The Portland daily press., 1884-10-08
THE JURY DISAGREE AND JUDGE
GILBERT wITHDRAWs FROM
THE CASE.

The case of Sergeant Kelley was resumed
$50 o'clock yesterday before Judges Colt
and Webb in the Circuit Court Judge Gill
bert announced that the witness be sent for
last night to contradict the government wit.
ness Haley had not arrived and be would not
ask for further delay. 1t was then announced
that the evidence upon both sides was all in
and Judge Gilbert began the closing argument
for the defense.
JUDGE GILBERr's ARGUMENT.
The Judge began b. asking why this da
fendant should be dealt with with any greater
severity than other parties who have had the
misfortune to accidentally shoot another
There are scores OF accidental shooting, some
OF them the result Of culpable negligence,
white this was not, in which there has been
no proceeding whatever. Here was a man
honestly trying to do his duty and nothing
more when the accident occurred, and no
notice would have been taken of it BY criminal
proceedings had there not been a vindictive
spirit on tho part of Smiths family which de-
mands the blood OF this unfortunate man even
after it was SO visibly seen by the examination
before Judge Tallman that the affair was
wholly accidental.
Judge Gilbert said there are but two points
in the case for consideration. The govern
ment mnst not only show that the shooting
was willful but that the deceased Died in con.
sequence of the wound without any maltreat-
ment by the physicians The defendant Is not
TO be held liable for maltreatment BY incom-
petent surgeons.
Judge Gilbert went into the evidence of the
treatment of Smith by the physicians at some
length and claimed that there was nothing but
maltreatmeDt. The burden Of proof, said he
is upon the government to satisfy the iury OF
every material fact and II the evidence leaves
them in doubt as to whether Smith died OF the
wound or of the maltreatment by the physi-
clans the prisoner should have the benefit of
that doubt.
The Judge took up the testimony as to the
shooting and claimed that the evidence not
only did not warrant the jury In finding that
the shooting was wilful as required by the
statute but showed that it was purely ac-
cidental. he closed at II 45 and the court
took short recess.
DISTRICT ATTORNEY LUNT's ARGUMENT.
District Attorney Lunt began the closing
argument for the government at II o'clock.
After calling the jury's attention to the fact
that Kelley is indicted for manslaughter and
not for murder as Judge Gilbert's argument
seemed to suppose, he said that the evidence
in this case proved be ond doubt that the
defendant is guilty OF Voluntary manslauehter
and by his own statement he is guilty OF in
voluntary granddaughter which is an unlawful
killing without design or intent to kill He
claimed that the evidence shows eonclusively
that Smith died from the wound inflicted by
Kelley and from that alone. But supposinR
he did not die from that alone, 1t is no defense
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 skillful treatment. He cited
numerous authorities to the effect that II phy-
sicians following the usual course of practice
occasion death the person who inficts the
wound is not thereby relieved from RESPONSE
hilifu Ia did haliaua hat uha aIfa~
started for the fort and opened the gate he did
not know the boys were in there. He was In
his house beginning to shave and was in a
position where he could and undoubtedly did
see them Chamber into the fort. He believed
that Kelley shot at the legs of Smith, perhaps
not intending to hit him, bat his idea was to
shoot and thus deter others from coming into
the fort in the future.
Mr.. Lunt closed st quarter past one o'clock
and the court took recess until three o'clock
JUDGE COLTS CHARGE.
At the coming in of Court in the afternoon.
Judge Colt charged the jury in very clear
and succiuct manner occupying twenty-five
minutes. He told the jury IL they found Kel-
ley's statement to be true that he changed the
pistol from his right hand to his left when in
the act OF picking up stone, that his pistol
being at his side with his right arm upraised at
the time the explosion took place. that he did
not intend in any manner to inflict the injury
or to shoot at the deceased, then it would be
exeusable homicide. But il on the other hand
he took out the pistol when at some distance
from Smith, holding it in his right hand, that
he approached within few feet OF young
Smith, holding the pistol still in his right
hand, he brought it down into his left STOPPING
over a little and aiming in the direction OF
Smith, the pistol exploded and the bullet
struck Smith, who died from the wound so in
flicted, il would be manslaughter.
TTnon the pround mn in dafanoa that
Smith did not die from the wound, Judge Colt
said: The question is not whether Smith re.
ceived the best medical treatment that he could
have received, or whether he receiyed anv
medical treatment at ALL The question ia
what was the cause of his DEATH Did the
wound kill him or did the doctors kill him.
Ii the doctors killed him then the defendant
is not guilty. But il the wound was the cause
OF his death, whether he received good
medical treatment or bad medical treatment,
then the defendant is guilty.
Tie statute says "wilful shooting" not will
ful killing. Therefore, IL the jury fud that
the shooting was wilful and that Smith died
from the wound, it is manslaughter
The jury retired at half-past three O'Clock.
The jury came in about 10 p. M, and re-
ported they were unable to agree. Judge Gill
bert then announced his withdrawal from the
case and at the request Of Sergeant Kelley,
the Court appointed II. d. Hadlock, ESQ.,, as
his counsel. The case was taken from the
Circuit Court docket and transferred to that
OF the District Court, and will be tried at the
December term before Judge Webb. 1t is re-
ported that the jury stood six for conviction
and six for acquittal.