Morning journal and courier., 1880-02-05

Judge Blydenburgh very ably replied for
 the defense, claiming the prosecution with | great ability had distorted the facts, but that
 nevertheless the public sympathy would still
 rest with Jake as an injured, wronged man, who
 did what he did only after wonderful forbear- | ance. The speaker reviewed the life and i character of the accused az stainless before | the deed, and his act was against one in whose
 adulterous embrace the wife of the accused
 rested. Smith had begged Pierce, and others 1 for Smith had done so also, to relinquish his | wife. Pierce broke up Jake's family.
 You will not question but that he loved that | little child, gentlemen. He walked along | leisurely up Broadway, whittling as he went, | with no murder in his heart, with a cane which he was in the habit of carrying to sup
 port him in his lsmeness, and with no thought or intention of committing murder. He had no pistol, no dirk or knife with a long blade,
 but only 8 little pocket-knife. Can you conceive, gentlemen, that he was bent where he had right to go to see his wife and children. He crosses the thresh- old and greets them pleasantly with Good evening, one and all." Then it was that Pierce made the threat, eff you come here again I'll fix you" and then followed the at
 tack which Smith resisted and which resulted in the death of Pierce. Then and there was
 the attack made by Pierce, which resulted fortunately in his own death. You have heard the plain, simple story of the accused. and through all the critical examination by the counsel for the State his story has been un-
 shaken. Now what is that story? He went
 into the house and Pierce rushed at him and he threw up his hand and cane to defend him. self, and on that wall is written the conf1rma- ton of his story, that he only raised his cane to defend himself when attacked by Pierce The counsel for the State disagree in
 their theory of the cutting. One says it was committed in the house, while the other con- tends that it was done on the stoop. Why, gentlemen, if that cutting had been done in the kitchen it would have been covered all over with blood. Dr. Jewett, Dr. Lindsley
 and Dr. Whittemore all agree that the wounds were made outside of the house. Now it is plain that Mrs. Loves statement about the striking of Pierce with the cane is lie. There is no mark on any part of the body to indicate that blow was struck as testified to
 by Mrs. Lowe. The indications on the wall,
 and that dead body, all prove that the state Smith was able to defend himself from the assaults of Pierce is remarkable. In the heat of that struggle he cannot remember every thing that had happened, but the bloody thumb mark on the wall before he reached the door shows that he did not receive that wound by driving his hand through the glass in the door. He tells you that he saw the knife of
 Pierce in his hand, and after receiving the cut on his hand, he holds his antagonist strongly,
 and thrustipg his left hand all bleeding into his pocket he draws forth his knife and in self
 defense he gives the blow that releases him from the grasp of Pierce. And he did right. That blow ended the struggle. He did not know that he had killed him, and he walks away, Pierce going down the street and Smith going through the back yard and over the fences. All tho blood marks and all the blood spots indicate that Smith was first attacked by Pierce. Is it strange with all these wrongs crowding upon him that Smith should have said, 1T will go
 back and finish him ?" And then when he is arrested does he make any resistance None whatever. He goes quietly with the
 officer, and when told that he had murdered
 Pierce he replies, ''Well. I told my wife I
 would die for her." Finally, gentlemen, I ask
 you to review the evidence that have omit
 ted. I only ask fairness. Here sits the ac-
 cused with no wife beside him, and why Because her love has been weaned from her
 by the man who died in this struggle for life between him aAd the accused. I ask in con- clusion, gentlemen, that you deal justly with the accused, knowing that if you do so your
 verdict will be not guilty.
 Judge Loomis' Charge.
 At 3:27 Judge Loomis commenced his
 charge to the jury. He said: Although the iu-
 dictment charged murder in the first degree,
 yet it was in the power of the jury, if they
 saw fit from the evidence, to bring in 8 yer dict of murder in the first degree, murder in
 the second degree, manslaughter or not guilty.
 After the able arguments on both sides, it
 will not be necessary for me to go over the
 evidence. I will therefore only refer to the law in snch cases. The first inquiry is whether
 Pierce was murdered by Smith es alleged.
 The evidence shows that the wound was in
 ficted by Smith, and I do not understand
 that there is any controversy about this first
 question. The second question is, was
 the accused justified in taking the life of
 Pierce. Homicide is justifable, first, when
 kko1 l-r, Sl1lJ Ja
 as when it is in the advancement of public
 justice; and third, when committed for an
 atrocious crime. When done in self defense
 it is when one is murderously attacked and
 kills to save his own life and again when in his own house a forcible attempt is made to
 eject him from his premises. The only de- fense in this case, as I understand it, is self defense. On this point Judge Loomis read
 from authorities defining self-defense and the
 distinction in law relating thereto.
 Two things are to be considered, first,
 whether there was any occasion for the kill ing. If the defendant was himself the assail- ant, then there can be no justification for the killing. If the accused went to the house for the purpose of killing, or for the purpose of creating quarrel and then killing, he cannot be justified. If the person killed was living in open adultery with the wife of the accused it was no justification for the act of murder, al though it reduces the nature of the crime. There would seem to be only one thing to de- termine, which is if the murder was commit ted in self-defense. Now, it is said that the truth of the story of the accused is strongly corroborated; that the cuts on his hands all indicate that he received them before he de- ivered the fatal blow. It is for the jury to weigh this evidence. It has been argued on both sides. It is said also that he is corrobo- rated by the declarations to let go of me dur ing the conflict and struggle on the stoop. The State say that no knife was traceable to Pierce as being in his possession at the time
 of the fight. The testimony of Mrs Lowe as to the commencement of the assault, of course, if true, affects the justification of self
 defense. Then there is the sharpening of the knife and the threats which the State says were made by Smith. The jury are to con sider whether Smith really intended murder when he said he was going to kill somebody, or whether he said it in spirit of bravado. The stronger points in the evidence for the State were here recited to the jury. In conclusion the judge said If you find in your investigation that there was en. tire justification for the act committed, then you need not pursue your investigation fur ther. But if you find that the killing was un- justifable, then you are to decide upon the degree of murder that has been committed. Malice aforethought is the very leaven of murder; and if malice does not enter into the | case it is manslaughter. The killing is man. slaughter if it was done in an unlawful man ner. If the killing arises from provocation, you must see that the provocation was suM- cient one and was done before the blood had | time to cool. After further statements in re- gard to the law andthe facts in the case Judge Loomis closed his charge. |
 At 4:45 the jury retired for deliberation. |
 Waiting for the Verdict.
 After the jury had retired the judges re- mained on the bench until shortly after six | o'clock, when they retired for supper, leaving instructions with Deputy Sheriff Stevens that | if the jury signifed their readiness to come | in before their return, that the sheriff notify \ them. Quiet reigned in and about the court | room during the absence of the judges, and | the crowd which had remained since the time | the jury retired began to s'thin out,'' until | there were but comparatively few persons re- maining.
 The reporters and others chatted with | Jake during the absence of the judges. | He seemed to be in good spirits, and said he | thought the jury would disagree. He de- | sired through the newspapers to return his | ''thanks to all his well wishers, both white | and colored."
 At 745 there was rap at the jury room | door. Sheriff Stevens answered the call, and | 3 moment later went to the judges room. | The judges came out of their room and