Year: 1859

oouy " sidl HiH suppose he naQ Deen engaged


in riot or an assault and battery would it be pre-
| tended that killing him was crime? Or suppose


he had been engaged in blasphemy, or had been


reeng about the street drunk, does that justify any


person Tor either assaultng or slaying him ? He


would be just as much under the protection of the


law as II he were walking along peacefully, en-


gagged IN the act OF prayer instead of blaspheny;


the law extends its protection to him.


MIR. Graham took the ground that if a man as


saulted him. he had right to resist.


| Mr.. Ould. That depends altogether upon the ma


ture OF the attack and the circumstances of the


case The counsel on the other side also contended


that 1t was too late to make the objection because
part of the evidence in reference to this matter had


already been given in. But the counsel had been


distinctly informed that it the intention of the
prosecution to object to the Introduction of anv evil


dence showing the fact of adultery. They were not
| desirous of making captious objections The first
time this matter was brought up was on the second
examination of Bridget Duffy and then the wav-
ing OF the handkerchief testified to was some half
an hour more or less before the act of the killino


When introduced it was not in connection with the
matter of adultery; it introduced in connection
wlth the movements of the deceased few moments
before his death; and properly perhaps receiv
| ed. independent of the understanding between the
counsel in reference to this matter if formal OBJ
lecuon had been made at that time he supposed the
Hourt would not have ruled that to be competent
testimony When, however, witness was intro
oucea Tor the single purpose of testfyng in refer
ence to this handkerchief, and went back in point of
tIme to previous date, so that it was evident
!
| pose, distinct and formal objection was made and
! IL was ruled to be competent the ground that
| previous testimony had been given upon this mat


Ter. But there was no testimony which connects
this handkerchief with the subject of adultery and
| the prosecution would have been prompt to make
this objection at any time that it was proposed so
TO to connect 1T. But it has not been connected-


lhere mas oeen no evidence at all before the Court


and jury that in any respect shows that there has


been adulterous intercourse between the wife of the
defendant and the deceased. Giving full force to
| G hnnr rOtfar -
| handkerchief it amounts not even to suspicion-
This then is not proposition to continue the evil
dence which has already been allowed, and to ex-
pam evidence connected with the adultery which


mas already been offered to the Court and ury; but
1T Is substantive and distinct evidence relating to
the matter OF adultery, given in the form as prom
lsed by the counsel for the defence. He went on to
| mention that he had objected when the lock was
! introduced, to any evidence connected with that
matter as being new subject; but the gentlemen
on the other side gave him satisfaction as to
wnar use tney proposed to make of that testimony


put limited the proof expressly to the finding of the
| LOCK, ana IN no way connected it with the subject


auuiterous lntercoure between the parties This


therefore, which was now offered was affirmative
evidence on 4 new branch of the case


The counsel (Mr. Graham )furtber asked wbatber
TINS rule which he seemed to admit as being law in
! the time of Lord Hale, had been approved bv Fos


ter, East ana other writers upon the criminal law
| OF England! lie wouldrepl thatit had; nav more
| it had been stated by those learned and humane
| men as being the law; they did not give us their
own private opinion about it; but it having been
soiemnly stated by Lord Hale, and being reiterated
! by Foster and East, it behooved the gentleman on
the other side to show that it had been set aside by
distinct and affirmative authority. That had not
been attempted but on the other hand it had been
acknowledged to remain the law from that time in
the courts, both of England and this country down
| TO the present day. He quoted the case of the
Queen Us. Fisher, Sth Darlington e. Pavne. He
had listened in vain for the solitary expression of
any Judge either in the course of judicial decision
or as OOttcr Qlctln by which irbt
| suspicion or doubt could be thrown upon it. The
| gentleman then failing to make out his point falls
| Dack upon the Constitution of the United States
| ana claims that nasmuch as party is guaranteed
the trial by jury, no person else is to try him
There is another provision in the Constitution
| which says that Congress shall have exclusive
legisiatlon over this District; and in pursuance
OF that power OF exclusive legislation Congress in
ieOl declared that the common law of the State of
Maryland, as modified by the statutes of that State
should be the law of the District of Columbia.
Irlal by jury is the creature of the common law
and when the Constitution of the United State.
gave to the arraigned the privilege of a trial bv
jury, it gave him that trial by jury according to
the course OF the common law, and in no other
way; Now the common law has been announced
oy Hale, Foster and East 1t has been announced
in North Carolina. What is authority there is
authority here, and so far from being set aside bv
this provision of the Constitution of the limited
States, it is affirmed and confirmed.


1t was also alleged that this case was analogous
to that of Jarboe. Mr.. o. went on to compare
tIleSe TWO cases.


Now, in Jarboe's case the question was. "wbat
do you intend to do,' and the answer was s.you
Will see." Here it admissible to bring in
evidence enc to explain the answer. In the present
case the declaration, che has violated nv bed ex
plains itself. In Jarboes case the declarations of
the parties needed explanation. The declarations
OF the prisoner in this case are sufficient and no
proof can be necessary. Why seek to explain
phrase which is plain enough on its facet Besides
In Jarboe's case declarations were made bv both
parties but in this, nothing. said by the de-
ceased. In Heroert.s case the ruling was that it
was not competent for the prisoner to bring in evil
dence to explain his own expressions at the time of
the homicide. 1t might be competent, if such evil
d dence was admitted, for a guilty party to manu-
tacture testimony in his own behalf.


MIR. Ould then read the ruling of the Court in
Jarboe's case, contending that the decision was
that the seduction of the sister not only did not ms
THY the act of killing but also did not amount to
legal proVocatlon, and the offence was therefore
murder.


Now, with reference to the insanity, no declara-
uons by other parties to the prisoner at the bar
constitutes sufficient ground to show insanitv-
What then was left? Simply the evidences of the
aduerous intercourse which the prisoner at the bar
saw himself. Did this evidence of the adultery come
up to the proofrequred by the law? 1t had already
been held by the Court that such evidence was in
sufficient to produce such result The ground of
this evidence being part of the gestce had al
ready been answered The expressions of the pris-
oner at the par, made at the time OF the murder,
had been admitted because they were part of the res
geste. The pistol was allowed to 90 in as evidence
for the same reason; but would it be competent to
60 into the question of the manufacture of fire.
arms because this pistol of itself part of the
res gcste.


1t was rather hinted than stated that this evidence
was necessary to show that the prisoner, at the
time was only defending his wife against the future
advances OF the adulterer. Now, on this point the
law is clear that the taking of human lie, under
such circumstances, furnishes excuse or pallia-
tion. Even if the deceased was proposing to COM
INIT trespass upon any property, the wife any
q OrISo
an excuse for his act.


have thus endeayored to show the law on this
subject. If your Honor decides that this evidence
is admissible, | say for myself, and can also saw
the same for my colleague, that we shall hear il
without regret.


The Court said that the proposition was not to
introduce evidence OF adultery proper under all
or any circumstances, but whether, under the ex-
isting state of evidence already given the defence
entitled to adduce further evidence than they
have already given to the jury. 1t is question of
the competency of the evidence for anv purpnse-
What may be its legal effect is not now the in
quiry; that the Court may be called upon to give
an opinion about before this trial terminates
put will not anticipate. That opinion must be
founded upon all the evidence, and can be
properly invoked when the evidence on both
sides Is closed A great mass of testimony
has been received going to show aduterous inter-
course-the trequenting OF the immediate neighbor
hood of the defendants house. exhibitions of hand
kerchief, &c. What did that mean? Have not the
jury right to understand what they meant? By





little, and having more or less influence of persua
sion or conviction upon any particular point raised
The jury must pass upon that at all events and can
they close without a full knowledge of what that |
testimony imports? At the time of the homicide |
the prisoner declared that the deceased had dishon
ored his house, or that he had defled his bed or
violated it, for all these expressions are used by |
the different witnesses who were examined
This declaration is part of the principal fact 1t is
important for the jury to have it explained, and
it is the right of the defendant in Judgment to
have it explained. Jarboe's case has been referred
to as being decision made by this Court upon
great deliberaton; and it is one from which am |
not now disposed to depart. [The peculiar points
OF that case are recited. 1t is said however, that
the expression in the particular case in hand, she
has defled my bed,' or ''dishonored nv house"
explains ITSELF and is not susceptible of any further
elucidation. 1t is certainly not stronger than the
case of Jarboe. He asked whether the man was
not about to marry his sister, and he said no. 1t
was impossible not to understand that He said
what was equivalent to saying, "you see that | am
not going to marry her." that is the plain English
of it. This expression of the prisoner is one that
would ordinarily be understood in one sense; but |
men may have different ideas of phraseology and !
the jury to pass this from the evidence
That is language proved by the United States; |
but still there may be different construction by
one man from that which another man would put
upon it, and as the evidence offered might lead to
more perfect understanding by the jury of what was
meant upon that occasion, think, upon this ground
also, it is admissible. The Court reserves an opinion
on all the evidence until according to the ordinary