The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-06-11

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in the commission OF the unlawful deed, does
not render one guilty OF Its preparation.
13. IL, upon considering the evidence in this
case, you should find that the defendants in pur-
suance OF q common design and purpose TO
lawfully kill Eyster, went into the latters store
OH the night OF April Ia, 500, and there one OF
them, in carrying out said common design, shot
said Eyster and killed him as charged in the in
dictnent. then both the defendants are prin-
cipals, IL the one who did not actually do the
shooting was present aiding. abett:ng and
sisting IN said act. counseling and advising
It's commission; and IL you should fnd that the
Killing was done without proyocatton and with
premeditated malice both defendants are guilty
OF murder in the first degree.
IA. Ifyou should lind from the evidence that
the defendants the night OF April Ia. 1898. to-
getner went into the store OF Charles W. Eyster,
and that one or them, without the knowledge or
the other. intended To unlawfully Kill Eyster,
and did unlawfully shoot him mOrIally, without
the aid, consent or connivance OF the other, the
latter is not responsible for the homicide
ID. or IL you should find that the defendants
together went into the store Of the deceased,
Charles w. Eyster, without any prior common
purpose or previous understanding to slay him,
but while there, without any proyocation or
cuse. and In spirit OF wanton wickedness. one
empurposeiy, premeditatedly and malicious
ly shot and killed Eyster with the knowledge,
consent encouragement and cOnnivance of the
other, then both are guilty of murder.
Ito. Evidence OF conversations tending to
prove admissions by the defendants has been in
troduced in this case by the State, but such adj
missions. II you find that any shown, are
only 10 be considered against the party making
them. You should consider evidence OF this
character carefully for the reason that the Ian
guage may not have been correctly understood,
or the meaning correctly given, and also because
the whole OF such conversation tending TO modi-
~ or explain the same may not be given by the
witnesses; but admissions freely made and pre-
cisely repeated III evidence may be found by tue
jury, IN the exercise OF their judgment, to be de-
serving OF the full weight which the circum-
stances Justify.
IL Threats made against the deceased by
one defendant. II any. upon his own vOlition,
and because OF some real or fancied grievance
personal 20 himself. should not be considered by
you as evidence against the other defendant; nor
should you consider. against either defend
ant, evidence OF threats against persons other
than Eyster, IL any there be. But II you should
lind from the evidence that threats were made
by the defendants or one OF them, against Eys-
ter individually. against all persons concerned
in prior arrest OF the defendant who was alleged
TO have made the threats and that he intended
such threats TO include the deceased, Charles w.
Eyster, then you may consider such threats TO
the extent above indicated in this instruction
Is. mere running away by person from
the scene or homicide Is not OF itself. OF course
sufficient to convict such person OF the crime
but it must be further shown that such person
was present at the commission OF the crime and
i'll some guilty manner participated therein; but
the running away by an accused from the scene
where a crime has just been committed, il such
be shown by the evidence is a circumstance
with the other evidence and you will have a
right To determine that the weight Of such cir
cuinstance depends upon what other incrm-
mating facts are shown, II any.
10. Evidence has been introduced in behalf OF
the defendants tending 10 prove an abb, and If
you should find upon considering this evidence
that IL Is sufficient TO raise q reasonable doubt
in your minds as 10 whether the accused or either
of them were at the place where the alleged
crime was committed, then the accused, or the
one 10 whom such doubt arises, if 1t arises as
to any, is entitled TO acquitta and the failure of
either defendant TO account for his whereabouts
during all the time within which the ottense
might have been committed is not of itself a cir
cumstance tending 10 prove his guilt but fall
ure OF this character may be properly considered
" IN
IN the case tending TO prove guilt, II you lind
5 that there is such.
20. In determining what weight you shall give
TO the evidence relating TO the identification OF
the defendants as the persons who are alleged to
have committed the CRIME charged In the indict-
ment, you may properly consider the elements
or the weather, the time or day or night, the
distances, the distractions il any, the witnesses
powers and opportunities OF observation, their
previous acquaintance or the lack of il with the
persons claimed To be identified. and any other
matter which the evidence disclOses bearing
upon that question.
81. Letters have been introduced I'm evidence
claimed To have been written by the defendants,
or one Of them. The language OF these letters
should be given its ordinary Specification, and il
there is any doubt or obscurity to the mean
ing OF any part of such letters IL the right OF
the defendants to explain the same, and you
should consider their explanation in the same
way that you consider the testimony OF other
witnesses: and you may take the explanation
given true, If yOu fit. If you tit, you
may dsbelieve such explanation, and give 10
such letters such meaning as you shall lind that
the language used and all the facts and circum-
stances In evidence bearing upon The matter
and explanatory thereof, If any. justify you in
giving 10 It,
o. Where circumstantial evidence is depend
ed upon TO secure the conviction OF person
cnsed of crime. il must be OF character con-
elusive and convincing as 10 exclude every rea-
sOnable hypothesis but that of guilt. IL you de-
termine that this is such case. you should give
full aud careful consideration TO this rule of the
law in making up your verdict
23. The law presumes that the defendants
innocent OF the crime charged against them, and
this presumption goes with them throughout the
trial. The evidence should he considered in the
light of IL, and the defendants entitled TO be
acquitted unless their guilt Is established to your
satisfaction. beyond reasonable doubt, by
proof by the State of every material fact and
circumstance necessary To- constitute guilt.
24 Zach juror Is entitled, OF course, 10 his
honest opinion, and, so. II an individual juror
entertains a reasonable doubt as TO the guilt OF
the defendants, or either OF them, he IL not bound
TO agree to verdict OF guilty against the de-
defendants against the one TO whom such
reasonable doubt arises.
25 What is a reasonable doubt as to any fact
or circumstance necessary TO oe proved must
ultimately be determined by the jury. and it may
arise upon the evidence or from the want OF evil
dence; but IL has been defined to be where the
evidence fails to produce In the minds or pru-
dent men such certainty that they would act
upon the conviction produced. voluntarily and
without hesitation in their own most important
affairs and In matters affecting their dearest in
terests The rule as to a reasonable doubt is
meant TO be a rule for the guidance OF reasonable
aud prudent men. The phrase reasonable
richt to determinations not mean a mere imag-
NATIVE or speculative doubt as to the mere posi-
bility or innocence, nor does II require that you
should be satisfied of the guilt or the defendants
beyond a mere possibility OF error or mistake,
but 1t does require that you should be satisfied
to that extent least that is above Indicated in
this instruction.
70 You the judges of the weight OF the
evidence and of the credibility of the witnesses,
and you should consider the whole evidence and
reconcile conflicting testimony II You can, but it
Ia within your power to believe or disbelieve
witness and disbelieve another part OF IL. accord
Ing as yOu shall find the truth 10 be, and in deter
mining these matters IL Is your province 10 take
into account the conduct and demeanor OF
the witnesses while tosiifying, their opportunity
10 know or the matters about which they testify,
the case, if any. their prejudice or interest IL
any, ana any other matters in evidence which
might affect their testimony, If any; and even
though inpeachiDg evidence has been intro
duced against witness, you may still. II you
find that it is proper to do believe the testi-
mony of such witness The defendant, In all
criminal cases, Is a competent witness IN bis
own behalf, and in this case the testimony OF the
defendants Is TO he received and weighed by you
In the same manner that the testimony or other
witnesses Is received and weighed.
%. You are tue exclusive judges or the law
and of the evidence. Ii Is made the duty OF the
court TO instruct yo1 aS 10 the law, and 1t en-
deavors 10 do fairly, impartially and accu-
ratey, hut its Instructions are advisory, merely.
%. Under an indictment charging murder In
the first degree. in this case, you may, II the
evidences warrants II. lind the defendants or ell
Their of them guilty OF a lesser degree of homicide.
such as of murder in the second degree. or or
manslaughter; aud If there is n reasonable doubt
IA to which of two or more degrees OF offense
the accused or either Ole or them are guilty. II