The daily gazette., 1879-12-11

Either of these cases, where tbe malice
Is proved constitute murder of the fl, st
degree. '"N ''' ~
Ihe manner of the defense was next
taken up and stated to have a two-fold
aspect, self-defense and accident. If
either OF these claims have been entirely
proved the prisoner is entit, to a YER.
dict OF acquittal, or of lower degree of
crime than murder of the first degree,
This state Of the case make, it necessary
that the different kinds of homicide be
dehned, anu the court then went on to
do so. There are malicious homicides
and homicides that are not malicious
Inc hoin,cides that are not malicious
are divided into three classes first JUS
Unable second, exclsable third, man
slaughter. Those that are malicious are
divided into two classes murder of the
hrst degree, and murder of the second
degree. Justiliable homicide Is when
an officer OF the law takes the life OF
person when 1t is made necessary and
Tor which he cannot be blamed ; this can
well be illustrated by an execution or
by the killi 6 of a fleeing felon by an
oflcer Of the law when he canno,
be taken in any other way. Excusable
homi,ides arr those which are committed
either by misadvertence or accident
While the performing OF a lawful act, as
when parent Or master chasiisc a
child or servant in moderation and the
punished party dies from the effect, or
an officer of the law punish a criminal
| inside the limit prescribed by law and
| The cuprit die from some cause pro-
duced by the punishment. Manslaugh-
| ter is that which is done in self.defense,
IN cases Of sudden assault wien there is
impossible means of escape !; 10 avail hin =
sell of this plea a prisoner must show
that he WIS closely pressed and that he
was in danger Of having his life taken or
Of receiving great bodily injury; he must
also show that defense was not near at
band again lie can show that he was in
defense of his house when the deed was
done, or that the deceased having tres
passed and entered, refused to 20 out,
and the force used in expelling, which
caused Geath, was in keeping with the
danger and trouble to Iut tie party out.
| Manslaughter Is without malice. Vol.
untary homIcides are those committed
in the heart Of blood, ard the intent to
commit the crime must be shown not TO
have been pre-conceived and that the
| blood had had time to cool after quar-
rel, if there had been one.
Malicious homicides consist of murder
| of the first and second degrees, tie latter
having been created by statute of 1852
and embracing all malicious bomicides
! except those committed with express
malice. In order that the jury might de-
term he whether the prisoner was guilty
of the first or second degree of murder,
the court proceeded to inform the jury
about malice. 1t was not restricted to
one formally, but to all people at times,
aud when prisoner shows IL the more,
it is IN re certain that he committed a
ime. A prisoners are presumed by
tie law to be malicious until the prs-
oner shows state of facts decidedly diff
ferent, and in order to escape and dis
prove such charge they must show that
they acted from sudden heat of passion
in defense of himself or household; or
that the weapon was accidentally dis
charged. If the prisoner can not do this
! he must be convicted Of whatever de-
| gree Of murder the jury finds would be
just. But before conviction il must be
shown that the prisoner was actua'ed by
sedate and deliberate purpose and
form of mind ; not to show simply i'll
will but that at the time there was de-
lberate preparation TO take life. This
kind OF malice must be shown to convict
of murder of the first degree.
To convict of murder of the second de-
gree it must be shown that tie prisoner
had reckless disregard of consequences,
and apparently did not care what was
the result.
The Court having gone over the law,
now said It was the duty of the jury to
consider the facts in the light OF the law,
thus laid down, and then proceeded To
speak with regard to the case. There is
no coubt but that Rowe is dead and that
he was killed by The prisoner at the bar
and competent witnesses testify Indci
oath that Dugan confessed TO having
fired the fatal shot. AT the same time
there is also no doubt that he did not
intend to kill the deceased. In reaching
| determination 1t would be well for he
Jury to decide In their minds what the
effect would have been and how il would
have effected Dugan's case If McGaughey
had been killed.
The Court turned TO former state.
ment in regard to the defense, and sum-
marily disposed of the self defense idea
l
there was no evidence 10 warrant the
jury In sllo ing the plea of accidental
shooting to influence them. The act
which led to the fatal result was of itseli
unlawful, ami the prisoner had no right
to thus point the loaded pistol. The hal
could not have done execution unless
the weapon was aimed at McGaughey
and the lead d iyen by the powder, which
was caused to explode by the force with
| ,yhi i,h ha friu N pnllad
The plea o.self defense was next taker
up, and the Chief Justice prefacod his
consideration of the point with the
statement that the plea would hot avail
unless 1t could be shown that the pris
oner was in danger Of his life or of mon
strous bodily harm. Had the prisoner
furnished any proof that he was in any
danger, and If so what? To answer the
question the Chief Justice commenced tt
review the testimony. There had beer
three witnesses who had testified to the
shooting, Coleman, McGaugbey ant
Cayen. Coleman saw McGaughey anC
Dugan in the sitting room, the forme
advanced and hit at the latter, grazing
him, and he brew up his hands to avoit
: being hit. McGanghey called him s.
of b; Dugan drew the pistol ant
McGauphey fell back. The witness, hav
ing come out into the bar room locke,
in and saw the shot fired that hit Rowe
McGaughey and Caven nearly state th,
, same fac.s-that after McGaughey got II
Dugan ran at him and was repelled by
push, with the words, eco you d.
fool, / don't want TO have anything Il
DO with YOU" Dugan then went intt
the bar room and returned with the pis