree. 1t matters not
how short the time, if the party has
turned it over in his mind, weighed and
dcliberated upon it.
The term malice in the legal sense
in which it is here used is not confined
to a particular animositv against the in
dividual killed; it denotes wrongful
act done Intentionally without just cause
or excuse; and it must not be confound
ed with the popular meaning, which is
'spite" or ''hatred" When a homicide
is committed the presumption of law is,
that the two essential ingredients of muir
der in the first degree do not exist, to
wit: Deliberation and premeditation. In
order therefore to establish this crime the
evidence must affirmatively establish their
existence in the mind Of the accused at
the moment the act was committed
In determining this important ques
tion rs to the presence or absence of
these essential clements, the jury should
look to and consider previous threats,
if any are disclosed in the tesmtiony; Ian
guage used relative to the deceased;
or any o:her acts of the
accused ;.bcaring in mind that all reas-
enable doubts are to be resolved in IA
vor of the defendant; and that alleged
declarations. or admissions Of the de
iendant are to be carefully scrutinized,
lest the language Of the witness be sub (
sotuted for that of the accused
"In regard to 'malice," which is an es-
sential element of the crimes both of
murder in the first degree and murder
iu the second degree, the presumption
of law is, that when there is wifll and
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