Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1888-10-12

/ principle that he is to be taken to intend
| the natural and probable consequences Of
his own act and consequently must answer
| for the execution of such intentions.
Manslaughter is the unlawful killing Of
another without malice, and may be either
voluntary, as when the act is committed
without real design and purpose to kill, but
| through the violence Of sudden passion oc-
casioned by some great provocation which
| in tenderness for the frailty Of human ma
/ ture the law considers sufficient TO palliate
the offence. Every man, when assaulted
with violence or great rudeness, is inspired
with sudden impulse of anger which puts
| him upon resistance before time for cool
reflection and if during that period he at
tacks his assailant in a manner likely 10
endanger life, and death ensues, it is re
| garded as done through heat Of blood or
violence Of anger, and not through malice
or that cold blooded desire for revenge
which more properly constitutes the feeling,
emotion or passion Of malice. If the kill
| ing is unlawful, not justiiiable, but yet is
without malice af)rethought, then it falls
to the grade of mansaughter.
Thus we have the three criminal grades
Of homicide, the three degrees Of the un-
/ lawful killing Of IA human being.
You perceive there cannot he murder in
the first degree without delberation, pre-
meditation and preconcerted design.
In the second degree this is not required,
| but there must be malice aforethought.
In manslaughter, malice aforethought is
not required, but there must be unlawful
killing.
Take this case. If the respondent went
to the post office with "A deliberate, premed-
| itated, prcconcerted design Of killing this
woman or formed it after ne got there, and
did kill her, 1t was murder in the first de
| gree If he had no such design, but had
exhibte feelings Of malice towards her
| as, for instance. hatred Of her, a desire TO
| kill her, totally depraved heart and dis
regard of all legal obligations resting upon
/ him, as upon all other persons, in respect
to her aud her life and right 10 security
/ and in this state of mind, without legal jus
| tihcation, killed this woman unintentionally,
| it was murder in the second degree.
No claim is made in this case but that the
| killing was unlaw ful if the respondent com
/ mitted the act, 50 we need spend no time in
| defining what would constitute a lustiiiable
/ homicide and what would not. If the re
! spondent did this deed and it was not mur
! der in the first or second degree. then, up
on the evidence IA it stands. in the absence
of any claim of justliable killing, it must
| have been manslaughter.
PREsu uMIThNs
4 person charged with crime is presumed
to be innocent until he is proved guilty.
| lie starts with that presumption in his ia
vor, and it abiics and continues through
out the trial II is not a conclusive pre-
! sumption, aud it may he overcome by evi-
dence, or else there could never he "A con
vction The point is that he is presumed
90 be innocent until he is proved to be gull
ty. If the presumption Is overcome 10y
proof, 50 you are satisfied he committed
the act ot killing. then the presumption Is
I that II was the lowest grade of crime. that
Is. manslaughter. Under an Indictment
Tor murder. the person charged may be
convicted of murder IN the first or second
degree, or mHnslaughter The presump-
tlun Is first ia favor Of innocence, and then
If the lesser crimes in their order. II you
are not satisfied by the measure of proof
presently to he explained, that he commit
ted the act charged. then he is to be ac
quilted but if so satisfied then you are t.
Iecide upon which grade and you are t.
give him the benefit Of the presumption a
20 grade, as well as to innocence. You are
to look for every excuse which may reduce
the guilt to the lowest grade consistent
co,pus d,hcii. there Is also the presumption
that death was from natural causes, not 10y
wrongful force.
In short, presumptions run on the line
that men do right, and do not commit
wrong You see why this must he so
Right action is the rule, and wrong actor
Is the exception. If there was a presump
tion of criminality against person charged
with crime, he would have to prove him
self innocent. But, as before stated thes'
Prescriptions are only prescriptions of fac
and not conclusive presumptions of law
and as soon as the fact appears the othe
way the presumption gives away.
cIRcUMsIANTIAL EVIDENCE.
The state is unable to produce any wit
ness who saw the evil act done. 1t there
fore has had to rely upon other evidence
evidence of another kind as evidence
classified in legal books The kind Of evi
dence upon which the state claims a con
viction is called clrcumstautlal evidence
"A, contra distinguished from another kim
called ia the books positive or direct evl
dence The law says that person may b
convicted upon either Of these kinds of ev
idence As there is apt To be more or les
misapprehension as 10 the legal quality, tn
force and effect of these two kinds of evi
dence, it is my duty briefly u explain
them.
Criminals take with them no person
simply to witness the contemplated CRIME
! Crime is usually intended to be secret. Th
perpetration of crime by any particular per
son must therefore uftentimes Toe establish
: ed by circumstantia evidence in order t
be established at all. When person test
ties to the precise fact Of his own know
/ L.. ba tal
charged, il constitutes positive or dire
evidence In this case. if some person ha
been standing by and had seen who kille
/ Miss Knapp, it would be direct evidence
So far as appears there was no such pei
son, aud there being no such person knowr
this crime would have to 20 unpunishud
positive or direct evidence was the onl
kind to predicate conviction upon. If
. were always necessary to have positive eN
idence, many criminal acts committed IN
community, destructive of its peace an
suhversive of its order aud security, woul
/ 70 wholly undetected and unpunished.
; witnesses detail a variety Of facts, from II
: one ol which is guilt inferable, but if it
from all combined, we have circumstanti
n evidence. Many great jurists and la
/ writer's have pronounced il TO be of nj
T. ture equally satisfactory with positive
= direct evidence and less liable TO procee
4 from perjury.
No doubt innocent men have been col
u victed under circumstantial evidenc
a There are most startling instances of tn
II recorded. But the same is true under d
q rect evidence. Some Judges of great e
II perience have expressed the opinion thj
r. more innocent persons have been condemn
n ed upon the positive testimony of perIur'
d, witnesses and witnesses who were mista
NJ en- as to the fact to which they directly te
4. titled, than upon circumstantial evidenc
"A | express no opinion upon this point, al
< only refer TO it as one of the claims prop
/, To be called to your attention, made IN 4
m spect to circumstautial evidence in a
r. thortative books upon criminal jurispr
~ deucc Each of these modes of proof h
II its advantages and disadvantages, and it
ar difficult to decide upon their relative
II comparative value.
e. The advantage of positive evidence
q. that YOU have the direct testimony Of I
H. witness to the fact TO be proved that
~ that he saw and heard it, and the on
,e question is whether he is entitled to BELT
a. The disadvantage is that the witness m
al be false and corrupt and there may he
"a way of detecting the falsehood,
H. But in circumstantial evidence you I'M
n the main fact TO be proved from bo
e. and combination of other facts which a
il proved, and which you have learned FRI
experience are so related to each other a
a associated with the fact in question, as
he the relation of cause and effect, that th