The daily gazette., 1874-11-27

he saw tall man walking around the
horse on the bridge and heard o splash |
in the water. The horse and wagon was
standing on the bridge close to the east |
side. s HE said he saw, a tall man stand
ing on the wing wall Of the bridge look
| ing down into the water, that he had
| full view of the man when he got on the
stone wall, but not so clear a view Of the
horse and wagon. He went on working
and did mot see the man when he left
| He said he saw the track Of the wagon
about sundown, and it was as close to
| the wall as 1t could he without striking.
| The prisoner was at Middletown late in
the afternoon OF Tuesday, the 2Sth Of
July, and offered to trade horses as soon
as he arrived, but did not then trade.
He spent the night at the head of Sasga-
| fras, and on the Goth was again at Mid
| dletown and there traded horses. From
there he went to Townsend and passed
the night, and the last trace we have of
him in this Court was at Miller's White
Horse hotel, i'll Wilmington, on the 30th
of July. He had recovered by his trade
1 of horses and wagons some sixty on sew
enty dollars. He left this county and
State and was afterwards, on the 18th
OF August, arrested at Bucyrus, Ohio,
and brought here on q requisiton of the
Governor.
the evidence, and if have not correctly
stated such portions as l have referred
to, you will correct me. My object in
referring to it at all is merely to direct
your attention to the proper line of your
Investigations, and, have therefore only
glanced over the outlines, leaving it en-
tirely for you to judge of the evidencey
and not only as to what has been proved
but Of the weight and credit which you
will give to it. This is your exclusive
province and l have no disposition to
, invade it. rt T.
{ In considering the e.iLelca Of tis con!
/ llicting you should reconcIe Al its conflict
ldS alements 1t you can, 70 as to harmonize
1t all. Bat II IL aha1id bs SO conflicting as
+ 10 be irrec0BciluhAe, you must give credit to
; that action which yon mfy believe TO be
= = most entitled to 1t, and nj jrct such as you
: nay think tue icose worthy ot credit. We
eV,ue no@ 10 no-ice more particularly the
cfIiie s.ui whilh ,he PRISONER at the bar is
: chA!g' IA thia Indictment ant the II ur-
r plcable tor. Tao Indictment charges that
3 the prisoner at the bir on the DISH day al
f JGIy Ls', with cxpres, malice U. over
f. thought, cas-, threw and pnshed RobeIt A.
MAcAey into Drawyer's Greek, at ST. q sorges
H.. Iundt.d, Ia which creek there was a great
lquau.ity OF wc,er and that by reason Of such
3, isting, throwing and pushing OF the de.
y ceased, Robert A. Mlckey, into the creek
I aforesaid, was then aud there choked, sutfo
= Gated and drowned, OF which said choking
Q suffocating and drowning, he, the said Robt
e A. Mack,y instantly died, this Indictment
l. alleges to be murder of the first degree.
IL The prisoner at the Bar, through hi:
e counsel, denies these allegations and
e insists that there is no proof of thu
Is corpus diteeti; that there is no evidence
it that Mackey Was cast, thrown and push
@ ed into the Greek by the prisoner at tn,
II Bar, that they further insist that there
,e is no evidence whatever that Macke,
l. came to his death by choking, .suffoca
IT tion and drowning. These facts mus
l. be established by the evidence to tn,
e. satisfaction Of the jury beyond reason
y able doubt. The evidence may be direct
or circImStantial or presumptive. Th
IL case rests entirely on pfe5umptive evi
re dence, and you must draw your conclu
c. sion from all the facts and circumstance
l. which are in evidence to you. l will now
s. gentlemen, give you the law applicabl
4 to this case as fully as am able.
s. The prisoner at the Bar stands indict
ed for murder in the first degree, and t
n determine the issue it is necessary tina
K you shall understand the nature an
t, character Of the crime and what consti
NJ tutes it.
IT. statute is the killing of human bein
OF with what the law terms express malic
Is aforethought--whic is when one perso
kills another yilfully and deliberatel
lie and with formed design; such forme
T. design being evidence of some externa
in circumstances indicating the conceale
10 purposes of. the heart, such as lying il
T. wait, antecedent menaces, former grud
ID ges and conceded schemes to do the. pal
er ty slain some bodily harm. Every hon
~ icide is presumed by law to be malciou
~ and therefore murder. until the contrar
ell appears from some circumstances of al
le deviation, excuse or justification, whic
st must be shown by the prisoner by wa
H. Eof defence or disclosed by the eyidenc
le ON the part OF the State, so that whe
Id the State has established the fact {
De killing it devolves upon the prisoner t
a. show that the circumstances unde
Id which the act was committed are sac
I'll as to reduce below that of murder unles
I'd the evidence on the part Of the Stat
le discloses such facts and circumstance
ps as will SO reduce the crime.
Is The Attorney General takes the groun
I'd that the prisoner at the Bar is guilty Z
el murder in the first degree OF. nothing
G. IL so, it strikes us, but we are not to el
or press any opinion in regard to his gull
Us or innocence. If your investigatio
O. should De conHned to that issue 1t woul
e, be unnecessary for us to explain to yo
OF murder in the second degree or man
Y slaughter. will, however, say tina
ny murder of the second degree is when on
ut person kills another without express
II. malice aforethought, but with what til
j, law terms malice implied, and malice
60 implied by law from any deliberate
or cruel act committed by one person upol
co another, as when one person suddenl
lg kills another without any or without
lc considerable provocation, not amount
to ing, however, to such paliasion excuse
Id or justification as would reduce the Of
Id fence below the crime of murder 0
IL either degree, or excuse or justify TIL
ct act of killing
v Homicide committed without malie
d, either expressed or implied by law does nc
lie amount to murder of either degree, bscaus
nd of the absence of malice which is tho essen
ID, tial element of murder. It is the distin
is gushing feature between murder and mar
ey slaughter. l have said that it ia eoncsde
ng tifat this case rests entirely on icircumstan
at tial evidence, much has beenwritteu upo
ey this subject and much said In this -case
he The rules however may bo stated in fe,
he words, and perhaps mere satisfactorily I
nd fhp ntnda of the itrv than l,y ,nora %