The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1883-03-07
JUDGE AND JURY.
The Charge of Judge A. Pease to
the McMillen Jury.
An Able and Impartial Review Of the TeStl'
mOny, Intsrspsrssd With Pertinent
Legal 0u0tatlSnS.
STATE OF OHIO,

GEORGE AoMILLRN
CHARGE OF THE COURT.
Gentlemen Of The Jury:
40 YOU nave long blnce learned In the
history of tbls case, this defendant,
George McMinen, was indicted by the
Grand Jury of TINS UNITY charged
. with having killed Augustine Mc Mil
len, OH or about the 10Th day OF June,
1882, III stark county. You have list
eneu carefully TO the details OF The tes-
timOny III this case, and II becomes now
NV duty to submit the case to you
finally. 1t Is now for your hnRl dis
position.
/ desire to call your attention to THIS
That the defendant 10 presumed to be
Innocent until the contrary Do estab-
llshed by full proof. The degree OF
proof that ID required in this class OF
cases differs materially from that In
civil proceedings, where the testimony
is weighed, as IN u balance, and which
ever way the scale turns, Is called its
preponderance, as In civil actions where
property involved and reputation ls
involved; but a higher degree of evil
dence is required In criminal proceed
iLes. The kind of evidence that Is
required in criminal cases iB such as Is
SAID TO be eyend q reasonable doubt.
What in law constitutes reasonable
doubt, I will call your attention more
especially hereafter.
Before the State can require verdict
at your hands of guilty. against this
defendant, they must prove 70 you 'the
body of the offenBe, as IT Ii called, that
10, that Augustine McMillen was killed,
on or about che 10th day OF June, 1882,
The exact day of the killing ls not ma
terlal. The statute under which
this Indictment 10 framed,
defines the Offense of which
the defendant stands charged F,
and IL in substance thiS: That whoever
purpOsely, and of deliberate and pre-
mediLaLed malice, ula another ls guilty
of murder In the hrst degree. ana snail
suffer death. There iB also included In
that charge the off6nse Of murder Ia the
second degree. This is IN substance
defined to be, whoever purposely aud
maliciously kills another 10 guilty Of
murder In the second degree, and shall
be imprisoned in the pen1tentiary for
life. There is another degree OF muir
der, and it is also included in this in
dictment, and defined IN law TO be:
whoever unlaWfully kills another ID
guilty of manslaughteI, and shall be
imprisoned in the peniCentiary not
more than twenty years nor less than
one wear, l call your attention 70 these
definitions and W the different onenees
charged in Lnls indictment, especially
for the reason that we've he 1ound
guilty of The OffenBe OF homicide, then
IL will Dc the duty of the jury TO deter
mine the degree Of the OnenSe. Then,
il he be found guilty of murder
in the frst degree, you shall 30 say IN
your verdict; II not, you Will proceed TO
other, and see II che testimony war
rants II, whether he ID guilty OF muir
der In toe second degree, and 80 on to
mAnslAughJer. AND for the purpose OF
enabling you TO more fully understand
these offeuses, and what 10 embraced IN
murder In the frat degree, shall more
specifically and fully call your attention
TO some of the elements, the four ele-
menLs, that are. em brHcod in murder In
the hrst degree. The tndlct ment In
this case charges that the defendant did
purDosely and of deliberate and pre-
meditated malice kill Augustine
McMlllen. You will, therefore, proceed
to inquire, did the defendant kill her,
and II he qua kill her, did he do 1t pur-
pOsely, did the defendant do 1t deliber-
ately, and did he do 80 with premed
itation. Did he do 1t malIciously These
are the four elements necessary to con-
stitute the ecrimemurder in the lst degree
Ali these elements must concur TO eg-
tablIsh the crime of murder in the hrat
degree Recurring to these elements,
NiJhin the meaning of our statute, pur-
pose means intent. Did he intend to
take the life OF the deceased cld he do
1t deliDeraLelyp Deliberation means TO
take council with ones self; to v ait
and reflect; 10 deliberate and weigh in
the minu carefully. Did he di it with
premeditatlOn2 Fermentation means
previous determination, or prior
Thought and reflection upon q given
subject, design or intention previously
formed. Did he. do 1t maltciOusly
Malice means q wicked intention TO do
an injury,a corrupt and wicked motive,
q mind fatally bent on mischief. have
given you these definitions, gentlemen,
with a view of enabling you to apply
the testimony presented In your hear
ing, Before this defendent can be
found guilty OF murder In the frat
degree all of these elements must con-
cur, and they must be found 80 as u
exclude the existence OF q reasonable
doubt. This does not mean that the
proof should be beyond all possible
doubt, OF imaginary doubt, or to a
mathematics Certainty. Absolute and
mathematical certainty are seldom
reached In determining the conduct OF
men. 1t must be such proof as pre-
.eludee every reasonable hypothesis
except that which II tends to support
1t is proof to moral certainty as dis
tinguished from absolute certainty.
WOQlQ Also say Gnhb tn0 borm lVboll
seems to give its own dehnition. Ii
having made the examination Of this
testimony, there should exist In your
minds an honest doubt under your OATH
If there should remain In the mind Oi
anY juror such reasonable doubt, the
defendant in this case il entitled to th'
benefit Of that doubt and should &
acquitted of this ofense. With REGARD
to the other ground or other charge II
this Indictment. OF murder in the sec
ond degree, l have substantially the
same observation to make, except tha
in the second degree there Is the alb
sence of deliberation and pIemedita-
tion. Then before murder in thu
.Pecond degree can be found, you mus
be able 20 exclude In the light of thI
proof the idea of deliberatiOn and pre-
meditation, because If there has beer
purpose to kill, with malice, and Their
Is premedItion and elaboration. Their
Is no escaping the conclusion that It Il
murder IN the first degree If you fnd
on the other hand. thar he wdH NO
guilty of purpose and malice. withou
deliberation and premeditation In ia
~A,,r Nk.A % 49, H.A uuxtl