Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-18
NASHVILLE UNIONAND AMERICAN SATURDAY, MARCH IS

fer that any use or handling of pistol
where death resulted was unlawful.
After defining voluntary and involun-
tary msnslaughter, and pointing out the
difference between the latter and homi-
eide by misadventure, his Honor pro-
ceeded to observe, that. Sin general,
where an involuntary killing happens in
consequence of an unlawful act, it will
be either murder or manslaughter, accord
ing to the nature of the act which occa
stoned it. If it be in the prosecution of
felonious intent, or in its consequences
naturally tended to bloodshed, it will be
murder, but if mol more was intended
than a mere civil trespass, it is man
slaughter In view of the facts, the
jury should have been told distinctly.
that the mere act of picking up the pistol
was not in itself, unlawful; that if it was
picked up for the purpose of preventing
its unlawful use by either of the parties,
the act was not unlawful; but that if it was
picked up for the purpose of taking part
in their conflict, or of aiding or intimi-
dating either, then the act was unlawful.
The language of his Honor is obscure,
and may have been understood by the
jury as meaning, that, if the act of pick
ing up, or holding, or handling the pistol,
Gin its consequences led to bloodshed,"
the plaintiff in error would be guilty
either of murder or manslaughter. And
yet the plaintiff in error may have
handled the pistol in such manner
that it led to bloodshed, and he may
have been entirely innocent; as, for ex-
ample, if he was attempting to let down
tie cock or hammer of the pistol to pre-
vent bloodshed and it was discharged by
accident or awkWardness and contrary to
his intention.
Without quoting his Honor's charge, it
may be observed that he instructed the
jury as to what would be the law on
various hypotheies mentioned by him pre-
Dictated of the idea that the pistol was
presented at Sparkman by the plaintiff in
error, when there is no proof in the
all or for any purpose whatever. The
charge as made was calculated, though
not intended, to create the impression on
the mind of the jury that, in the opinion
of the court, there was proof to show
that the pistol was actually presented,
and the consequences of such belief are
too obvious to require comment The de-
ceased may have been shot by accident
and without presenting the pistol; and it
should have been clearly left to the jury
to determine, from The proof, how the
fact was.
Among other things, his Honor was re-
quested in behalf of Plaintiff in error to
instruct the jury that ''the absence of all
evidence of an inducing cause is reason
ably regarded, where the fact is doubtful,
as affordiDg a strong presumption of
innocence. In answer, his Honor
stated "The above is good law in case
of doubt and l will add that it is laid
down, in the same book, that when the
moral spring of action is once put in motion,
then even a gesture or look may be the
source of encouragement and impulse to
the deadliest crimes and''subject the moral
action even to the highest legal penalty.
In other words, when party is moved
to preparation of an action, very
slight cause, a word, or gesture, may
urge the party to the commission of the
most deadly action" 1t is not easy to
conjecture to what part of the case these
abstract propositions were applicable;
but they may well have been construed by
the jury as applying to that part of the
case in which the plaintiff in error was
called upon by Mcbride to help him and
as indicating strong opinion of the
court against the prisoner.
Without considering various other er-
rors which are urged in argument as ex-
isting in his HonOr's charge, let the judg-
ment be reversed and the cause remanded,
NELSON, Judge.
A true copy, Attest: F. c. DUNNTNeTON.