The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1871-12-01
COL. DEM. -. VOL. XXXV NO. Al.


lying on the floor wounded and help.
less, and that to the question propound-
cd by the deceased shortly after as to
how or why he shot him, defendant re.
piled he did not intend TO do it. 1t has
not been made question upon the trial
as to the fact OF the shooting. But it
is submitted to you to determine by
the evidence. This fact being establish.
ed to your satisfaction, the great ques.
tion in the cause arises just at that point.
The Commonwealth alleges that the
killing was murder On the other
hand, the defense set up Is that the fact
and circumstances in evidence show
that the killing was an accident, occur
ring by the discharge of the pistol by
some cause unknown to the defendant.
1t is rule of evidence that the fact
of killing being first proved, all the cir
cumstances Of accident, necessity or in
trinity, are to be satisfactorily proved
by the prisoner, unless they arise out of
the evidence produced against bin for
the law presumes the act TO be founded
in malace unless the contrary appears.
But though the homicide without the
circumstances of alleviation or excuse
is presumed to be murder, it is presum.
ed to be murder of the second degree.
The burthen of reducing the crime from
murder TO manslaughter, where it is
proved that the prisoner committed the
deed, lies on him.
When the Commonwe wealth alleges
that the crime was murder in the first
degrec,as before stated, she must satisfy
the jury that there existed all of those
facts and circumstances which indicate
the deliberate intention to kill, and the
cool depravity. of heart and conscious
purpose which constitute that crime.
In order to apply the evidence it is
well to understand the theories of the
Commonwealth and defendant. That of
the Commonwealth Is that the defend.
ant and the deceased were together at
defendants house; and they had some
words of alteration, and that defend.
ant commenced a scuiIle in which he
was worsted; that defendant had been
drinking to excess.
The Judge here fully stated the theo.
ries of both the prosecution and defense,
and proceeded.
The Commonwealth relies upon the
proof in regard to the language and
conduct of the defendant on the night
of the shooting. To wit : his excited
| apl al franti IN r,,aunnr hi, Oh 70
ment to Patrick Brophy that deceased
had shot himself accidentally; and to
others shortly afterwards that God only
knew how it happened, he did not; and
when asked by the deceased why he
=. shot him, his reply, you know it was
an accident" On this subject 1 say to
you, in the language of the law, that in
) weighing the effect of the presumptive
: evidence furnished by the conduct of 6
Il person charged with criminal offence
y great caution should be used. An limo
IL cent man, finding himself in situation
II of difficulty, and perhaps from the cir
= cumstances of the case, of danger, is
sometimes induced to adopt line o
: conduct which bears with it presump
: tion of guilt.
You will examine the conduct of the
defendant in the light of all the evi
, dence, and give to his conduct just thai
+ weight which it deserves. Consider
whether his demand to have the state
ment Of the dying man taken, under
l just the circumstances stated, were il
u his favor or against him. Compare hi
U language and conduct with all the 9th
er circumstances ~ tn, case in YOU
minds, ard then give them such weigh
Z for or '&aiAst him rs satisfies YOU
: minds they are entitled TO.
The Commonwealth also relics upor
u the statement of the decels called hi.
= dying declaration. When Il charge O
: murder is made against a person, ant
/" the subject Of the cause of the death il
under investigation, the law admits al
II evidence the declaration of the deceas eC
! when made under Il consciousness 0
y almost immediate dissolution-wher
= all hope of life is extinguished anC
y death Is soon expected.
= The solemn, situation of q person il
II such circumstances is deemed in Law
p equivalent to an oath. No additiona
II force or weight is given TO the state
-, menl by reason of an oath being admin
:, istered.
" Such declarations have no create
. effect than the testimony of witness
!, and they may be attacked in the sam
>, manner. By showing the bad chara,
" y. ter Of the deceased for truth, by show
" ing that he has made statements q
- other times different, or by its incor
- sistency with itself or other establshe
:, facts in the case.
:, 1t should appear also, when sue
statements ARE reduced to writing, thi
W it was faithfully and accurately don
eo If there are found in it material mi
~ takes it would tend to weaken the for,
- of the statement.
"s Did the deceased make his declar
y tions taken down before Esquire It'd
Sc with the knowledge and full belief tn
'e' he was soon to die? He was actual
W in dying condition, and said he
u iieved his physician when he told hi
so, II that were 50, you will consid
~ whether in some particulars, and
W what extent it was inaccurately tax
II down. On that subject you will rec
M to the testimony of Mr.. Dewitt al
ne Mr.. Montanye, and also to that of NJ
ht' Tidd and the other evidence in Il
ne case.
iii ln opposition to those declaration
and to the charge Of willful shootin
is the defendant intcrpOses in his defens
me what he alleges TO be dedusible fro
Sc the facts, that he and deceased we
the friends, warm friends: that they HI
lay no quarrel on the day. nor at the tir
The of this occurrence that no motives
tol malace existed in his mind; that
led had no spite aor grudge against the {
RS, ceased, aud no sordid motives ha
l.yl | l..