Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1899-08-16

! tEduittDIy opinions upon points VI ih"
and in summing up the case often differed
still more widely from each other in their
views of the credibility and effect of EVIL
| deoce, in its application to the particular
case.
"it followed, as almost necessary con-
sequence Of this course OF proceeding, that
verdict must be conclusive, How would
it be possible to take exceptions to in
structions in point OF law, where those
+ instructions were various and perhaps
contradictory? Or to object to a verdict
for misdirectton, where, il the directions
given by one judge we're incorrect, their
influence may have been counteracted by
those 81 another, which were strictly con-
+ torm8ble to law? Tue soundncss of this
reasoning is manifested BY the course
pursued in this trial, as appears by the
letter of Judge Parker which follows two
OF the judges giving their opinion that
the offence charged was murder, and the
ether, that it was manslaughter, leaving
the jury to decide between them.
JUDGE PARKER on THE VERDICT.
The jury retired at about 10 o'clock in
the evening, and the next forenoon re-
turned a verdict of guilty. y strange
feature OF the case was that Judge SewaIl,
T who differed from the conclusion of his
associates, should be selected to pro-
nounee the sentence OF death, which he
did, after very eloquent and pathetic
address to the prisoner, in which he
portrayed the enormity OF his crime, and
eXhorted him to devote the few days
which remained for him to repentance
Mr.. Crosby made 4 strong fort for the
communication of Balls punishment. y
request by the executive to the court for
their opinion on the execution Of the
sentence solicited the following letter
! from Judge Parker, preserved upon the
+ files of the council in Boston.
'sir:-A- the chief justice was not present at
the trial of E5eue1er Ball, and as Judge sewall
and Thatcher arc beyond the reach of immedi-
ate communication, it has fallen upon me to
reply to the letter Ut yaur honor to the Justices
oil the supreme iuticiai court, which has been
handed to me by the chief justice to whom 1t
was forwarded.
" 4 am the mere rcadE To perform this duty,
As from several conferences with the absent
judSes, / have been made fully acquainted with
their sentiments upon the subject before the
executive.
"'Of the trial, the facts essential to maintain
the ndictmcu, were proved by uncontradicted
testimony. There was slight attempt to ex-
cite doubt whether the gan was discharged by
design or accident. But the jury had no he7ita-
ton on this point. and believe none who heard
t the trial supposed there was any uncertainty
about IL There was much evidence of express
malice arising especially from declarations and
expressions Of the prisoner after the deed was
perretratcd The principal labor of the coun-
sci for the prisoner WAS To reduce the ofen-e to
man7lau ghter by showing an attempt to com
nit an arrest Of him By the deceased without
any lawful authority. The deceased went In
pursuit Of the prisoner, who had been charged
with having in his possession tools and nipple.
nents :or the purpose and with the intent of
| using them in counterfeiting coin. The de
| ceased supposed himself armed with warrant,
/ but the court unanimously decided the warrant
/ to be void, 50 that he must be considered rs
+ having pursued with intent to arrest, without
/ lawful authority.
tine law IS clear that If enc arrest or at
/ tempt to arrest another without lawful author.
/ ity aud l. Killed. the homicide may he man.
slaughter, but cannot be murder.
"'W hen the deceased was shot by the prison.
| er, he ut thirty feet distance; had no
! weapons of any sort, nor had he called upon
! the prisoner to stop. nor was there anything to
prevent the further flight OF the prisoner,
neither he nor his assailants being upon the run,
| but walking fast.
| 1.-Two OF the court In their charge to the jury
| stated that although an intention to arrest was
| manifest, there was no evidence of actual ar.
rest an attempt to effect it, the true definition
of an attempt contradistinguished from an
| intention being that the assailant should be
| within reach of the object of his pursuit and
actually proceeding to lay hands on him in like
manner to constitute an assault (Which is an of
Tense short of a battery, the parry must be as
near as that his design to strike may take effect,
| If he be not Interrupted. The reasons for this
| opinion need not be detailed, as It Is abundantly
| supported by authorities which were all duly
| considered In the case of the Commonwealth VS..
| Drew 4th Massachu sets Reports, 81. And 1t
! will be obvious that any other principle would
| be uncertain and dangerous, as 1t would leave
| it In the power of violent man who Is pursued
| by those who think it their duty to bring him to
| Justice to take the lives of his pursuers soon
| as they came within reach of his shot, with the
chance of suffering only moderate punish.
ment. Judge Sewall delivered 1t as his opinion
| to the Jury that the circumstances would au-
thorize them to believe there was an attempt to
arrest, and If they did believe it. they ought to
| convict only of manslaughter; Notwithstanding
his favorable intimation, the jury, which was
composed Of very intelligent and respectable
men, convicted the prisoner of murder. The
counsel for the prisoner were then informed
that as difference of opinion had appeared
among the members of the court, upon an i'm
portant question of law, the would be
stated to the chief justice for his opinion, and
! If either of the judges continued of an opinion
favorable to the prisoner, statement of the
! case with the several opinions and reasons of
the Judges would be laid before the executive.
1.-The chief justice concurred with the two
! Judges who were of the opinion that the crime
| as proved amounted to murder, and Judge
! Sewall after consideration eisurey at home,