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

si:s:ays sSs.a sT.ss;srssss .sss :ss CsFssee Sc
per. Had it occurred while .thsy Wars II,
lgrappling, a. testified BY Gilmore and
Fielding, the cloth xuuld have been:
burnt by the proximity Of EhssbistoS..i
Tupper rose FROM his chair, placed Els
hand behind him. pulIsd lbhss asiS piatoIA
pointed it, sighted doat EEs$
and John D. Caldwell 10 afspss: saf
that Is not murder. haaiIitf Z fitarsiI
was sent to bis long aaEganf fNnfnSyd'
and unanointed; With talpf bis sinS iaaina1
imperfections upon s8nE hxWaa :hnr3sSs
into the presence OF Abe Great Jehovah,
there, Is here. By the laws of!fIs s,ste
he could have gone upon the witness
stand, raised his right hand. and uwore
that he did not rise from that chair and
shoot Caldwell! before he grappled him.
Why has Montgomery not been mt
upon the stand by The defence? II
George Upper could have sworn that he
did not shoot Caldwell with malice afore-
thought, why did he not do it? be-
lleve he had too much honor, too much
respect tor the truth, to have gone upon
| The stand and made that statement. Had
Morgan been killed, he'd have died an en-
viaoie death; the death of peace-maker;
the death that John Caldwell died. !.
The family OF the deceased has been
referred to. The counsel. for The,
State has been accused of q desire for
vengeance. We do not ask for ven.
geanoe in the names Of the: widow, fhe
fatherless children and afflicted mcther:
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" hls Honor will give you. And now,
gentlemen OF the jury, in conclusion, Twill
quote: In order to rightfully jadge OF the
gnilt or innocence OF the accused, it be-
h9oyes you to Danish from your minds
AL prejudice, hatred, friendship, indig-
nation or pity.
Counsel for defence asked the Court
to instruct the jury that the prisoners
not going upon the stand should not be
preindicial to him.
Judge Carpenter then charged the
l. The State has the Affirmative. and
must prove, 70 the satisfaction OF tbe
jury. not only the fact Of killing the de-
ceased. but all of the Ingredients neces.
sary to establish t6e uFim- charged in
the indictmenf, 5sH T: I O. :.
2: II the Jury believe, from all the
evidence in this base; that the piisonefr
at the bar kAled15adeoeaieds As chafosd
in the indiotnsl and tkat; The dssokSSed
did not oomaSf StSSf HIT a1ifftk S;;In1rsii.
soner after thS is6d saiSifAd Tie
dining roomj jIts pfssa I III B ssAlies: is
and they shoaa Hid 5Eks $ d pdiisSnss SSiH3'
8: II thes5Mybsiffs ffon sIi :fEe
evidence in thfa psae; that she pfisoiief
slew the deceased, as charged ifiitha In
dieEment, and before such slayinR the
prisoner had i'll feeling OK hatred against
tb9 Heseased, and that such i'll feeling or
hatsed continued up to the time of the
naing, and that the prisoner, from
hatred or revenge killed the deceased,
then, IA cohtsn plation Of luw. there was
express malice, and they should fipd him
guilty. - -
~ IT the jury believe, from I'll the evi.
dence in this ease, that the defendan
KILLED the DECEASED, as ohai0ed in the
Indictment. and that at the GmS Of riy.
ingIthe mortal wonnd, OF vhieh OsldEall
dieo, the prisoner was engaged in sud.
den quarrel and struggle with the de.
ceased snd Morgan, or either OF them,
not fearing death or great bodily harm.
ana tnat'1n sudden heat and passion.
caused by suoh quarrel and struggle.
without malice. the prisoner killed the
deoeased, they should find him guilty Of
manslaughter.
s. II the jury believe. from all the evi.
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 Moresn,
near and acting with deceased, and that
reasonable man would have believed,
and that the defendant did believe, that
bis lie was in danger. or that he was in
danger Of great bodily injury, then the
killing OF the deceased was exonsable,
although the jury may believe that the
deceased and Morgan had no intention
OF killing the prisoner, or of doing him
q great bodily injury; and they should
find him not guilty.
8. If the jury, from all the evidence
IN this'case, have reasonable doubt of
tho grade Of crime committed by the
prisoner, they should find him guilty of
the less offence; and if they have such
doubt as to the commission Of any crime
oy the prisoner, they should acquit him
The jury retired at half.past o'c lock,
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