Ellsworth American., 1877-05-24
Charge Of Judge Peters
Indictment against Edward NJ smith, 10
Murder.


| 6eHueDleA OF Me Jury:
| The indictment presents that on the 18Th
day OF October, 1876, the prisoner at the
bar, at Bucksport, in this county, commit
ted murder upon the person of Melissa F.
| Thayer.
Murder is defined by the statute thus ::
Murder Is the unlawful killing OF a human
being with malice aforethought, either ex-
press or implied. When murder is COM
mitted with express malice aforethought,
or In perpetrating or attempting to perpe-
| trate crime, punishable by death, i'm
| prisonment tor life, or for an unlimited
term of years, it shall be deemed murder
Of the first degree and punished with
death, death penalty being since
| abolished)
When murder Is committed otherwise
than is set forth in the preceding section,
1t shall be deemed murder of the second
degree, and punished by imprisonment for
| life.
The jury finding person guilty OF mur-
| der, shall find whether he is guilty of mur-
! der In the first or second degree"
You will not understand the terms OF
the statute without explanation. First.
what is malice In the seRse of this statute ?
| The word here is used in technical sense,
| including not only anger, hatred and re-
yenge, but It may consist of any other un-
lawful and unjustidable motive. Ii is not
| confined to i'll Will against the deceased in
/ particular; but according To an ancient
| definition II is understood to mean that
| general malignity and recklsssncss OF the
| lives and personal safety OF others, which
| proceeds from a heart void of a just serse
OF social duty, and fatally Dent on mischief
| gu will notice that an act committed with
erprsss malice aforethought may be murder
l IL, k..E Il Il. 4
with implied malice sforethought it will be
murder in the second degree. IL will in
! either case be murder, but may be OF one
/ or another degree.
What then is express malice, which is an
! element OF murder in the first degree: IL
| is where one with deliberate mind and
! formed design, kills another without any
/ Justification or excuse. The killing must
! be preneditated act though il is not nee
essary that the act should have been pre-
meditated tor any time longer than suf-
/ ticient to clearly form the intention before
! the act is done. Such an intention and de-
/ sign may be entertained but q moment be-
! fore the act Is committed.
/ What is implied malice. which is the feat
/ ure which distinguishes murder in the sec
, ond degree from murder in the first de-
| gree: Implied malice is an Inference of
law upon the facts as found by a jury. The
idea can best be given by Illustrations.
/ Implied malice exists tor instance where
one attempt TO Kill or main one person.
and IN the attempt Kills another. against
/ whom no Injury was Intended; or, where
one in All attempt 10 procure an abortion
! cause, the death OF the mother; or where
! In riot or nght one Of the parties Kills a
! third person who intcrferes to preserve the
! peace; and in many other ways not neces-
sary to enumcra,- here. In general. where
there Is an attempt 10 do any fcloulous act.
and death of a human being i occa,loned
thereby, malice may be implied. and the
| act may be murder ia the second degree.
! although the Killing was not Intentional
! There may also be cases where an unlaw-
/ iul killing. which was in certain sense
/ intended, would be murder only in the sec
ond degree, but where the intention va,
the sudden, rash conception OF mind not
| sufficiently cool to consider OF the act
about TO be done, and the killing so imme-
! diately followed the purpose to Kill that
| the act was not in "A legal sense premed i
! tated.
These are general definitions and illus
! trations merely. Perhaps much OF them
may be unnecessary for you; but have
| deemed il prudent to say 50 much inas-
much as the statute makes it your positive
| duty, il you render verdict of guilty OF
! murder. also to declare in what degree YOU
| ind the guilt.
| The punishment for the first degree Of
murder was death. That penalty has been
removed. The punishment for murder Of
| the second degree was and Is imprisou-
| ment for life. The punishment for murder
now, Of either degree is the same; still IN
| der the statute the degrees OF murder
| stand. The practical distinction. il would
seem, has been we'll nigh taken away
but the statute requirement stands
And il you render verdict OF Guilty.
and your verdict will be By worl OF mouth
| from the foreman,-you will be inquired
OF, whether the prisoner Is guilty OF muir
der in the first degree, or in the second
| degree; and therefore you will be pre-
pared fully TO answer that question when
your verdict, II such verdict, Shall be
returned.
The arguments OF counsel have pro
ceeded however upon the idea, upon ',th
sides, that the crime, as | undel~t nd
them, was either wilful murder or moth
ing.
The burden of proof is on the govern
ment to prove all the essential allegations
in the indictment beyond a reasonable
| doubt, and the presumption is. in law,
that the accused is innocent till proved
guilty beyond such doubt.
What is reasonable doubt2 It is not
mere possible doubt, for anything relating
to human affairs may be ih some way sub
ject to possible doubt. Still it is not
enough to establish probability OF guilt.
The evidence must establish the truth of
the allegations to reasonable and moral
certainty, certainty that convinces and
directs the understanding and satisfies the
judgment of reasonable and conscien-
tious man. Still it does not require an ab-
sOlute certainty. a deTnonstrative certainty
The terDI, after all, perhaps best defines
Itself. Beyond a reasonable doubt not be-
yond an unreasonable doubt, and not be-
yond possible doubt. The very term m
plies that there may be doubts that are
not reasonable or rational. IL is such a
reasonable doubt as would be entertained
by n reasonable man. The mind must act
reasonably. Ii is the same rne that per-
tans To every criminal case from the high
est to the lowest. 1t is no more on this
case than it would be in a case of THEFT.
Undoubtedly the more important the ques-
tion the more carefully men would natur-
ally be inclined to investigate a question
upon which they were called to act.
SO much gentlemen for the mode or de-
gree of proof. Now comes the question.
what must be proved in order TO convict
the prisoner.
In the first place the time named OF the
alleged murder is not material Ii is ma |
terial 10 allege a time, and the time al
legged is the 18th of October 1876 That
element in the proof will be made out il
you should be satisfied that it was on the
night of the 18th, or, later than that, on
the morning of the l4th. There would be |
no materiality OF difference there.
The next thing to be proved is the place
where committed. No question seems to
be raised about that.
Mex, 1t must be shown that Mrs. Thayer
is dead. and that she was felonousiy killed |
BY some one-that some person murdered
her. Upon the evidence presented. do you
doubt n2 1t is for you and not for me to
decide. l think this point needs no words |
from me. II this point is not established,
that she was feionously killed and muir
dered by some one, then, of coarse, the |
prisoner must be acquitted.
If II Is established In your milds then |
comes the question: Is the prisoner at the |
har UutItv of tho ofaoca oharcnd ....x..