National Republican., 1875-11-20
rRIAL or IoHx rRAHHxa.
Ths Charge to the Jufy-rhey Retire "
ths Case-Waitin1 for thu Verdiet.

charge to the jury. Frawner appeared uneasy
and excited through the entire day, especially
after the Jury retired.
Gov. Wells resumed his argument upon the
meeting Of court, concluding about IL O'Clock.
Mr.. Browne, for the defense, offered certain
prayers for instruction, which the Court said
would be considered.
THE COURTS CHARGE TO THE JURY.
Then all eyes were turned to the Court, who
said:
GENTLKxEE: The defendant, Frawner, is IN
dicted upon Q charge Of murder, committed In the
month Of July Of the present year. IN the city and
District In which We all reside. You have been
selected, with great care, for the purpose of try
ing him upon this accusation. The crime Of mur-
der is defined to be the taking Of the life Of q
human being unlawfully, without justification,
and with malice prepense, or from premeditated
design. The law nationally assumes that men
are sctuated by motives and intentions, and 1t
infers from their conduct the necessary motive
from which that conduct would probably and nat
urally flow. This intention, or, as the law calls
sense in which we understand 1t, but, in the ap-
prehension Of the law, simply meaning an inten-
tion TO do an unlawful act, may be either express
or implied. 1t is expressed when the slayer ex-
presses his intention Of taking lite, 10 the Ian
guage Of the law, or by acts which are equivalent
for i his Victim. This Intention, or malice. nav
also be inferred from the act committed. II,
therefore, man commits an unlawful act, there
law assigns to him the appropriate intention. aud
infers that ingredient to exist in the act, which
constitutes 1t q crime.
Now, IL q man kills another deliberately, that
Is, If he assails him with weapon that is likely
to produce death, although he has expressed no
intention was to take life, as that is the general
and probable effect of such On act, and he Is
held responsible for the acts which are natural 70
the conduct which he pursues. 1t Is quite true,
however, as is claimed by the defendants here Ia
one Of the Instructions which they have lust read
in your bearing, If 1t is found BY the testimony
of the Government that there are circumstances
appearing to extenuate the oiiense, or explaining
the motive to be something different from this
malicious Intention 1t would alleviate or extenu-
ate the act from the high crime Of murder 70 that
of either manslaughter or justidsble or excusable
homicide So that II from the whole ctrcum-
stances Of the case It appears to tho Jury that
there is reasonable hypothesis that the act was
committed without the criminal intention to which
have just referred it becomes either mansiaugh-
ter or excusable or justifnbls homicide, and be-
fense.
that Of mansiaughter, which is the felonious kill
ing OF person in the heat of blood, without this
premeditated design. 1t occurs when the slayer
is transported by his passion, from circumstances
which occur at the time, as where persons engage
in a sudden sffrsy or combat, and where blows are
exchanged; there, in Difference to the inrmties Of
human nature, recognizng the fact that under
such Circumstances men become wild with excite
ment epd incapable OF acting with formed and
der TO mfpsiaughter, holding that the element
which would constitute IL murder-that is, the de-
lioerate and premeditated design-could not exist
under such circumstances In a legal sense and
that, therefore, when the killing takes place when
the party is engaged in q combat, OF an affray, or
in 8 fight Of any description in which blows are
exchanged, the law will presume that the party
was so excited and carried away by the heat Of
passion that the act was not murder, that It was
such circumstances as deprive it OF that malicious
intention which would subject the defendant 20
the highest penalty apa FlLisaz.1snt OF the law
the forfeiture OF his own life.
Now. eycasable and justifsbls homicide is
where q party in selfdeiense so far as it Is me-
cesssry to explain exeussble and justins BILE homi
eide In this case, is where person In defense of
his own life takes the life Of another. Excusable
homicide may be committed for the purpose of
preventing the commission Of an atrocious odense,
such as the murder of another person. Excusable
homicide by selEdefense is where the party de-
fends his own life against o murderous attack
by another-oy the person whose life he taxes In
order to save his own. In srder to constitute
case of justifable homicide by selEdefense, Ii Is
incumbent upon the defendant himself TO show
by satisfactory evidence TO the jury that he had
reason TO believe that his own life was In danger
or that he was IN danger OF great bodily harm,
,S, and that there was no other way Of preventing
his assailant. 1t ia his duty II he can save his
own life well as that Of his assailant to do So
which he can preserve himself from % dsstruction. a.
the law-makes him, for the time being, the judge
and executioner.
in this Indictment; for, although the Indictment
charges the defendant with murder, he may be
convicted Of manslapghter Il the act was com:
mitted in the heat OF blood or he may be acquitted
on the ground of justifsble homicide in selEde-
fense, IL the circumstances warrant 1t.
Now: in this case, the person who was slain was
identified and there is no doubt that his life was
taken by the prisoner at the bar. The time and
place ct which this crime was committed was also
ssta6lished SO that all that s left for the jury to
determine Is whether the act was murder, man
slaughter or justifable by selfdefense. It Will
be for the jury TO consider, therefore, the circum
to determine question so Important to the law,
and so important to the defendant.
1t appears that Frawner, on the night that this
shooting took place. was standing with friend,
Mr.. Shadwell, who lived in the nelg hborhood and
that he pointed out his wife and the deceased
walking towards the Taylor house. Some time
of the witnesses stated about two
hours-kennard and Mrs Frawner came from the
Taylor house, the woman coming out on the steps
and going back again. At that point the CONVEX
way to the circumstances; the Jury, Of course
will have TO examine them with more care. re-
application Of the law. While at the time that
Kennard and Mrs. Frawner emerged from the
house and were standing on the steps, Frawner,
wife that he had warned her not to 20 with Ken
nard when she replied that she would gowith whom
she pleased. Then Kennard told him to 20 away;
that he, Frawner, had him arrested once, and that
now It was his turn, and he would have him ar
rested, or something Of the kind; and then Ken
nsrd !; followed him up. that Is, walked towards
mony establishes the fact that Frawner retreated
with his face towards Kennard, ex-
postulating with him not to follow him up, that
be would put his light out, sc, Kennard, how
ever, following him up for the distance OF twenty.
one foet from the door where this conversation
Dfthe witnesses, Mr.. Shadweii stand ing on Ninth
street, at some distance from the steps, described
The manner in which the blow was TO be delivered
rs being in horizontal direction and stated that
be saw something glitter in his hand, as ofa
knife, but which, upon cross-examination, he
modified by saying It might have been ring, 1.-THE
atal shot was hred, and the combatants parted,
Frswner going towards Ninth street, and Ken.
,ard going into the house, from which he never
eft alive.
Now, there may be, perhaps, some collateral
bearing upon this general state
nent of the case; will not analyz ze thetestmopy
y each OF the witnesses who testified In regard TO
his point embodies the statement made BY Ken
1ard himself to the sergeant of police, who has |
lime Of bis arrest, together with the statement Of
he eye witness, Shadwell, and another oficer or /
mother person whose name cannot now recall, |
he statement or modify the view which / give Of |
Z NOW, gentlemen, under the circumstances, |
eaying out Of the question the matter Of justifa.
" manslaughterf / am inclined TO think that |
.here persons engage in sudden conlbat, one Of |
nsm having N bis possession pistol as Frawner
malice in the case, and no evidence Of o prior
preparation for the encounter, but happening to
laye his weapon upon his person, In or
ler to relieve himself from the effect |
70 hastily, in the heat Of blood, should draw that
, eapon and unfortunately kill the man, should
question myself whether it would be right to con-
lict the man Of murder. It will be, however, for
Iou 70 oetermine whether, under all the circum.
'taneer, the case OF murder is established: Per.
AZ 70 you, gentlemen. that iss Court viii will Be
perfectly satisfied IL your verdict 10 not murder
Unfortunately In this District we have no class
ncation OF murder as they have In many Of the
states, and the circumstances which would con-
'titute murder here. II the law was rizidIy ap.
piled. would constitute It murder In the second
1r third degree in the States where II has been
classified, and thus relieve the defendant from
ne highess punishment which the law can infiict
lpon member Of society. say ft Is unfortunate
hat we have no division of the crime Of murder
here, because within my own experience upon the
bench there have been two or three fnstsnces
,atished the ends Of justice to much groster
sxtent than as we are now, where the circum-
stances which constitute murder are either mur.
Ter or some lesser degree of crime.
have said all thar desire TO say In regard
% my apprehension OF these circumstances con-
relieving this defendant from the consequences
II his crime. Il will be for you to determine,
under the definition which have given of man.
slaughter, to md whether the circumstances
bring the defendant within the category Of crime
II you are satisfied from the circumstances or |
time, and that IL was not otherwise Justihable the
'nense Is merely extenuated and not excused.
ind not justified. So that he must stu bear an /
ntesme9iate decree OF responsibility under the /
We next come to the question Of whether the
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