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

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being really but little dispute about the mos
material facts. You will undoubtedly feel
after this, that there is a load of responsible
itv sliding from your shoulders, that you have
fel weighed down and oppressed by hereto
fore.
The learned counsel who opened the de-
! Tense for the prisoner told yon that you mus
take the law from the court. He well under
stands that such is the rule OF practice
! in this State, and he does not shrink from
stating it. You may ask yourselves, then
! why all this argument, why read verse aitci
verse and chapter after chapter from the Law
/ of the Jews, the Anyient Hebrews, why read
! so many cases, why read so much from thu
! law books, if after all, we have not got that
| question to decide2 1t is barely possible,
| (perhaps might go further and say, it IS by
! no means improbable.) that this course Is
resoried to by counsel in c iminal causes, that
! the Jury, if they can be made to believe
| that the law is hard, that it is harsh. is
different from what it should be, will
bend the facts. so as TO evade its effect.
| | do not mean to be understood as imput-
ing to the learned counsel for the prisoner.
in this case, airy improper motives. lhey
are high minded, honorable members OF this
bar. and have discovered nothing in their
conduct in the progress of this trial, that re-
The able counsellor, who opened the case
for the prisoner, Mr.. Libbey, pressed upon
YOU certain considerations and views OF the
law which firmly believe. if he occupied
my place. (apd | know Of no one better
qualified for a seat upon the bench, J
he would at once discard If he should once
Law aside the robes of the advocate and put
on those of the Judge l think l know him too
well to believe that he would tell a
jury of this county or any other, that man
has the right, lawful right, to pursue
man who he suspects or believes has had
criminal intercourse with his wife, and kill
him, without trial. without the forms of law.
Then, gentlemen, all | wish to say upon
this point is, that it is your duty, your
province to determine what the facts are, and
that it is mine to decide what the law is.
On matters of fact YOU are not to adopt any
opinions of mine, if you think they are wrong
The facts are to be determined upon your
own judgm-n mt, without regard to the judg-
ment of any other human being, even the
judge upon the bench.
1t is not unlawful for the judge to express
to the jury his opinion upon matters OF fAct
invo lv,d in the i'sues. On the contrary II is
held by many able jurists that in difficult cases
it is the duty of the judge to aid the jury with
his counsel and advice upon matters of fact ;
that he should endeavor if possible TO lead
them to right conclusions on the facts. and
not allow them to be misled. 1t is, therefore,
as before said, not unlawful for the presiding
Judge to express his opinion upon matters of
fact; but he should he careful, at the same
lime, to inform the jury that they are not
bound to adopt his opinions. if they think
they are wrong. l desire to have you
distinctly understand that, for there are
one or two oints in this case, on which
uay feel il my duty before | close. to give you
my opinion upon the facts. / wish you TO re-
member that if do so. you are not obliged
to follow it. You have the right to reject it
if yon think it wrong. For after all, it is the
right of the prisoner; it is the right Of the
government, and of the people; it is a part of
the constitutional law of the State. that the
facts shall be passed upon and decided by a jury,
drawn, selected and empannelled, as you have
been. With these preliminary remarks,
will come directly TO the consideration OF
this case.
The indictmen, charges the prisoner at the
bar with the crime of murder. lie does not
deny that he killed John b. Latin at the time,
in the place and by the means, substantially
as set forth in the Indictment. Through his
counsel he expressly admits that fact. He rests
his defence upon other grounds, justification
and excuse; or in other words, provucation
and insanity.
There are four verdicts, one of which it will
he your duty to return in this case. You can
find the prisoner guilty of murder of the first
d. gree; or you can find him guilty of murder
of the second gree; or you can find him
guilty of manslaughter; or you can find him
not guilty by reason of insanity.
IT the fact of killing was denied, if the gov
ernment had failed to Salty you Of it beyond
a reasonable doubt, and of the other material
allegations constituting the crime; you could
also return a verdict of not guilty, generally,
saying no more but the killing, at the time,
and the place and by the means, stated in the
Indictment changes the burden of proof, as
tAe learned counsel for the prisoner, Mr..
Libbey. in his opening, stated to you; and il
you acquit him entirely, it should re upon one
of the grounds named. 1.-THE law permitted
man to take the life OF on who
has violated his marital privileges and
rights, verdict of not guilty, generally, could
be predicated upon that ground. But apr e.
bend that before I close, shall make it plain
to you, that that ground is not tenabe
1t is exceedingly important for you, gen.
tlemen, in determining which of these verdicts
you ought to render, to understand clearly the
distinctions between manslaughter and muir
der and between murder of the first degree
ana HluTueT Ol tHe seCOuu ueSTSS.
First, then, of murder of the-first degree.
Is the prisoner guilty of murder of the first
degree? The Attorney General claims it, and
has argued to you that the evidence demands
at your hands such verdict.
To determine whether or not such verdict
should be returned, | desire that you shall
clearly understand, clearly as it is possibl.
for you 10 do, what constitutes murder of the
first degree as distinguished from murder Of the
second degree. If the prisoner at the bar
killed John b. Latin with express malice
aforethought, then he is guilty of murder of
the first d, gree. What is meant by express
malice aforethought as thus used in defining
murder? 1t exists when the slayer with IA
stdato mind. that is, a mind unrufied by
passion, coolly and deliberately determines to
take the life OF his victim. The old worlds with
Il sedate mind. Express malice exists when the
slayer acts with sedate mind and that means
a mind unrufiled by passion; but what want
particularly TO call your attention to is the
distinction between "A killing without provoca-
ton, and killing with provocation. To IL
iustrate: Is there not u clear and marked
distinction between the case of II man who
goes out and waylays Il neighbor, with de-
!