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

, of the night OF the II of June during
which the crime was committed. For il
the defendants wei in Morrellville
while the crime was being perpetrated,
they could not be convicted for being in
Paint township or at Berkey's on the
: previous days. In determining the alibi.
therefore, such testimony on both
sides as relLtes 10 The afternoon, evening,
and night of the 81 aud morning of the
Sd of June should be considered.
The value OF ;estim )ny depends in
some instances on the ability OF the wit
ness to fix satisfactorily the date in ques-
ton. Certain witnesses sought tn fix dates
| by associating there with other events
1 which were known or were fixed by
books or papers. But after all, such
| proof, or association OF one fact with an
other, depends on the memory of the
witness "a to whether this fI-t in issu @
dill Indeed happen on tho sans day a.
The admitted ia t.
The defendants having testified in their
own behalf, the Commonwealth put on
the stand u number of witnesses to i'm
/ peach their character for vera;ity. and
| they said it was not good. Ii Is proper
that we should say such proof does not
necessarily throw the testimony OF tho
defendants ont of the case. You are still
To consider, in the light of that proof.
whether they testified truthfully OF false
| ly in the ease. Ii goes to their eredibil-
| ity, and it still remains for you To say
how much importance shall be attached
To their testimony.
| You have been repeatedly told that no
conviction can be had if, on n considera-
ton of all the evidence including that
relating to the alibi. there is n reasonable
doubt of the gull; of the defendants; and
such is the law. The presumption of in
nocence must prevail unless the evidence
4 removes every fair and reasonable doubt
of guilt.
| IL must not, of couse. be a mere cap
tious doubt, but such a. your Judgment
throws into the solution of the question;
4 doubt which springs from the evidence
submitted, or the lack of evidence; a
doubt which touches you conscience and
which your reason repeets, which, after a
fair and candid effort to resolve il and
clear it up by the other evidence submit
ted, continues tn cloud your judgment.
Counsel for defendants request us to
| instruct you further as follows:
First-That under all the evidence in
the ease there could be no conviction OF
the defendants. or the parties who ac-
tnally committed the acts of cruelty on
David Berkey. of murder in the first or
] second degree.
Answer After what we have already
said yol will understand that this point
must be refused. and IL is refused
Second-The defendants are presumed
, 20 be innocent of the crime with which
they are charged. and this presumption
stands as a shield of defense until it j.
| overthrown by evidence on the part Of
Z, the Commonwealth which establishes the
I, guilt of the defendants beyond a reason-
able doubt.
! Answer-Aflirmed.
| Third-A reasonable doubt is that state
of the case which after the entire cOmpar-
ison and consideration Of all the evil
dence, leaves the minds of the jurors in
that condition that they can not say they
feel an abiding conviction. to moral
certainty. ofthe truth OF the charge.
Answer-This is the definition laid
down by Chief-Justice Shaw. in the cele-
brated case of the Commonwealth vs..
Webster; has been frequently approved,
and the point is affirmed.
Fourth-In criminal cases like this, the
burden of proof never shifts, but rests
upon the Commonwealth throughout.
] and if the evidence offered by the defense.
tending TO establish an a.ibi, in conjunc-
ton with a II the other evidence in the
case, leaves upon the minds of the Jurors
a reasonable doubt of the guilt of the de-
PENDANTS. the jury should acquit.
Answer-Aifirmed.
Fifth. the atrocious nature of the
crime charged and the cruel torture in
iiicted upon David Berkey must not bias
the minds or warp the Judgment of the
jurors TO the prejudice of the defendants,
but the fact that "A crime of such high
grade and afro city is charged upon the
defendants requires the Commonwealth
To produce proof ora high and convinc-
/ ing character, upon which the minds OF
the jury can safely rest, before "A eonvic-
lion can be had.
Answer-Aii iiirmed.
Sixth-Beiore the jury can render n
verdict of guilty against the defendants
the jury must be satisfied beyond rea-
sonable doubt that the whole OF the evil
dence in the case excludes every reason
able hypothesis except that of guilt.
Answer-Aflirmed.
f, Seventh-As the theory and evidence
of the Commonwealth tends 10 establish
the fact that if either of the defendants
participated in the burglary and torture
of David Berkey, then the two defend
ants, and Richard Jackson. who is joined
in the Indictment with the defendants,
offense. therefore if the jury find as a
fact from that evidence that an alibi has
been established by either of the three
| prisoners, such alibi inures to the bene-
fit of the other defendants charged i'm the
indictment with the commission of the
| crime.
| Answer-We affirm this point, and say
4
: other defendants; and, further. that it is
not necessary to establish an aIibi for all
the defendants. because an alibi made
out for the two ON trial is sufficient.
Eighth-Evidence as To identification
given by the persons who only saw the
accused on one or two occasions, and who
had no previous acquaintance with them,
and who did not see them for ten days
or more after meeting them on the road.
is not of as positive and convincing char
| acter as that of persons who We're person.
ally acquainted with the accused.
| Answer-This amounts 10 saying that
persons who best know an individual
can best identify him. which can not, OF
course be questioned. The point is af-
! 6rmed.
You have never been called to the per
formanee of higher or more solemn and
responsible duty than the decision of
this issue, and we have no doubt you full
| ly appreciate its gravity and will dis
charge it in a manner which your con-