The San Francisco call., 1895-11-02

ties; am equally sure that these responsible
neS you VIII discharge without fear or favor
fidelity.
/ feel gentlemen, that it is justly due to the
cheertul patience you have exhibited during
the many weeks we have been engaged in this
trlal, and TO the attentive care you have given
gay after day to the vast mass of testimony you
nave heard to thus publicly recognize and
commend your course and conduct as jurors.
III is Doth proper and useful for me here to
state, gentlemen, that there is a division of
autles between the court and the jury; each
has its peculiar duty, and each has the respon-
slbl4lty OF that alone.
The Judge defines his
peculiar proUtBce
1t is the province of the court to state clearly
the rules OF law applicable to the facts and
circumstances bought before the jury by the
evidence; to decide what shall or shall not be
admitted in evidence, and generally to regu-
late the conduct of the trial. In some courts,
notably those of England, in our own Federal
courts, and in some OF our sister State courts,
II is the practice and custom for the court in
its charge to the jury to recapitulate and COM
ment on the evidence in the case. Such
course is rarely, II ever, permissible under our
system Our constitution provides that Judges
shall not charge juries with respect to matters
OF TACT, but may state the testimony and declare
the law" But even were it permissible for
the court to comment on the testimony, yet in
TINS case the respective counsel have SO ex-
hauStlyely referred to and rehearsed the evil
Cence, which you have heard. that it would
De waste OF time and work of supereroga-
ton.
1t seems almost needless for me to saw to Won
that you should consider this case without re-
gard 10 what you have seen or heard or read
outside of this courtroom. Whatever verdict
you may find should be, and | have no doubt
Will be, based upon the evidence and the law
as will be given you in this charge; therefore,
ask your calm, earnest and careful attention
while give you such instructions and explain
10 you such principles OF law as are applicable
TO and involved i'll this case.
The court on the 0reat
responsibility Of the jury.
That you fully appreciate the great RESPONSE
blhty that rests upon you as citizens Of our
State and as jurors | am convinced, The oues-
ton for you TO determine is one of first magni-
tude. On the one hand the defendant is ac-
cused and charged with one of the most serious
crimes against the laws of the land conyic-
ton OF which will be OF terrible conseq uences
20 him, and therefore. looking at the case from
this standpoint, 1t requires and demands at
your hands the most careful and deliberate
consideration. There is another reason which
equally demands at your hands this care
ful and earnest attention. and that is
DUTY TO perforln-lt may be pain
full one-still, it is duty and 1t is to be faith
fully and firmly performed. 1t is a double
duty, guaranteeing to the accused that if after
a fair and impartial trial, he is not found
guilty he shall be acquitted; to society and the
public that justice shall be administered, and
the guilty, if so proven, be brought TO punish
ment.. Such being your duty, prescribed by
the solemn mandates of the law, you are not at
liberty to indulge i'll any sentiment ineonsis-
tent with or in violation OF its strict per-
formance.
4 limit to the
courts proUiRce.
You will distinctly understand that in this
charge the court in no manner or form is eX-
pressing or desires to express any opinion on
the weight OF the evidence. or any part of it,
or on the truth or falsity of any witness testi-
mony, or that any alleged fact in the case is
or is not proved. With questions of fact, the
ha hot
should give to any witness sworn in the case,
the court has nothing to do. These are mat
ters entirely within your province and which
you as jurors under your oRthS must deter
mine for yourselves. The duty of the court, as
before stated, is simply TO announce TO you
such general principles of law as are applicable
to the case based upon the testimony which
you have heard in as concise a manner as is
consistent with its duty and the importance of
The defendant at the bar, William Henry
Theodore Durrant. is accused by the District
Attorney of this City and County, by an in
formation filed in this court. with the crime of
murder, alleged TO have been committed as
follows: That he, the said Durrant, on or
about the Sd day of April, A. D. 1895, in this
City ana County, did willfully, uniawfully,
feloniously, and OF his malice or forethought
kill and murder one Blanche Lamont other
human being.
To this information upon his arraignment,
duly had in this court. he has entered his plea
of Not guilty." which puts in issue every
allegation OF the said information and charge;
this plea OF not guilty places the burden upon,
and makes II the duty OF the prosecution be-
your satisfaction and beyond all reasonable
doubt by legal and credible evidence, that the
defendant is guilty as charged.
Act aud intent
must be IN union.
In every crime or public offense there must
exist q union or joint operation of act and
intent, or criminal negligence the intent or
intention with which an act is done is mani
tested by the circums tances connected with
the offense, and the sound mind and discretion
OF the accused, All persons are of sound mind
who are neither idiots, lunatics or affected
with insanity. As to the intent or intention
with which the act charged is alleged TO have
been done, you must arrive at it from all the
testimony in the case, and all the acts, conduct
and circumstances shown by the evidence in
the case.
Each and every one of you undoubtedly know
that we cannot look into the mind of O. person
and see what the secret workings of that mind
are; we cannot read il as We do book, nor can
we produce photograph OF the mind and
exhibit 1t to you, and thus demonstrate its
exact conditions and workings; hence ii is that
the law says, and this is based upon necessity
that the intent or intentions with which an
act is done or committed, is to be aseertained
and gathered by the jury from all the conduct
and circumstances surrounding the commission
OF the act as shown by the proof.
Prescriptions Of IatU in
regard to intent.
There are certain presumptions of law re-
garding PERSONS intent, by which you should
be governed; these are that q maIjcions nnd
guilty intent is conclusiyely presumed from
the deliberate commission of an unlawful act
Tor the purpose of injuring another; there are
other presumptlons of law bearing upon this
question OF intent, which the code provides are
satisfactory, If uncontradicted, but they NAV
be contradicted by other evidence. They are
what are denominated disputable presrmp-
uons, and are as follows: that an unlawful
act was done with an unlawful intent, that a
person intends the ordinary consequence of
his voluntary act.
Tho word ''willful," when applied to the
intent with which an net is done or Commit
ted, implies simply purpose or Willingness to
commit the oct or make the omis sion referred
to.
The words "lnaliee" and malicious" imnort
a wish TO vex, annoy or injure another person
or an intent to do wrongful act, and are estab,
hshed either by proof or presumption OF law.
Your power OF Judging of the effect OF ryi
a \sKx IN