Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1884-10-08

sERGDANT KELLY Oh TRfAL
PORTLAND, Oct. I

PORTLAND, Oct. 2.
The Kelly ease vas resumed this msraips
a O'Clock. Judge Gilbers said that the
witness expected On the morning train had
not arrived and he would ask for no further
delay The testimony vas closed and Judge
Gllsss.&sesa .hs flesing .sssum-if .fbr the
defence. He began BY Asking vhy this de.
feadan' shosld ss dealt With. any s,sassr
severity than the scores Of othe, cases Of &C.
celestial shootins vhers every csipsbls
negligence 10 pared over aad no notice sak en-
Of 10 crssiaally. Kelly wss honestly trying
70 do his dsiy and nothiss more ~hen this
accideus occared and no notice would have
bees tskss Of il by the criminal au,herities
had il hoS Been for the viadictivs spirit On
The part Of Smiths family which demands
me blsod Of this aniostupass ssn. There
are but tive points In the case, saiA Judge
GilbefN for considerations: The govern neat
must not only show that the shooting vss
wilful, but that the deceased died in conse.
quence Of She wound withous any maltreat-
ment By the physicians. The defendant
should not be held responsible for saltreat-
ment by incompetent physicians. Judge Gil
bert then went over the medical testimony ct
length. and claimed that it showed no skill
upon their part, nothing but maltreatment
The burden of proof is upon the government,
said he. to satisfy the jury of every material
fact and if the evidence leaves the jury in
doubt as to whether Smith died Of the wound
or of the maltreatment of the physicians the
defendant should have the benefit of the
doubt. The judge took up the testimony as
to the shooting and claimed that Che evidence
not only did not warrant the jury in finding
that the shooting was wiful but showed that
it was purely accidental lie closed at II As
and the cenrt took short recess.
District Attorney Luut began the closing
argument for the government at y o'clock.
tie called the attention of the jury to tile fact
that this was an Indictment for manslaugh'er
and not uurdtr. he claimed that the evi-
deuee proves beyond doubt that the fend.
ant is luihy' of involuntary manslauehtcr
which is the unlawful killing without design
or intent to XII. lie claimed that tine egj-
dence shows coucldsivety that Smith died
from the wound inflicted by Kelly and from
that alone. But IL no did pot die from; itbat
alone. it is no defence to say that the result
was precipitated by the treatment of the
physicians or to say that death might not
have ensued had he had other and more skill
ful treatment. He cited numerous authorities
to the effect thht il physicians followed the
usual course of practice occasion death the
person who inflicts the wound is not thereby
relieved from Responsibility. He. did not
believe thai, Kelly didn't know the boys were
in the fort whenhe, started from bis house. He
was in the house beginning to shave and.wss
in position to see them and did see them when
they clambered in. He shot at the legs of this
boy, perhaps without an Intention of hitting
him, bnt his idea wasSto shoot and if he didn't
hit it would deter others from coming into
the fort.
This afternoon, Judge Colt. charged the
Jury in very clear manner. occupying 25
minutes he told the jury that II they found
hGIlN sIAIeulSUt kIut HS NhahENu MS
pistol from his right to his left hand when
decking up the stone, that his pistol hung at
his side with his right hand upraised at the
time the explosion took place, and that he
did not intend in any manner to infict injury
on or shoot at the deceased, then it would be
excusable homicide: but if he did take out
the pistol when at some distance from Smith,
if he had approached to within few feet
holding his pistol still in his right hand,
brought it down into his left and STOPPING
over little and aiming in the direction of
Smith, and the pistol exploded and the bullet
struck Smith, who died from the wound, then
il would be msnslsughter. As to the ground
of the defense that Smith did not die from
the wound, Judge Colt said: The question
is not whether Smith received the best med
ical treatment. The question is, what vas
the cause of deathf Did the wound or the
doctors kill him? If the doctors killed him
the defendant is not guilty. If the wound
caused death, whether he received good or