New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-02-17
COURT RECORD.
TUESDAY, FEBRUARY IL, 1875.
Superior district Court.

TUESDAY, FEBRUARY IL, 1873.
Superior District Court.
State ex rel. Mississippi and Mexican Gull
Mayor and Administrators of New Orleans.
State ex rel Warner Van Norden vs..
same.
Both cases consolidated and tried to-
gether, and the court issued the following
order:
That the alternative writs of mandamus
issued in these cults and directed to the
Mayor and the several Administrators com.
prising the Board Of Administrators of
the city of New Orleans be and the same
are hereby made peremptory, absolute and
final, so far as to require the said re-
spOndents to cause to be issued as prayed
for writs of feri fscias, so as to collect and
realize thereby in cash in the manner pro-
vided by law an amount sufficient to cover
the work now done under act No. 30 OF
1871, and not paid for, to wit: The sum of
- thousand dollars without prejudice
to the right of REALTORS hereafter to obtain
such relief as the law may authorize in
reference to drainage work not yet con-
structed or completed.
Superior Criminal Court.
State Vs. John Gsrvey and Charles Earle
Murder. Judge Cillom charged the jury as
Gentlemen of the jury-The prisoners are
charged with the murder of Mrs. Magdalen
Solinger, ON the twenty fourth of April, A.
d. 1871.
Murder is defined as follows: Where a
person of sound memory and discretion un-
lawfully kills any reasonable creature in
being, and in the peace OF the common
thought, either express or implied. To
constitute murder malice is indispensable.
1t is either express or implied. 1t is express
when one of sedate mind, and with DELHI
erately formed design, kills another. The
inward intention to murder is evidenced by
various external circumstances which tend
to discover it. Where person deliberately
kills another, or does any act deliberately,
which is likely to be attended with danger
Gus consequences, and from which death
results, it is murder, for the law infers that
the natural or probable effect Of any act
deliberately done, is intended by its actor
If person do any act toward another, who
is helpless, which must necessarily lead to
the death of that ether, the crime amounts
to murder. Malice is implied in all cases
where one kills another, without con-
siderable provocatiOn, even though
no previous ill blood or enmity be shown.
Revised Statutes, section 7S4, declares
that "whoever shall commit the crime of
willful murder, on conviction thereof shall
suffer DEATH" Section 9S3 declares that
1.-The manner of inflicting the punishment
of death shall be by hanging by the neck
until dead" Section 1000 declares that lin
all cases where the punishment denounced
by law is death, it shall be lawful for the
jury to qualify their verdict by adding
thereto, without capital punishment and
whenever the jury shall return verdict
qualified as aforesaid, the person convicted
snail be sentenced to hard labor for life in
the State Penitentiary." Should you find
from the evidence that the accused have
not committed willful murder, you may
ind them guilty of manslaughter should
the evidence show that there was no malice
prepense and they committed the homicide.
Granddaughter is the unlawful and felOn-
ious killing of another, without any malice,
either express or implied" 1t may be
voluntary or involuntary. Involuntary
manslaughter occurs where a man doing an
unlawful act, not amounting to felony, by
accident kills another. Voluntary man,
slaughter is the unlawful killing Of another
without malice, either upon a sudden
quarrel or unintentionally, while the
slayer is in the commission Of some I'M
lawful act not amounting to felony.
So that you must perceive. gentlemen, the
essential difference in willfal murder and
manslaughter to be in the existence of
malice in the one case and it's absence in
the other. The intention with which per-
sou does an act, being incapable, in very
many instances, Of positive proof, must be
inferred from overt acts, and it is therefore
laid down as rule that every man is sup
posed to intend the necessary consequences
of his own act. If you find that homicide
was committed, the law raises the presump-
ton of malice in the evil doer, and classes
it as willful murder. 1t follows, there
fore, that in such cases the proof Of matter
Of excuse or extenuation lies on the &C.
cused, and this may appear either from evil
dence adduced by the prosecution or evil
dence offered by the defendant. But where
there is any evidence tending to show ex-
cuse or extenuation, it is for you to draw
the proper differences OF fact from the
whole evidence, and decide upon the fact
ponds, according to the preponderance Of
evidence.
With these general principles constantly
in view. and basing your action upon them,
your first inquiry will be to ascertain
Mrs. Magdalen Solinger was killed,
and of this there must be clear and I'M
eguivoca1 proof; second, whether the ac-
cused perpetrated the crime; and in per- |
forming this sacramental part of your |
duties you are to cOntine yourselves to the |
matters in evidence before you. This may |
be shown by positive proof or by circum- |
stantial evidence. In forming your opinion |
it is incumbent on you to consider and to /
weigh every evidentiary circumstance, such |
As the fruits of the 0ffense, goods or money |
taken, instruments shown to have been |
Used, the floor or bed on which the person
was found, traces of candle
yreese or sperm on the floor or on the
about the premises, the conduct of the
their whereabouts and peculiar
appearances at the time, their accounts Of
themselves at the time, their voluntary !
confessions, if they made any, antecedent
preparations or conversations, if you find |
my in the evidence. Every single circum-
tance detailed before you in evidence you
hould maturely consider, with view to
the truth of the hypothesis of
uilt. But while it is your duty thus to
crutinize all the evidence, 1t is my duty to
instruct you that it is incumbent on the
tate to prove everything essential to the
of the charge to . moral
ertainty. though tho non production
f explanatory evidence, clearly in the
over of the accused, must weigh against
hem. Should you discover partial va
iances in the testimony of different wit.
esses, on minute or collateral points, it
'ill become your duty to consider, compare
nd weigh them together, although they
he important points Of the case, it is my
uty to charge you that, however the de-
rec of probability arising from evidentiary
may be increased by their
MON, if they are in and of themselves
conclusive they can not warrant a con.
lotion.
All the circumstances from which the |
,nclusion is drawn should be fully estab-
shed. and the State is bound to prove
very single circumstance which is essential
, the conclusion, in the same manner and
the same extent as if the whole issue had
,sted upon the proof. Of each individual
nd essential circumstance. A few circum-