The News-Herald. [volume] (Hillsboro, Highland Co., Ohio) 1886-1973, 1891-04-09

and mind. II IL almost impossible to
prove their existence by direct, positive
testimony. The only possible direct
witness to the fact In criminal case is
the defendent himself, and If he meant
to 30 testify he would, as has been we'll
eaid, have plead guilty. The existence
or non existence of malice and intention.
must be inferred from all the facts in
the case. The emotions of the heart,
the processes Of the mind Of Lewis are to
us, or to anyone outside of him, exhib-
tied by the acts which he performed
In this State the rule Is that II It has
been proved in homicide case, beyond
reasonable doubt, that the defendant
did the killing, then malice is presumed; !;
and all of the facts and circumstances of
justification and extenuation must be
proved by the defendant, unless such
facts and circumstances appear from the
evidence adduced against him by the
State. Applied to this case, if it has
been proved beyond a reasonable doubt,
that Lewis killed Elliott, it will be pre-
sumed that he did it maliciously; and
unless the evidence for the State prove
that it was excusable or justifable, the
burden of proving such excuse or justi-
| fication rested upon him. If the evil
dence for the State, or the evidence of
both the State and defendant, shows
that the killing was accidental, no such
duty of making such proof rested upon
him. It was claimed by the State that
malice should be inferred from the fact
that he used deadly weapon. Put so
BADLY, it is not fair to the defendant. It
is trne if this was the only evidence in
the case. The death of Elliott being
proved, his staying by deadly weapon
by Lewis being proved, and there being
no other evidence you would be war
rantee in concluding that the killing was
malicious. But, If there is other evil,
dence in the case, pertinent to the ques-
ton of malice, you would have no right
to draw such an inference. Malice, if it
is inferred by you, must be inferred
from a consideration of all the facts
taken together as whole. Every fact,
no matter how small, every circumstance,
no matter how trivial, which have any
bearing on the question of malice, must
be considered by you. The question is,
Did Lewis maliciously shoot Elliott?
To murder in the second degree, malice
is an absolutely essential ingredient. II
there was no malice there was no muir.
der. Should you reach the conclusion,
upon a consideration of the evidence,
and guided by the law given by the
Court that Lewis was not guilty of MUIR
der in the second degree, then you may
consider whether he is guilty of nan.
slaughter. Manslaughter, as defined ua-
der our law, is committed when rea-
sonable person unlawfully kills another
who is in the peace of the State. Man
slaughter may be committed in sudden
sv,h h<~kh ur,l
There the killing must have been done
| crime may be committed by one while
he is engaged in the commission of an
unlawful act. In such case the act is
| tionally. If the killing was done negli-
question that concerns you in this case,
under this branch of it is, Did Lewis
| negligently, that is by the grossly negli-
you find on the evidence, beyond rea.
sonable doubt, that the affirmative of
this question is true, you should find
him guilty of manslaughter; if you find
the negative to be true, then you should
acquit him of that charge. /.
1t is claimed by Lewis, that as Marshal
of Hillsboro, he was trying to arrest
Elliott for having been engaged in fight
and for drunkenness in violation of ordi.
nances of the town of Hilisboro; that
while trying to arrest Elliott, the latter
resisted him; that Elliott took his mace
from him that he then pulled out his
revolver and endeavored to scare him.
with it, and to strike him with it; that
Elliott took hold OF the revolver, and
that while they were struggling with it
it was discharged and Elliott was killed,
he (Lewis) neither having cooked the
revolver nor pulled the trigger. In
short his claim is that Elliott was killed
by an accident; that it was homicide
by misadventure, as the old law called
it. If Elliott was killed by misadven-
ture-that is by pure accident, without
negligence-it was excusable; it was no
crime.
An accident is IAN event which under
the circumstances is unusual and unex-
pected by the person to whom it hap
pens, and which happened without the
concurrence of the will of him whose
agency caused it," A misadventure,
when used in homicide cases is the act
of a man, who in the performance of q
lawful act, without any intention to do
harm, and after using proper precaution
to prevent danger, unfortunately kills
another person; the act performed being
neither crime in itself nor Q crime by
virtue of prohibition of law"
Lewis testified in his own behalf, de-
nying all of the incriminatory features
OF the evidence for the State and, if
you believe his testimony and if he had
the right to arrest Elliott, ysu should
acquit him. ~
Whether he had the lawful right TO
arrest Elliott is chiefly question Of law,
which the Court will decide. The State
insisted that Lewis had no lawful power
to arrest Elicit, because he was not
armed with Q warrant authorizing him
to do that. The verbal direction Of the
Mayor to Lewis, which was put in evil
dence, bestowed no authority on him to
arrest Elliott; it was rot . substitute for
. warrant. This is clear Is q matter of
law.
It is not disputed, that Q short time
before Elliott was killed, he had guar
rel in Doorley's saloon with one william
Eakin, and Knocked him down. That
was violation OF one the ordinances OF