Daily Republican. [volume] ([Wilmington, Del.]) 1874-1890, 1885-12-05

obdbo WOuiu
even though he was drunk.
a determination TO commit the murder, |
and did it with expressed malice
He called the attention Of the jury fol
the fact that although it was claimed |
that be was 30 drunk that he was iu-
capable of knowing what be was doiug
or forming design, yet in the face of
that it has been proved that after the
he ran so fast that those who |
were pursuing him could not come upI
to him.
In reference to Mr.. Birds statement
that the prisoner had drank thirty or
forty glasses of beer, he said that he
did not understand the eviden in thatl
way; he had heard one of the witnesses
say that he saw the prisoner drink
eight or ten glasses and another witness
testified to the same, but his under
standing was that the two witnesses
had saw him at the same time, and
that instead of sixteen or twenty glasses
of beer, be hal only drank the half Of
that amount.
He had every sympathy for this un
fortunate young man and his poor old
mother, and heart-broken young wife,
and his soIrowing brother, but he also
had sympathy for officer Peterson's
bereaved widow and family but be-
yond that he had q sympathy and re,
spect for the law which had been
broken, and for which atonement must
be made.
Ifsuch q murder as this is allowed
to go unpunished no mans life in this
J community will be safe hereafter, and
/ all man, who wants to commit
crime, will have to d., will be for him
TO drink eight or ten glasses. or even
thirty or forty glasses Of beer, and then
come on Market street, or some other
stseet, and armed with revolver kill
the first policeman hs meets, and try
to kill every one else who endeavors
| to stop him. He concluded by begging
the jury TO uphold the majesty of the
law and render verdict of murder of
the first degree as In manner and form
indicted.
Mr.. Payntsr closed his eloquent ar
gument at 5.15 O'Clock, and the jury
were then charged by the Chief Justice
al follows:
| "This case is admitted by the pris-
oner's )unsel to be one of murder, and,
therefore, II is necessary that | should
say TO you that by our law there are
two degrees OF that crime-nurder of
| the first and murder of the second de
gree. The first is where one purposely
kills another with q deadly weapon,
without excuse-or justification, or being
under the influence of a provocation
proportioned TO the act committed,
which created n feeling of resentment
no was powerless to resist. The second
lie where lite is taken in committing or
attempting TO commit felonious act,
or by conduct 81 reckless as to show
that the actor has a heart regardless of
social duty and fatally tent on mis-
chief
Many examples of this might be
given, but will cite but two to you, as
they will be sufficient IL is where one
recklessly shoots, or rides into crowd,
and some one is killed, or resists aud
kills public officer, acting at the time
in the discharge of his duty. These
several murders are in law murders
without malice aforethought. Malice
Is not Erudge, or eminent, or vindic-
Itiveness against another alone but II
also the manifestation OF a wicked, evil
spirit evoked upon the occasion of the
act done, and in tho absence of Other
, proof OF malice it will be sufficient
TO establish it-that the party killing
the other did it with deadly instru
ment, or by the use Of other deadly
means.
In such case the law implies malice,
that is, the wickedness ard depravity O.
heart spoken of, and no other proof o
any kind need be given by tho State
There is then devolved ON the prisope
the duty and burden Of showing eithe
that he was excussble in eelf defense
I ~ of Of hsS ho M fuf that h
had what in law is allowed to mitigat
, the crime, that is, outrageous provoca
tion which overcome his feelings 30 coui
plete.y that he could not avoid the aci
This shows the absence OF malice wick
: edness, and, though severely punishable
Is not murder in either degree.
In deciding upon the case as one c
murder of the first or second degre
a (for that as l have said is the questio
before you), you must not suppose, o.
4 though malice must by law be co ex
n istent with the fact of killing, which
A what Is meant by malice aforethoughi
n that feeling of enmity or reveng
g against the victim shall be shown I
:. have existed before the fatal occasion
but only that the act done was prompl
{ ed by 1t. Anything which shows tina
a the shot fred in this case was the resul
of purpose conceived, though 1t ma
!. have been but moment before, salts
y fies the requirements of the law.
I, For instance, where the defense o
, msnslaughter Is made for the indicte'
for murder, on the ground that tn
. staying WAS while the parties wer
q | fighting, this court charged tho jurJ
a that, as the accused had selected al tn
weapon that he used, that one among
several then at hand which best sulte'
4 his purpose, such choice was evidenc
q from which the jury were warranted Ii
finding deliberation, and therefor
!. malice eaforethought. The law is tina
q though no malice or wickedness of hear
exists before the time of the fatal strok
|. or shot, and yet 1t then arose prompt I'M
i the act of homicide,i 1t is as much malic
r aforethought, premeditated staying, a
If 1t were done under tho influence o
4 an old anmity.
Having disposed of the subject O
}. malice, will now deliver the mind O
:, the court to you upon the subject OF th
d defense set up for the prisoner, tina
q there could have been no malice in fac
o in this case, because the prisoner wa
Y no under the influence of liquor that h
|. was Incapable OF understanding the ma
!, ture and consequences of the act he did
O We say to you, therefore, general )
{ that drunkenness is no excuse TO
crime, whether the subject Of 1t knew
= what ne wns doing at the time or mo-
= Why? Because the state OF public IN
Y toxication alleged to exist hare Is itsel
@ q legal o1fense, and Ia the act OF tn
2 party setting uD the defense and 1t /.
! a rule of law that party shall not bt
l allowed to take advantage OF his oHI
. wrong.
@ But where the disease of mania potI
{ has ssupervened from long continued