Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1884-03-06
THE KELLER CASE.
Opinion of Judge Jackson as Laid
Before the Jury,
Based On tie Rules Tor Pilots in
the HsstsI n Waters.
The Tragedy Of July Fourth,
Eiahty.Two, RsYiyified.
A Charge that is Important in Its
Future Bearing.

David E. Keller, the pilot Of the steamer
Scioto, on the night of that fatal Fourth OF
July, 1882, Is still in the County Jail at
ParkeIsburg. The jury found him guilty
of manslaughter and he is now awaiting the
senteI ce which was postponed at his own
request. Judge Jackson is now in this
city and it will probably be some days
Fefore he will sgain hold court in Parkers-
burg. This case is of such Importance, in
the bearing of its results, that the legal
points affirmed will be treasured up by
every riyerman to whose knowledge the
case has come. Therefore, the charge to
The jury, delivered by Judge Jackson, is
given in full and is well worth the space it
couples. The rules for the government
Of pilots are here given, upon which the
opinion is based.
PILOT RULES FOR WESTERN RIVERS.
Rule /. When steamers are approaching
each other the signal for passing shall be
one sound OF the steam whistle 70 keep to
the right, and two sounds of the steam
whistle TO keep to the left-the signals TO
be made first by the descending steamer.
Rule q Should steamers be liGely 10 pass
uesr each other, and these signals should
not be made and answered by the time
such boats shall have arrived at the dis
lance of eight hundred yards OF each
other the engines OF bUthsshall be stopped;
or, should the signal be given and not
properly understood from any cause what.
ever, both boats shall be backed until
heir Roadway shall be fully checked, and
lbe engines shall not De again started until
The proper signals are made, answered and
understood. Doubts or fears Of misunier'
standing signals shall be expressed by sew
srsl short sounds of the whistle in quick
succt ssion.
Rule 4. When a steamer is ascending and
ruI ming close on bar or shore tue pilot
shall in no case attempt to cross the river
when a descending boat shall be so near
ihst il would be possible ior collision to
eEGue thCrefrom.
THE CHARGE
Gentlemen Of the Jury:
IL must be gratifying TO you that We are
Il last approaching the conclusion oil tIls
protracted trial. It's great importance,
Doth to the country and the accused fully
juStifes the time consumed in its iuvesti
cation. The defendant is indicted under
section 534i Of the Revised Statutes, which
declares that every captain, engineer,
pilot or other person employed on any
steamboat or vessel, by whose mis31n
duct, negligence or inattention to his duties
on such vessel, the life of any person vas
destroyed; ana every owner, inspector Or
ublic officer, through whose fraud. ca
uiyence, misconduct or violation OF law,
the life of any person is destroyed, shall
be deemed guilty Of granddaughter" The
Indictment in this case contains four dis.
,inct counts, setting up and charging the
offence in as many different ways. The
difference in the counts consists in the
manner the offence is stated and in de-
scribibiDg different acts under the statute,
charged as general misconduct, negligence
and inattentiOn 10 duty. Each count in
The indictment constitutes separate and
distinct offence and if you find from the
violence that the allegations as laid in any
one Of the counts in the indictments are
true, it will be your duty to return YER
dict of guilty, although you may fad
. gsinst all of the remaining counts.
EFFECT OF EVIDENCE.
1t is not the practice OF this court to dis
Cuss the effect of evidence submitted to
the Jury; but to leave its consideration
with the jury as being more properly
within the provence of its duty. 1t is my
duty to give you the law applicable to the
sue as made up, which you are sworn to
try and q true verdict to render under the
law and the evidence.
The Court is asked to tell you that in
he trial of criminsl cases the jury is the
Judge Of both the law aud the fact. Such
10 not the case. The court explains the
law and il is both your moral and legal
duty TO accept it as given you "unless you
can say upon your oaths that you are bet
ter judges OF the law than the court OF
course you can disregard the instructions
of The court and refuse to accept the law as
given to you by it; but if you DO, you
exercise q purely arbitrary power, which
in the case of an acquittsl makes the de-
cision final; although the guilt Of the party
may have been fully established. 1t there
fore follows that a Jury which desires to
discharge its whole duty, must take the
law from the court and apply it to the facts
of the case it is called to pass upon. b.
lore you can return verdict of guilty
against the accused under this Indictment
you must reach q conclusion that all the
material allegations contained in some one
If the counts in the indictment have been
July proved.
IT is NOT ENOUGH TO CONVICT
that there is a preponderancs of evidence
against the defendant; but yo2 must be
satisfied from the evidence beyond res.
sonable doubt of his guilt as charged in the
indictment. This doubt must be real and
substantial and not an imaginary or spec
ulative doubt. 1t must rest upon the fact
that the evidence is insufficient in your
Judgment to Justify you in returning YER
dict of guilty against the accused. II
o. erefore you have such dou Ut as / have
described, it will be your duty to give the
accused the benefit of it, 1t is manifest
that when Congress passed this act tina: its
intention was to make all officers or per.
sons, who fall within its terms responsible
FOR human life, when it results from their
misconduct, negligence or inattention to
their duty. The law is humane in its pro
visions and no one can question the wis
iom and policy of Congress in passing aud
plscing it upon the Federal statute books
IL is the duty Of the court, however uu
pleasant ii may be, when called upon, to
enforce il, and you, gen tlemen of the jury,
being an arm of the court in the execution
# the law, if you reach the conclusion that
Ibis defendant has violated lhis statute,
VOur plain duty Is to return :, verdict OF
guilty.
You will observe under the statute that
it is not necessary for you 10 fin d that the
defendant was guilty OF wilful or inten
'icnal misconduct, negligence, or inatten
that be was guilty Of a violation OF the
statute in the absence OF any intent; aud
4 you so find, then
VERDICT or GUILTY
should be returned. Otherwise your YER
dict should be for the accuAed.
In this connection it is proper that
should inform you what constitutes negli
gence. Il has been well defined to be "a
breach of duty" think, however, that
the better definition is that it is an onis-
sion to perform some duty, or ii is viola.
ton Of some rule which is made to govern
and control one in the discharge OF duty.
Applying this rule of law, If you should
6pd from the evidence that the accused
omitted to perform any duty or that there
was an absence OF proper attention, care
and skill in the performance of his duties
rs pilot Of the Scioto, then you must OF
necessity find him guilty of negligence aud
that il in consequence Of such negligence
the life of any person was lost, then you
must find him guilty a. charged in the in
dictment
Upon your retirement to your chambsr
THE FIRST ENQUIRY
that should engage your attention is
whether any one of the parsons namad in