Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-20

OPINIONS OF TIVE SUPREME COURT.
PC8LisHED ny AUTHORITY.
1gsI =. q. SMITH. Reporter.
In H SurRRME Cousr OF rus TkRRr.
Tory OF DAKOTA, AT JUNB TEaM. 1879.
THE TERRITORY OF DAKOTA.
Defendant in error.
WILLIAM GAY, Plaintiff in error.
Appeal from the judgment Of the District
Court Of Lawrence county.
Continued.
Again the court says: .The al. trIct
couit correctly instructed the Jury At the TO-.
instance Of The prosecution, that no words
Of repronch how grisyous % ever! they, may
Dc are sut1cient pr0vOcstion to reduce the
'Ottense OF 40 Intentional homicide with q
deadly weapon from murder to nsuelauRh.
ter"
10 this Case " is apparent that the court
below alter listening to the evidence and
applying the law to the facts OF the case do.
terminod, that there was no evidence that
would authorize the jury to prsnouucs Q
verdict OF ma%nslsuRLter; and the supreme
court declare there was ii error In such rt.
tussl. The evidence In the case is undis-
pu,ed, and no substaniiai right of the pris-
oner has been interfered with. Cause re.
manded with direction TO fix q dsy for cal.
fylng the sentence into execution"
People '. King 81 Cal. tO7: "Defend-
ant was convicted Of murder In the district
court and 40 appeal taken to the supreme
court. The following instructions were q.
signed % error: In the case that 10 noW
being submitted to you. there is no evidence
on any points or matters given In proof
reduce the crime charged In the indictment
tn granddaughter. II the defendant be foupd
guilty, therefore, you cannot consider the
question of manslaughter upon the evidence
In this case." a
1t was urged that this instruction wss Ct.
roneous, 1t determining a. Q mslter of fec.
which could only be determined BY the iu-
~, that there was no evidence that would
reduce the crime to manslaughter.
The supreme court savs: "At conmeu
law, q judge is allowed 10 express his op,n,
Ion as to the weight Of evidence. In this res
pect the constitutional provision referred Il
was intended TO change tho rule 90 % "a
leave the weight Of evidence entirely to II,
jury.
But the Judge may still as formerly, stat,
I what facts are in evidence, aud what arr
not, which includes the right to state to th,
jury that there is no evidence as to particu.
lar facts or issues when such is the case.
40 California p ia. The people '
WEIGH The defendant was tried for til,
crime of murder 10 the first degree an,
found guilty and from the judgment of th,
court below an appeal was taken to the gu
preme court.
The defendant excepted TO the seventh
instruction which commencing with th
words, lin this case if the killing was will
full, Chat is Intentional, deliberate and pre-
meditatsd) it Ia murder the first degree, 9th
erwise it Is murder In the second degree.
1t is urged that this instruction was . violt
ton OF the constitution, which reads
Judges shall not charge juries in respec
to matters of fact, but may state the test
mony and declare the law" This provisio
OF the constitution 10 equally applicable I
civil aud criminal proceedings,an and in beth
may be the duty Of the Judge 10 determir
whether there 10 any evidence to sustain ii
main issue, or 10 sustain any facts on whic
$J0aS0AbAN0A0A JUN8&AA00S eA40DS uGSGO00xyty N
pend. OfcouIse such determination ehouI
be the result of prudent and cautious exau
inatiOn but IN Q proper case the court ma
act op. the ASSUMPTION that there is no ev
denes in respect toa PARTICULAR issue On
grant y non-suit, adverse an scQuittA! q
frame its charge toa Jury without leferenc
to hsex,slsnce Of facts 20 to which no ev
dencs has been ptpdnctd.
In onrh (Aao ffka. nonrt annCH~afaf o th
testimony, for thsSepis none to stste.
The matters Of fact % to which.the couI
10 not permited to charge he Jury, are :th
facts contested OF. Ii some degree sought I
be established by, eyidence. ID atsumin
the no%n-existencs Of evidence excluded {
not offered, tho court does notintsfferesIit
the .discretlQn o~fsthejury. The prphibitio
oflheconsi1tudoncap besmadese mean
ofahisldins sthedis7ict judges i646eir ref
sal, .orineg.sct to discharge The duty Of ri,
ing sueh Instructions, and such INSTRUCTION
only as are appropriate to the evidence
the particular casa. ahd thereby aiding Il
Jury in the proper discharge OF their funs
tl0ns. NF
1t has been repeatedly held by this cou
that the district court may properly refu'
a charge defining manslsuRhter when the
is no evidence tending to establish that c
Tense i and that under uch,circumsMuces
is no vtoiAtion of the constitution for Il
rial cessaa0 assume that the offense Is n
msnslsdesisr, 1u-the present case there
no evidence. whatever tending to pro'
either Stkssahe crime wass msnslaushaf
that bsskiAtng v tsiusthisbEe or excrsab|
It wa, not error thereforet 70 direct the
tsulion 0Llhe juryaso the raj issue ISL
seutedsA by tie evidence.
WasaheaAlltng .tSe first Q rsecend degs
ThssPsqple '. Dick, "a C.lifornh, 2 Ct
The delaa9sht vas convicted Of murder
the 6rsts 8111ae in the district caurt.
appeal after judgment the case was reno
*, to thpaSupseme court. The distri
court ataledIo the jury: Aside from t
evidence Of. the defendant himself, there
no evidence whatever Of any person bei'
present at Simpsons cabin at the, ii,
Or impsoaay killed other than simpsppya
the deftadant."
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