The Findlay Jeffersonian. [volume] (Findlay, Hancock County, Ohio) 1870-1881, 1873-08-15
NO. 13.

/, tofthe wind, ID they came not from
3 lone free OF restraint, and possessed OF
2 Ia mind clear OF any mental embsrrass
n iment. They say there is the powder
i Imarks on the side of the door, about
Thirty four inches from the ground,
Z lthst ball entered the body of Ben
Psing, and that he was killed by it, and
/ that it was shot cut through that
( tcrack in the door. There may be
/, ksuch & mark or not. You and / have
! Inot seen it, and infer from the fact
I THAT no exhibit has been made here OF
o lthe piece of the door on which it Is
= Iclaimed the mark is, that there Is
mo well defined mark or appearance OF
2 powder, and that to show it or bring
/ 1t before you would probably excite
{ yOur mirth or your contempt at the
n aimsiness of the pretenss. The pros
: ecatiOn says Gartes bought a pistol ;
3 50 did /, and many other boys and
: men in this room, very likely have that
c kind Of unproftsble, not to say dan
Z gerous weapons about their persons.
e vii admit that it looks vary -meaneto
Z be caught around among your friends
: and neighbors with such an instrument
/ in your pocket, and it proves the one
I who thus carries it to be a coward, il
D not knave, but all this only proves
, that Gartee was, like others, ,eIpending
his money for that which was OF no use
I to him-nothing more, nothing less.
: For in the same breath in which he
! disclosed his purpose to buy a pistol
he said he was getting it to shoot
SOMEBODY'S cross dog. He did not
conceal his purpose. He made it pub
lic-showed his little insignificant pis-
tel to sll the boys, and evidently felt
elated that he, ike some other great
men in this community, could carry
pistol The purchase of this pistol is
another evidence OF the want of pur-
pose, for if he were possessed OF manly
Judgment, and had intended to shoot
|, Bensing, would he haYe purchased
such pop-gun as that ? 1t may have
killed Bensing, but it surely was the
merest accident. The same effort
might be repeated an hundred times
without dangerous results. The pros
eeution say he run bullets out of an
old pewter spoon in a common thread
spool and cut them to fit his pop gun.
Other fools and children have perform
ed the same childish acts without the
charge of premeditated and deliberate
murder being made against them
There IS proof that he got some pow
der out of the cupboard and made
little bag and put it into it. Other
children have done the same thing
before Gartee did it. He explained,
however, what he was going to do with
his pistol, with the bullets and with
the powder. His explanations may
have been true or false. We do not
know. Il is said Mrs. Bensing con-
nived at this, and helped to get these
things which they say have produced
tue bloody end, but of this we have
no proof and consequently no pre-
meditation and deliberation can from
these be inferred. l now say to you,
without fear Of successful contradic-
lion, that no generalization or DELHI
erstion has been proven in this case,
and without it the claim OF the pros
ecution for murder in the first degree
falls to the ground. Our statute d.
fiuirg crimes provides "tha6 If any
person shall 1>Srposely and Of deIi6e-
rate and pTems4jtated malice, kill an
other, any such person shall be deem
ed guilty Of murder in the first de-
gree and shall suffer DEATH
Murder in the second degree is
made out when it is shown that any
person has purpOsely and msliciously,
bu. without deliberstion and premed-
itstion, killed another. This is pun
ishable by Imprisonment in the pen
itentiary for life.
Manslaughter is made out when it
ia proven that any person has unlaw-
fully killed another without malice,
either upon G sudden quarrel, or unin-
tentially, while the slayer is in the
commission of some unlawful act.
This is punishable by imprisonment in
the penitentiary not more than ten
nor less than one year. If the evi-
dence warrant, you may find this de-
fendant under the indictment guilty
OF either of these crimes; The degree
of the ofense is for you upon your
oaths to determine.
To constitute murder in the first de
gree the act of killing must be COM
mitted "Of deliberate and premedita-
ted malice" unless done ain the per-
petration or attempt to perpetrate
, rape, arson, robbery or burglary, or
by administering poison or causing the
same to be done" "In these several
cases proof of deliberate aud premed
tated malice is dispensed with. In all
others it IS required"
(Mr. Brown here explained at length
by illustrations and legal authorities
the legal meaning of deliberate and
, premeditated malice.') "The tact Of
i killing being proved, the presumption
+, of the law in Ohio is that it was done
, with malice, but without deliberation
! or reconciliation and consequently,
that it's murder in the second degree.
: To convict OF murder in the first de
gree, deIiJsration and prsnaeait0ti0H
. should be established by Affirmative
evidence" This is the law of Ohio,
and the prosecution must bring their
c,se within it. Have they done it !
II joyfully answer, with my heart
, throbbing up 10 my throat, No 4!
! They have not done it, and the life
. Of this poor boy is prolonged for
= reformation AMI repentance, and the
. County saved the digrcae OF legal
: lied murder But 1 would not do
: full Justice to thedefense, il / should
stop here, snd therefore ask you TO
!, bear with me 8 little longer. The
|. prosecution have proven by Drs. G.
9 w. Galloway and VIM L. DetTiler,
:, who made the post mortem exsmina-
: ,ior shat Gthe ball passed midway
: between the first and and second
= lower button Of the vest, cut the bind
!. iur of the vest-c1t through both
! shirts-passed into the body between
: the encitorn cartilage ofthe Sth RIB,
! and to the lett OF the sternGm- Large
= n1antities of clotLeI blood we're found
"a the internal lett side of the thorax
/. al passei angling to the left and
: inward through both venJEicles OF the
! heart, and centrally through both
: lqng., passing upward st an angle OF
:, twenty degrees and to the left twelve
:, degrees. The hole where the ball en-.
; tsred the body was fifty inches from
y the bottom OF the feet. The mark
. d powder ON the door OF the stable
/, VAS thirty SIX inches from the ground
y aud the deceased was supposed tC
K have stood thirty seven inches from
l. the mouth Of the pistol. DR.. Det-
in wller sad the hole into the heart wa:
,e sufficient TO let in his little finger, and
the exit OF the ball wss greater. There
10 was very little lssceratiOn Of the parts
,e penetrated by the ball. There wa
2, an abr.siJn Of the skin on the nos
m ot the deceased. he was stout
D. well formed man, nealy six fee
&. high. These physicians were no
he asked and did not state vha
a, was probably the immediate efec
Al upon the deceased il he was shot a
er claimed. The prosecution seeme'
~ content with this aud went No iurthe
n, ana therefore left Us TO inter that Ben
IL ft.zf