The comet. (Johnson City, Tenn.) 1884-1916, 1892-07-21


the prosecution claiming before the
jury that the evidence showed a most
foul and deliberate murder, even ad
vancing the theory, and claiming that
it was justified by the evidence and
the location of the wound and the
body that the shot was fired by the
defendant through an open window
light, and while the deceased was sit.
ting upon sofa. But whether this
contention was justified or not, 1t mat
ters but little. If the evidence of both
OF the only two eye witnesses is to be
excluded, we are left in the dark, with
conjecture and supposition as our only
guide, not with circumstances even to
justify any one conclusion, to the eX-
clusion Of all others, as to what occurred,
and how it occurred at the time OF the
tragedy,
Nor does it matter, iii view of the
foregoing evidence, that the defendant
was friendly with deceased the even
ing prior to the killing-it was so in
Hunter Hills case-for man often
conceals deadly purpose under the
cloak Of a pretended friendship, nor,
that he claimed, in a conversation a
short time afterwards that it was done
in self defense, for ii he was guilty of
a deliberate murder, it would be most
natural that he should prepare way
OF escape.
Now, in view of what has appeared,
and it must have appeared so to the
jury after excluding the testimony Of
Nus. Adams and the defendant, can
anyone have reasonable doubt that
the defendant if guilty at all was gull
ty OF murder in the first degree?
For it must be remembered that no
mutual combat, no heat OF blood, no
passion, no provocation, no extenuat-
ing circumstances, no excuse or u.s.
tification appears, if the evidence OF
Mrs. Adams and the defendant are ex-
cluded.
We do not lose sight of the fact that
every homicide in Virginia is pre-
sumed to be murder in the second de-
gree, and that it must be raised or low
cred by the commonwealth or dfend
ant. That is where nothing appears
but the killing
But our court in Hunt er Hills case
and in subsequent cases has announced
the law to be that mortal wounC
given with deadly weapon, in the
possession OF the slayer, without any
or very slight provocation, is prims
facie evidence of wilful, deliberate anC
premeditated murder, that is, murder
in the first degree.
Perhaps | ought to have stricken
the words cor very slight" from such
an instruction and given the same t.
, the jury, for there was no evidence O
any slight provocation. There wa
none at all if the evidence of the ac
cused and Mrs Adams was discarded
However the law mentioned wa
} fully argued 10 the jury, and, believe
J not denied by the counsel for the ac
| cused, and the same proposition wa
substantially covered by two other in
3 structions given for the common
, wealth.
! But in addition to the mortal woun,
: being given with deadly weapon il
: the hands of the accused, we have th
D other facts and circumstances abov
: alluded to, so as to establish in a muc
: stronger light the characteristics c
e murder in the first degree, than wa
Y shown in the case of Hunter Hill
d whom the court said was rightly cor
: victed OF murder in the first degree.
: But it is contended that as to th
g weight to be given to the testimony
settling conflicts in the testimony-as
u certaining the degree of the crime an
It the quantum of punishment, it is p,
o culiarly within the province of th
y jury. This is true to very great e,
e tent, and the courts are always slo
l. to interfere with their verdicts, but
D must be remembered that in this cas-
l. there was very little conflict in an
e material testimony. 1t is a remark
l. Bile case in this respect. The confi,
d between the accused and Mr.. Humm,
n being substantially all, and as to sho
g the jury must have passed upon tn
n, / have already alluded to.
/ They have right to find the degr,
ID OF the crime, but they must find it
ot pursuance of the evidence and the
e. mands of the law, and where the d
Id gree has been thus ascertained, al
where there is q graduated punis
ID ment, they have the undoubted rig
id to fix the quantum of punishment.