The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1871-07-06
Judge Whitson's Charge to the Jury in the
case of the People VS.. Charles H. Douglas.

| GENTLEMEN OF TuF JuRY:-The defendant in this
case Is indicted for the crime of manslaughter 1t
charged that the 18th day OF June. A ID. 1870, al
the county of Boise in the Territory of Idaho the
defendant feoniously killed and sayedo one Edward
| d. Holbrook:
"Manslaughter is the unlawful killing Of human
being without malice express or implied, and with
out any mixture of deliberation. 1t must be volun
tary, upon a sudden heat OF passion, caused by a
provocation apparently sufficient to make the passion
jrreslslble or involuntary i'll the commission OF an
unlawful act, lawful act without due caution or
circumspection.
." In cases Of voluntary manslaughter there must
be serious and highly provoking injury inflicted
upon the person killing, sufficient To excite an ire
sstible passion in reasonable person, or an attempt
by the person killed, to commit serious personal
| injury on the person killing.
"The killing must be the result of that sudden
violent impulse of passion supposed to be irresist-
ble for ii there should appear TO have been an IN
terval between the assault or provocation gyen and
the killing, sufficient for the voice of reason and hu-
manity to be heard the killing shall be attributed to
deliberate revenge. and punished as murder.
Although the defendant is indicted for manslaugh-
ter the fact that there malice in his heart against
the deceased, and deiberatlon on his part 70 take
the life of deceased would not render him any the
less guilty. yet you could not find him guilty Of any
greater ofense than that with which he is charged
To find defendant guilty you Will have TO find that
the deceased died from the effects of the pistol shot
of defendant; that he died within year and day
after receiving such shot, that such shot received
in the county and Territory charged III the lndict
ment, and that the defendant was not justifabe in
taking the life of deceased IN other words that he
was not acting III seltdefcnse.
a'Justifiable homicide is the killing OF n human
being necessary selfdcfense, in defense OF hab
latiOn, property, or person, against one who mani
festy intends endeayors by violence or surprise,
10 commit felony or against any person or persons
who mani:estly intend and eudeayor in violent,
IiooUs tumultuous manner TO enter the habitalon
Of another Tor the purpose OF ass4ulting or Offering
personal violence 10 any person dwelling or being
therein"
A bare fear Of any of these otfenses 10 prevent
which the homicide Ia alleged 10 have been commit
ted shall not be sufficient 10 justify the killing"
'.It must appear that the circumstances were suf-
hccnt 10 czcio the fears Of reasonable person. aud
that the party killing really acted under the influence
ot those fears. and not IN t. spirit Of revenge
'If person Kill another III self-defcnse IL must
appear that the danger was 50 urgent and pressing
that in order 70 his life or prevent his re-
ceitins great bodily karm the killing OF the other
absolutely necessary; aud il must appear, also,
that the person Acd was the assalIant or tAAt the
sa} or had really aud in good Faith cndcArurcd 10 de-
cline any further struggle before the fatal blow was
given"
;ha; the parties met and Tough; upon equal terms
each desiring 10 Kill the other and Hut acting III self
defense each bent upou wreakiug his vengeance
upon the other rather than defending his life or limb.
then the defendant is guilty aad had the deceased
killed the defendant instead uf defendant killing the
docea'ed under tue same circumstances, then &c.
ceased would have been guilty.
Two men cannot agree to ugGt or even assent 10
mutual combat. aud II they DO and one ui tIcm
should fall the combat the other would bc guilty oi
nurlcr or ruauSagghlor according Ia the du!ibera-
tlu. or suddrnurss oi the conflict Words are no
Justification iur assault but Il insulting and men,
actHR words used oH pHrosr 10 provoke al assault
then the party using such Insulting o- mcuac'ng
words would be the agsve@soT or asRatlaut, even If
the other should IRE tho Arst aEot or make The Ars
assault
As where a. said to 'B'' Il will give you pot OF
ale to strike mo- aud thereupon ''B did strike "a
and "a" then killed ~ It vas held that - Was
guilty Of murder.
In an airray i, is lnmac-al who fred the FIRST ehot
II il was fred in SELF defense. II it nrvd at
party who trying - provoke the other into an
sault that the person provoking such assail;
cou3 have excuse or pTetcxt tn. aud did defend
himself II undertakes 10 tell another what
he thinks Of him, Il must he for tho purpose only Of
conveying such opinion. aud not for the purpose oi
provoking au assault.
The defendant had right to transact hts ordinary
business. but in doing II you believe that he went
farther than necessary IN the transaction OF such
business, and only made business excuse for
seeking the defendant either with the object Of
provoking aud bringing on a difficulty 50 that he /
might have ior killing deceased, If be. de-
ceased should make any hostile demonstrations or |
with the object OF seeking mutual conflict in which
each should be upon equal terms. or with the object
of seeking the HE of deceased by taking an. advan
tacc Of ham, the defendant would be guilty.
In determining as to the probabilities as to who
began the difficulty. you have right to inquire into
the state of feeling existing between the parties aud
Tor this purpose il your duty to take into consid
Grafton the testimony Of all the witnesses examined
before which you believe to be true aud also the
card published In the newspapers and from all this
to Judge what motives prompted the defendant on
that occasion. For this purpose 1t viii be necessary
to scan closely not only the feelings existing between
the paTtes butthe actions of both at the time of the
trouble IL may become question with you as to |
whether or not defendant endeavored to avoid the
trouble which resulted in this killing in order to de-
tcrmine whether or not defendant justified in
the killing:
ss1st man in the lawful pursuit of his business,
attacked by another under circumstances which de-
note an intention to take away his life, or do him
some enormous bodily harm, may lawfully kill his
assailant provided he all the means in his power
otherwise his life prevent the intended
harm-such retreating as far as he can, or disa-
bling his adversary.
2nd. When the attack is so sudden, fierce and VIC.
lent that retreat would not diminish but increase
his danger, he may kill his adversary without re-
treating at all.
3rd When from the nature of the attack there is
ground believe that there is design to
destroy his life commit any felony upon his per-
son. the killing the assaant will be excusabe homi-
cide although 1t should afterwards appear that no
felony was intended
As 10 the question of avoiding difficulty you will
have to decide that upon these propositions:
1st Could the defendant have avoided the diff
Guilty easily as not2 sla5
2nd Could the defendant in the pursuit of his
business have passed into the drug store, without
his opinion, endangering his life or limbs?
3rd. Did the defendant first menace or attempt to
provoke the deceased into difficulty in order to
make 1t a pretext apparent excuse for acting in
sef-defense?
If you should find In the affirmative on either or
III of these questions, you would md defendant
all of these questions you would find the defendant
not guilty. II
The killing being proved in the manner and form
Is charged in the Indictment by the people, 1t would
hen devolve upon the defendant to Justify the killing
unless that sufficiently appeared after the prosecu-
Jon had rested their case