The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1891-06-17
POINTS:
No. ?.
: May Term,
4.At4
COMMONWEALTH

JOSEPH AND DAVID NICELY 1889.
The Court is respectfully asked to instruct
the jury as matter Of law as follows:
/. That the defendants are presumed 10 be
innocent of the crime with which they are
charged, and this presumption must stand
until it is overthrown by evidence on part
of the Commonwealth, which establishes the
guilt of the defendants beyond a reasonable
doubt
.. That reasonable doubt is that of the
case which after the entire comparison and
/ consideration of all the evidence. leaves the
minds of the jurors in that condition that
they cannot say they feel an abiding connec-
ton to a moral certainty ofthe truth of the
charge.
3. That the charge in this case Is that the
defendants are guilty of murder in the first
degree, the Commonwealth is held to a more
rigid compliance with the rule that the guilt
! of the accused must be established beyond
reasonable doubt, and if the jury, upon
comparison of all the evidence, believe that
there is reasonable doubt of the guilt of the
defendants, then they are entitled to an ac-
| quittal.
T. That it is the duty Of the Common
wealth in this case to make out every essen
| tal feature Of the crime with which the de-
PENDANTS are charged and must show by
proof beyond reasonable doubt, not only
that the crime of murder was committed,
but that the defendants are the parties who
committed the crime ana if the jury, upon
all the evidence III the case, find that there
is a reasonable doubt of the commission of
the crime by the defendants, then The yer
diet must be not guilty.
s. That the evidence Of Ella Stearn, Nan
cS UmbeTger and Mamie Horuer as TO the
identity of the defendants is not Of such a
character as would enable the jury to say
that the gull; of the defendants is established
beyond rcsonable doubt.
6. That if the jury believe the testimony Of
Gilbert Ross Aaron Marks, John Kspntz
David a. Geeting, \. A. Nicely. Eliza Nice
y, Ella Menoher Hetty Nicely, Lorenzo
Nicely and Harriet Nicely, that Joseph Nice
y was at his home on Wednesday, the 27th
Of February, 1850 the cay ;he murder is al
legged to have been committed, from y
o'clock, noon, until next morning, then
there can be no conviction of Joseph Nicely.
:. That if the jury believe the testimony
of Sarah Barron, Hetty Nicely, Lewis Payne
and Catharine Nicely, that David Nicely was
at his home Oh the 9th of February, 1889,
from o'cloci; p. m. until next morning,
then there can be no conviction of David
Nicely.
5. That as the theory Of The Common
wealth is tina; the defendants were seen 90
ing together east up the mountain On the
the afternoon of Wednesday, the 9th Of
February, lSS9, the testimony of all the
witnesses showing that the defendants were
at their homes, 50 far distant from the scene
of the alleged murder that they could not
have committed the crime enures 10 the
benefit of both defendants in the case.
9. That the defense of an abb Is. when
person alleges that at the time when the Of
tense with which he is charged was commit
ted, he was ciSeichere and that he could not
in the nature of things have committed tine
ofIense
10. That the burden Of proof never shifts
in criminal cases, but rests upon the Com
monwealth throughout, so that 4 conviction
can only be had after the jury have been
testimony, beyond a reasonable doubt Of the
guilt of defendants.
H. That if the evidence Of an dI,bi, togeih-
er with the evidence in the case, raise
reasonable doubt in tho minds Of the jury
then the defendants are entitled to an ac-
quittal.
l. Iffrom ali the evidence the jury have
reasonable doubt as to the guilt of either
of the defendants, then under the evidence
in the case, that doubt must inure to the
benefit of both defe ndants.
13 If the jury believe that David Nicely
was in such a state Of health. either from
heart disease or other disability, as to inca !
pacitate him from walking from his home to /
the residence Of Herman Um5erger, dis
tance of about fifteen miles within the time |
and at the rate of speed, testified to by the !
witnesses in behalf of the Commonwealth |
or if the evidence of his physical disability |
is such aS 10 raise a reasonable doubt in the /
minds of the jury as to his connection with !
the murder of HermIn Umberger then !.
there can be no conviction of David Nicely /
II. If the jury believe that David Nicely /.
could not by reason of physical disability |
have made the journey necessary to commit !
the crime, within the time and at the rate of /
speed testified to by the Commonwealth S wit /
nesses, or if the evidence creates reasonable |
doubt in the minds of the jury AS to his |
connection with the crime, then, as the /
theory of the Commonwealth is that the de-
PENDANTS were both present and jointly COM
mitted the crime the verdict must be
not guilty as TO both of the defendants.
Mr.. Koontz submitted brief of auhori-
ties and made an argument to the Court
sustaining the position he had taken in his
points. His colleague, Mr.. Ruppel, made
an argument from their side Of the case and
Messrs. Kooser and Cessna replied for the
Commonwealth. The Court directed the
Stenographer TO write out the points submit
ted, on his type writer, aud he will pass up