The Portland daily press., 1879-05-26
THE WITHAM CASE.
A VERDICT OF NOT GUILTY REM
DERED.
A Showery Afternoon in Court.

Saturday the Witham case ended with
verdict of not guilty for the defendant. In
the morning Mr.. Blethen argued for the
defense and Mr.. Haskell for the State. AT 3
p. IN. Judge Bonney delivered an able charge
occupying fifty-seven minutes
Judge Bonney first defined murder and its
different degrees and explained the meaning
of malice, expressed and implied. He then
read the statute defining the crime of abor-
ton and pointed out the difference the law
recognized between the killing of an infant
before birth and after. To sustain the charge
of murder the child must have had a separate
independent existence, or in other words, it
must have been born alive. No matter how brief
that existance was if it had such an existance
then the murder of it was possible. If it never
had an independent existence then murder un-
der the definition of the statute was impossi-
BILE. If the child has an Independent ex-
istance and dies from any act done with
malice, intended to destroy the child, whether
that act was done before or after birth then
the person doing such act is guilty of murder.
Ii the defendant in this case administered
drugs or used instruments for the purpoe of
destroying the child and it was afterwards
born alive and died subsequently from the
effect of the drugs or instruments then he is
guilty of murder. The Judge then defined
circumstantial evidence and laid down the
rules by which it should be tested The cir
cumstances must be proved beyond a reason
able doubt. All of them must be consistent
with the hypothesis sought to be proved by
them and with each otbar. zach circumstance
proved must have a direct tendency to
establish the main proposition; they must to
reasonable certainty exclude every other
hypothesis than the one sought to be proved.
The jury must be satisfied of the prisoners
guilt beyond reasonable doubt mot beyond all
possibility of doubt, but they must feel a moral
certainty of the truth of the charge. If they
do not feel this then the prisoner is entitled to
an acquittal. The rules to guide then in
weighing evidence were stated, and it was inn
pressed upon them that they were the sole
judges of the facts. 1t was necessary to con-
viction in this case that the government
prove three propositions
THAT the infant was born alive.
2-That the infant was unlawfully killed
with malice aforethought.
3-That the prisoner at the bar was the per-
The jury retired and were out one hour and
twenty minutes. Upon their return the court
room was crowded and there was silence like
the grave. There was feeling on the part of
many that verdict of guilty was about to be
rendered as several of the jury hod red eyes,
and the foreman and others were evidently
weeping. This might have been the result of
colds in the head. When the foreman rem
dered the verdict, and the words mot guilty.
were plainly heard, the father and father-in-
law OF the defendant were visibly affected
and the wife burst into tears. The doctor was,
apparently, unmoved. The audience express
sed appreciation and were promptly and pro-
perly suppressed. DR.. Whitman was immedi-
ately re-arrested for adultery and gave bonds
in $4,000 for his appearance. The bonds were
signed by his father and father-in-law. 1t is
understood on their first ballot the jury stood
for acquital and 3 for conviction.