The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1886-11-04


purpOsely used In this count have the
sense and meaning already defined in
speaking Of the other counts In the in
dictment. Burglary as charged in the
third count consists In maliciOusly and
forclbly breaking and entering the
dwelling house of said Perry Harring-
ton, in the night season, with the In
tent to steal, take and carry away the
personal goods, chattels and property OF
Perry Harrington, as therein charged.
The breaking and entering must be
malicious and forcible. You will take
the definition Of malice In considering
this count as already given to you by
the court In connection with the first
count Of the Indictment. To raise
latch on an outside door which Is closed
and latched, and through the door thus
opened to walk into the dwelling house
with the intent aforesaid would be a
sufficient breaking and entering within
the meaning of the law. The breaking
and entering must also be In the night
season. By night season is meant that
space of time during which the sun is
below the horizon, except that short
space which precedes its rising and fol-
lows Its setting, during which, by Its
light, the cOuntenance Of man may be
discerned.
II then you are satisfied beyond the
existence of a reasonable doubt. that
the defendant, on or about the 18th of
December, 1884, in the county and State
aforesaid, in the manner and form and
by the means mentioned In the third
count of the indictment, did unlaWfully
felOniOusly, puTpOseIy and whilst en-
gagged In perpetrating o burglary, as
charged therein, kill and murder said
Perry Harrington, then he Is guilty OF
murder In the first degree, as charged In
that count. Should you find the defend
ant not guilty of murder in the first de-
gree under any count of the indictment,
then you should proceed to inquire
whether he Is guilty Of murder In the
second degree, and you may return a
verdict of murder In the second degree,
under any count Of the indictment,
should you feel warranted in so doing
under the law and the testimony. Our
statute defines murder in the second de.
gree, as far as the purposes Of this case
are concerned, to consist in purpOsely
and maliciOusly killing another, with
out deliberatiOn and generalization, nor
by means Of poison, or in perpetrating
or attempting to perpetrate rape, ar
son, robbery or burglary. Murder in the
second degree differs from murder In
the first degree, ,Sas charged in the first
count of the Indictment. in this, that 1t
does not require deliberatiOn and pre-
meditation, and it differs froE murder
in the first degree AZ charged In the
second count, In this, that it does not
require the accused to be in the attempt
to perpetrate robbery, and it differs
from murder In the first degree as
charged In the third count, In this, that
1t does not require the accused TO be en-
gagged in psrpetratiDg = burglary. To
constitute murder In the second degree
it is necessary that the killing be done
purplsely AID maliciOusly. You will
apply the same definition to the terms
purpose and malice" as have already
been given to you III connection with
the instructions as to murder In the
first degree. If you have reasonable
doubt about any one element which goes
to make up the crime OF murder in the
second degree, you should give the de-
fendant the benefit Of that doubt and |
scquit him; If, however, you find him
guilty of murder In the second degree, |
you will so say and specify In your YER
dict under which count you so find him |
guilty. II you find the defendant not |
guilty of murder In the first or second |
legree you will proceed to inquire
whether or not he is guilty of man
slaughter. Under our statute, whoever |
m nj fuI Euh
unlawful killing does not amount to
murder In the first degree or murder in
ihe second degree, as herein defined, 10
guilty of manslaughter. Such unlsw
'0l killing may be without malice,
'ither upon sudden quarrel, or unin
while the slayer Is in the COM
mission Of some unlawful act.
Having thus defined the elements
which make up the various Offenses COW
red by this indictment, your attention
will be now called to some other mat
ers Of law In the case, with the view Of
you in reaching proper con-
IluSlOn.
On the part of the State, 1t is claimed
hat there is evidence in the case tend
ng to show that the defendant, at Vari-
us times, and to various persons who
we're before you as witnesses, made
or admissions against his In.
crest, and which tend to establish bis
made by the defendant and Otf4red In
vidence against him should be care
ully examined and considered by you.
these statements have been offered by
he State, but the exculpatOry parts
hereof, or parts thereof In his justiica
ion, as well as those which import
,uilt, are to be received and considered
y you. You should consider the entire
tatement or declaration, and in the
light Of all the testimony In the case
i've to such statements and deelarR-
ions the weight which In your judg-
nents the same are justly entitled to
eceive.
A considerable portion Of the evidence
consists OF testimony tending to show
In which the prisoner
md others are said to have participated.
70 class Of testimony Is more unTeli.
Ible and more frequent cause of error
n courts Of justice than the narration
# conversations, real or pretended. The
meaning or Intention Of the person in
he conversation often depends upon
GESTURE, mode of expression or peculiar
circumstances known, per-
laps, but to few present. A converse,
ion may not be fully heard; it may be
mperfectly rec0llected, or inaccurately
epeated, when the omission or addition
II o word, or the substitution of the Ian
yuage Of the witness, under color Of
bias or excitement, for the words actual
y used, might change the sense of the