The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1880-12-16


razor ne carried about his person and held In
his hand cut the deceased In the throat, there
by ln1lcting ghastly and mortal wound OF
which he died in very few minutes This is
denied on the part of the defendant, What
are the facts? This the Jury will determine
from the proof in the case They will deter.
mine from the proof whether II was the pris-
oner VINO cut the deceased, II he was so cut.
| II they should find IL was the prisoner that
did this, they " II next determine whether
the deceased died of the would so inflicted by
the prisoner. II they find that he died OF
that wound, they will next pr ceed TO deter
mine from the proof whether the prisoner
killed the deceased purposely.
| Did be XIII him purposely? How Is pur-
pose or intention to kill required to be
proved? Ordinarily, in the absence of direct
evidence Of such intention or purpose, which
can seldom be had, the purpose to kill is to
| be gathered or deducted from the crcum-
stances under which the killing was done.
| If the instrument used In indlcting the mOY-
tai wound was deadly weapon, ana the
| prisoner wlfully used 1t upon vital part OF
the deceased In a manner where such use
| would likely produce death, the inference
would be natural and fair, that he intended
or purposed to Kill by so using such instru-
ment; unless 1t otherwise appeared that he so
used it for a different purpose For the law
recognizes the principle of mental philoso-
| ply, tha,, ordinarily, what man willfully
| does he intends or purposes to do, and also
| intends the natural consequences of his act
| or those likely to result from the same
| sometimes the purpose to kill NAV be gath
| cred from the declarations of the pri SOner at
the time of the killing; sometimes from an
| tecedent threats; sometimes fr IN procuring
and carrying the deadly weapon for the pur-
| pose Sometimes 1t may be Inferred from
| series OF such or the like circumstances COM
| bined, having tendency to establish the
| purpose to Kill The Jury will carefully con-
| slider and weigh all the evidence in the case,
| direct or cirCumstantial, which may have q
| bearing on the solution of this important
| question, and will determine the same in
| view OF all the facts Of the case
Did the prisoner Kill the deceased maliC-
| iously? If the killing was malicious, in what
way Is 1t required that this fact be established
by the proof? 10 prove that the killing was
malicious 1t Is not necessary that express
malice be shown by the proof Malice Is or
dinarlly shown by, or Inferred from, the
facts and circumstances accompanying the
Killing, and having tendency to show that
the prisoner acted maliciouSly; such as that
the killing was willtul and lneXcusable, d ne
Without great prOVOCatiOn, or not In self de-
fence, and the like. 1t may also be inferred
from previous threats and other indications
of fillwill harbOred by the prisoner against
the deceased, or of his Intention to do him
grevous bodily harm. Sometimes it may be
shown by proving declarations made by the
prisoner otherwise showing his malice to-
wards the deceased at the time he killed him.
In direct connection with this question of
malice the question of self defense is to be
whatever he did in the difficulty or encoun-
ter ending in the violent death of Maier, the
same was done by him in legitimate self
defence, in the defence OF his own person
against the violent and dangerous assault
made by the deceased against his person, In
law man is justified to use all such force as
may be necessary to repel an assault upon
his person. The force so resOrttd to in the
protection OF ones person should be reasona-
bly, apportioned to the violence of the attack.
Excessive force is not In principle allowable; !;
but the law, conscious of mans frailty when
MS passions are aroused by the wrongful as
sault OF another and he Is suddenly called
upon to act under great excitement, in the
defence OF his person. will not hold him TO the
very strict or exact measure of force required
torepe the assault; and 1t allows him to act,
IN good faith, upon the appearances, and
upon reasonable grounds of belief, though
he might be mistaken in his apprehensions,
and he led to resort to greater force than the ac
tual danger to which he was exposed in fact
required IT. however, in the case OF an assault up.
on the person Of prisoner, he grossly, wantonly,
or recklessly departs from the line of self defence
and in turn himself becomes an assailant and
necessarily and willtully inaicts grievous bodily
harm on the original assaiant he cannot protect
himself against punishment on the ground Of
self defence. 1t is no longer justiflable self
| defence II he, knowingit 1t to be unnecessary, re-
sort to deadly weapon, and kill his assailsnt in
an assault upon his person not threatening him
with death or grievous bodily harm. The killing
Of another can only be justified on the ground Of
self defence where the party is in imminent dan.
ger of losing his life or Of receiving grievous
bodily harm; or where the circumstances are
such, that he has reasonable ground to believe,
and he, in fact, does believe In good faith that
no ig In iONr,n Il of 10 n
receiving grieVous bodily horn, and that he has
no other means to escape from such danger than
to take the life Of his assailant
In the case of Stewart VS.. The State the Su,
preme Court of our State held
"A person assaulted may employ sufficient
force to repe the aSsailant but does not follow
that he may without necessity use deadly
weapon for that purpose. And he is yet more
uujustihable If his weapon is concealed (Sec l
Ohio State, 66, decided in 1922
In the late case of Marts VS.. The State the same
Court defaes with great precision this right Of
| self defence in cases Of homicide. 1t says:
"Homlcde is justifable on the ground Of self
defence where the slayer, in the careful and
proper use of his faculties bona fde believeS and
has reasonable ground to believe, that he is in
imminent danger of death or great bodily harm
and that his only means of escape from such
danger will be by taking the life Of his assailant
although in fact he is mistaken as to the exist
ence or immiuence Of the danger. (sec. 26 Ohio
State 1877, decided in 1881
Lastly in still later case, reported in the last
report issued, the same Court reafirms the same
principles, It holds
one person can justify the taking the life ot
another in self defense only where In the proper
exercise Of his faculties, he believes In good faith
and upon sufficient or reasonable grounds Of be-
| lief, that he ia In imminent danger Of death OF
| grieVOus bodily harm. 1t Is not however, neces
sary that the danger should prove real, or In fact
exist, or whether real or apparent, If the circum
stances are such as to induce belief, reasonable
and we'll grounded that life is in peril or thai
grleyous bodily harm Is impending the party
threatened with the danger may act upon ap
pearsnces and slay his assallant. But there mus
be reasonable ground for his belief in the danger
threatened, arising out Of the circumstances II
which he Is placed, otherwise the act Of takinl
the life Of the asssilant Is entirely without justi
fcstion." (sec S5 Ohio State, 62)
The principles thus announced will be you
guidance in determining the issues in the case 81
lhI hb tuo QutbtlOu vi b6Al del5Co III IuVOlNeu ii
the same. 1t s claimed on behalf Of the defend
ant, that the proof shows, that the deceased re
Ceived the wound, OF which 1t is claimed he died
in fight In the street, in which the deceased wa
the assailant that the deceased was violent anC
dangerous man and so generally reputed sn(
the defendant had reasonable ground to believe
and did believe in good faith that he was In i'm
mlnent danger of losing his life or receiving
grievous bodily harm, and that whatsoever HI
did in the conflict, was done by him in sell
defense On the part OF the State 1t is claimed
on the other hand, that the proof shows, that tht
fight in the street was provoked by the prisoner
and that sfser the conflict was ended and the de
ceased returned to his place Of business and wa
standing on his upper step, about to enter hi
premises, the prisoner approached him unaware
and suddenly cut his throat with razor. 1t /
for you, gentleman, TO determine from the proof
hat rynra ha rno1 Fanto Wop tho prIsOpar halus