The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1897-06-09

alum and all forms or adulit -ation common
to the cheap brands.
ROYAL BAKING POWDER CO.. NEw YoRH.
all the great interests involved that seri-
Gus, earnest and patient attention and
consideration which their Importance de-
mands.
A year ago this hour the community
was shocked at the spreading news of a
cruel outrage committed the preceding
night on David Berkey at his home in
Paint township, in the northern end of
this county, by pair of masked burglars
who had forced their way into his house
shortly after midnight. II is alleged the
injuries he then sustained caused his
death, which occurred on the 81 of Ooto-
ber last. These defendants were sus-
pected of having perpetrated the crime,
were arrested, indicted, and are here to
answer that charge.
The indictment contains two counts, bat
both relate 10 the same offense, and
charge the defendants with the murde er
of David Berkey.
Some facts connected with the C ase are
free from controversy. IL is not disputed
or questioned that on the night mention
ed a burglary was committed at the
house of the deceased for the purpose of
roboing him. Nor is il denied that he
was tortured and that he fingered and
alleges. The disputed question is wheth
er the defendants are the pors)ns who
committed the offease.
Burglary at common law is ''the break
ing and entering a dwelling house of
another in the night time with the intent
| tn commit a felony therein"
Here ths felonipus purpose was n rob
AMI steal. 'R RDh5ery is the then of prop
erty from the person ~ in the presence Of
the owner, aespmpI1iel by violcacs or
putting him in fear"
The testimony shows that amer the door
was broken open aad the parties hal en-
tered, they were asked by David Berkey
what they wIutci AMI they replied.
| "Money, hy q 81, an We will hlyc it,
and that they thea rdnsaeked the house
and tobS all the m)lsy they cbald find.
To ace )mplisa their purpose and COM
pei the old IN II - disclDse the wherea-
bouts of his IN ,ney, ho wIs placed in n
chair, his hinIs anl feet tie /, revolvers
presented To his face with th.sits of vio
lence, he was struck in the face while in
this position and his feet bIrne in the
horrible manner described by the ply
sicians aud other wi;nsssss; all for the
purpose of forcing him to reveal the 9TH
er money AMI q G)yernmsn. b)nis they
supposed he had.
If this uniisputel testim)ny j. bsliey-
ed the crimes OF Burglary AMI robbery
were complete.
The doctors told you of the fatal chtr-
acter of the injuries, of the shock to the
old mans vital energie, resulting from
them, and that they were the direct cause
of his death. There does not seem - be
any reason to doubt that his death il
chargeable TO the unspeakable outrage
committed on him that fateful night.
Yet the burden is on the Common
wealth to show affirmi.ively that those
injuries caused his death, or, at least,
concurrently with other causes, contribu-
ted to his death. Ii is the first step nee
essary to a conviction. 81 your first in
quiry will be whether David Berkey
died from the effects of the wounds re-
ceived at the hands of the two burglars.
II this is found in the alternative. then
what is the oifense committed by the per-
petrators of those acts of cruelty? The
Commonwealth says it is murder and so
charges it in the indictment.
Murder is 'where person of sound
mind and discretion unlswfully kills
reasonable creature in being, in the peace
of the Commonwealth, with malice
aforethought, either expressed or inn
piled"
That was the definition of murder at
common law, as it is with us to-day.
You will observe that malice is a neces-
sary element of the crime. But this
means malice in its legal sense, as dis
tinguished from the ordinary use of the
term. That is to say, it does not merely
mean ill-will, spite or grudge, or re-
vengeful spirit but denotes wickedness
of disposition, hardness of heart, cruelty,
recklessness of consequence, and exists,
as has been said, where one is possessed
of heart regardless of social duty and
fatally bent on mischief, or where
wrongful act is Intentionally committed.
without canse or excuse. To constitute
murder, malice, as thus defined, must be
present. Ii may, however, be inferred
| from the act done, the manner of doing
| it, or other attending circumstances show
ing perversely wicked heart. IL is pre-
sumed where an unlawful killing is
shown TO have been committed, and no
circumstances of mitigation or justifica-
ton appear. When person in flic.s Sc
cause, malice is implied from the unlaw
ful act, and if it results in death it is
murder.
Ii is not necessary tn complete the Of
fense that the person injured shall in
stantly or speedily die, bat if the injury
continues to affect the body and health of
the victim until death ensues, if within a
year aud day. or four months. as in the
present case, it is enough. This, we
think, will give you a sufficient compre-
hension of the nature of the common law
crime OF murder.
II, therefore, you shall find that David
| Berkey's death was caused by the injur-
| les suffered on the night of the burglary
and robbery, and that the ingredient of
malice, as we have just defined it, was
present in the act, il was murder at COM
mon law.
But az common law all murder was
capitally punished and our legislature,
recognizing difference in degree of guilt
between murder committed deliberately,
when the formed intention to kill exists.
or it occurs in the attempt to commit a
felony, and cases where no specific intent
to take life appears. passed an act rs ear
| ly as l10i classifying it into two degrees.
| In 1850. when our criminal statutes were
co6ifed, the same distinction was kept
up, and is found in Section "A, as follows:
"All murder which shall be perpetrat-
ed by means of poison, or by lying in
wait, or by any other kind of willful, de-
liberate and premeditated killing, or
which shall be committed in the perpe-
tration of, or attempt to perpetrate, any
arson, rape, robbery, or burglary, shall
be deemed murder of the first degree;
and all other kinds of murder shall be
deemed murder of the second degree"