Wilmington daily commercial., 1874-11-27
tFrom our Late Editions Of wednesday,
THE TAYLoR-MAckEY TRIAL.

The closing speech was made by Attorney
General Pennington, who first stated the manner
in which the prisoner stands indicted and con-
tinued: 1t is proper for me to say that under
this indictment he may be convicted Of murder
Of the first degree, or he may be acquitted as he
stands indicted and convicted Of murder of the
second degree, or he may not be convicted OF |
murder of either degree, but of man slaughter. |
But II you should be satisfied, after a careful |
| and full consideration Of all the evidence and |
applying it 70 the law as shall give II to yon,
| that it is not proven sufficiently and beyond a |
reasonable doubt that he is guilty Of murder OF
either degreee or Of man slaughter your verdict |
should be one OF acquital, these being the only |
offences for which he can be convicted under |
| this indictment.
The case, gentlemen, is of great importance,
as we'll to the community TO the prisoner at
| the bar. The object Of the criminal law is not
merely to punish those who violate 1t, but for the
protection Of society. Its pains and penalties are
therefore held out to Others beacons of warm
ing to deter them from the commission OF like
| ofenses. 1t ia Of course important to the pris-
oner at the bar because his life is involved in
| and hangs upon its issue. You hear the evil
dence given to you by the Witnesses, and |
shall endeavor 10 give you the law applicable to
the case, clearly and % briefly as 1 able,
and it will then be your duty to apply it to the
evidence, and upon the law az you will hear 1t
from the Court and evidence as given to
| you by the witnesses, and otherwise.
and thus determine the guilt or innocence of the
prisoner at the bar without considering what
may be the consequence to him, your duty being
simply to find the fact Of guilt OF innocence.
The Attorney General then re-stated the evil
dence, tracing the journey Of the two men from
their meeting at Newark to the arrest Of the
prisoner in Ohio.
The following is the concluding portion
Of the charge of the Court Gentlemen, l
have not repeated all the evidence, and if
have not correctly stated such portions az
have referred to, you will correct me. My
object in referring to it at all ii merely
TO direct your attention TO the proper line of your
investigation, and have therefore only CLAN ed
over the outlines, leaving 1t entirely for you to
judge Of the evidence, and not only to what
has been proved but OF weight and credit which
you will give to it. This your exclusive province
and have no disposition to invade it.
In considering the evidence, If it is conflicting,
you should reconcile all the conflicting elements,
if you can, so as TO harmonize 1t all but il 1t
! should be 80 conflicting as to be lrreconcllabe
t you must give credit TO that portion which you
; may believe to be most entitled to it, and sub
ject such AZ you may think the least worthy Of
. credit.
o We come now TO notice more particularly the
= crime with which the prisoner at the bar ID
charged for the indictment and the casc applica-
: BILE to it, The indictment charges that the pris-
y oner at the bar, Oh the 2sth OF July last, with
i express malice aforethought, cast threw, and
. pushed X. A. Mackey into Drawyers creek, in
St Georges Hundred, IN which creek
Il there was great quantity OF water,
j ana tnat by reason OF sucn casUng
throwing and pushing Of the deceased, Robert
. A. Mackev into the creek aforesaid, was then
and there choked, sunocated and drowned, OF
10 which said choking, suffocating and drowning,
+. he, the said Robert A. Mackey, instantly died,
,r this indictment alleges to be murder of the first
degree. The prisoner at the bar through hit
counsel denies these allegations and insists that
H. there il no proof of the corpus
g. deficit that there is no evidence thai
r. Nackey cast, thrown and pushed
til into the creek by the prisoner at the bar
that they further insist that there il no evidence
a, whatever that Mackey came to his death by
- chtking suifocation, and drowning. Thes,
ne facts must be established by the evidence TO the
satisfaction Of the jury beyond a REASONABLE
doubt The evidence may be direct, or circum
er stantial, or presumptlve. This case rests en-
no tirely on presumptiye evidence, and you mus
40 draw your conclu ion from all the facts and cir
on cumstances which are in evidence to you.
le The prisoner at the bar stands indicted TO
murder in the first degree, and TO determine til,
issue it ia necessary that you shall understand
the nature and character Of the crime and wha
constitutes it.
it Murder in the the first degree under ou
al statute, is the killing Of human being witt
what the law terms cypress malice aforethonght
eu which IL when one person kills another wilful
and deliberately, and with formed design
IN such formed designed being evidenced by som
,is external circumstances indicating the conceale
I'M purposes Of the heart, such AZ lying in wait
antecident menaces, former grudgeA and cOncoc
,is ted schemes to do the party slain some bodil
harm. Every homicide is presumed by laN
Az TO be malicious, and therefore murder until tn
ri contrary appears from some circumstances o
- alienation, excuse or justification, which mus
,aI be shown by the prisoner by way of defence, o
ss disclosed by the evidence on the part of th
Vi State, 30 that when the State has established th
ab fact OF killing, it deyoves upon the prisoner
IA | show that the circumstances under which tn
Ia act was committed are such as to reduce beo,
II that Of murder, unless the eydenc
ce on the part of the State discloses such facts
he circumstances az will 30 reduce the crime.
on The Attorney General takes the ground tina
the prisoner at the bar is guilty of murder in tn
,se first degree or nothing. It 10 strikes us, but
a are not to express any opinion in referenc
Mt to his guilt or innocence. II your investigate
nd should be confined to that ISSUE it would be III
he necessary to explain to you murder of the se,
j y ond degree or granddaughter. | will however
n a say that murder Of the second degree is whe
one. person kills another without exprer
malice aforethought, but with whi
,le the law terms malice implied
r = and malice is implied by law from any deiberal
or cruel act committed by one person against al
a other, as when one person suddenly kills anoth,
on without considerable provocatons not amour
md ing, however, TO such palliative excuse or jul
.oi, tication would reduce the offence below til
crime of murder Of either degree, or excuse
Justify the act of killing.
Homicide committed without malice Wheth,
'c- expressed or implied by law does not amount
murder of either degree, because of the absent
j OF malice, which is the essential element Of mu
Dau uer. lt IL tne distinguishing feature betwee
EN- murder and manslaughter have said that
az is conceded that this rests entirely on ci
s!' cumstantial evidence. Much has been write
bic upon this subject and much said in this cas-
rd- The rule however, may be stated in few wor,
but and perhaps more satisfactorily to the min,
less OF the jury than by more extended remarks. II
this rule il that circumstantal evidence mu
and be OF such character as TO excluC
see any other hypothesis, but that
any choking suffocating and drowning For if
oil should appear that he TO his death IN al
her other manner the prisoner cannot be convict,
led, under this Indictment and thereby 1t must
cen proved that the prisoner al the bar committi
ev the act which resulted in the death of the part
n In this case there il no controversy about Ii
ing death Of Mackey, but it is denied that Tayl
al cast threw and pushed him into Drawer
ect. Creek, and that he came to his death by cho
lar ing, suhooation and drowlng,
ms, These facts we say to you must be proved b
who yond reasonable doubt, and the evidence 0
Irs. fered by the State being entirely oircnmstanti
.l.. - Il.