The semi-weekly messenger., 1898-01-14

(this being the evidence OF Policeman
Dave Bryant. colorei). The two men
walked on up Mutt street until they
reached the Carolina Cooperage Com
pany. where q third party. another
sailor. came up and as all three were
penniless they at once made up a
scheme 10 obtain money by roobing
sczne one and one Of the men was sent
In quest CT a victim. The man went
down Nutt street and met the defen-
dant coming away from Mr.. O'Brin's
saloon Cto the departure OF the defen-
dant Mr.. O'Brien testifiedD. The decoy
saw the defendant display money and
al once joined him. and both men
walked up to the barrel factory where
the homicide occurred. That the two
men whom Witness Price testified
walked by him were the decoy and the
defendant. That the reason Witness
Spooner did not hear the fuss was on
the time.
Mr.. Jockey concluded his remarks
shortly after / O'Clock and court then
took a recess until O'Clock.
SICKNESS OF A JUROR
Shortly after the recess taken by
court Juror ]. W. Eubank was taken
with a severe attack of cholera morbus
and medical aid had TO be summoned.
Mr.. Eubank was so sick that il was
thought that a mistrial would have 10
n -f1 +r-ga .EY
by consent with eleven jurors, but by
tn convening of court in the afternoon
the sick juror recovered and trial of
the case, except for a few minutes de-
lay, went on as if nothing out OF the
ordinary had happened.
AFTERNOON SESSION.
Solicitor Richardson made the clos
ing speech. and argued to the court
briefly but strongly.
At $50 o'clock Judge Sutton COM
menced 10 deliver the charge to the
jury He reviewed the testimony in
the case, informed them of the conten-
tions of the state and the defendant.
and closed with the following impartial
general charge:
The crime Of murder has been graded
by the law, under the act of the general
ASSEMBLY of 1898. into two degrees, and
according to said act every murder
which is committed by lying in wait.
poisoning, or by torture, or any other
kind of wilful, deliberate and premedi-
tated murder, or any murder cmmitted
| in the attempt to commit a felony, or
IN the perpetration of a felony, is
deemed to be murder in the first de-
gree. All other kinds of murder are
in the second degree. 1t is an essentlan
ingredient of the crime of murder In
the first degree that the killing mustbe
done with deliberatiOn and premedita-
ton. Where there is no premedltatrOn
or delibera ton there is no murder in tn
or deliberation there is no murder IN
the first degree, and therefore it is
murder in the second degree, If any
thing at all. To premeditate means
that a person must turn the matter
over in his mind; must think and come
! to a conclusion, as where one thinks
| about and considers the commission OF
an act and concludes or determines in
| his mind to do something-to Kill
| man; or do him serious bodily injury;
or any other act which requires Sucn
| determinations would De a previous act
|
| is what the law means by deliberate
| and prernditatd killing. The law does
| not lay down any rule as to the time
/ which must elapse between the moment
| when the person premeditates or comes
| to a determination in his own mind 10
| kill another person and the moment
| when he does the killing. As a test II
| is not question of time. 1t is merely
| a question of whether the prisoner
I 5+I,. raf. i'm a
| ton to kin thede ceased and then, at
| some subsequent period, either immed-
| ate or remote, carries his previously
| formed determination into effect by
killing the deceased. If there be an
! intention to kill and a simultaneous
| killing then there is no premeditation
| because the intention to Kill and the
| act of killing being close together. the
! one Immediately following the other.
| there is no time to think, to form a
| conclusion, and therefore there is no
| reconciliation or predeterminatiOn. 1t
| is question of generalization and de-
| liberation. Tt is competent for the jury
| to take into their considera ton the con-
| duct of the prisoner before and after
| as we'll as at the time of, the homicide,
and all the circumstances connected
| with the homicide. l have LAID before
| YOU the law governing homicide in
enacted by the statute, and l charge
you that the law makes it encUmbent
upon the state to satisfy the jury, be-
yond reasonable doubt, that this is a
| case not only of murder but OF murder
| in the first degree. The law presume es
when a murder IS charged that 1t is
| murder in the second degree, and for
| this reason the burden Of showing that
| it is first dgree rests upon the state.
| 1t is for the jury, and not for the
| court, to decide what is the degree OF
! murder in all cases where the jury
I. have have come to the conclusion that
| the ctse under consideration is one Of
| murder and it Is the duty Of the jury
| which tries the case after careful con
| sideration of all the evidence and al
| tn surrounding circumstances attend
| ing it, to say whether or not it be a
| case of murder at all, and whether, Il
| it be murder, in the first or second de-
| gree. It is your peculiar and sole
| province. The killing with a deadly
| weapon such as IS proven here, for
! charge you that this was deadly
I