Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1873-06-12
THE RUTLAND HERALD.
THURSDAY, JUNE. ~, 1878.
STOKES, CASE.

created a profound impression in News
York city, as everybody supposed that
a refusal to grant new trial was a fore
gone conclusion In Albany, we are
told, it was "not a SURPRISE" and we
venture to say that it will not create
great amount of surprise in any part
of the country. Indeed, it is impossible
to see how the court could have come to
any other conclusion, unless they al
lowed their judgment and reason to be
swayed by prejudice and clamor. The
only surprise that could have been legiti-
mately excited during the trial, was that
learned Judge should instruct the jury
that certain propositions, to which we
shall allude, were law; that the officer,
in charge of the jury, should permit two
Of the jurors-each on different occa-
sions-to separate themselves from the
panel and visit the Grand Central Hotel
and gunsmiths shop, for the purpose
Of verifying or discrediting evidence Civ
en- in open court and that so many
judges should have repeatedly refused
to allow him bill of exceptions, a stay
of execution, or writ of error, so that he
might have the benefit of all and every
reasonable doubt, which the law en-
titled him. to. We have no particular
sympathy with Stokes, any more than
we had with James Fisk, Jr. We do
not think that Fisk was any especial or
nament to society, a good specimen of
commercial morality, or worthy ex-
emplar to be placed before the young
men of the nation, yet, for all that, he
was entitled to the protection of the
law-even if he, himself, was an open,
notorious breaker of the laws, civil and
divine; and if he was murdered, in the
meaning of the law, it was as great a
crime as if his business and private life
had been patterned after the most ascetic
rules of morality. So with Stokes, who,
like Fisk, was anything but a pattern
man in any of the relations of life, and
yet he was entitled to all the guards and
projections which civilization, humanity
and the law allowed him.
We have not the text of the opinion
before us, but. the Geographic report
briefly states that the first error found
in the charge of Judge Boafdman was,
wherein he instructed the jury that
murder is implied from the mere fact of
the shooting, and that thereupon, the
prisoner is called upon to reduce the
killing from murder to alower degree of
crime, or TO Innocence, by facts that
will excuse; mitigate or Justify the act.
In other words, that every shooting or
killing is murder, in the eye of the law,
and that the prisoner must prove himself
innocent, rather than the. government
prove him guilty. The absurdity of
this doctrine will be apparent whom we
consider the elements necessary to con-
stitute the crime of murder. Before
recapitulating these elements, it may be
necessary to recall the fact that every
killing is not necessarily murder. A
person has the right to take the life of
another in defense of, his own life, to
preserve himself from great bodily in
jury, or when he has reasonable cause to
apprehend that he may be in imminent
danger thereof So an individual has the
right to take life in the reasonable de-
Tense of his house or property from the
incursion of burglars. These acts are.
all justified by law and common sense,
and are founded upon the proposition
that self defense is one Of the first laws
of nature. A consideration of these
propositions, in connection with the def
milton of murder, and the instructions
of Judge Boardman will, alone, explain
and justify the decision of the Court
of Appeals, and cause something of sur
prise that judges were found who either
knew not the law, or dare not give All
accused man the benefit of it.
In order to constitute killing murder
there must, necessarily, be four elements
all concurring, namely; the killing of a
living person !; the act mustbe committed
by person of sound mind the person
killed must have been Sin the peace of
the State that is, he must have been
committing no unlawful act, endan-,
gering the life or person of the indi-
vidual who Stays him, or which will put
such person in reasonable apprehension
of such danger, and must have been.
committing or attempting to commit no
felony against the person or property of
the accused rendering it probable that
his only safety would be assured there
by; and the act must have been COM
mitted with malice aforethought. The
presumption is in favor of the accused
on every one of these elements, except
that he is presumed to be sane, until the
contrary appears. Malice and. premedi-
tation areas necessary to a murder, as
is the fact of killing, orof q person being
killed. Malice can not be presumed any
more than can the fact that man has
been killed. 1t may, however, be i'm
piled, not from the mere act of killing,
but from all the facts and circumstances
of the case. This principle is, we be-
lieve, universally conceded, as without
it, the rules of law would be reversed,
and a man would be presumed guilty
until proved innocent This same prin-
ciple, and these elements of the crime,
also, enter into and control the other
branch of the case; the right to prove
the prior threats of Fisk to kill Stokes,
and Stokes knowledge thereof For if
Stokes was under reasonable apprehen-
sion of such a murderous: assault, he
had right to protect himself and
malice could not be implied therefrom.
If he was debarred from the legal right
of showing threats, and the law should.
imply malice from a mere killing, with
out other circumstances. as Judge Board |
man held, how can prisoner maintain !
that he acted in self-defense, or rely
upon want of malice?. The case, it
will be remembered, was entirely barren
of all attempts to prove premeditated /