The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1900-04-03

over to one Simmons, who delivered II
| to the Canton Brewing company and II
was then deposited In the George ID.
Harter bank and that later on this bill
was identified as one Of the bills that
was on his person by the said John Har-
| tong; that said persons did bruise and
choke said John Hsrtong by tying a
towel across his mouth and they then
fastened his hands behind his back and
placed him on his back so that he could
not extricate himself therefrom, and
that they went through the drawers or
other places and that they did take from
an oat barrel in which he had concealed
money, the sum of about six hundred or
seven hundred dollars; that they left him
almost naked, fastened to the floor, and
then fastened him in the room in which
he was so fastened. so that he could
not get out or be able to extricate him
self; that this beating, burning, etc.,
and fastening him, and the shock he
thereby received, was palpably calculat-
ed to kill him, and the state claims that
as result Of that beating, burning, and
other injuries, and the exposure and
shock to which he was subjected, killed
him, and that he died on or about the
9th day of December, 1897
The state also claims that the defen-
dant was at the hall of Isaac Stripe,
near Greentown, in company with three
other persons, after dark, on the night
In question, and that he
was fully identified as one of the persons
who was there, and that he left the hall
before the services commenced, and in
company with the others went to the
village of Greentown, to the resi-
dence of John Hartong.
The defendant claims. in addition to
his plea of mot guilty" which have
said puts in issue every averment con-
tained in each count of the indictment,
that he had no pnrt whatever in the
commission of the crime against John
Hartong; that he was not there at all
and knew nothing of 1t until he read it
in the papers the next day. He also
claims that he was In the city of Canton,
portion of the time in the early even
ing at Simmonss ualoon in the city of
Canton, and from nine or ten o'clock
and thereafter he was in Anthony
Piero's saloon in this city, and that
he could not have been present and
taken any part in the alleged crime.
The crime of murder in the first degree
includes murder in the second degree,
and manslaughter, assault and battery,
and simple assault.
Our statute defines murder in the sec
ond degree to consist in purposely and
maliciously killing another without de-
liberation and premeditation.
To constitute murder in the second
degree 1t is necessary and essential that
the killing be done purposely and
maliciously.
The crime of murder in the second de-
gree contains in it. or has in 1t as a
necessary element to be proved, that
the killing was done maliciously, that Is
with malice-which means the doing of
a wrongful act Intentionally without
just cause or excuse; that state of mind
which prompts a conscious violation of
the law to the prejudice or injury of
another.
Malice does not necessarily mean i'll
will or hatred toward the person in
jured; it is evidenced by the act or acts
which, sprung from a wicked motive,
attended by circumstances indicating a
heart regardless of social duty and
bent on mischief.
Malice is said to be express when the
cruel act is done with deliberate mind,
with settled and formed purpose. This
kind of malice is generally evidenced
by circumstances preceding and attend
ing the transaction complained Of, or by
| threats, menaces, former grudycS, lying
in wait, concerted schemes To do in
jury, or by the unusual degree of cruelty
attending the act.
Malice is implied when the Unlawful
act done is sudden and without any
great provocation, and also where the
act done necessarily shows G. depraved
heart or unusual degree of cruelty.
To authorize a verdict OF murder in
the second degree 1t must be affirma-
lively shown by the state that there
was at the time the injuries described
in the indictment were inflicted on the
deceased an intent existing in the mind
of the accused to kill John Hartong,
and also that he did it maliciously.
l have said to you that under the
statute defining the crime Of murder in
the first degree that, that also includes
mansaughter as well as murder in the
second degree.
The statute in relation to mansiaugh-
ter reads. so far as l need call your
attention to It. that whoever unlaw-
iuiy hiilo dhotutls Wlcl SuCIl uuldW
full killing does not amount to murder
in the first degree, or murder in the
second degree, as herein defined is
guilty of man slaughter
Such unlawful killing may be with
out malice. and either upon sudden
quarrel, or use Intentionally while the
slayer is in the commission of some un-
lawful act.
will say to you that IL the defendant,
either by himself or with others, pur-
posey killed John Hartong while COM
mitting a burglary, or attempting to
commit a burglary, or while robbing, or
attempting to rob him. or while COM
mitting or attempting to commit both
crimes, burglary and robbery, the Of
fense or crime in so killing the deceased
was murder in the first degree, and not
murder in the second degree or man
slaughter.
/ should also define to you what Is
meant by assault and battery.