The Birmingham age-herald., 1907-04-11

-------------= Let me too direct your attention to them, to what the Lord said: Vengeance is mine I shall repay Let me also remind of the great fundamental law sounded down the ages-the commandment of God Thou shalt not kill. "
 MT. Jerome then sat down.
 Justice Fitzgerald ordered twenty-five minutes recess before beginning his charge to the jury.
 FitzgeraId's Charge.
 Justice Fitzgerald began his charge to the jury by saying:
 Gentlemen of the Jury: It now becomes my duty tc give to you such instruc- lions on the law are necessary to en- able you to perform your duties as jurors and to define to you the legal guides by which you are to be governed in consid- erng the evidence and reaching your conclusions
 Tt has been particularly gratifying to me to realize that you were selected by the people and by the defendant as fair minded men, after the examination of S37 talesmen, and before the peremptory chal- lenges allowed by law had been ex- hausted.
 Let me impress on you the importance of the issue you are to decide. The life of a citizen within the protection of the law it is charged has been taken by the ueIenQanl, WnO .S neTe to dnSWeT lo the law for that.
 You must take the law absolutely from the court--of the facts you are the sole judges.
 Law From the Court.
 "A defendant in a criminal action is presumed to be innocent until the con trary be proven, and in case of reason- able doubt that his guilt is not satisfac- tory shown, he is entitled to an acquit- tal
 Let me begin by instructing you on the general construction of the law. The statute of homicide is divided into gen eral divisions which in turn are sub-di- vided, as I will hereafter explain. The two chief divisions are homicide, that IS criminal, and homicide that is not crim- tnal.
 Criminal homicides are murder in the first degree, murder in the second degree and manslaughter in the first and sec ond degrees.
 Such homicide, unless excusable or jus tiiable is murder in the first degree when committed from deliberation and premed- itation with a design to effect the death of the person killed. If it is committed without reconciliation or deliberation, but with design to kill, 1t Is murder in the second degree. If the homicide IS com mitted in the heat of passion, without ue- sign to kill but with dangerous weapon, 1t would be manslaughter in the first de- gree. All lesser criminal homcides are classed as manslaughter In the second de- gree.
 "Homicide which is not criminal IS classed as iustifable or eXcusable. Homl- eide is justifiable when committed in the defense of the slayer his wife or child brother, sister. master or servant, or other person, when there is reasonable ground to apprehend that crime IS about to be committed against such person, ana there is immediate danger or the deslsn being carried put "Homcide is excusable when by acci- dent or misfortune it is committed in lawfully correcting child, or doing some other lawful act in a lawful way. "Homcide is also excusable in insanity The law is contained in sections 20 and 2l of the penal code. Section 70 says an act done by an imbece idiot. lunatic or in- sane person is not a crime. This language is very broad and would at first glance appear to apply to all persons of unsound mind without regard to degree of in- sanity.
 Criminal Liability.
 "But section -g limits section 20 as fol- lows:
 "A person is not excusable from crinl- inal liability as an idiot, imbecle, lunatlc or insane person except on proof that at the time of committing the alleged crime he was laboring under such defect of reason as either not to know the nature or quality of the act or to know that the act was wrong
 Before murder in the first degree can be done, a distinguished jurist has said it must appear that there was some act of delberation and reconciliation. This of necessity is for the comprehension or the jury.
 "What may be deliberation and premed- itaton in one man might fall far short In NI ,1i I,xFGf tally. Each case must depend on it's own facts, one case may be proven by long train of circumstances, another by few sharp facts. And in still another case the jury may find in the act, in the manner, in which it was done, the weapon used, the time and the place the disposition of the vic tim everything necessary 10 satisfy them Of the presence of delberation and pre- meditation If you are satisfied that there was a design to effect death but without de- liberation and reconciliation, you may find murder in the second degree. The defendant may be convicted under this indictment of murder in the first or sec ond degree or manslaughter in the first degree. sWhen it appears that the defendant committed a crime and there is reason able doubt ofwhich degree he is guilty, he can be convicted of the lowest only.
 Character of Victim Not Issue. "As have tried to impress on you since this trial began the character of the vic- tim furnishes neither excuse nor justih- cation The general character of the civ tim is not the issue, and no matter how bad he might have been, he was entitled to the protection of the law. "The personal avenger of private or public wrongs is not recognized under the law Every person is under the protection of the law. Good or bad, exalted or hum ble all are alike covered by it's shield. "The plea of not guilty is denial or every material allegation charged against the defendant and such evidence may be presented as will offset these allegations. and establish his insanity at the time of the commission of the act. The law pre- sums that sanity is the normal condition of man, and where insanity is the plea as the condition of the mind of the defend- ant at the time of the act that becomes the crucial question of the jury to de- eide.
 "If there existed in the mind of the de- fendant an insane illusion, 1t is not an excuse unless the illusion is of such a character that if true it would result in his injury.
 Proof of partial or incipient insanity is
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