Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1870-12-06


every unworthy thought, and come dispassion
ately and calmly to the consideration of the is
sues pending in this case
What Is the charge upon which this prisoner
IS arraigned before your 1t is charge Of muir
! der-Uf murder with ex press malice aforetbought
| The Indictment involves the charge; the gov
eminent has placed the case upon the theory tina,
| the crime is one Of murder with express malice
aforethought, and upon that issue, gentlmeD,
we defend; we accept the issue upon the theory
rs they present tive can accept it upon no
other. That is the the theory IT the theory il
sustained they are entitled to your verdict; VIZ
| defend upon that issue: we desire no comprom-
ises, we desire no egasions. The issue is pre-
| scented upon the theory of the government, and
| upon that line We defend.
| Now what constitutes murder with which, up.
ON the theory OF the government, this prisoner
Is charged Blackstone defines murder" when
II person of sound memory and discretion, un-
| lawfully kIlleth any reasonable creature in being
aud Ter the kings peace, with malice afore-
thoughts, either expressed or i'm piled. To sus.
tain the charge under this detiaition, the fol-
lowing facts ere necessary to be proved. The
| agent must be of sound memory and discretion
there must be an actual killing, the party killed
must be ii reasonable being alive; there must be
malice, either express or implied.
| This rule as understand has been modified by
| the statute of Maiue. So that if murder in the
| first degree, with malice aforethought, is charg-
| ed, it must be cypress III tlice, cording 10
| the popular understanding the word'' malice;
there must b: II malicious. evil disposition, evil
Misunderstanding against the u,rtv k,led. AInhc,
| af,rethuucbt il given by Sergeant Foster;
! lCrown Law, PIP. 25j aud 257] that the fact
nuh been attended with such circumstances a.
are the ordinary symptoms Of a wicked, de
PRAYED, malignant spirit The ) of Green
! let SECT. q. linus defines malice oE,rethonpht-
.s FMS fern ia understood to mean that general
malgnity and leckiessness of the rights and per-
sunal safety Of others which proceed from a heart
yud If iust sense of social duty and fatally
bent ON mischief,
| Nav y.utIemen we contend that il is iucn IN.
| bent rnun the Government in this case to sus-
tain their th.or, and To provp ex n,ess malice like
| tho case Of n man who kills another fur money
viii, deliberately pl,ns. and calculates with Al,
| object. nm object of gain. something to be nc.
| com olisb.d nm ACCOMPLISHMENT of some revenge
d.hhrr,trlv ,,lans AMI INNS b.s man in execution
| In This case eeutlpmen there il not "A particl,
| of evidence shaving auy enn,ity in The heart of
| this resnnudeut oo,inst the deceased The re i.
| nat n ,.rticle of evidence but what they were
| unun the best terms. we contend gentlemen
tn i, th. aTs,m,t,i,., a.. x.,e,, il; this o,., d.,
NOT indicate a malignant snirir AMI wicked and
c,rruut heart. thar the circumstances disclose
mn surh thing |, there no Inference between n
man deliberately planning the murder of his
| ue,shhor fur nancy. between that q $50 and tina,
of the husband who strikes down the adulteror
in his own home. beside his own bed. in the act
" bich i. to destroy his ueace his banniness far
every il there no ,,,ff.rence in rho ntiye in TN.
snirit yn;I,n,r th. hand nndsr .uch circums,ances
| Mapsiauynter gentlemen has been termed
| the killing of auoth.r without malc. either
exur.ss ar innlied which NAV he either
voluntary. upou "A sudden heat. or Involuntary
but in the commission of some unlawful act
| T4th Blackstone Page 1911 | The difference as
understand IT, ueutiemep giving nv own upin.
ion. between murder aud mnnslau. liter, is this
| Murder is SUPPOSED To be COMMITTED in cold
/
ter is supposed to be committed in a state oi
heat. resulting from any passion, which ought t.
| be controlled but is not controlled: for uassiur
which cannot be controlled is not passion. which
places al, man Within the pale of criminal law.
Wuuil our laws Justify the punishment of u
man for doing that from passion which he could
not help doing? Is u mau to be punished for i'm
moss b,i,,ies contend that the commission OF
! an ACT from passion which is be, und control,
does not bring a man within the pale Of Grimm
| al accountability There are EXCEPTIONS | ad
mil: executions IN the case of n mnn who com
mis- au act while in state of freuzy resulting
| from intoxicat,,n MANY an act is committed
! nv men whll. intoxicated under conditions " her.
| he has no power of control over himself: but
the law holds hun resi- 1nsible aud righ,fully too
/ wh\Y BECAUSE he takes the frenzy upon himself
voluntarily: he drinks the Intoxicating LIQUOR,
knuwing its effects: he takes il knowing ali; b,
| takes the responsibility of IT, Bat suppose YOU,
o.ntIemep TINT , man were ON trl.I beiure YOU,
cb,,r"e1 wltb a crime committed in a state OF
! frenzy. while ,utoxic ,ted; and it was shown to
| von that he was n man who never drank spirits,
In, that some ope had poured that down his
thr,at ag,inst his will. and ,h,, uu,ler the in
ansnc. Of Iouor Tins received int, his stomach
| he became trruz,ed. and committed an act OF
| homicide for Instance: would the law, would
justice, hold the ulan responslbie7 Suppose you,
that when thus frenzed against his will and by
| force that he strikes down III his frenzy the one
| who has thus poured the cause of his frenzy
down his throat would the law hold him re
sponsbe AS ii criminal for the act ? That Is the
case vi this prisoner. This prisoner, not frenzed,
| from any act vi his own-he did not take the
frenzy upon himself Voluntarily like the man who
drinks from the intoxicating cup; it was placed
on him, aud in his frenzy he struck down the
man who forced it upon him.
| Now gentlemen, we claim THAI the killing oil
| the adulierer found in the act by the husband
does not indicate Il depraved and wicked heart
but that the net is in accordance with law, and
nature: that il results from an impulse coming
from an instinct planted by Natures God; au
| instinct that is universal in the human heart to
defend ones self, to defend the wife, the child and
the parent. Does not this instinct exist in the
hearts OF nllR Suppose the best lnan in the corn-
munity Subjected to a wrong of this character;
that he CONES upon the adulterur or libertne in