Bismarck weekly tribune. [volume] (Bismarck, D.T. [N.D.]) 1875-1878, 1878-05-03
men ~Saia at in dcte.n!slhs Ill is,portsut rat
ter pertaining 70 his own Affairs bent on sol:inx

arc established: 81 -: = Il sN'
e5s'ssS sSss s5 f. sss in
NIT that the proposition il. Roi; altogether fIs.
from perplexity. But does net the delfrn.iYgtiol:
Of necessity involve the ehatattsr ef INC "ttnN'
qualification, and that IL. It must not be poxsi-
Ole doubt. which in law in understood to b. rx-
ploycd in the charges. The import Of tho iIstrrc.
tion and the scnse in which We may re;:soaably
presume IT to have been understood by the jury
BILE doubt Of defendants guilt, and in in,.
the character Of that cseRt aud its stf!cat.ti -
the evidence in the case ne: should ac' ax prn
| mining IN important matter pcrtanin. to hiruwH
affairs, and in this light the instructions is clear
Had the judge told the jury that in de.,rmiu,
| ins the question of0.femlamEs guilt, you will act
as prudent, careful business man would act in
, determining an important matter pertaining tU
prosecution would NOT for moment insist npcn
o guilt T. n rcaecd thfons posr
dcrstandinz Of all the fact. and circumstances In
evidoncc properly we., I'd aud understood in the
light Of the law applicable. aud if mistake Is
| made In any Of the intcrmcdutc steps taken. the
| attained.
The alternate question of guilt may turn on the
| very point Of reasOnabi< d0uh and, conrcqucnt-'
ly lin determining this question Of doubt" u
mining the very question in issue, to wit: the do
PENDANTS guilt.
| On this point Grcenlcaf. in hts work sa Evi.
lows: '.Ey satisfactory cvifntic,: which is some
times cAlsl sufficient evidence. is intended that
amoant q proof which ordinarily satisfies All mn-
preJudfced mind beyond reasonable doubt. Tho
circuinstancc. which will amount to this dc:rc':
or proof can 1fcycr b: previously defined the only
suicicncy to sa,isty tie mind and conscience OIL.
common man. nI.d 40 tV convince him that he
would venture to Gct upon. that c"n,iclivn, ia
n,1f,eTs rue high's' cc"cerr ant importance to
L;s O,rY fufejeSi:' = ,"
In the Case OF People rs Hrcnncn. ta6 Cal 81
the jury were told that it wn= their duty to con
defendant TO such moral certainty ns would iu-
fucncc the minds Of the jury in the important af
fairs Of life and the Court says, Tho judgement
OF reasonable man i'll the ordinary affairs Ur life.
however important. If influenced and controlled
by til: prcprDdrrancc Of evidence: Jurics ara
Rst S a rG tt III: Z frE i,. !ns Is S,,rn Ti
rights Of property only.
l;nt in the decision of criminal CASE. invorin:
There must be in the minds Of the jury All abd
ing conviction to moral certainty OF III. truth Df
hn irdhs1gs desired ri fiom. erSnr."n and
tircly satisfied of the guilt Of the accused.
!. Th. doctrine i strongly implied in Chief Jus
Commonwealth and Webster } Cast :san Perhaps
the most accurate that has ever been given Hi1
that state Of the which. after the entire
leaves the minds OF jurors in that condition that
they cannot say they feel An abiding cuvicticn tS
n moral ccrtnlnty Ol ruin Ol tlt cuaryc-n
tainty that convinccs aud directs the understand.
ing aud satisfies the rcson and Judgment Of thOs.:
who are bound to act conscientou-ly upon it,
Human life is too eacrrd to be- weighed in tb.
coarse balances by which m-n adjust even The
important affairs Of life. Scales which tur,, ut
the touch Of u bare pr:pond,r"ncc Of evidence. by
which the issues arc determined. but which aru
not sensible to the finer elements Of purpo.c and
intent. which lie hidden in nc, and deed.
tcrnaI conduct Which faIlibic man M il Too frcq.n,
ly unnh to read ariyht. and only too willing To-
make it mere ,wr"n|- therefore before he con
drmns, even though the scales may swim. far
from poise. he mi,st be able to say that h.
feels IN abiding conviction 10 moral certainty
of the 'rS'h Of the charge.
The instruction under consideration. In our
Judgment laid down very different ruiz, and one
which cannot bc Sustained either OH principle or
The f,c.s Of the homicide in this case NAV b.
briefly -tatcd ~ follows: The decreased, John d.
Ma-singac. soldier. WAS on the r"cnin. Of the
18th of December. 1876, in dcfcndants place Of:
business, saloon ih the town Of Bismarck. with
several Of his comradrS. After some talk IN which
deccn<rd spoke about fighting but not directing
defendants pncc As II fraud. &c. be and defendant
in wha, appears to hav. been II autua
the wall and s,rnck him several times Uvtf the
head. the defendant finally ,.r loose. wcut into
the h"rk room. and in II moment Cr two, as slated
by one w;ncs~. rturiirsl with revolver, aud shot
the deceased "h;lc 1rr wa. standing by tn. stove.
firing thrr. times twice before he fell. and once
after Il; fell At tho Iscond -ho, the dscca.cd ie
the df'.ndan said, this is damned pretty time
to b. , nnd fired ''c third shot which took effect
There is nothing in the record to show any form
rr grud"c or quarrel.
There is some contradictory evidence us to tn.
use of Il sun. shot. and to deccns.d havn.
kicked one OF the female inmates Of til. house.
and ~ to threats made by deceased w!lic., We do
no: consider necessary 10 notice. Under this evil,
icncc the defendant asked the court to Instruct
The jury ~ follows: II charge you ns IL matter ~
law, thnt there WIS not sufficient cooln. time he
Il
It was all one transaction and mus; be taken to-
.cthcr." We think the question is here fairly
presented by the record cUn!d ihs homicide b.
considered to amount TO anyihin. NOR. than man
slaughter. Or i'll other words was committed in
hc heat of passion up"na sudden and sufficient
provocnion and if 80 was there time for the blood
Whether it was SO committed was question for
hc jury under proper Instructions o' the i"nut
)fcoUling time. to whether itfi /: tf.iG.;iIu Oi
NV sesn'i"s sf %iis q eo as''F ''' ' @ authorities a''
hough each case is to be decided by its citcum.
stances the question is Ol Of law whether iu the
particular circumstance the blood had had sum,
;icnt cooling time And the section following
lc says. The doctrine let it be repeated Isl thrt'
he question what is sufficient cooling time an,.
he question Of what'ira sufficient piovocatiou,:
.rc:hcfh Of law and not Of fact, aud acting in the,
support of Tie dtctrMG numerous English and
Anlcricdn caee.:, ara Wharton e Criminal Law S.
ion ns this it has been said wTt,it:r .tii,: blood
nd time to cool or not is question for.tlle court
md not for the jury. Citing Suite and Dyrertut
&c ma down q. 10 the lilnv cithcr which the blGO,
hould cool, each case must be governed by its
'wn circumatanccs, the character and temper
ncut Of the man. the nature and degree OF the
&C., but II we should uiopt the rule
hat is q question Of law for the court, and the
e should have charged the jury thereon. If h.
ad thought there hud been sufficient cooin.
imc he should have told the jury But we
re OF the opinion that the judge who tried I,slow:
'ould scarcely have been willing TO essrn,c sha
Of telling the jury that blows were
ut sufficient provocatiou if.key found the fatal
hot was fred in IL passion cngrntlGred thereby. or
hut two or three moments We sufficient time
II which the blood lniyht cool
That the homicide was perpctratcd with dead.
weapon does no, "a: mec.ssif"ie: swell the hop,i-
idc to the degree Of murder. while statute do
neg homicide TO be nlnnsla,.shtcr. when ,pcrpr-
IA pcrpctratrd i'll the heat OF pussiOn. engendcr.
d by II sudden and sufficient pruvoca;ion cvcu
louS the defendant at the Instant. and In his
hrci,zy intended take. life, the law in its ten.
or regard FOR human frailics, will iutcrpose nni
"; there was no intent, no premeditated design
otnt the judges charge il III silent as the grave
o references iz mndc even to the stinction be-
vccn murder and mansaughlcr further thanu
'ad to the jury from th" .t'.tutcs. We think oa
point Vital to the rights Of the defendant tho
dgc should NOT have conten,cd himself wilh
&c P:nni Code Wi,,oni M i"ic s' or re- cnhn:ns. '''
II i- undoubtedly tn" duty "f the jnt'gc ,o:ivs
~ Instructions To tho jnry .covcriu: the cntirs
ill If he onts -omcthiI,.: and il not askeI,o
pplv tlrsicftri the party who remained allen:
iOt com nlan.
But in ihis c,isc tho record di-closcs. th. at.
ntion "f the court was called to the direct puiut
I'd he WIS asked to rule upou il and in \ cn.c ur
ch m"ncntms importance to the accnscd. whcr:
8 life (or which a man will give oil that be- har)
ing trembling in the balance, where the cvi.'
nee showed asudd-n combat passion. with -
icf time intervening until tue fatal shot
cd. We caunot understand how the judge ev.l
tho4t being requested could pass the ,quc.tt"n
. Had thcjudsc. being "p the ground and SEQ.
2 all the witnesses hid h.-srin. nil the t:vepce
cidcd there xas not 'a,icien, pruvocntiou Or
1t there had htc1 s::i!cicnt cunlin. time, or had
C qucstior.acr,' left fairly I" tho jury undcr
9Pcr instrnctiots: We might hesitate bcfor. dis.
hing Hc csol.mn Judgement Of death. But un.
: ill III: facts yiaclos.d by this record W. or. of
scpIffon. andrnch is the judgment Of thiS
1rt. that the jidccmcut Of the cs,iirt below must
revised and tho cansc rcuinud:d for = new
n. '..--
t:viscd shannon. G. j.. cnnc,,rrinS Barnes T..
,CurrcG on Iuesfions Uf sufficicucv Vfthc iudict-
mt but dissCntk GU the other point.
RRPToRf OF'DAKOTA.
Ctn:nv bf Lawrence. Z"