Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-17
Sas Daily gress ssd 9stststss
vANk DAKOTA
Friday Evening, Oh. ", 1873.


II. q. SMITH. Reporter.
In TIE SUPREME COURT OF THE TERRI.
TOBY OF DAKOTA, AT JUNE TERN. 1879.
HE TERRITORY OF DAKOTA.
Defendant in error.
WILLIAM GAY, Plaintiff in error.
Appeal from the judgment of the District
Court OF Lawrence county.
Continued.
This statement of the case sugeest the in.
quiry, did the court below in 20 pronoun
cling the law infringe upon the rights Of
the jury? Clearly not.
II ia the duty Of the court to determine
q a question Of Law, Whist testimony and
What evidence il proper and competent to
be submitted to the jury.
1t is the duty Of the jury to determine
what facts are established By the evidence
thus submitted Or permitted TO 20 to the
jury.
The court declares the Law, the Jury .scsr.
tain the facts, and having done 60 are legally
and morally boundto pronounce a true yer.
dict. The appellants counseldo not complain
that the verdict in this case is not = true
verdict, but they insist that IN all criminal
cases the jury has the power to pronounce
a verdict of not guilty, and that the court
cannot refuse to receive the verdict, and In
this respect the statement of appellants
counsel IL true as a matter of fact-in other
words, the jury has the physical power to
disregard the evidence-0 disregard the
law as given BY the court-to disregard the
solemn oath they have taken, and pro-
nounce q verdict that lie false in fact. and
the court is poverless to correct their
wrong and must receive the verdict.
Was that physical power taken from the
jury in the case at bar? We think not.
Their duty was clearly pointed out, the
law correctly declared, they were admonish.
ed to observe the Law.
They were not divested Of their physical
power to disregard the defendants sdmis-
sion of his guilt, and the Law of the land as
given to them by the court, and declare a
verdict of not guilty, false though it would
have been, and the court would have been
bound to receive it.
The counsel for the appellant has referred
to, read and discussed the following caaes
in support of the position taken BY the an.
pellant, that the court may not express an
opinion to the jury in regard to the weight
Of evidence, viz:
10th Pick, 252.
lat Chitty, Criminal Law,
Code of Civil Procedure, page 1871, sec
ton 377.
Az a rule of Law this proposition will no,
be denied. And this suggests the INQUIRY
What are questions of fact to be passed up'
on by = jury?
First-When there is a conflict of testi.
mony, It is the province Of the jury to ex.
anime the testimony and determine whal
facts are proved or %disproved.
Second-Where there is evidence tendins
to prove or disprove a material fact or issu,
it is the province Of the jury to determin,
whether the evidence submitted 10 the iur,
proves or disproves the facts sought to b.
established. 1t is in no sense expressing al
opinion upon a question of fact for tn,
court TO take from the consideration of tn
jury evidence not proper or competent o
not tending to establish the fact soHght L
be established.
1t may he proper that we here defnitel,
understand the status of this case as pre-
scented.
At the close Of the testimony on the par
of the prosecution, and also at the close o
the testimony on the part of the defense
And first, when the testimony on the par
of The prosecution was closed the charge o
murder was quite conclasively established
The defense then among other witnesses
placed upon the stand The defendant.
He admits the homicide but seeks Il
I iNot1fu ovns,oo ~ rnstsvsto ak1 -aa-.~ -
among other things states that he did no
design or intend to take the life of Forbes
He states that he was excited-that he wa
very ~angry-that he threw off his cost 70
the purpose Of giving Forbes a whipping
He further states that q third party Inter
ferred that he then drew out his revolve
and told this man to stand back a. be kne,
nothing about it; hat at this time Forbe
was standing two or three feet away ; tha
he then struck Forbes two or three time
over the head that the last time the pisto
came down it went of that his intention
was to hit deceased two or three times owe
the head and let him 60.
Here we remark there is no evidence I
show that FROM the commencement to th
end Of this atfray the deceased had uttere
an Insulting word-that he had raised
hand either to defend himself or attack d,
PENDANT.
Assuming that Gay and the witnesses o
the part Of the defenae stated the exa,
truth, there does not appear to be Il
slightest testimony tending in the lesst
Justify or excuse the homicide.
The testimony Of Gay and some othe
witnesses tended (slightlv) to mitigate ~
possibly to reduce the offense from murdl