Bismarck tribune. [volume] (Bismarck, D.T. [N.D.]) 1878-1884, 1882-01-27

first that the deed was caused by the act OF
the accused; and further, 1t was
caused with malice aforethought; that d,d
prove any ill will or hatred on the part of the
accused, toward the deceased. Wherever
homicide was committed without lawful au-
thority and with deliberate intent, it was suf-
ficient to prove it to have been done with
malice and forethought, ard malice was
not disappeared BY showing that i. the cse accused
and that he killed him from other motives,
as, for instance, mistaking him for another,
or las claimed in this case) to produce
public benefit. If it could be shown the
killing occurred in the heat of passion, or
under provocation, then it would appear there
was no premeditated attempt and therefore
no malice aforethought and that would reduce
the crime to manslaughter. It was hardly
necessary, however, to say there was nothing
of that in the present case. The jury would
have to say the defendant was
49, GUILTY OF MURDER.
or he was innocent. In order to constitute
the crime of murder, the assassin must have
a reasonably sound mind; in technical terms
he must be ''of sound mind, memory and
discretion Any irresponsibly insane man
could not commit murder. If he was laboring
under disease of the mental faculties toan
extent that he did not know what he was do
ing or know it was wrong, then he was want
ing in that sound mind, memory and elscre-
ton; that was part of the definition OF
murder. In the next place, every defendant
was presumed innocent until the accusation
against him was established by proof; in the
next place, Notwithstanding this PRESUMPTION,
of innocence it was equally true the defend
ant was presumed to be sane and to have
been so at the time the crime was committed;
that is to say, the government was not bound
to show afirmatively as part OF its proofs
that defendant was sane, as insanity was the
exception and as majority of men are sane
the law presumed the latter condition of
every man until some reason was shown to
believe the contrary. The burden was
therefore on the defendant who s.;
up insanity as an excuse from criluo
to produce proof in the first ID
stance to show that the presumption WIS
mistaken, so far as it related to the prisoner.
The crime, therefore, involved these ele-
bility o. the mind of the murderer. After
all the evidence was before the jury, if the
jury, while bearing in mind both the pre-
sumptions, that is. that the
DEFENDANT Is INNOCENT
till he is proven guilty, and that he is sane
till the contrary appears, (stil entertained
whathis called unreasonable doubt on any
ground, or is to any of the essential ele-
ments Of crine} then the defendant was en-
titled to the benetitof that doubt and to
acquittal.
The Judge then explained 10 the jury what
constituted REASONABLE doubt, and in illus
tration Of this point Judge Cox quoted the
charge of Chief Justice Shaw, of
Massachusetts. in the case OF The
Commonwealth Us. Webster. With refer
ence to evidence in this case, very little COM
ment was required by the court except upon
one question, the others being hardly worthy
Of dispute. That the defendant fired the
shot and the shot wounded the president was
abundantly proven, and that that would was
fatal has been testified to by surgeons who
! we're competent to speak, and they were un-
contradicted. .i .---
The Judge then spoke of the abuses of the
insanity plea andw wound up the charge as for
lows: ''The jury will bear in mind that a
man does not become irresponsible by the
mere fact of his being partially insane as the
law assumed every one at the outset be
:: SANE AND RESPONSIBLE.
The question was, what was there in the
case to show to the contrary? AS to the de-
fendant the jnry was warned not to infer the
man was insane from the mere fact of his
committing the crime or from the enormlty
of the crime, because the law presumes there
is bad rcotive and that crime is prompted
dwelt upon the question of insanity simply
because the evidence relating to that was
evidence touching the defendants power or
want of power (from mentel disease) to
distinguish between right and wrong.
AS to the action by him this was
broad question for the jury to determine
and was what was relied upon by the defense:
The only safe rule was for the jury to direct
its attention to the one text of criminal re
sponsihility, viz: Whether the prisoner
possessed mental capacity at the time the
act was committed to know that it was
wrong, or whether he was deprived of that
capacity by mental disease. There was one
important distinction which the jury must
not lose sight of and they must decide how
far it was applicable to this case; that was
distinction between mental and moral obli-
guilty, between mental incapacity to distin-
guish between right and wrong and moral
insensibility and that distinction. @
TBE JUDGE IN CONCLUSION s
said: tsAnd now, gentlemen, to sum up all I
have said to You. If you find from the evi-
dence that at the time of the commission of
the homicide the prisoner was laboring under
such defects of his reason, that he was in
capable of understanding what he was doing,
or of seeing it was wrong thing
to do: as for example, if he
were under the insane delusion
that the Almighty had commanded him to
3,-s# .sZ ST,