The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-05-09

siss.ass s5s.a sy.ss;sipssss .ssE :s gss.s gte ;:sss
per. Had it occurred while they. NeIe
graphing, az testified by Elmore and
Fielding. the cloth xonld have been
burnt by the proximity Of thespistol,
Tupper rose from his chair: i5i6 sd hf4
hand behind him, palISd i6nt ~ ipniat6ll
pointed it, sighted down II
and John D. Caldwell ri 10 fhitnfe: ssi}
that is not murder. what :isjtp Z GsidHslI
was sent to his long ssi;EUqnS uItsnSIt6d:
and unanointed; With 'aalf his ainS Hn j
imperfections upon So1E kxWaA hrrlsd
into the presence OF Abe Great Jehovah,
Taper, the man who sent hin
there, Is here. By the laws of,tIe State,
ne could have gone upon the witness
stand, raised his right hand, and swore
that he did not rise from that chair and
shoot Caldwell before he grappled him.
Why has Montgomery not been put
upon the stand by The defence? If
George Upper could have sworn that he
did not shoot Caldwell with malice afore-
thought, why did he not do it? be-
lteVe he had too much honor, too much
respect for the truth, to have gone upon
the stand and made that statement. Had
Mofgan been killed, he'd have died an en-
viable death: the death of peace.maker.
the death that John Caldwell died.
The family Of the deceased has been
referred to. The counsel for he
State has been accused of q desire for
vengeance. We do not ask for ven.
geance in the names OF the widow, fhs
fatherless children and afflicted mother:
we DO not ask for vengeance In the name
OF the State; but We do ask for justice,
IN accordance with the law and the evi.
denoe; the evidence you have heard; the
Ia" bis Honor will give you. And now,
gentlemen OF the jury, in conclusion, I.will
quote: In order to rightfully jadge OF the
guilt or Innocence OF the accused. it ba.
h?oves you to Danish from your minds
all prejudice, hatred, friendship, indig-
nation or pity.
Counsel for defence asked the Court
to instruct the jury tha. the prisoners
not going upon the stand should not be
prejndicial to him.
Judge Carpenter then charged the
jury as follows: f..4
l. The State has the affirmative, and
must prove. TO the satisfaction of the
jury. not only the fact Of killing the de-
ceased, but all OF the ingredients neoes.
sary to establish the came charged in
the indictment, t7iiIe
2: II the jury believe, from all the
evidence in this base; that tho piisona ar
at the bar killed elthadeoeaied, as charged
in the indiotneAii and that ths dsoaiSsd
did not ooms Htiifh thu sipri.
soner after VIZ! VIZ 81 90 q! g sddasts tthe
dining room .stEs ll teaa1t3fseat 1tfe as1hlies.
and they nt6Hna ttNs lpdatSodee HnIlsJ.
y. II tho lurys bafieSes; tSosd sli .i},e
evidence in thu Ssse. that The prisoner
slew the deceased, az charged id The In
dfctment, and before snch. elsying the
prisoner had i'll feeling or hatred against
tsS5 Tesefsed, aud shst suoh i'll feeling or
htatfed continued mp to the time of Che
k1uing. and that the prisoner, from
hatfed or revenge killed tho deceased,
tneni "A contemplation Of luw. there was
express malice, and they should find him
guilty.
f. IT the jury believe, from Ell the evi
dence in this .case, that the defendant
killed The DECEASED, as CHARGED in the
Indictment, and that at the GmS of riv.
ingthe mortal wound, OF which Ca|dT IN
died, the prisoner was engaged in q ana.
den quarrel and struggle With the de-
ceased snd Morgan, or either OF, them,
not fearing death or great bodily harm,
and thas,in sudden heat and passion.
caused by such quarrel and struggle.
without malice. the prisoner killed the
deceased, they should find him guilty Of
manslsughter.
s. II the jury believe. from all the evil
denoe in this case, that the prisoner
Killed the deceased, and at the time of
said killing, the prisoner was attacked
by the deceased and Morgan, or that he
was attacked by Caldwell and Morgan.
near and acting with deceased, and that
reasonable man would have believed,
and that the defendant did believe, that
bis life was in danger, or that he was in
danger Of great bodily injury, then the
killing OF the deceased was excusable.
although the Jury may believe that .the
deceased and Morgan had no intention
OF killing the prisoner, or of doing him
q greet bodily injury; and they should
find him not guilty.
=: II the jury, from all the evidence
ID this'case, have a reasonable doubt of
tho grade OF crime committed by the
prisoner, they should find him guilty of
tl6 laSH Offspca. oD5 10 fbo~ Lo.o