The Elk County advocate. [volume] (Ridgway, Pa.) 1868-1883, 1880-09-30

ment of that kind to execute the warrant,
and 1t was without authority OF law. If then
Warmth, and those with him. went to the
house of English, claiming authority by vir-
tue OF the endorsement upon this warrant TO
him, TO execute the same, 1t was an error on
their part, and did not vest or give any au-
thorlty, whatever, TO execute the warrant by
specially delegated by Justice Burke. If he
had no authority to execute the warrant.
then there are questions 81 that M arise as to the
10 the house. Another legal proposition has
been raised by the evidence In the case. II
is claimed on the part of the Commonwealth
that II a felony had been committed and the
officer of the law, with knowledge of the
to have committedit, and he communicated
the fact that lie was an officer, and that he
was in pursuit of the party, in consequence
then he has the protection of the law for the
purpose of arrcsing or apprehending the
we say TO you as question of law tba, if
Frank Warmth assembled the men who
went with him to the house of English, and
announced that he was an officer or
English knew that he was a constable su.
thorized to arrest and stated to him that he
arrested or was about to arrest him for the
same, and with knowledge of the fact thus
acquired, the person who was charged to
nave committed the felony and who had
committed the felony, escaped or attempted
TO escape. after the arrest, the officer would
nave nave auIhorlty to seize him to prevent the
escape and use the means necessary to pre-
vent the escape, in ~ proper manner even
though in the exercise Of prudent discretion
1T should result in the death of Il person thus
endeavoring to escape; If when Warmth
came to the house he said to English, or in
duced English to believe, that he was exer-
cising an authority that was authorized by
the warrant to which we have referred, ii
gave to him no right beyond that of other
persons to arrest without authority. If on
the other hand when he came to the house
he announced TO English, or English knew
that he was in pursuit of him, because he
had committed IL felony, then he would have
the authority of an arresting officer and
could exercise that authority in the manner
that we have indicated, and in so doing he
could enter the house, and when he had
entered the house he could use the means
necessary in the manner that we have
indidated to secure the person of whom he
was in pursuit. WithoutauthOri of law per-
sons had no right unpermitted and unbidden
to enter the house, and when they did SO the
person in possession had the right to tell them
TO desist and if they did not he would have
the right to use the force necessary to prevent
their entering-or to prevent their advancing
further--and he could even put them out
using the force that was necessary for that
purpose, and if he was opposed in that he could
go to the extent that was necessary in its ac-
Complishmcnt. lfOn the other hand the officer
without authority or the warrant made
known as we have stated, the purpose for
which he was there; Stated the oftnse thai
arrest. then he could enter the house and
when he did enter it he could break open in
person tTs % who he was dfter With tRis Statement % @
of the legal rights that surrounded Warmth
and those that were with him YOU will nnss
10 the consideration of the facts surrounding
the transaction, on the 18th of April. The
parties dhat is Warmth and his party were
there in the early morning according to the
evidence. If in my statement of the evidence
do not get it strictly correct, or give it any
coloring that is not justified by the facts you
with your recollection, must correct the
statement, because you are not TO take any
fact as stated by the court; you are the
the 18th of April, in the early morning, Con
stable Warmth, and the parties with him
were at the house in which English was: it
Ii IS been detailed to you in the evidence how
the parties located and posted themselves
were armed has also been stated. IT appears
in the evidence that after they had been
there some time and had II consultation that
the defendant, English, appeared at The door,
and that when. some one spoke, with some
whoops, or yells he went in. The Constable
some tramping heard below, and then some
,ramping heard as the parties went IN tn"
stairs. There was platform ut the head of
the stairs, ana on one side were two
rooms and one room upon the other side the
family of RUNNER were in one room upon one
side, and EnglishS family, his wife and three
children, were in the other room. and in the
other side Hummer appeared to have been
staying. As the party was going up the stairs
at near their head II pistol shot was fired.
Burke testified that the constable slipped in
some way and the pistol was discharged at
and at the head of the stairs, then there was
another pistol shot, and there was gun
fired in quick succession after the pistol.
There is some evidence that there were one or
two other shcts fired as to three shots there
seems to be Il concurrence of evidence: aS to
the other shots there is perhaps some lifftrent G
in the evidence ON the subject. 1t is also in
evidence thatsome bullets were found, ,one was
in the tionr; another was in the ceiling and
picked out by Burke; another hai passed
through the ceiling into clothes press, and
that were hanging there; another bullet was
found in the shirt of Warmth after his
death, There were four bullets. You must
determine when, where, how, and the cir
cumStauceS under which they were fred 1t
is also in evidence that there was q gun
that gun was afterwards in the possession Oi
English when he was at the head of the
stairs. There is evidence that he was taking
the ramrod out of gun; there is evidence
that it was fired; some evidence that he shot
in the room;, there, is also evidence that,
after it was alleged the constable was shot.
there was II shot or two fired out Ofthc window
by English. We say to you as question oi
law that If the defendant. in the room will
fully, deliberately, and with prcmeditatiun
raised the gun and fired the fatal shot that
killed Frank Warmth it was murder in the
first degree. The intention To Kill is essen
tial. 1t is willful if ii was accompanied by
such circumstances as evinced Il mind fully
the life There must be time ANA formed
intention there must be time to deliberate
and formed Intention on his part to kill, and
this formed Intention under the circumStan-
ces must be inferred from the evidence.
Did the defendant willfully, deliberately ly and
with premeditatiou, intending toaccOmpiish
the death of Warmth, then aud there fire
that gun. You will take all the surround
ingS Was there time to deliberate? Did the
circumstances evince n purpose, and inten =
tiOn, matured and considered, to shoot and
take the life of Warmth? You will consider
all the circumstances in this connection.
We have stated to you the essentials that are
necessary in order to constitute the offense.
There must have been IA purpose
formed, willful, deliberate, and pre-
meditated. Where they exist it CON
stitutes murder in the first degree.
Now, gentlemen, ,all murder not of the
first degree is of the second degree.
Murder in the second degree includes
unlawful killing, with depravity of
heart, and the mind regardless of
social duties. 1t is without that will
ful, deliberate, and premedtated
killing to which we have already
referred. If you find from the cir
cumstances in this case that these
parties came in violent or tumult-
uous manner; if there was that con-
duct that evinced purpose not to
peacefully execute the law, but to ill.,
fiict injury upon the defendant |;
injury with violence; if they were
excited; if they fired upon him that
is - if Warmth fired upon him, or
wounded him once or twice or more
before he had shot, and he under the
excitement that was thus produced
without the willful deliberation, and
reconciliation to which we have re-
ferred, raised the gun and shot War
NTH, then you can say by your verdict
that it was murder in the second de-
gree. And in submitting these facts
to YOUR consideration you see the inn