Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1870-12-08

| ficient to reduce the killing to granddaughter.
Because man acts on what he believes and
his motives and acts must be judged of ac-
cordingly His acts Al d motives must be
Judged Of as the facts appear to him to be at
the time.
/ IT, therefore, the prisoner was in fact under
the bed, or was at the door, and do not deem
it material which, and he heard such conver.
sation and saw such movements as gave him
I reasonable grounds of belief, and he did in
fact believe that they were in the act of adult
cry. or were about 10 commit adultery, it will
be just as good an excuse and will serve to
reduce the offence to mauslAughtrr if they
were actually committing adultery, although
they were in fact entirely innocent. You thus
see, your verdict does not hinge on whether
/ there was actual guilt between Latin and
Mrs. IIoswell. You are not obliged To find,
in order to reduce the killing to nanslaughter,
that they were actually guilty of adultery. II
you feel in your hearts that the circumstances
were sufficient 10 lead the prisoner to believe,
and I've did in fact believe, that to be the case.
then MISCONDUCT must be Judged OF precisely
as il what he believed 10 be true, WAS in fact
true.
But, continues Mr. Wharton. if the husband
had killed the adulterer with deliberations and
malice it would be murder You thus see
that the distinction between granddaughter and
murder is whether the killing is in the first
transport of passion, on sudden pt Ovocation,
on suddenly discovering the adultery, or
whether it is on deiberation and in pursuance
of previously formed purpose to do.
| therefore instruct you that if the killing
in this case in the first transport of pas
sion. on suddenly discovering what he be-
icved to be the adultery of his wife, it was no
more than manslaughter. But if the killing
was in pursuance of previously formed de-
co 10 In ttap m dor Not
sarly murder of the first degree. as l have
already instructed you, but murder # the
second degree.
I Whether the killing in this case was in the
heat of passion on sud len proyocation, or
whether it was in pursuance of a previously
formed design, is in my Judgment the vital
question in the case; and l express no opin-
| ion in relation to il. II is question of fact
for you to determine, and not a question of
law tor me. You have heard the evidence,
the arguments Of the counsel upon the one
side and the other, and you must Judge where
the truth is; for upon you rests the responsi-
| bility of a correct decision.
| We now come to the question of insanity.
Having expressed an opinion favorable to the
/ prisoner, on that point on which his life de-
| ponds | also feel it my duty to express to you
my opinion upon this point. In my judgment
there is not particle of evidence to show
that the prisoner was insane, that is, SO
insane by reason of disease and defect of I'M
| Outstanding as not to be crininaliy RESPONSE
| Bile. He may have been in n towering pas
sion, in high state of indignation but that
he was insane do not believe. | tell you
! plainly, in my opinion, the evidence fails TO
| show that he was So insane as to render him
lcriminally irresponsible. | feel it my duty
/ thus TO express to you my opinion on this
point, for if you find him not guilty by reason
Of insanity, our statute in rela'iun to insane
criminals r, quires you To so state in your ver-
dict. And 1t will then be my duty to commit
him to the insane asylum until he shall he re-
stored to his reason.
If. therefore, you shall return verdict of
not guilty by reason of insanity, when in fact
he is not insane. you see what a state of things
would exist. | shall be required to send to
the insane asylum a man whom do not be-
lieve to be insane, and who d. not believe
lever was insane. or discharge him notwith
standing your verdict affirming h insanity.
| As, therefore. shall he Immediately called
upon either TO affirm or dissent ON your ver-
dict on this point, have felt it my duty TO
express to you in advance the opinion en-
terrain on this point. But l al the same time
want you to understand distinctly that you
are not bound by my opinion, that you are at
liberty to disregard i, if you think it is wrong.
We therefore return to what regard as
| the vital point in the case. Is the prisoner
guilty of mapslanghter or is he guilty Of muir
I der; and if guilty of murder, is it murder of
the first d. gree or murder OF the cond degree.
/ If the killing was with express malice atore-
thought, then the prisoner is guilty of MUIR
der of the first degree. But if the killing was
not with express malice atJrethought but was
in pursuance of a previously formed design or
prov ocation sufficient to create a feeling of
just resentment and put him into transport
OF passion, then it was murder of the second
degree
But if the killing was not with express
malice, nor with previously formed design,
but was in the heat of passion, occasioned by
lsuddrnly discovering what he believed to be
his wife's infidelity, then it was manslaughter.
! In determining which of these verdicts you
will find, you must be governed by the rules
of law as | have stated tn IN to you. But you
are not bound by any opinion | have express
ed upon the facts. a -. ..-, - -
Your verdict will be regarded as a preced-
ent; for it is the first case of the kind that
has been tried in this State, and its influence
for good or for evil will be great and lasting.
| have stated to you as clearly and distinct
1 ly as can the rules OF law by which you are
to be governed. The facts you must deter
mine yourself l am responsible for the law,
but on you rests the responsibility of deter
/
careful, candid and conscientious consider
alton. Remember that live under a
government of laws, and that it is our duty to
enforce them as we find them; that we have
no right to change them; that upon the faith
full performance of this duty dependsthe Sc
curity of life, property. regulations, and all
that we hold dear. Neither have we the
right to exercise the pardoning power. That
belongs to another department of the govern
ment. You are not TO bend the law to make
it what you think it should be. 1t is true you
have the power to dsregaId the law and return
a verdict contrary thereto. But will not for a
moment entertain the belief that there is any
juror upon this panel that will disregard his
sworn duty. l shall not therefore go into
any extended elaboration urging upon you the
Importance Of faithfully discharging your
duty. | trust you know it, and knowing it
will firmly and faithfully perform it.
Return such verdict as you Conscientious
ly believe the law as | have stated it to be.
and the facts as You shall find them to be
shall require and with that, we all must be,