The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1870-11-24
Judge whitson's Charge to the Jury.

GENTLEMEN OF THE JURY:-It becomes my duty
before you pass upon this case to instruct you a L
the law bearing upon whatever state OF facts you sha
find to exist in the examination OF the evidence IL
this case.
James A. Abbott stands charged before you with
having murdered David Hannor IL the county %
Boise, the Territory OF Idaho, on the 10Th Gay oi
June, A.. D. 1870.
The first proposition which presents itself for your
solution is Did the deceased come 20 his death By
any act Of the defendant and il So the second ques
ton which presents itself is What were the circum
stances connected with the killing Out Of this last
question grow three others:
LIST. Is the defendant guilty OF murder in any de-
gree?
; ID. Is the defendant guilty Of manslaughter;
Sd. Was defendant justified in the killing?
The statute defines that: Murder is the unlawful
killing Of human being with malice aforetLought,
either express or implied. The unlawful killing may
be effected by any Of the various means By which
death may be occasioned."
Express malice is that deliberate intention un.
lawfully to take away the life Of a fellow creature.
which is manifested by external circumstances capa-
BILE Of proGf"
s3falce shall be implied when no considerable pro-
vocation appears or when all the circumstance Of
The killing shog abandoned and malignant heart
: ALI murder committed by any wilful deliberate
and premeditated killing murder in the first degree
; All murder committed without any delberatiOn or
Fermentation but with malice previously formed Is
murder in the second degree.
The unlawful killing Of Ia human being. without
malice express or Implied, and without any mixture
OF dehberaton, upon sudden heat OF passion, caused
by proyocation apparently sufficient TO make the
passion irresistible, = il manslaughter.
Any killing of human being by another. under
any circumstances, ID homicide; and If not murder in
the first or second degree, or mansaughter is excus
able or justifable.
Amy killing Of one person by another in the neces
sary defense Of such others self property against
one who Inaniesy intends or endeayors by violence
or surprise to commit felony against such other
ms property Is always justfable. In defending one
self TO the extent Of taking the life OF the assaiant
H mustappear that the circumstance were sufficient
to excite the fears Of reasonable man and that the
party Killing really acted under the influence Of those
fears and not In spirit Of revenge; that the danger
was SO urgent and pressing that in order to save his
own hfe, or 20 prevent his receiving great bodily
harm,th killing of the other was absolutely neces
sary and must appear. also that the person killed
was the assaliant or that the slayer had really and in
good faith endeavored TO decline any further strg
gle before the fatal blow was given" The killing
being proved, the burden Of proving circumstance
OF miugaton or Justification viii devolyc upon the
accused unless the proof on the part of the prosec
ton shows that the crime committed only amounts
the killing. - : -
You have heard all the evidence in this case and of
the weght that ought to be given to it you are the
exclusive judges. Every witness under oath is pre
sumed 10 speak the truth, but the manner in which
each tesfes the interest which the witness has in the
ana the consistency Of the statements of wit
IN which you will act upon the evidence given in on
the TRIAL Ii a witness makes contradictory or nm
reasonable statements, you ought to look with suspi
an ms testimony unless corroborated by 9TH
'ers.t "A witness may be impeached by showing that
ms enaractr fof truth is bad that his moral char
acter is such as 70 render him unworthy OF belief ar
that ne mas made statements inconsistent with his
present testlmOpy but no witness can be inpeached
by showing thathe has been guilty of a particnlar
wrongful act unless it be that he has been conyictd
OF felony. The Evidence therefore, which Won arc
TO consider in the case at bar is: =
LIST. That which you deem to be true: and of fb.,
which you deem TO be true, Ii b f. ii IT I G-5'NN
ID That which is applicable.
In the application of the testimony you have right
70 consider what was the ga of feeling between fhe
defendant and the deceased and what acts of yioenc
were ever threatened. attempted or executed by the
one against the other. - - O
LIST, You are to determine what the feeling of de.
fendant was against deceased prior to the killing and
whether or not that feeling was kept up by him until
the fatal affray.
ID You are to determine what acts of violence were
ever Threatened by defendant against prior
Cd kDuare TO determine what acts Of violence were
ever executedky defendant against deceased. and
4th. II atn 81 violence were ever executed by de-
PENDANT against deceased, what application such acts
with all their surrouAdings, can be made by you to
the definitions have given you Of murder in the first
and second degrees mansizughter or justfable hom-
Malice once proved to exist b presumed to remain,
and the burden Of proof IL on the defendant to show
that IL had ceased The same rule apbK6s TO premed
taton deifberation, and I'm order to find defend
mt guilty of murder in the first degree you woald
have tofnd that both had been formed previous to
he killing Tor sficient length Of time to have al
owed 5s Dloed to COOL and that the same state of
eeisg existed up 10 the time OF the fatal occurrence.
dsiioe must be presumed from deliberate and pre-
to ki but deliberate intention
. kill cannot be inferred from previous malice. be-
ause man might hold malice against another with
ut intending to kin him. Deliberate intention to