Daily Republican., 1881-10-03
As whom the act is done suddenly in
transport of passion and heat of blood

as whom the act is done suddenly in a
transport of passion and heat of blood
upon reasonable provocation, with
out premeditatlon, previously formed
design, or any hatred, malevolence or
luminosity other than such Il provoca.
tion would naturally be calculated to
|excite, for in such cases the law i'm
putes the act to tho weakness Of cur
nature and human infirmity, and not
to malice with reference to the crime of
murder at common law or of either
degree under our statute. But the
provocation must be of such a
character as is calculated to produce
such transport of passion and heat of
blood as to incite the commission of
the act, before there was cooling time,
and for passion to subside aud reason
to resume its throne.
And here, as l have before said. it is
essentially necessary to the determine
ton Of the question of express or inn
piled malice to ascertain and satisfy
yourselves as to the intention of the
prisoner at the time he fired the pistol,
whether he did or did not intend to take
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to kill him he is guilty of murder Of the
first degree, and no matter whether the
intention had been formed for days or
only for few moments; but if he did
not intend to destroy his life, he is
guilty of murder of the second degree,
unless self defense is made out and
such as is an available bar to convic-
ton of the crime Of murder of either
degree.
Having explained to you what in law
Is termed express malice and what is
implied malice, | will notice and ex.
plain the character and nature of the
defence, which the prisoner, through
his counsel, has made aud relies upon
for verdict OF acuuittal from any crime
whatever. | shall give you the views
and opinion of the courtin reference to
the defeLce withour .as have before said
commenting on the evidence, except so
far az may be necessary for the purpose
of illustration, and | shall carefully re-
frain from theeXpression ofauy opinion
as to the weight or character of the
evidence. You are the Judges of that.
| 1t is not our province and we have no
the judges of the law, and from us it
Is your duty to take it.
The defence set up and relied upou is
self defence. That is that the prisoner
took the life of the deceased to save his
own, or to prevent the intiiction of
some great bodily harm to him by the
deceased.
1t appears that Carberry, the prison
er, was watchman at the Old Ferry
Rolling Mill in this city, and that the
deceased was an employe there, whose
work was cutting horse shoe iron.
Thomas McCatferty, the foreman at the
horse shoe shop of the Diamond State
Iron Company's Old Ferry Mill, and
who was in that position on the 29th of
April last, testified that Samuel Ii.
Adams had charge of trimming the
iron for the horse shoe shop. That on
the morning of tie 18th of April at forty
minutes after six O'Clock he was sitting
on a bench waiting for the whistle to
blow, and saw Adams the DECEASED
come in; Adams was what is called a
mulatto; he worked at the shears; when
he passed me l asked him to cut horse
shoe iron that was rolled the night be-
fore; he said yes sir | will, and made a
step off towards the shears, the whistle,
signal to 60 to work, hal blown and
passed him to start the engine; saw
Carberry come in the door; he hallowed
hey; Adams stopped; Carberry said you
will have to 20 out; he said can't go
out, l have business and must go
through with it; Adams backed to the
bench and Carberry followed him;
Adams sat down; Carberry was four or
five steps from him; Carberry picked
up the kettle and set it outside; Adams
said can't 90 out | have business to
do; Carberry said by-you shall 60
out, and drew q revolver from his hip
pocket.
Adams was then between the table
and revolver. He made one step back
and picked upa piece of iron, which
was shown to you. He held it down.
Carberry held the pistol up and his ell
bow bent. Adams said, "You have
hourished that pistol in my face three
or four times don't do it again. Car
berry said, "Go out" Adams said,
"Ha could not" Carberry said, "By
G--y you shall 60 out" Then, he
fired instantly after he spoke. Carberry
was within two feet Of Adams when
he fired. Carberry then threw his left
arm around Adams neck. Adams
arm, which held the iron, then dropped
Carberry threw tho pistol towards me.
saying, "Be careful of that pistol Car,
berry, when he had his left arm around
Adams neck, struck him three blows
and then let CO. Adams fell and gave
one sigh, and was dead. Carberry then
went ont around the horse shoe fur
mace. In ten or fifteen minutes | saw a
wound in Adams left breast. 1t was a
small hole, and there was little bleed
ing.
Adams body was laid on the table
until the coroner and doctor arrived
three or four hours after. I've seen
men come in the door that Adams en-
tered; there was no rule to witness
knowledge preventing men from enter.
ing that door when going to work; was
speaking to Adams about his work
when Carberry came in; Adams cut
iron by contract and employed his own
men. These are the outlines and sub
stance of the facts surrounding this ter
rible tragedy, and from them, or rather
from the evidence as you understand
and remember it to be, you are, on its
application to the law as shah give 1t
10 you, to consider and determine
whether the fatal shooting by the priso'
ner was done, and was necessary to be
done in self defense, that is, to save his
own life, or to prevent the intliction OF
some great bodily harm to and upon
him by the deceased. i
Now as we understand the law of
self defence to be, and as it has been
recognized by this Court
a. far back as the time of the late
Chief Justice Gilpin, and | am not
now prepared to say how much longer,
but certainly for period of more than
"a years. Since the appointment OF
Chief Justice Gilpin, and previous to
that time, the criminal cases were not
reported to such extent as they are
now by Judge Houston.
The prisoner to avail himself OF the
rlea of self defence must satisfy you by |