Somerset herald. [volume] (Somerset, Pa.) 18??-????, 1889-06-08

mGF.ler in the ifst OF secouc degree
his not the mere killing Of i person
in the preparation or the attempted per-
petration of a robbery or burglary that
constitutes the ofIense sf murder in the
first degree. The killing while engaged
in perpetrating or attempting 10 perpe-
trate a robbery or burgially IN Or
der to constitute murder in the first de-
gree. must be such as at common law
would have been murder; that is, It
must have been a killing with malice
aforthought.
Iffron all the facts in proof attending
tie killing, the jury can felly, reasonao'y
and satisfactorily infer the existence Of
the intention 10 kill and the malice OF
heart with which it was done, they viii
be warranted in so doing. Judge Agnew,
one Of our ablest judges. held that; 'He
who uses upon the body Of another, at
some vital part. with manifest inten-
ton to use it upon him, a deadly weapon,
as an axe, gun, knife or pistol, must IN the
absence of qualifying facts, be presumed
to know that his blow was likely to xiii,
and knowing this he must be presumed
10 intend the death which is probable
and ordinary consequence Of such an
act. He who uses a deadly weapon
without a sufficient cause Of provoeation
must be presumed to do it wickedly and
from bad heart
Therefore, gentlemen of the jury, ne
who takes the life Of another with a
deadly weapon and with manifest de-
sign thus to use it upon him, with suifi-
Gent time to deliberate, and while en-
gagged in perpetraling OF in attempting to
perpetrate robbery OF burglary is guilty
of murder in the first degree. All muir
der not Of the first degree IS necessarily
murder of the second degree. You alone
are the tribunal that must determine
whether the offense is murder Of the first
or seconl degree or manslaughter, in the
light of the law, on the evidence heard
Passing from the law the question to be
determined is, was Herman Umberger, on
the 27th Of February last. killed by the pris-
oners at the bar
That he was killed, and the manner in
which he was killed, was establihed by the
testimony of Ella stearn. Mrs. Umberger
and Mamie Horner, Dr. Walker and Henry
Rauch.
The inquiry you make does not take the
form Of who killed him but did the defend
ants sill him
Does the testimony point out the prisoners
at the bar as the men
The evidence is 50 voluminOus l can only
call your attention to the material substance
OF it as given by each witness, leaving you
who are the only judges Of tito find on all
the evidence whether the prisoners COM
nitted the oifense Ella Stearn, Mrs. I'm
berger and Mamie Horner, the little girl
saw two persons enter the house at night
sit down at the stove for while, and after
some talk begin to search the house, alieg-
ing they were doing 50 by virtue Of a search
warrant. They detail at length and particu-
IarIy the manner of search, the robbery
snd the homicide. Each one Of
these witnesses in turn stating all she saw
and heard.
Some ofthem say the men wore one Of
them. gum boots. the other leather boots
All Of them say one was taller than the
other; that one was masked or had on a
false beard and hat the other two, hand
kerchief tied over the face in the manner by
them described, leaving part Of the face
above the mouth. exposed the nose, eyes,
forehead and part Of the checks were ex-
posed.
Ella Stearn and Mamie Horner describe
the hat and say it had piece out of The rim
at the time it was worn in the house all
say one Of the haRdkerchiefs was a red one
with small white spots all describe it as a
brown lat.
The witnesses describe the oYercoats then
worn; one as a dark or browuish one,
the other as grayish one. The
little girl says the gray coat worn By one
had little brown patch on the side. Could
she have seen the coat at the hearing at
/ Rauch's-was it there-had she never seen II
but at the homicide; each one details how
she came to observe what she saw.
Neither of them knew the parties at the
time. The girls say that at the hearing be-
fore Squire Raueh they saw the constable pull
a red handkerchief with white spots from the
hip pocket of David Nicely, and they iden-
iify II as one worn that fatal night, and the
girls on the stand in court undertake 10
identify the handkerchief and the hat. and
the coats and including the widow, they say
the prisoners at the bar are the men who did
the robbing and killing.
You have heard all they said. and will con-
slider it in connection with all other evidence
in the case.
Each says the little man bad the hat on,
and the larger one his face tied up. Each OF
them undertake in court TO identity the pris-
oners; how they come TO identity the men
you have heard in the evidence, and you
will consider it, The old lady is not certain
about the handkerchief, and did not see the
break in the rim of the hat.
/ His Honor here reviewed the remainder
of the important testimony at considerable
length.l
HAVING instrucfad von os IN tho lov