Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-08-16
The Judges Charge.

Following is the charge of his Homo,
Judge Fuller, in the case OF The State
VS.. Howard, for the murder of S. D.
Potter:
GENTLEMEN OF THE jury: If YOU be.
lieve from the evidence that the defend.
ant, Howard, did not kill Potter, the de.
ceased, then you will acquit; but if you
believe from the evidence that the de.
PENDANT, Howard, did kill S. d. Potter,
the deceased, then the burden of prov
ing circumstances of mitigation, or that
Justify or excuse the homicide, will de-
volve on the accused, unless the proof on
the part OF the prosecution sufficiently
manifests that the crime committed only
amounts to manslaughter, or that the
accused was justified or excused in COM
hitting the homicide.
You are the sole judges of the testi-
mony and of the credibility of each and
all the witnesses. 1t is your province to
weigh the testimony and determine, after
careful consideration of all the evil
dence taken together, the guilt or inno-
cence OF the accused, regardless of the
race or color or the mere want OF respect
ability of either of the parties, defend
ant or deceased.
In order for you to determine
whether the defendant be guilty or not
guilty of murder, you have to determine
whether he has or has not unlawfully
killed human being with malice afore-
thought, either expressed or implied,
All wilful, deliberate and premeditated
killing Is murder in the first degree, and
every other kind of murder is murder in
the second degree. In order for you to
determine if the defendant be guilty or
not guilty of manslaughter you are to
decide whether the defendant has or has
not unlawfully killed human being
without malice, express or implied.
These questions you are to decide as you
have sworn to do, without bias or preiu-
dice for or against the accused; nor are
you to be governed by any bias or preju-
dice for or against the deceased, Potter,
but, as in all cases, you should be gov
erened by the evidence and the law as
given you by the Court; and as you be-
lieve from the evidence you may find the
defendant guilty of murder in the first
degree, murder in the second degree, or
manslaughter, or acquit.
All persons are supposed to be limo.
cent until proved guilty, and if, upon the
proof there is reasonable doubt remain.
ing, the accused is entitled to the benefit
of it by an acquittal. The term reason
able doubt is not mere possible doubt
because everything relating to human af.
fairs and depending on moral evidence is
open to some possible or imaginary doubt
1t is that state of the case which after en-.
tire comparison and consideration of ali
the evidence leaves the minds of the ju.
rors in such condition that they cannot
say they feel an abiding conviction to q
moral certainty Of the truth of the charge
The burden of proof is upon the prosecu.
ton. 1t is not sufficient to establish q
probability, though strong one, arising
from the doctrine of chance that the fact
charged is more likely to be true than the
contrary; but the evidence must estab
fish the truth Of the fact to reasonable
and moral certainty-a certainty that con-
vinces and directs the understanding, ant
satisfies the reason and judgment OF those
who are bound to act conscientiously
upon it. This sproof beyond REASONABLE,
doubt; because if the law which mostly
depends upon consideration of a mora
nature should go farther than this and re
quire absolute certainty it would exclude
circumstantial evidence altogether. Yor
should engage the best faculties of you
minds in celebrating on the evidence
and deciding upon your verdict. Yor
will also be guided by the law given yor
by the Court regardless of what may
have been said to the contrary by counss
on either side.