Daily Republican., 1881-10-03

pick up a blacksmith hammer or tonps
with which he could have struck blow
on, no, he only stopped and picked uT
thls piece CT iron, but before using it
he waited to see what his assailant in.
tended to do, and he waited too long
he waited until he saw the flash of the
pistol, and felt the bullet in his heart.
1t may be that Adams then took hold
ofCarberry, and tried to get the deatl
dealing weapon from him, or it may be
that he fell on Carberry;it it matters but
little the man was shot, he was dying
and with fatal shot in his heart did
not know what he was doing, but the
evidence has shown you what the pris.
oner did instead cf taking hold OF
Adams ana saying "Sam, | did not
intend to hurt you, wait and IN get
you help" or something like that; he
held the dying man up with his hands,
and beat him with his fist.
Morris Carberry shot with the inten-
tion of killing Samuel Ii. Adams; he
fired that pistol with malice
aforethought, and therefore it is mur-
der in the first degree. In conclusion
the Attorney General said that the sym.
pathy which the defence had asked for
the prisoner and his family was equal
ly deserved by the family of the poor
murdered man.
At 4.45 Mr.. Gray closed his able ar
gument which had been listened to with
Dreathless attention by the large num-
Der OF persons present.
The Chief Justice, being unable to be
present on account OF sickness. the jury
were charged by Judge Wootten as fol-
lows:
GENTLEMEN OF THE jury We
have now come to that point of this case
when it becomes necessary for the court
to instruct you upon the law applica-
ble TO it. You have heard the evidence
and the arguments of counsel for the
State and for the prisoner at the bar, ,all
of which have been well conducted and
able. The prisoner at the bar, Morris
Carberry, has been indicted and is now
on his trial for murder of the first degree,
as you are already aware. The indict-
ment charges that on the twenty ninth
day of Apri. last lSSl) in the city of
Wilmington, Morris Carberry, the pri-
soner at the bar, with express malice
a1orethought. inflicted upon Samuel II.
Adams mortal wound by a lead-n ball
discharged from pistol, held in the
bands OF the prisoner at the bar, of which
mortal wound the said Samuel ii. a Jams
instantly died. A more particular de.
scription Of the shooting and wound will
be found in the Indictment, which you
will have before you, and which has
and therefore not necessary
to be read or repeated by me.
The prisoner on his sarraignmeEt plead
ell that he is not guilty and the issue
which you have been sworn to try is
whether he is or is noo guilty. 1t may
be proper just here for me to say that
under this indictment the prisoner may
be convicted OF murder OF the first or
second degree, or he may be acquitted
of murder of either degree and convicted
of mauslaughter, a lower grade of crime,
Or he may be acquitted altogether on the
ground of justitiable or excusable homi.
eide as the evidence applied to the law
a we shall giveit to you as in your judg-
ment may require.
Without commenting upon or express
sing any opinion as to the character or
weight of the evidence, Of which you
are the judges, except so far as may be
necessary for the purpose of illustration
in announcing the law to you. l shall
proceed to give you the law applicable
to the case and which, with the applica-
tor of tde evidence, must govern its
final determination.
Murder is the killing human being
with malice aiorethought, either express
9r implied by law; the malice in all
cases of homicide constitutes an essen
;ial ingredient of the crime, and in the
ABSENCE of malice, either express or i'm
olied, the homicide is reduced below the
,rime of murder of either degree, and
amounts to a crime of a lower grade, if
20 any.
At common law there is but one degree
)f murder, but our Statute has divided
he crime into two degrees, the first and
second This statutory division of the
crime changes it slightly from its char.
acter at common law, but chiefly, how
ever, in the punishment inflicted upon
offenders. To convict the prisoner of
murder in the first degree you must be
from the evidence that the act
Of killing was done with express malice
and if you should not b.
satisfied that such malice existed in the
mind and heart of the prisoner at ih9
time when the fatal shot was fired, .e
would not be guilty of murder o. ne
first degree, express malice bring al es-
sential and pecessary element and in
yredient to constitute that crime. But
although the evidence may not satisfy
you that the crime is murder CT the first
degree, it may be sufficient 70 convince
you ofthe guilt of the prisoner of the
lower grade OF crime, that is murder OF
the second degree, which may be com
mitted without the existence of express
malice, if the facts and circumstances
the case are such that the
law will imply malice.
| have said to you gentlemen, that
there are two kinds of malice, that is
express and implied malice, and | have
instructed you that to constitute the
crime of murder in the first degree, the
killing OF uOullcluc luuoU uo ootn hAOoSN
with express malice aforethought. and
that in the absence of such malice, and
where the act of shooting or otherwise
killing was done under such circum-
stances as the law will therefrom draw
malice. Now to enable you to deter
mine whether the person at the bal is
guilty of murder of the first or second
legree, if feither. it is necessary that
you be informed and know what is ex-
press malice, and what implied malice
IS; therefore / will give you the dehni'
;i,n of both kind.
Express malice is where one person
kills another with sedate, deliberate
mind and formed design. Such formed
lesign to commit homicide may be in
Heated or manifested in various ways,
Is by lying in wait for the party
,lain, by antecedent menaces or threats
ii CLOSING the inward intention and pur
pose of the accused to slay the deceased;
he Intention may also be evidenced
BY former gradges, i'll will, enmity,
hatred or malevolence toward the de.
or by concocted schemes to do
;he party slain some great bodily harm,
- nINrxu