Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1922-02-25

whether or not the defendant is
guilty of murder in the first degree,
the offense charged in the informa-
ton. you will then come to the on
~sideration Of the question as to
whether or not he is guilty Of murder
IN the second degree" '7= ~ ''
The principal difference between
murder in the first degree and murder
in the second degree SO far as this case
is concerned is thai in murder intthe
first ~degrec.the killing must have been
murder in ( the second degree the
murder must have pee committed
without deliberation or4prenfeditation.s
but malice is an element in
both degrees OF murder,
In the first degree murder there is
deliberate, premeditated, precon-
ceived design. thoughait may have
been formed in the mind Immediately
before the mortal wound was in
ficted; in second degree murder there
Is no premeditation, Elaboration or
preconcetved design to kill. In both,
however, the killing must have been
inexcusable. u~njustifable n &C
companied with malice.
As to Defendants Testimony.
If you find from the evidence that
the defendant made any statements in
relation to the Chense charged in the
information after such onense is al
legged to have been committed you
must consider such statement or
statements all together. What the
defendant said against himself, il any,
thing, the law presumes to be true
because said against himself. What
he said for himself you are not
bound to believe, because said in a
statement or statements proved by
the state, but you may believe it or
disbelieve it as shown to be true or
false by the evidence in the case.
The court has. allowed in this case
! the introduction of evidence known as
expert testimony" and has allowed
expert witnesses to testify as to
whether or not, in their opinion, the
signature, James Farrell. Wilmar.
| where it appears on exhibit IA. was
written by Andy Brown, but o are
instructed hat the opinions of the
! experts are to be considered by you
in connection with all the other EVIL
dence in the case, including the ex-
hibits which have been offered n
received as bearing upon this quee-
ton. You are not to act on the
opinions of the experts to h ex-
%clusion of other evidence. Taking into,
consideration the opinions of the ex-
perts, and giving them just weight,
you are to determine for yourselves
from the whole evidence. including
the said exhibits, whether the wit
ness Andy Brown did o. did not write
the words James Farrell. Wllmar,"
on the hotel register, exhibit Ia.
You are instructed, gentlemen OF
the jury, that evidence is of two
kinds. direct and circumstantial. d.
rect evidence is when a witness tes-
titles of his w knowledge OF h
main fact or facts to be proven. This
kind OF evidence is illustrated by the
testimony of the witnesses who have
testified to the death OF Marie WICK:
Circumstantial evidence Is proof OF
certain facts and circumstances in a
| certain case from which the jury may
infer other and connected facts which
4 usually and reasonably follow, &C
cording to the common experience of
mankind. The evidence is offered by
the state for the purpose of>prov7ng
William GUNNER, is largely circum-
! stantial. -.
Proof Beyond Reasonable Doubt.
In order to convict the defendant
on circumstantial evidence alone y. is
necessary not only that an the cir
cumstances concur to show that he
committed the crime charged. but
that they are inconsistent with any.
other rational conclusion. 1t is not
/ Suff1clent tnaCt the circumstances
, proved coincide with, account for and
therefore rehder probable the hy-
pothesis sought to be established by
the prosecution but they must ex-
clude TO a m otal.certainty every other
hypothesis except the n Of guilt. :
I charge you furthex, gentlemNn3of i
1.-The jury, that you will not be Justified
in finding the defendant guilty simply
because It may seem to you. II. It. does
so seem, that II is more probable that
the defendant is guilty than that he
is innocent, TO Justify YOU In finding
a verdict Of guilty the testimony must
go further than to show rnenely a
probability Of the Defendants guilt,
but must be 4 clear n convincing
i az to establish the defendants guilt
to a moral certainty and beyond 4 a
reasonable doubt.
1 charge you that where the state
asks that q conclusion Of guilt should
be drawn from certain essential facts,
it>as the law that every one Sf these
facts essential to such c~oucluston,,
/ must be established and proved be-
yond A%reAsonable doubt and II any
| one of such essential facts ara not
proven ~ the state, beyond q reason-
able doubt, you should find the de
PENDANT not guilty.
When I. nay that In order to find,
the defendant guilty certain essential
facts must be proven by the state be-i
yond a reasonabfe doubt, I me9n such
facts as + necesaary and Aeg1ntialt III,
be found in order to reach the ooh
.scitiak0n .fhdE the dAfA6Han nj III entity