Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1894-12-20

FIRST degree. thus combining malice and
passion, which cannot co-exist. BY in
serting homicide or killing in the place
OF murder In the fret degree, the instruc-
ton would be proper. The instruction does
not notice the time within which the
provocation was given. but leaves that
for the consideration OF the fury.
MUST b. OMITTED.
Fifth. The ninth instruction may be
law. but 1t must be omitted upon another
trial. as II rofeTs 10 murder in the FIRST
degree. OF which the accused stands ac-
Quilted.
Sixth. There Ia no error In the tenth
instruction. 1t was properly given.
Seventh. Tne eleventh instruction Is
Objectionable for the harsh language
usea-"brutai. dlabolcal malignity" II
Is an expression by the Court on the evil
dence and calculated TO influence the
jury. The instruction should have been
couched In milder language, and should
be 50 modified II propounded upon an
other trial.
Eighth. l do not think there IS any
error in the twelfth and thirteenth In
structions.
Ninth. The fourteenth instruction Is err
roneouS In assuming that there must be
actual necessity TO kll. An honest and
reasonable apprehension OF imminent and
immediate danger is sufficient. The in
struction Is misleading. and should not
have been given in this case.
Tenth. The fifteenth instruction is er-
roneous for the same reason; also that
the evidence does not tend to show that
Goodman behaved in a way TO deprive
him or the plea OF self-defence. The ex-
lfVaa ta Ill
case.
AIMED AT THE ACCUSED.
Eleventh. Upon mature consideration
l think the sixteenth instruction ought
not to have been given. The statute ten
derly provides that the failure of the
accused TO testify shall create no pre-
sumption against hun, nor be the SUBJ
Ject or comment before the Court or
jury by the prosecuting attorney The
instruction B plainly aimed at the ac-
cused, and In the spirit of the law the
Court ought not to place the brand OF
dlscredt on the weight Of his evidence
before the jury.
Twelfth. 4 think there is no error in
the seventeenth instruction, and that it
was properly given. Fairly read, think
It embraces the ilea In Parrish's case.
MUST BE a NEW TRIAL
1t Is unnecessary to pass on the
motion for a new trial. There must
be new trial, and as the evidence must
be different 1t would be obviously i'm
proper 10 do so, as it might be improperly
used before the jury. 1t Is therefore con-
sidered by the Court that the Judgment
aforesaid be reversed, annulled, and set
ASIDE, ana the Court now proceeding to
enter such order, as the County Court
ought fn hQNa 10
sidered that the verdict OF the jury be
set aside, and new trial awarded there
In; ana the case is remanded to the
County Court for such trial upon the
principles OF this decision. And upon said
trial, what is known as the Staples tes-
timony set out in the record from pages
81 10 l6i, and all testimony consequent
thereon shall be excluded: and If the
testimony Of George Fisher as to
the habit of Goodman in placing
pistol about his person in dressing in
the morning. and the testimony of like
import shall again be offered, 1t must
be admitted.
WITHOUT QUALIFICATION.
The court is further instructed that II
upon the said trial the fourth instruction
propounded by defendants counsel is
again propounded it must be given with
NuA VI dIltl4QiItUl, anu llt
fifth. sixth. and seventh instructions pro-
pounded by defendant must also be given.
without the addendum 10 each given at
the former trial
The court is also instructed at another
trial 10 omit the third seventh. and ninth
instructions given at the instance of the
Commonwealth, as they relate to mur-
der in the first degree. Of which the ac-
cused stands acquitted; 10 substitute
homicide or killing Tor murder OF the
first degree In he eighth instruction; to
omit the harsh words brutal, diabolical
maiignity'' In the eleventh instruction. and
substitute milder language if 1t Is again
offered; and to reject the fourteenth, iif-
tcenth. and sixteenth instructions IL
again offered; all OF which Is ordered to
be certified 10 the County Court OF Alle-
ghany county.
THE REAL RULING.
1t will be noted that the real ruling as
TO the Staples testimony by his Honor In
the above decision is that proof of mo-
tive may be admitted in murder case
only to identify the accused with the
slayer, and that it has no place whatever
I'm showing the grade Of the crime; that
Goodman can claim transport of pas
sion" on learning of the Parsons letter
but that the Commonwealth is stopped
from showing that he had every reason
to expect that such q letter would be
written because the charges therein con-
tained are true; that If a man claims
self-defence the Commonwealth cannot
dispute his claim by proving that the
dead man knew secrets dangerous TO his
peace of mind. which his death would
probably hide forever. IL Is possible that
the Court meant that such testimony is
admissible only in rebuttal, but IL Is not
so stated in the decision.
If the law be as stated above. II Is
n pity that the decisions were not made
by the Supreme Court of the State in
stead OF by n Circuit judge, whose de-
clsions are binding only in his circuit.
The decision gives satisfaction to many
of Goodmans friends here. and was
calmly but none the less joyfully, re-
ceived by the prisoner himself. The case
Will come up for hearing in January,
ana will then probably be continued.
NO JUDGE NAMED YET.
No judge has as yet been selected TO
sit in the case but one will
probably be named within the next few
days. Judge Anderson, who is debarred
from sitting by having been Goodman's S
counsel, stated that he had asked the
Commonwealth and the defence 10 agree
on a judge. and that he would appoint
any one agreed upon by them. The case
viii consume only about one half the time
1t did at the last trial, as the Staples
testimony is ruled out.
Mr.. CRUMP HEARS THE NEWS.