Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-06-29

structons the degrees of murder and man.
slaughter were outlined, and in the sixth
it was declared that to reduce murder to
manslaughter the crime must be committed
in a transport of passion before the blood
had time to cool. But if the blood had
time or opportunity for cooling or the slayer
deliberated reflected it was murder.
Later it was said that no definite time
could be set down as cooling time, but that
the facts of the case should decide that
point, and that it must be decided whether
OF not there was the suspension of reason
from the moment of the provocaton until
the instant of the killing, for If the slayer
reflected the killing amounted to murder
attributable to malice or revenge.
The usual caution against conjecture and
speculation. with the declaration that the
accused was innocent and to be given the
benefit of every doubt until proved guilty,
was given. So careful was Judge Barl-s-
dale that even the definition of doubt was
added to the instructions.
Point for Defense.
In the instruction on insanity the de-
tense won point. The commonwealth
had requested that the words mentally
deranged'' be struck out and the word in
be used but the defense objected, as
their alienist said Judge Loving was men
tally deranged at the time of the shooting.
Judge Barksdale ruled that the term lin
one who was an idiot, lunatic or deranged.
However, he declared, every person is pre-
sumed sane and the burden of proof is one
of the defense.
The jury was instructed if they believed
that Judge Loving killed Theodore Estes
while knowing that he was doing wrong he
was responsible for the crime, but that
if they were satisfied that his mind was
diseased and that he did not know at the
time of the killing, he was exempt from re-
sponsibility. The jurors were warned that
If Judge Loving was wrongly urged by
homicidal impulse it was not sufficient to
exempt him from responsibility. Ungov-
ernable passion or unreStrained temper
arising from a merely perverted condition
of the moral system where the mind is inn
paired by disease it was also declared,
furnished no exemption from RESPONSE
biity.
AS to the consideration to be given the
testimony of the experts on insanity. Judge
Barksdale instructed the jury to merely
consider what they said with the other
medical witnesses.
The jurors were told if they believed
Judge Loving was not insane, but that he
acted upon the information given by his
daughter his brother-in-law and in the
heat of passion. he could only be convicted
of manslaughter.
Acquittal Suggested.
In ruling on the point concerning subse-
quent conditions of the mind of the accused
Judge Barksdale said the main question
was always as % what the condition of the
mind of the accused was at the time of the
commission of the act, for if at that time
the person was insane he should be ac-
quilted. The court also instructed that no
single rigid test of the existence of insan-
ity was required and that to prove the ex
istence of insanity it was not necessary to
prove that it had existed any particular
length of time
Much was said regarding the condition
H. I'll 6 ~
the killing The effect of liquor upon the
brain also played an important part. and
instructions of this sort were greatly to the
liking of the defense. In one it was said
that if the jury believed that stress upon
the mind of Judge Loving as result of
the Information given him b. his daughter
and his brother-in-law dethroned his rea-
son, making him temporarily insane, he
was entitled to a verdict of acQsittal.~
Still another instructed the jury that if
it believed the mind of Judge Loving had
been weakened and diseased by long and
excessive of alcohol which had pro-
duced delirium tremens. had caused him to
become insane when he heard the story of
his only daughter, and insane when he
slew Estes. he should be acquitted.
Not Question at Issue.
A third brought out the main point in
the defense, which was to the effect that
the truth or falsity of the stories of the
daughter and brother-in-law were not to
be considered, for they did not present the
question at issue. The jury's only duty, 1t
was stated. was to ascertain if the state
n-ents had been made to the accused, if he
believed them and what influence they had
upon his subsequent action.
In closing this point Judge Barksdale
warned the jury that they should not look
with prejudice upon the defense of insan-
ity. The law of Virginia, he said, gave
every man accused the right to use that
along with any other defense -, might
think proper.
This Was Stricken Out
The following instructions, prepared by
the prosecution, touching on the "unwritten
law were stricken out by the court: NO
man under the protection of the law has
right to be the avenger of his own
wrongs; if they be of a nature for which
the laws of society give him an adequate
remedy, thither should he resort; but, be
they of any nature whatsoever, he has no
right to avenge them except in the manner
prescribed by the law. The unwr.,ten
law, by which is meant the right of the
citizen to become the avenger of his own
wrongs in a manner not autnoriZel by law
or against the law, has place in the
cri I'M of " jrtyip