The Birmingham age-herald., 1909-03-18
Judge Hart Delivers a Very Able Charge But of Ex-
 ceGding Length
JURY RETIRES FOR NIGHT
 AFTER MUCH DISCUSSION
State Expects Verdict of Some Kind, But Defense Looks for MistraI. Judge Hart Will Hold the
 Jury for a Verdict.

Nashville, March 17.-Wth the jury still out and with no indications that the 12 men are anywhere near an agreement, the opinion begins to prevail that a mistrial will be the termination of the famous case against Col. D. B. and Robin J. Cooper and John Sharp for the slay- ing of former United States Senator E. W. Carmack
 Judge Hart evidently does not expect a1 early verdict, for at D. m. he ad- tourned court and started for his home. The sheriff asked him if he would re- turn to receive a verdict during the night
 'I will not" he replied promptly 'Tf they reach verdict tell them 1t will be just as good in the morning I don't believe in midnight verdiets anyhow. And I do not think a country jury with no way to get home at night would be fool ish enough to come in with one They'd stay over and get the nights lodging and breakfast at the states expense"
 Judge Hart began his charge to the jury at 9:2O a.. m., and finished at 1t:15. at which time the 12 men retired to de- liberate. The typewriter charge of es
 
 handed to Juror S. J. Hyde and. accord ing to custom in this county this makes him the foreman. The 12 men deliberated untll l2:3O, when they asked for luncheon Immediately after the meal they settled down to their task again. For a long time there came only the monotonous sound of someone reading-probably the charge. Later the 12 began to argue and at times their voices were raised in ex- citement This continued all afternoon and late into the evening, broken only by supper at p. m,
 Jury Will Be Held.
 Judge Hart has declared his intention of holding the jury together for week l or two, if necessary. in order to get q verdict. The costs in the case have been | enormous and it is realized that a second | jury to try the case never could be se cured in this county.
 Attorney General McCarn looks for a verdict
 The charge is long, he said. t.and the Jury is made of farmers who do not think rapidly They may want to read that charge a dozen times before they ara satisfied that they understand certain point. am confident that they will give us a verdict before the end of the week Judge Anderson of the defense expected verdict in 30 minutes or a mistrial He would not discuss the delay tonight
 Alter supper the jurors returned to their room. but there was no loud talk Instead, bursts of laughter and snatches of song indicated that the 12 men were not discussing definitions of murder orr theories of self-defense. Just before D. m., they summoned the deputies and announced that they would turn in for the night.
 Judge Hart's Charge.
 Judge Harts charge to the jury is quite lengthy. It begins:
 "Gentlemen of the Jury:-The indict- ment il this case charges the defend- ants, Duncan Brown Cooper. Robin Coop CT and John D. Sharp, with the crime of murder In the first degree, alleged to have been committed upon the person of one Edward Ward Carmack.
 While this indictment contains but one charge upon it's face. in contemplation of the law it embraces four distinct fel- onies: Murder in the first degree; mur- der fin the second degree; voluntary man. slaughter, and involuntary mansaugh- ter. Without reference al present to the facts In this particular case I shall now proceed to explain to you what in law 1t takes to constitute each of these diff ference offenses.
 By section 534S of the code it is pro- vided as follows: If any person of sound
 
 any reasonable creature, being in and un- der the peace of the state, with malice aforethought, either expressed or implied such person shall be guilty of murder
 Tt is provided by section 5349 of the said code that every murder perpetrated by means of poison or lying in wait. or by any other kind of willful, deliberate. malicious and premeditated killing. or committed in the perpetration of or at tempt to perpetrate any arson, rape. rob- bery, burglary or larceny, is murder In the first degree.
 Manslauehter Defined.
 By section 5354 manslaughter is thus defined: 'Manslaughter Is the unlawful killing of another without malice either expressed or implied which may be vol untary upon sudden heat or invol- ultary, but in the commission of some unlawful act
 When the act of killing is not done in the commission of or In the attempt to commit some of the felonies named in section 5349 of the code, above quoted. nor by poison. nor by lying in walt in order that it may be murder in the first degree the killing must be done willfully: that is of purpose with the intent that the act by which the life of the party is taken should have that effect delb- erately that is, with the cool purpose; maliciously, that is with malice afore- thought. and, with reconciliation, that Is. a design to kill must be formed before the act is done by which death is pro- duced.
 "The distinctive feature of murder in the first degree is reconciliation, and this element involves previously formed design or actual intention to kill. It is not necessary that such a design should have been conceived or pre-exsted in the mind for any definite period of time an- terior to it's execution
 "The purpose to kill is no less premed- itated. in the legal sense of the term. if it was deliberately formed bur a minute preceding the act by which death is pro- duced than if it had been formed an hour other period of time before The ques- ton of vital importance is, was the mind of the assailant at the moment of tho killing so far free from excitement or passion as to be capable of reconciliation, ~----~---~>----~-~--->~~~>>