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

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sf.5rstl.ereht. expressed 1r implied
1t is alleged on part Of the Common
wealth that, Herman Umberger, late Of
this county, was d reasonable creature IN
being and in the peace Of the Common
wealth. on the 27th day OF February
last and was theft killed. II you find
this to be 50. tae next question is, who
killed him? The Commonwealth charges
the olFense upon the prisoners at the bar.
The burden is upon the Common
wealth to satisfy you beyond a reason
able doubt, by evidence produced, that
the prisoners killed him and must also
by like proof, show that they killed him
with malice aforethought, either express
ed or implied, IN order to convict OF
the ofsnse
OF MURDER.
Every killing is not necessarily muir
der-bnt every killing Of man by man Is
homicide.
Homicide may be felonious, excusabie
or iustiiable. We have to do in this
case with felonious homicide so the IN
dictment charges the offense, designating
it in the Indictment as murder and, on
this indictment, if 4 proper case be es-
tablished to satisfy a jury Of the ohense,
and the persons who committed it, there
can be finding of murder of the first
degree, or murder of the second degree
or manslaughter.
The distinguishing criterion Of murder
is that of malice aforethonght Man
slaughter is the unlawful killing of an
other without malice expressed or impli-
ed. There must be an unlawful
homicide to constitute either murder
or manslaughter. The distinction be-
tween the two grades is, that All unlaw-
full homicide with malice qforefhosgist, ex-
pressed or implied. is murder; whereas,
an aunlawful homicide without malice
oforetaough is manslaughter.
Keeping this distinction in mind, you
inquire whether the ohsnse committed
was murder or manslaughter. Murder
at common law embraces cases
where no intent to kill existed but
where the state or frame of mind
termed malice, in it's legal sense,
prevailed and it includes all unlawful
killing under circumstances of depravity
Of heart and a desperation of mind re-
gardless. of social duty, but where no
intention to kill exists
/ have already said the disiin-
gushing criterion of murder is mall
ice aforethought. particular i'll will,
spite or grudge is or
dinarily understood as malice, but, mall
ice as it appears in the definition of muir
der, is 4 legal term it comprehends not
only i'll will, but every case where there
is wickedness of disposition, hardness
of heart, cruelty, recklessness Of conse-
quences, and a mind regardless of social
duty
Under all the evidence and eircum-
stances surrounding the killing, your
first inquiry should be, was the killing
murder?
The testimony Of Ella Stearn, Mrs.
Umberger, Mamie horner and DR.. Walk
er, if believed, shows that Umberger on
the night of the 9th of February last
was killed by two men, who entered his
dwelling by night for the purpose OF
committing a felony, and that he was
both robbed of large sum Of money and
killed by means Of a deadly Weapon used
upon his person at vital part, and bis
dead body was identified and death
from the gun shot wound established
if the evidence is believed,
The Commonwealth alleges the killing
as testified 10 by the witnesses named
ard the defense do not deny that I m.
berger was both robbed and killed by
some persons. Ifthe jury from all the
evidence find the homicide was not com.
mitted in self defense, as to which nc
evidence appears, or not by misadven-
ture or upon heat and passion, upon a
sudden quarrel, or by accident or mis-
take, as to which no evidence appears
but find that life was cruelty. wiIfully
wickedly and reeklessly taken in total
disregard of social duty and when at
tempting 10 commit robbery, after de.
manding, "your money or you life" they
will be warranted in finding that the
homicide was murder.
There is no evidence in the case tC
bring it within the definition of man
slaughter, as we view the evidence. Il
you could on the evidence find it to be
an unlawful homicide without malice
aforethought, it would be manslaughter
If YOU find it to be murder, was it of the
first, or the second degree?
The laws Of Pennsylvania distinguish
murder in two degrees; murder of the
first and murder of the second degree
murder of the first degree is where de
Iiberate intention to kill exists murder
in the second degree is where no inten
to kill exists. The jury under the stat
ute, if they find verdict of guilty o
murder, must find and ascertain whethe
4 l.. Al Il