The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1884-10-23
JUDGE PEASE'S CHARGE
To the Jury, in the Trial of Frank
Warthosst, for Murder,
gThe Legal Phases of Murder Carefully EN'
planned aud the Constitution ofthe
Different Degrees Defined
In Detail.
omeiAIY reporLed BY r. 2. FlOod.

tits county, aud charged with tho crime
OF murder III the lrsL degree IN taxing
the life of Mary IL. kirkland unlaw-
fully. This indictment Ii found under
a section OF our statute defining This
and reads, "Wh0eyer puIp0sely, and
either Of deliberate and plemeditated
malice, or by means OF poison, or III
peTpetratlng, or attempting 10 perpe-
tIate, any rape, arson, robbery, OF Duf-
glary, kills another, ID guilty OF murder
In the first degree, and shall suiler
DEATH" a6llsmEna4ya1kAI a,a iaAs8s
lU IL alleged In tins Indictment that
on or about the Sd of July, 1853, IN the
country, Franklin WarthOrst, aBl have
said, took tho lie Of Mary u. kirkland
byshOOting her with aplBtOl loaded with
powder and ball. The other parts Of
the indictment are substantially forms
ed, but drawn with reference TO CON
plying with the statute regulating this
class ofOife and there Ii IN II but one
count, as II IL called, or one charge OF
the Oifense, OF which | shall have 0Cca-
sion hereafter 10 speak this Indictment
charges only with murder In the lrsL
degree, but II also includes murder IN
the second degree aud manslaughter.
The defendant has been heretofore
aTraigned, and the indictment having
been read TO him, has entered the plea
OF not guilty, THIS raises the Issue
In this case, aud ~ 10 DO deter
mined by you under the proofs 40 they
lave been given 20 you, and under the
law, as you receive " from the Court,
Under the law all mel are presumed
to be innocent, ana lhla legal presump'
ton OF innocence can be- overcome only
by full proof, such AZ VIII exclude all
reasonable doubt VI the quit OF The
accused. The burden of establishing
the quilt OF the accused rests upon the
State. III civil actions the %pfepOnderS
ance of evidence In sufficient ~ warrant
the finding OF "A fact, hut In criminal
cases, where either lie or liberty Is In
vOlyed, the Oilenue charged NUT be
made out from all the proofs In the
case beyond u reasonable doubt; and
the defendant cannot ughliully b. con-
yiCted of this OlleuSe until lbb Stale hAr
satisfied you, aud each vi you, OF his
guilt hey ord 4 reasonable DOUBT.
IL Ia not meant by reasonable doubt
THAI the proof should be beyond po5sl'
BILE doubt, or beyond all imaginary
doubt; absolute and mathematical Ger
tainty are not attainAOle ordinarily m
determining the cts and conduct Of
men. IL meana proof 10 u moral cef~
tainly as distinguished nom absolute
certainty. ~ should not only be con-
sistent with The defendants guilt, but
Inconsistent with any other REASONABLE
conclusion, The jury mubt lnd that
there was \ Mary Il, Kirkland; that
she 10 dead; that lel death Was not the
result Of dlaease or other natural cause,
and not from violence caused or pros
duced by her own hand, but was pos
duced by violence wfODgtully INFLICTED
upon her by another, and from that
violence she W IL killed on or about the
81 day Of July, 1883, IN this county 4.
Having determined these things, you
will then 20 forward under the proof
and determine who killed Mary Il.
Kirkland. Aud | will Say 10 you, gen
tlemen, thai this Is the principal
Inquiry In this case. You VIII,
therefore, 20 forward aud care
fully examine and weigh all The
testimony gwen before you In
tina case, Ey,uen0c OF any fact or acJ
~ either positive or CiiG"umstanJiHl, IN
both, and IN tins case the STATE claims
To have produced and given before you
both positive and clrCumsJ lhtiaI eYi,
denCe sufficient TO establish the guilt OF
the defendant
Direct or positive el idenGe 10 where n
witness, or witnesses, testify OF their
own knowledge OF what they saw OF
heard from beng present NJ The time.
In this case the Stale claims 10 have
gwen some positive testimony, ~ In
the statemenls Of the witness Miss Ma
lonuy, 10 having seen The defendant by
the fash OF the pistol, ana by other
witnesses Of the deCl srati0na ana con
LESSONS OF the defendant, ana the IKE,
would be instances Of direct on positive
testimony,
Clfcumstantial evidence consists,
am jng O,her things, of proven facts
aud Il series OF distinct acts, dcClara-
tlOug, events aud CO|inCldeucos hlppeps
Ing and done before sud on AVID alter
the morning Of The alleged homicide,
and the like. CirCumBlHntial evidence
~ Gl'en The most convincing, ~ ~
diilcult tO iabiicnte the connected linkb
In 4 chain OF circumstances 80 ~ TO
preserve the aemOlance OF truth. II Ia
more easy where perjury Ia Interested
10 fabricate poBltivs Facts where the
circumstances detailed are real ana
natural they will correspond with each
other; where they are Inconsistent
with each other, or ir|rec0nsilable with
the admitted and proven facts, there
results u plain and almost certain ins
ference that article has been reBorted
10.
IL often happens that crime can only
be proven by circumstances, Grimes
are mostly committed under cover Of
night, In the dark, and concealed rom
OBJ serVation of men, and II this kind OF
testimony was not allowed, or WIS dis
regarded by the jury, most criminals
would 70 unpunished. But great care
should be observed by the jury
in carefully scrutini2lng the
circumstances, and wheth, the
evidences be positive or circumstan-
tial II should be sufficient to convince
the judgment Of the jury beyond u reaN
sonable doubt, as / have heretofore exe
planned.
Having called your attention 10 the
different kinds OF evidence relied upon
In this case, you will 20 forward In ths
investigation Of n under the proof be
fore you. 1t 10 u question Of fact who
took the life Of Mary Il kirkland, and
by whose hands, and OF all these facts
and circumstances you are the exclusive
judges.
IA Ia claimed nv the State In gtartlng
out In this case, ~ among the evidences
Of the commission OF this crime, and
az some OF the positive testimony IN II,
that on the morning the 81 Of July,
about 2 o'clock, nj the window Of the
Kirkland house, WAS eeeD by Mrs.
Kirkland, a man; that from some ex
clamations made by her the family was
aroused, and that presently, and before
any aid could he cot TO her, she wac
shot; and 'FRONT.' ut shot IL Is claimed
that abe died. | will say here that
hear no testimony In this case disput-
-. a. ~ a.. -.