The evening herald. [volume] (Shenandoah, Pa.) 1891-1966, 1896-06-25

the prisoner charged with the crime. If you
do that you will have fulfilled the duties of
your obligation and your conscience
need never feel as having com
mitted wrong act as jurors in
the case of the Commonwealth against
Theodore Eisenhower. You may sympathize
as men, you may feel as men, but as jurors
you have no right TO sympathize either with
the family of the deceased or with the
prisoner at the bar. You have no right to
feel for either. You must look to the evil
dence and the evidence alone Be guided by
that and return just and true verdict If
you do that your duties will have been per-
formed and you will not only receive the
appreciation Of all good people of the com
munity, but Of your own conscience. The
facts of the case are for you. The court has
nothing to do with them You have to deter
mine from all the evidence in the case. You
are to take the statements Of the law from
the court as to the best evidence of the law
within your reach, and in viewing the evil
dence you are to be guided by what | may
say to you with relation TO the law At
common law there are two grades of felonious
crime-murder and mansaughter. Murder
at the common law Is committed when a
person of sound mind, memory and discre.
ton kills a reasonable creature in being
with malice afOrethOught, express or
implied. Manslaughter may be defined
as the unlawful killing of another with
out malice, expressed, or implied The
difference, therefore, between murder and
manslaughter, is this: In the former there
Is malice, either expressed or implied In the
latter there is no malice, either expressed. or
implied. There are two degrees of man
slaughter-vountary and involuntary. As
there can be no conviction i'll this case of
involuntary manslaughter. and, as it is not
claimed on either side that it entered into the
case as an element of it, it will not be
necessary for me to embarrass or confuse you
by defining the crime You have the power
however, to return verdict in this case of
voluntary manslaughter and |, therefore,
give you the definition of that crime. Vol
untary manslaughter is the unlawful killing
of another without malice in some quarrel
or in the heat of passion 1t is a distinct
grade of homicide and covers murder in
which there is no malice but the presence of
passion For instance if one man kills
another under great provocation in the heat
Of fight, or quarrel, the law would
not imply malice and, though the
act might be intentional, yet being
made in the heat of blood and passion under
sufficient provOcation it would be without
malice and therefore, not murder hut man
slaughter. Under the Act of this Common
wealth of 1871, murder was defined in the
first and second degree. 1t will be within
your province, and your duty, gentlemen, in
case you should conclude that the defendant
is responsible for the killing, and should
make up your minds after full considera-
tiOn of all the testimony in the case TO re
turn verdict Of guilty, to ascertain first
whether the crime is manslaughter, or mur-
der. If you find it was without malice it
would be manslaughter. If you find it was
malicious it would be murder in either the
first, or second degree. And you will under
stand, gentlemen, that by malice is meant
not what is ordinarily understood-a partic-
ular ill-will, a spite, or a grudge. Malice, as
IA tor inn Il
preheuds not only particular ill-will but
every case where there is wickedness of dis
position, hardness Of heart, cruelty
recklessness of consequences and Il
mind regardless of socially duty
although "A particular person NAV not
be intended to be injured. If the defend
ant then, is responsible for the death
of John Schwindt and the killing was not
justitable, was il without malice, as | have
defined? If so, you should find him guilty
of voluntary manslaughter. But otherwise
if you find he was malicious, then you must
determine whether it was willful, deliberate
and premeditated. If it was then it win be
your duty to return verdict of murder in
the first degree If it was malicious, but not
willful, deliberate and premeditated then it
will be your duty to return verdict of guilty
of murder in the second degree. If there
was premeditation, if a purpose existed in
the mind of the prisoner before hand to kill
if it was Intentional which is but another
term for Willful it is murder in the first
degree. If there was no such intent if the
purpose was to merely wound maim cripple
disfgure, then, though malicious it would
fall short Of murder in the first degree and
be murder in the second degree. Was there
q specific intention to take life? If So il is
IN urder in the first degree. If without malice,
voluntary manslanghtcr, and il would make
no difference that the defendant, through mis-
take, may have killed John Schwindt instead
of William Schwindt. Even if you should
find il to be a fact that William Schwindt
was responsible for the estungement between
Eisenhower and his wife, aud even if he had
improper relations with the prisoners
wife, would not justify the shooting
The law provides a remedy for injuries and
no man can take the law in his own hands
On the subject of the operation Judge
Savidge said: IF it was reasonably necessary
to perform an operation in order to locate the
bullet to determine what caused the paralysis
and the operation was undertaken skillfully
and in good faith, and not carried forward
after it had been discovered that no good
could come from the further continuance of
the operation, the defendant would be re-
sponsible, even though the Inflammation was
caused by the operation itself and not by
reason Of the wound by the bullet" On the
| plea of insanity his Honor instructed the
jury to take all the testimony, all the facts
and circumstances everything in the case
bearing upon the mans mental condition and
determine for yourself whether that man
was sane or insane at the time he shot John
Schwindt
Judge Savidge commenced his summing up
at 0 a. IN, closed it at II and the jury retired
at 11:14.
THE SECOND MURDER TRIAL.