The Somerset reporter., 1885-01-21

ram on the window. They were beginning prcpara-
tions for defence. ] have no client here to rcprs-
sent have merely appeared at the call Of my on
cal duty. Ny duty IL over but you're 10 rot hIishcd
You mean TO do justice; justice to the respondent
which defends us, by might and BY day. In your
hands rests the yndication OF the great principle OF
law.
At the close Of the argument for the state
Judge Virgin delivered a very able and
clear charge to the jury. He commenced
by referring to the duties of the several
officers who have the execution Of the laws
under their control. He next showed how
leulent the laws were with one charged
with breaking them, and compared this
lenieucy with the unmercifuluess Of the
murderer with his Victim. Approaching
the law In the case he said;
Murder 10 the unlawful killing OF human being
with malice aforethought either express or implied:
II with express malice afurethough II is muru.r OF
the first degree. II with implied malice aforcthought
IL is murder OF the second degree Man.laughtvri 10
the unlawful killing Of q man In the he tot passion
on sudden provo, alton, without express or implied
malice il the slayer is noved by malice aiore-
thought, express or implied cannot be mahslaugh'
teri II must be murder Of tue dTst or second degree
Malice, in the eye Of the law, does not mean will
hatred or malevOlence toward the victim but II may
consist, In that general maliRny or recklessness OF
the and personal safety OF others that proceed.
fatally bent on mischief. Express malice afore.
thought is where the slayer. with deliberate mi.d
and formed design kills another without justhca-
tlon excuse. Tho killing must be premedltaed
act; 1t not have been done on the spur Of the
moment without any formed intention. But II 10
not necessary that the act should have been premed
itated for any particular period OF time; II merely
requires time enough to clearly form the intention
before the act Ia committed Implied malice, which
is the feature which distinguishes murder OF the first
degree from murder Of the second degree. Is in.
ference OF law upon the facts as found by the jury
When "A voluntarily and Wtllfultv does M MT
the natural consequences of which 10 to destroy
life, the law presnuies that he intenned to do just
what hc has done. When upon adequate and ist
provocation the mind Is aroused To such degree Of
esentment to such violent and overwhelming pas.
sion WILL for the time, 80 dethrone the reason that
the person 10 devoid Of al considerations, other than
that of vengeance and resentment the crime may be
reduced To manslaughter.
IT, In this case, the respondent aimed that pistol
with more or Less precision and accuracy out that
window, because he saw form ont there, which he
knew TO be human form, although he may not
have known or suspected VINO the person was; and
II he did that deliberately, with formed design to
hit that person and he did hit HIM. that would be
press malice aforethonght II, on the contrary his
wife being sick In the adjoining room, there was
such assault upon the door that he thought those
ss Al or ne ssa no
there with sudden feeling OF resentment. though
with a determination to hit him, whoever he was,
that might be called by you implied malice; 1t m gh
be called want OF sedste deliberaton, and hence
want OF express malice, and II would warrant you
m finding him guilty OF murder in the second degree
1 this defendant fired that bullet that killed young
Daggett and he did II under such great provocation
the sssaulting of his house, as 10 create such
overwhelming passion at the time, that 1t dethroned
his reason and rendered deaf his conscience and all
other feelings which man exercises when control
ing himself and upon the spur of the moment he
rui-ed that pistol and shot HIM, that would reduce
The crime to manslaughtcr, because 1t would show
that there WAS no sedaieness or deb ration about
the act and 1t would show that there was malice
express or implied
The idea embraced in the expression tina. n mans
house is his castle is not that is his properly and
hut n ~ In Auuu urufpp n
by other and more extreme means than he might
lawfully use to defend and protect his shop, his Office
cuar immunity is that II is sacred for the protection
of his person and of his family. An assault on the
house can be regarded as an assault on the person.
only in case the purpose of such assault be injury
the person of the occupant or members OF his fani
ly, and in order to accomplish this the assaiant at.
tacEs the castle In order to reach the inmates. In
such case the inmate need not nee from his house
order to escape Injury by the assaiant; but he may
meet HIM at the threshold and prevent him IRON
breaking III by auy means rendered necessary by the
exgency, and upon the ZANE ground and reason that
one may defend himself from peril OF lite or great
dered nece ssary by the exigency OF the assault.
:, Where the defense can legtimately Claim that
there was assault on the respondents house with
the intent either OF taking hs lie or Of doing to
him great bodily harm the respondent would be
justified In using a deadly weapon II 1t should be
necessary in order to prevent the preparation Of
such crime, or II, under the circumstances attend.
Ing The emergency the respondent had reason to be-
licve, and was warranted in believing, and in fact
the commission of such crime.
In the purpose Of the assaisnt is to take life
or nfct great bodily harm and the object of his
tack upon house Is to get access to the occupant
for such purpose the same means may lawfully be
used to prevent him from breaking in as might be
used to prevent him from making the harmful
saut upon the person, in case the parties were met
face to face In any other place. In either the
point OF Justification Is that such Of fatal means
was necessary in order to the righful efeciua pro-
lection OF the respondent or his family from the
threatened or impending peril.
At the close of the charge counsel for ie-
fence requested several instructions to be
given TIE jdase s ga gave PAL 7of Some
10 in number but two. The jury retired at
O'Clock and were furnished with dinper.
At 3.45 p. IN. they signihed that they had
agreed upon verdict and entered the
court room. The following coloquy took
place:
CLERK WEBB-J. Frank Walker, prison.
er at the bar, stand up. Gentlemen of the
jury have you agreed upon verdictf
FoREMAN-We have.
CLERK-Gentlemen who will you select
to speak for you?
JURoRs-The foreman.
CLERK-Mr. Foreman look upon the
prisoner. Mr.. Prisoner look upon the
foreman. What say you Mr.. Foreman, is
the prisoner at the bar guilty or not guiltyp
FoKEMAN-Guilty.
CLERK-Guilty of whatf
FOREMAN-Guilty of murder In the Sec
ond degree.
During the recital of the above all was
quiet in the crowded court room and the
prisoner remained as undisturbed as he had
been all through the trial. His counsel at
once gave notice that they should file ex.
ceptions to the rulings Of the judge and to
the exclusion and admission OF certain tes-
timony. 1t is not generally supposed that
there is any chance fortbe prisoner to get
pew trial. Judge Virgin examined the
law very carefully and was well fortified in
all his positions. The case will be argued
at the May term OF the Law Court and a
decision will be given shortly after.