Holmes County Republican. [volume] (Millersburg, Holmes Co., O. [Ohio]) 1870-1895, 1871-08-03

with deliberation and generalization
the reasoning powers, for time at
least, must be called into exercise:
to deliberate is to reflect with a view
Of making a choice; it can be done
only by mind capable Of thought
reflection, judgement and decision
the act need not be the subject of
reflection for any considerable
length Of time; if the purpose to
take life is apprehended and eonsid-
cred by the reasoning powers,
approved sby the Judgment, and
then executed in obedience to the
determination of the will, there
exists the requisite deliberation
to constitute murder in the first de-
gree.
To premeditate is to think upon,
to consider an act before doing it.
1t is, in short, to mediate beforehand.
But as to this element in the crime
of murder, like that of deliberation,
it is not necessary that it should
have existed for any particular length
of time.
1t is for the jury to determine,
from all lhe evidence in the case,
whether the prisoner had time to
conceive and comprehend the motive
to form the purpose to kill, also to
determine upon the plan and select
the instrument with which to do the
deed of blood.
There is one other element, gen
tlemen, to be considered and that is
malice.
A homicide may be committed pur-
posely, deliberately and with pre-
meditation, and yet, if malice be
wanting, it would not be murder
either in the first or second degree.
To illustrate this idea.-the usual
example of the books are the fol
lowing: A Sheriff commits homi
eide when he executes convicted
felon; but he is not guilty of muir
der. The same is true when one
kills another by accident, while ex-
ereising due regard and care for the
lives and persons of his fellow men,
so, when a patriotic soldier engaged
in the service of his country, kills
the enemies of that country in law
full and legitimate battle.
Malice is that element in human
character whose presence is mani
tested by hatred, illwill and a dispo-
sition to injure another. 1t is fully
bent on mischief, is implicable and
often manifests its presence by
threatened revenge. 1t may be
what the law denominates express
malice or such as the law presumes.
Where the act is one clearly calcula-
ted to destroy lite, the law presumes
the perpetrator intended that result,
every person is presumed to know
and TO intend the probable conse-
quences of his acts, and it is gen
eral rule that where man commits
an act unaccompanied by any cir
eumstances justlfying its commits
sion, the law presumes he intended
to produce whatever consequences
followed its commission. So,if the
prisoner, John H. Hunter, procured
a revolver and with it purposely
shot and killed Mrs. Elizabeth Gar
gett, the law presumes that he did
it maliciously. - r.
I have already said to you that
by the plea of not guilty the defend
ant puts in issue each and every
material averment in the indict-
ment under that plea; he especially
says, he has a right to do, that achat-
eeer he did, and however he did
it he ought not to be held amenable
to the legal penalties of criminal
homicide in any Of its grades or de-
grees, because before and at the
time of the commission of the act
he was insane.
To this branch of the case now
call your attention. With reference
to the defense above referred to, /
have carefully examined all the au-
thorities to which l have been able
to obtain access. Among others /
have carefully perused the very lu-
cid charge of my colleague Judge
Boynton, the senior Judge of this
subdivision, delivered in the case
of the State of Ohio against Wash
burn, and being perfectly satisfied
that in that very able charge he has
presented in concise and accurate
terms the law as it is, (at least in
Ohio upon the question now under
consideration, / not only adopt the
principals by him then enunciated,
but also the language used by him,
being satisfied that for clearness
and precision of expression it can
not be improved upon. A few
words, of course, have to be
changed in order to give it to you
as my charge upon the same point
in the case now on trial.
:" The defendant, says that at the
time he killed the. deceased he was
insane, and consequently irrespons-
ible for his act. If this is true the
prisoner is innocent and should be
acquitted. The law does not hold
an unfortunate lunatic accountable
for his conduct, however rigorous
it may be to others.
But the defense of insanity is a dis
tinctive, substantial defence, the duty
to establish which deyolyes upon the
accused. The test of criminal RESPONSE
bility when the accused at the time of
committing the alleged offense have men
tai capacity and reason sufficient to en-
able him to distinguish between right
and wrong and to know that that act
was wrong, and had he sufficient mem
;al power to enable him to avoid COM
hitting it? If not he is not response
1le % Hliit'
But man is not to be excused, if he
las capacity and reason sufficient to en-
Ible him to distinguish between right
md wrong respecting the particular act
le was then doing, knowledge and
that the act he is doing is
wrong and criminal, and may subject
lim to punishment and power of mind
ufficient to enable him to refrain from
Is performance.
If the prisoner was impelled to take
he life of Mrs. Gargett by an irresista-
lie and uncomfortable impulse, he is
lot guilty. use the words 'irresista-
'le' and uncomfortable in their strict
tymological sense. I
An impulse that he had not mental b,
'ower to resist or control. 1t Is not an :.
impulse that the mere unbridled pas /!
ions may let loose, where there is suf-
icient power of the will to restrain the
ct, that the law excuses, but the act (
must be the work of some overwhelm- :,