Cherokee scout. [volume] (Murphy, N.C.) 188?-1961, 1890-10-21

4 The State must show you beyond a
reasonable doubt that Chas. N Gould
was killed, and that the defendant did
the-act. For in an indictment for MUIR
Ger, the two constituents of the crime,
to-wit: voluntary killing and malice
aforethougllt must be proved by the
State, as it makes the charges; and, as
means that the circumstances manifest a
wicked, depraved and malignant spirit,
regardless of social duty and fatally bent
on mischief.
Your first inquiry is, didathe defend
ant, Lilly NJ. Gould, inflict wound on
the body OF the deceased, and was his
life taken by that stroke, and has the
State shown this to your satisfaction and
beyond reasonable doubt?
Every material circumstance necessary
to make out the charge of the State must
be proved beyond reasonable doubt,
the accused is presumed to be innocent
until the contrarYis shown, both of these
elements must be proved. The killing
being shown, then the other ingredient,
malice prepense, is also proved as fact
in the eyes of law, not by evidence adj
duced, but q presumption that che law
makes from the fact of killing; and these
| two essential facts being thus establish
ed, the legal conclusion thereon is that
the offence charged is murder.
But the implication of malice, raised
by the law and taken as fact is not con-
elusive on the party accused, but may be
rebutted. She may show that there was
no malice prepeuse, and thereby extenu-
ate to manslaughter; or make a case of
justifiable or excusblo homicide; or a
case of no criminaity at all. The burden
lies on the accused to make these proofs,
if she can; otherwise the conclusion of
murder, or malice implied, will continue
against her, and will call for and in law
oblige conviction by the jury; and in
making such extenuating or acquitting
proofs, the law puts on her the onus to
do so, not excluding all reasonable doubts
but merely to the extent of satisfying the
jury; and if the jury are left in doubt as
to the extenuating circumstances, it is
murder.
Then when the State shows the killing
to have been done by the accused, this is
all the State is required to show beyond
a reasonable doubt. Then the burden of
proof shifts, and the prisoner must show
that her offence was manslaughter, a cir
cumstance which tend to show the jury
that she acted from necessity and in self
defense, and therefore ought to be ex-
cused and have verdict of not guilty.
The circumstances of mitigation and
excuses may be shown by testimony of
fered by the State, OF by evidence offer
ed by the prisoner; and the law does not
require this to be shown beyond a rea-
sonable doubt by the prisoner, but to the
satisfaction of the jury. There is no di-
rect testimony offered to show the jury
at what time the prisoner got the dagger,
if she did get it, with which the fatal
blow was given, if it was given by her.
The case depends much upon whether
the prisoner and deceased, if they fought,
did fight upon equal terms, and with or
without unfair advantage.
If the jury believe that the defendant
was assaulted in the kitchen, as testified
TO by Robert Ramsey, and that after the
lapse of 25 or 80 minutes, she prepared a
dagger with an intention of using it in
case she. got into difficulty with de-
ceased, and went up stairs for the pur-
pose of meeting deceased and having q
conflict with him. If the defendant kill
ed the deceased with the dagger, which
is dead y weapon, is murder, and not
manslaughter, though the deceased made
a violent assault upon her.
If the jury believe that the defendant
went up stairs, not for the purpose of
having conflict with the deceased, and
an alteration ensued AID the deceased
attacked the defendant with a walking
stick and the defendant was willing to
meet the attack; and did meet itand they
fought mutually and suddenly--the de-
ceased with stick and the defendant
with a dagger, and the defendant killed
deceased, it is but manslaughter, al
though the death is caused by the dead
ly weapon.
If the jury believe that the defendant
went up stairs, not for the purpose of
having conflict with the deceased, and
the deceased attacked the defendant
with sick, and the defendant, being
herself faultlcss, reasonably apprefend-
ed death, or great bodily harm to herself,
and if she struck the blow under the
circumstances, she is not guilty of any
violation of the law. The killing is ex-
cusable and the Jury will say not guilty,