The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-10-15
NOT GUILTY, THE
JURY'S VERDICT
And Ernest Haywood, at a Quarter to One,
Was a Free Man
Again.
ir you to give to such suggestions tn.
slightest consideration whatever.

slightest consideration whatever.
Much has been said in severe criticisr>
of the conduct of the prosecution, espe-
cially as to the refusal of the prosecuting
attorneys to furnish the defendant with
the testimony of Miss Mattye Pace. 1t
is your duty not to allow these attacks
to prejudice your minds so as to lead
you off from a proper, careful and i'm
partial consideration of the evidence as
given by the witnesses and the law as
given you by the court. However much
of mental anguish counsel for the defense
may have suffered from the Withholding
Oh that testimony prior to the trial, on
the trial l felt it my duty, under the rui-
ing of our Supreme Court in case OF
State V. McCurry, reported in Vol. 12S
to allow the declaration of Miss Pace
So on this trial defendant has had tic
benefit of it,
'"The question, and the only question
which concerns you In this case, Is Wheth
Ell or not the defendant is guilty of any
crime, and if SO, what orime-whetier
murder in the second degree, or man
slaughter, or nothing. In answering this
question you should consider the evidence
as given by the witnesses according to
you recollection of it, and the law as
given to you by the Court, and nothing
else. The statute, for some reason un-
known to the Court, allows counsel to
argue to the jury the law well as the
evidence, but still it is your duty
after all to take the evidence
from the witnesses and the law
from the Court. This is proper, because
If the Court makes a mistake, the Su
preme Court can and will correct it, but
If you take the law from counsel and
mistake is made, there is no way to
correct 1t. Besides, each counsel is par
tial to his side, while the Court Is sworn
to hold the scales of justice equally ba
anced and the court always tries to do
that. This case illustrates the wisdom Of
the rule requiring the jury to take the
law from the Court and not from coun
sci. The cases of State V. Matthews, re
ported in so n. c., All, and the case of
State V. Britain, reported in 80 N. G.,
4s1, have no application to the facts ill
this case and the court cannot conceive
how counsel could have thought that
those cases could aid you in ascertaining
the truth Of this case. Nor can the
Court see how counsel for the defendant
could suppose that the case read from a
Mississippi report or the definition of
in deciding this case.
But the strongest proof of the wic
dom of the rule requiring you TO take
tho law from the court is furnished in
the argument of Mr.. Gilliam when he
tells you that there is in this case evil
dence of expressed malioe--that standing
upon the parapet of the postoffice and
being armed furnished evidence of ex-
7
What is malice, expressed or implied,
and what is evidence of malice. are ques
tions of law for the court and not for
the jury. The court cannot conceive that
a lawyer of such long experience and emil
nent ability as Mr.. Gillian, could have be-
lieved that he was giving to you correct
law.
Malice is a condition of the mind
which shows heart regardless of social
duty and fatally bent on mischief. From
the killing with deadly weapon the law
implies malice, but when it appears to
the satisfaction of the jury that the xiii
ing took place Immediately after the
deceased had stricken the defendant, then
the law attributes the killing to anger,
passion and resentment rather than to
malice, then the burden is upon thu
State to satisfy you fully that notwth
standing the provocation caused by tie
blow, that 1t was not the cause of the
killing but malice was This must be dore
by proof OF expressed malice or by evi-
dence that the killing was done by such
unusual means or accompanied by such
acts of cruelty as indicate a wicked and
depraved heart There is no evidence Of
either in this case. Expressed malice de-
notes by its very term that it must have
been declared before the act either by
word or act. 1t denotes premeditation-
that which has not been preconceived can
not be expressed If the defendant acted
from expressed malice, he is guilty of muir
der III the first degree, and if Mr.. Gil
liam really believed he was giving you the
law correctly he ought not to have admit
ted that there is no evidence of premedi-
tation, because there can be no expressed
malice without premeditation. You can
not express malice. either by words. or
by threats. or by acts. as by laying III
wait, unless you have thought about it
premeditated on it. 1t follows. then, as
night follows day, that when Mr.. Gillian
undertook to lay down the law to you
as to malice. he asked you to base your
verdict not upon the law as it is. but
upon the law he made it to suit his
side. The court charges you that there
is DO evidence in this case of expressed
malice. Nor is there any evidence of i'm
Piled n,alica except what the law implies
from the admitted killing with deadly
weapon. From this the law presumes
malice and places the burden upon ehe
defendant to rebut that presumption.
what counsel for the State meant by
telling you that Something is in the
background; yes. there is dark cloud IN