The Holt County sentinel., 1898-05-06

the act was done with malice and pre-
meditation
The court inStructs the jury that Nv
the term "fcloniouSly" i meant wicked
y and against the aduonition of the
law. that is. wiCkedIy and unlawfunv.
III you shall believe. from the evI-
drnce. that the defendant stabbed and
Killed browning wlIls h., the deferd-
ant. was IN violent passion, suddenly
aroused by cpprubrious epithets, or
abusive words spoken 10y Browning to
def ndant, then such stabbing and kill
ing was pot done with deliberation, and
was not murder IN tie first degree. On
The other hand. although defendant
stabbed and killed Browning while lie
| isnd8Ut WAS IN violent passion. sud
denly aroused 10y npprubrInus epitteis
or abusive words spoken 10 hun by
Browning. vel II such killing aud stab
blng aud killing was done wi.lfuI!y. pre-
mrdItatediy, aud of hIs malice afOrr-
ta"ught. as heretofore explained, then
defendant Was guilty Of murder IN the
second degree
II You shall believe. fgrm the cvi
deGrr, that defendant stalil,r,! aud killed
Bf"wnIuS. While TIE. Defendant was IA u
violent passion, suddenly aroused Ey
reason of Browning having struck hun
with HIS hanG ~ lis. YOU cannot tind
hIU sa'lty uf mur,iei In either degree.
fCr ~ that cHSr the law T-rSUmps that
such stabhIug ami killing Vas not done
Of defendants malice. but 10y Teason Of
such passion. On the other hand al
though yuu may believe that defrn iauJ
stabbed and killed browning while M u
violent pHss,Ou. suddenly aroused 10y u
blow from Browning. Nau will lind EIm
guilty Of manSinugh'er IN the fourth de
gree.
II You find the defendant guilty uf
manSlaughtrr in the fourth degree YOU
vii! assess his punishment at impriSon
mcnt IN the pcnItcntIary for term uf
two Years. or by Imprisonment in the
county Jail not less than six months nor
more than twelve months: or hy Il fine
of not less than 500, nor r-ure than
Sl.G0. or 10y both Il fine nf not less than
sln and Imprisonment IN the county
Jail not less than three months
He who willfully, that Is. intentional
ty. uses upon another at some vital part
a deadly weapon must, in the absence of
qualif: ing factS, bc presumed to intend
the death which l. the probably and
ordinary consequence of such act. and If
such deadly weapon l. used without Just
cause or provocation, he must b" pre-
sumcd To- do it wicketily or from a bad
heart. If. therefore. the jury believe
from the evidence that defendant took
the life of Browning hy stabbing or cut
ting Browning in vital part with Il
knife, and YOU believe that said knife aS
used 10y defendant, was Il dangerous or
deadly weapon. with manifest design
to Use such weapon upon Browning:
that such cutting was done willfully,
prenetlitate,lly and uf his malice afore-
thought. and without sufficient reason
or cause or cXtrnuatiOn, then such kill
ing Is murder in the second degree: and
while it devulycS upon the state to prove
the willfulnesS, prcmrditatiOn and malice
aforrthought. all of which are necessary
In constitute murder in the second de
gree. vet this need not be proved 10y di
rect evidence, but may be deducted from
all the facts and circumstances attend
ing the killing: and if tn" jury can salts
factorily and reasonably infer their ex-
iStence from all the evidence. they will
be warranted i'll finding the defendant
guilty of murder in the second degree.
The jury are instructed that u YOU be
lIeye and find, from the evidence, that
the defendant felonIousIy, wI!lfully, pre-
medltatedly. and of his malice afore-
thought stabbed or cut Browning, and
inflicted ON him dangerous wound in
some vital part. ns charged IN the indict-
ment. and that such cutting and wound
ing caused the death Of said Browning.
you should find the defendant guilty of
murder IN the second degree, and it is
wholly immaterial what medical treat
al / = L
had any medical treatment at all.
The jury are instructed that il they
believe, from the evidence, that the de
fendant and the deceased, Browning,
upon a sudden quarrel, engaged in a mu-
tual combat or fist fight, and the defend
ant, IN the heat of passion, killed Brown
Tug, he could be guilty If no less crime
than that uf man-laughter in the fourth
degree.
The court instructs the jury that the
defendant is a competent witness in his
own behalf. but the fact that he is the
defendant testifying in his own behalf
may be taken into consideration in eSti
mating the weight to be given to his ties
timOny.
At about j p. IN, the instructions
were placed in the hands of the jury,
and they retired. to determine the fate
Of Jas. Burge for the killing of Fred
Browning. At about : o'clock. after
the case for some two hours,
they filed into court and handed
The following verdict 20 the judge:'We.
the jury, find the defendant guilty Of man
slaughter in the fourth degree. and as.
seSs his punishment at two Years i'm
prlsoDment IL the penlteutIary."
DAVID FOSTER Foreman
Thus. ended thus case. and from the
+ cOuntenance, We We're led to
believe that he was satisfied With tfe
verdict.
Ii is sald that two of the jurors on the
first ballot favored ten years sentence,
but after more thorough examination
u the instructions. changed their ballot.
and, u was unanimous for two years on