The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-04-11

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lasted exactly an hour Justice Fitzger-
aid read his charge from typewriter
pages His voice was strong and clear.
Evidently he studied his charge with
great care.
He started of by saying it was his duty
TO charge on the law, and the jury was
the final judge of the facts. He referred
10 the care with which the Jury had been
selected and said he was particularly
gratihed that the jury was selected after
the examination Of SS7 talesmen and be-
FORE the peremptoTy challenges on either
side had been exhausted
Let US impress upon you the issue YOU
are 20 decide. said the judge. THE life
OF a citizen. it is charged. has been taken
by the defendant, and the defendant is
here to answer TO that charge. You must
absolutely take the law from the court.
of the facts you are the sole Judges. A
oefendaht Is assumed to be innocent until
the contrary is proved"
Justice Fitzgerald then defined the four
degrees Of criminal homicide-murder in
The hrst and second degrees. and man.
slaughter IN the first and second degrees.
ana Justitable and excusabIe homicide.
Defense of Insanity.
The defense here" he said. is that
The defendant was insane at the time
and the law applicable to the defense of
insanity Is contained in sections 70 and p
OF the penal code" He read the two sec
lions. The first referred to the commits
sion Of crime by an idiot, an imbecHe.
or a person in d state of Iunacy. The
language. the judge said. was very broad.
and would appear to cover all cases of in
sanity
But tae words of section Il limit the
general words in section 30" he said.
adding that person is not excused from
criminal liability. as an idiot imbecile.
or a iunauc except upon proof that at the |
time OF the commission of the act he was
tailoring under such defect Of reason as /
not TO know the nature and quality of the /
act and that it was wrong"
He then went back 10 murder in the
nrst degree and said that the question OF /
elaboration and reconciliation was left 10 /
the jury TO decide. What might be de- /
liberation and reconciliation in one man I
might not be IN another, and no strict |
rule could be laid down
If from the evidence he said ''vot
decide that the killing was with design /
nut without generalization and delibera- /
ton, then it is murder in the second de-
gree. But if the killing was without de-
sign. he could be convicted of man
slaughter in either Of its degrees.
Character OF Victim ImmaterfaI
have tried to impress on you that the
character of the victim has nothing To do
with this issue. a personal avenger OF
private or public wrong is not recognized
by the law, and as this is the law OF the
government of ours no other rule is safe
Every individual is entitled to the protec-
uon of the law-the exalted or the hum
bic, all are entitled TO the guardianship
of the law. The general character of the
victim cannot tend to show that the
party Is not guilty of homicide OF in miti-
cation thereof.
The plea of not guilty" Justice Fitz-
gerald said. is a denial Of every ma
terial allegation in the indictment. and
under such a denial insanity NAV be one
OF the detenses- The law presumes san
lty and when the defense is insanity the
condition of the defendants mind at the !
time Of the commission of the crime is
a crucial point"
He carefully went over the law on in
sanity and said that it was not every J
weak and disordered mind that could be I
used as an excuse in law for the commits
clpient insanity an excuse The law re-
quired that the defendant should have
such defect OF reason that he did not
understand the nature ana quality of
the act and that, it was wrong. He
quoted decision Ia which il was held
that SO long as the powers remain lac
must not do the act if he wished 10 q
escape the consequences Of the crime" {
Regarding Eveiyn's story.
Evelyn Nesbit Thaw's story was not !
admitted in evidence for the jury TO mass 7
on It's truth or faisity. or of the truth or +
Ialsity OF any charge made against the j.
deceased IT was simply for the purpose h
or determining what effect her story }
might have had on the defendants mind 5
The question of her credihiity was highly a
Important, and any testimony tending to Y
mpeach II should be carefully considered.
Also her relations with Thaw should L
play an important part I'm weighing her (
story I'm its entirety. and such differences =
IS could be drawn from a scrutiny of her y
deep interest in the case and the peril OF j
ler husband position should be consid- 7
cred" f
The court referred 10 Hummers testi- C.
nony' and said that there was no de- h
mai Of the killing of White. Then he
said:
THE legal presumption is that the de-
ehdaht was sane when he committed il
he act, and it was not necessary for tbe s
prosecution TO show that he was not sane. h
'anlty being the normal and usual COndi- n.
ion OF the community. the law presumes :
sanity, Hence. a. prosecutor may work "
,n the presumption of sanity. Whoever
ienles II must prove insanity: the burden II
II oVerthF0WHg the presumption of san II
" and of showing insanity is upon the e
'erson who makes the allegation"
Defines Reasonable Doubt. u
1t was the jurys duty to determine " "
he degree of the homicide, the court III
vent on, and the court again went over an
he different degrees Of homicide He re
hen defined a reasonable doubt. quoting be
he definition Of reasonable doubt laid h,
own by Recorder Smyth, which is so I'll
requently employed in criminal cases. m
THE prosecution said Justice Fitz- B.
erald, rs not called uponsto prove its 60
ase beyond all doubt Il is necessary OF
or the prosecution TO prove its ease 81
eyOnd a reasonable doubt The law co
oes not require that the case must be
roved beyond all doubt That would he m
impossible, for the law recognizes maj Inc
7e are all human. The law SAYS that at
he defendant is entitled to "a reasonable Of
oubt, not all doubt" tn
That doubt. however. must arise the nj
curt said. out of the evidence and from he
othing else. If such doubt existed or
he defendant was entitled to it. Il there a.
ere a reasonable doubt Of murder ia the -
rst degree and no doubt of murder in
be second degree, then the jury should IS
1nvict for murder in the second degree. b
ne same was true of the other degrees