Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1877-11-01

Rltat element a. You have been told 10y counsel
IN the first count and also Ia the second count Be
caasc A. TO both of .hese counts, if there was no
intent to Kill, then the crime charged upon the
pIi'oter ia these counts is not made out. 1t is in
cumbont upon the State to prove thar the PRISON.
e. IN fact intended to kill John Flood, under the
rule that shall give you.
1t Is maintained by counsel that If be had an
intent 10 eli' Mr.. N0yes, and discharged the gun,
and lhe charge took effect upon Mr.. Flood that
/ lie intent TO Kill Mr.. Moves is not sufficient to
constitute the crime charged again the prisoner
! OF intent to Kill MIR. Flood. Upon this point IN
the case instruct you that if the prisoner in dis
/ chagln the gun intended 70 kill Mr. Moves or
any Ohtf person, any one of the persons assem-
bled there on that occasion, and the charge which
| he fired from the gun took effect upep Mr. EIood
that Is sufficient TO constitute the offence with
which he Is changed. The intent to XIII character
zes the act. goes with H. aud If the blow reaches
any person 1t carries with it the criminal intent Ia
! Kill and murder. And if it takes effect upnn n
person other than the one intended the crime il
made out precisely the same as though the int n
ton had been to kIll and murder the person hit
precisely a. if death had ensued from the wonnd
INFLICTED. Though the intention of the party was
not to Kill the person hit, still, if his intention
to kill any person By murderous assault
and the blow takes effect uron person other thnn
the one Intended, 1T is sufficient to constitute the
crime of murder if death ensues, and It is suti
Cient to constitute the crime charged in this in
dictment il death does not ensue. And this is all
need say 10 you upon this point raised in the case
Then II Is contended on the part of the prisoner
that there was no iuteut to kill or murder any per.
son on that occasion. In considering the evidence
upon this question ofintent, give you this rule
of law
sane man, voluntary agent acting upon
motives must be presumed to contemplate and
intend the necessary, natural and probable consc-
quenCes of his own acs. If, therefore, one yolun.
taIily or wiltully does act which ha a direct
tendency to destroy anoiher's lie. the natural aud
necessary CONCLUSION from the act Is that he in
tended so to destroy such persons life So if the
direct tendency of the wiltul act i 10 do another
some bodily harm, and death IN fact follows A. a
natural and probable consequence of the act it Is
pre- sumod that he intended such consequence and
he must stand legally responsible Tor II. 80 Whiie
a dangerous aud deadly weapon used with vIo-
lCuCt upon the person of another has direct ten.
dcnCy to destroy life or 20 do some great bodily
harm to the person assaulted, the ulont'o TO take
life or to do another some great bodily harm is a
necessary conclusion from the act. Upon this
branch of the case, do not say to YOU that there
is presumption Of law, when one man discharges
loaded gun at another that he intends to Kill
But the rule is that the man who discharges the
gun mus, be presumed to intend the natural and
Ordinary consequences Of his act. You can only
get at his motives by his act. \ GU caanot pene-
uatc his mind and ascertain hi, intention in any
other way. When you see a man deliberately aim
a loaded gun at another and discharge it upon
HIM, what motive do YOU infer that he has in do.
ing that aCtf 1ou are to ner motives from the
acts, from facts proved precisely as If the issue
which YOU was called upon to find, were an issue
of fraudulent intent and the evidence was clear
that he party accused obtained the money Of an
other by false assertions of facts You infer the
intent from the I, and if such facts were proved
ard the accused should declare that he had no
fraudulent intent and purpose, YOU perhaps would
feel that you must give weight to the facts proved
and declare that he had such intent and purpose
as would actuate him TO do the acts proved against
him. You must apply the same rule in this case.
You have to apply il in every case where the in.
tention OF patty accused Is an essential element
in the crime charged upon him.
II is maintained that 10 cases like this where
death does not ensuo from the assault made, that
the inference is that there no intention TO
take life. | cannot give you this rule, a. contend
ed for by counsel. If this is rule applicable to
this class OF cases you will at once that it
would be extremely difficult and perhaps mpossi-
BILE ever to convict a man for an assault with m
tent to murder. Because, as | have already said,
you can only penetrate the mind and ascer-
tain the intent by the act. And If, when death
does not ensue, the presumption is TO be dec Jared
to have been that death not intended to follow
the assault, then il would be impossible to over
come that presumption, and the necessary result
would be that party could not be convicted of
this crime.
The rule give you, and the one which you
must apply to the evidence in this case, is that
you may infer that the prisoner intended the nat
ural aud ordinary consequences of the act which
he did.
Now il Is maintained, as understand bv coun-
eel, that he IL justified in doing what he did on
1t ocCasl sion; that he has legal Justification. 1t
aid that he had intent to Kill, and it was
uhlnialned that he had right on that occasion
=" use fire arms as he did use them, upon Mr.
cd that he had right to do vi the acts which
%, lid to eNpc HIM from his mo, hers land under
whose authority il j. laid he was acting. Aud it
20 maintained that this is a question OF fact for
ar determination. 1t is a rule of law that every
l,on has right to protect his property; that the
,@nor OF land has right, after requesting a ire
ptsser to leave, If he does not leave to proper
tprce force appropriate in Kind and proper in de-
gree to eject him. And it is maintained in this
vtse that the prisoner had night to use fire arms
''r that purpose Ia the manner IN which he used
lem. Upon this point give you this iustruc-
tion
1t is rule that when a trespass is barely against
the property of another, not his dwelling house it
not a proyocation sufficient to warrant the own
r IN using deadly weapon. And if he does
and with il kill the tre-passer, then it will be
DER because ii is an act of violence beyond the
degree of provocation. The point in this nstluc-
non that give you is as matter of law that the
prisoner had no right to use deadly weapon to
eXpel Mr.. Flood from his mother land. if he was
on her land, ire passer And for the reason that
it is dispropottiOnate to the offence dangerous to
lie. II such rule should be established the re
suit wOu d be that III every controversy over dis
putcd lines the one the other, when is oppon-
ent cutters upon the land to do any act might
shoot hlm down. And whether he would be gull
~ of murder he justified in the use Of firearms
would depend upon tie result of the establish
meut OF the line. If established at one point, he
might be guilty of murder. II at another, he
might be justified. Sach a rule of law cannot be
established. 1t Is attended with too great danger
to life. No man is permitted to use "a deadly
weapon merely Tor the purpose of expellng a
trespasser from his property other than his dwell
ling house. Another rule may prevail a. to the
means which one may be justified in using to ex
pei u burglar or prevent his entering his dwelling
house. There is no question Of that kind involv-
ed in this case.
You will determine whether the weapon used
was deadly weapon If SO, say to you that the
prisoner had no right TO it for the purpose of
expeling Nj. Flood from his mothers land, if he
was on her land, as claimed in this case
Now, gentleman, you will take the under
the rules of law that | have given you and
| fully consider the evidence and determine wheth-
er you are fully satisfied matter of fact that the
| prisoner in making the assault the occasion
! charged against him, intended to kill and murder
John + God, under the rule that have given you.
| Aud in determining this question you should con-
| slder the evidence which has been given you by
4 both sides. First apply to the a0s done the rule
that have given YOU as applicable to the case in
regard to proof of intent. Then you should con-
slider all the evidence bearing upon the question of
/ intent What was the purpose of the prisoner
L a A.