The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1877-11-22
WIN. MoGREGOR Publisher

of apOplexy Of the heart at any time especially
upon any disturbance caused by any shock pro.
duCed by excitement arising from physical or
mental impressions, That In consequence of this
regurgihton aud the imperfect action of the
heart there were formed and organized in the
right chambers of .he heart two certain abnOrm.
al bodies called emboll, Of such size, formation,
and character and so located as t9 materially In
teriere with The proper operations Of the heart,
and from which, by plugging up the entrance Of
the valve, death soon must or might mOmentarily
ensue and that the probabilities are, that death
did in facts ensue but thatby reason of ell these
circumstances in any event II is beyond the ken
of mortal man, no matter how learned andskilled
In science, TO determine what In point Of fact was
the actual cause Of the deceast d's death or TO
prove 1t toa degree of moral certainty, free from
all reasonable doubt such as is required in crihi.
nal cases. ui I.gr, r .'..
The correctness of this claim OF the defence is
seriously disputed by the counsel for the State,
They deny that the diseased condition Ofsthe
deceased had reached the degree of danger SO
claimed by the defence. That at all events what
ever may have been the diseased condition ofthe
heart Of the deceased, thethock produced by the
assault and battery complained o. would not on
ly increase the dangers resulting from the disease
but accelerate and hasten death from it, so as, In
fact, to become and be considered as the immedi.
ate cause of deate, and that the proof before the
jury may reasonably satisfy or convince their
minds, beyond rational doubt, that death was
caused by the assault and battery alleged to have
been committed by the accused upon the body of
the deceased.
Now, gentlemen ofthe jury you have beioreyou
and will consider all the facts and circumstances
oft ~ ky,t
heard all the testimony respecting the assault and
battery alleged to have been committed and the
character and degree ofgravity of this assault and
battery, the testimony respecting the physical or
bodily condition ofthe deceased before death and
his habits, conductand mode Of life the testimony
of the results of the post mortem examination
made by surgeons the testimony Of the medical
experts, introduced in evidence, giving ngthelropin.
ions and judgments respecting the causes of DEATH
and all the other facts and circumstances in evi.
dence which may throw some light ON the subject
You ere the judges Of the proof and of its weight
and effect. Is the proof before you OF character
and weight to satisfy or convince your minds with
that degree Of moral certainty which excludes all
reasonable doubt what was the actual cause of
death Does the testimony of the medical ex.
perts, their opinion and judgment, connected with
all the other testimony, enable you to determine
to degree of moral certainty, free from all rea-
EOnable doubt, that the death of Matthew Mcclure
was caused by the accused by the assault and bat.
terry alleged to have been Committed upon his
person by the accused? If 1t does, and If It so
convinces your minds, beyond reasonable doubt,
that the deSth was so caused by the defendant
and that he therefore did kill and slay the deceas.
ed 1t will be your duty to find him guilty Of man
slaughter. If you should find that the testimony
is not Of character to prove to degree of moral
certainty, free from reasonable doubt, what caus.
the death of the deceased or If the proof leayesa
reasonable doubt in your minds respecting the
| cyuse of death, no matter what the probabilities
might be, It will be your duty to find the accused
not guilty of manslaughter, In determining Ibis
| mOmeniOus question you will bear In mind that
| the burden OF proof is upon the State and hOWey-
er difficult tmay be for the State to prove to de.
gree of moral certainty, free from every reason.
able doubt that the death was caused by the ac.
cuSed. il must be so before it can claim verdict
| of guilty Of manslaugEter.
1t has been said that the State owes the like pro-
lection TO the weak and to the strong to the infrm
and sick as well as to the healthy that an assault
upon one laboring under mortal disease or in
the pangs of death is as criminal, II not more so,
| as criminal, and visited by the same punishment
! as when made upon one in the best physical con.
dition. lhisis very true, and though the victim
may be slain by the unlawful act of another whilst
to have been caused by such unlawful act and not
by the disease, the slayer would be guilty of the
homicide. ...
The Court has also been requested by the able
counsel for the State whooPehed the argument on
behalf of the State that If death be accelerated or
hastened by the unlawful act of a defendant; that
If by reason of such act his life was shortened and
death anticipated and death in fact ensued soon
er than il otherwise would or that If his act con-
ributed to the cause OF death, that in all these ca.
ses the party guilty of such unlawful act so &C.
celaTaiing, Fastening or contributing 10 the death
may be convicted Of the homicide as the slayer.
4 II Is evident that all these propositions are but
/ questions of proof. They may, if established by
/ the proof enable the jury, or contribute more or
les to enable the jury, to determine the questions
whether the accused did In fact cause the death
of the deceased, whether IN fact he did kill and
slay him. Still in all such cases. before defend
ant can be found guilty of the homicide, and as
slayer, the State must satisfy and col vince the
jury by proof strong and full andof such certainty
as will exclude all reasonable doubt that in facl
he did kill and slay the deceased, that his unlaw-
full act did cause the death.
As to the case of the acceleration Of the death
or the Fastening of 1t, | may elucidate. Suppose
person be stricken down by wound in its ma.
ture mortal, inflicted by one A, under which he
might linger for day or two, butcertainly would
die of il within that period Of time Suppose next
that B uncunneCted with the first wounding comes
along and inhcts upon the wounded man anoth.
er mortal wound Of which he presently dies Here
there is aceeleratiOn or fastening of the DEATH
and there would be little or no difficulty to prove
with the degree of certainty required that b did
kill and slay the deceased. But how would II be
| with A, who first inflicted mortal wound upon
the deceased, from which he necessarily would
die If death resulted from the wound of B. A
could not be convicted of the homicide because
he could only be convicted if the proof showed
that he caused the death, and although II death
had resulted from the wound inflicted by him he
might have been guilty of murder or mansaught.
: er He could only be convicted of assault per-
haps with intent TO kill rwOunda as heteStimuny
: might warrant, but not of homicide. In all cases
OF homicide the proof must show that the accused
did the killing or Staying thathe caused the death
by unlawful act before he can be convicted It
may be difficult in some cases to fuTni h such
proof with the certainty required. In such case
no prosecution should be attempted for homicide
but the defendant might be prosecuted for the un
lawful act complained Of The difficulty of max
ing the proof does not relieve the State from max
ing the pIOOfifit sees proper through its officers
TO prosecute for homicide, This is true in all ca
! seS of mansaughteT
( This is all deem it my duty to say to You on
this subject You will carefully consider and
weigh all the proof before you. You are the iudg.
es OF the weight Of the testimony, the Credibilty
of the witnesses, circumstances of contradiction
and Impeachment Of such witnesses and of the
effect in which your judgmen the testimony be-
fore you considered as u whole, Is entitled TO- If
after having so considered all the testimony, your
minds are not satisfied or convinced beyond every
e reasonable doubt, that the accused by the assault
and battery complained Of did in fact kill and
slay the deceased Matthew Mcclure it is youg du.
ty to find him not guilty OF the charge of man
slaughter. Or, | may say, in the language of that
+ eminent Jurst, Judge Tappan, cited by the coun-
: sci OF both sides:
, "If, in examining the evidence which you have
heard, you find that II is involved in so much OBJ
scuTity, uncertainty or contradiction, as that
4 what caused the death of the deceased, remains
}. doubtful, then aCqut the prisoner" .
: And may add that the accused is entitled to
the benefit of reasonable doubt remaining in the
mind Of the jury, or OF any one of the jurors and
that 1t is the duty Of every juror 10 oppose conyc.
ton until and unless all reasonable doubt is re.
a moved from his mind. ..
But If The proof satisfies or cOnvinces the Jury
and every one of the jurors beyond every reason
4 able doubt that the accused by The assault and
I battery complained Of did in iaCl kill end slay
the deceased 1t will be their imperative duty 10
find him guilty OF the CRIME OF manslaugnter re-
J gardless of a.ConseQuenCes ~
( In case you find the defendant not guilty of the
charge of manslaughtCr you may as have already
stated, find him gully assault ana battery.
On retiring ". q