Year: 1859

ing the finding OF the pistol. The learned gentle
man on the other side, Mr.. Brady,) inquired to
whom did that pistol belong and who used it? Mr..
". SAID he would not pretend to give answer to
that question; he would let the witnesses answer it.
Mr.. Van Wyck says he saw the pistol precisely at
the spot where Daniel E. Sickles stood at the cor
ner, in his hand Mr.. Reed, perhaps the coolest
witness of all who have testified in regard to ths
matter, and whose statements to be more cohe-
rent than those of any other witness who has testi
ned upon this stand, says he saw a pistol in the
hands of Daniel E. Sickles at that very spot, and
lurther, that there was no pistol in the hands of
Key, either at that time or at any time. There is
not one witness who has stated that he had pistol
at any time. Now did this pistol which was found
belong to the man who used a pistol and who fired
1t, or did it belong to the man who did not use a


pistol and who, according to the evidence, was not
seen to have any pistol in his hands all? In the
| same connection it was asked why the prosecution
did not produce witnesses here to show that Kew
did not go habituay armed and that he was not


in the habit of carrying arms Is it the duty ofthe
prosecution or if anybody to prove negative?-
Was it incumbent on the part of the United States
toprove that he not in the habit of going armed
when there was no pretence on the other side that
he was armed, and when all his actions showed that
he was not armed?


Mr.. Brady said that the defence had offered to
prove that they had said he prepared for anv
emergency.


Mr.. Ould replied that he was speaking of the tes
tlmony IN the case, and not of the mere statements
which had been ruled out not bearing upon the
case. II the gentleman wanted to give evidence





not summon the party who it was to be supposed
above all others could tell who used that pistol
why was not Butterworth put on the stand9


Inc case reported in Curtis of the United States
us. Mlngo, had also been largely commented on
| That was case ofmutual combat; but the law ap-
plicable to cases of mutual combat does apply to
the present case at all.


Mr.. Brady replied that he did not place that case
on any such ground. In that case nine witnesses
had been called and all of them examined by the
government, and the question arose whether malice
he rf darid hot n1o,& A.
circumstances of that case, the burden of proof of
malice rested upon the government; for his Honor
went to state three different theories of the case
which he submitted to the jury as consistent with
the facts proved, viz: murder, justiiable homicide
and mansaughter. He understood that case to
evolve and settle this, that if upon the whole case
for the government, the first movements between
the parties who began the fight and how it proceed
ed, Is left in doubt, the jury should acqut on the
proof of the government.


Mr.. Ould said that the Court had already deter
mined that question; and he asked for the instruc
ton under the implication which the law draws of
every unlawful killing, that malice is to be pre-
sumed. In the case of Mingo, both parties
were armed, according, to the testimony; the
plea was one of selfdefence, and it was
powerfully supported by the corroborative
circumstances OF the case-so much so as to make
an impression upon the learned Judge at the time
that 1t was probable case of selfdetence. But in
the present case it seemed to be admitted by the de-
fence that there was purpose and intention to kill
upon the part of Sickles, and they argue that he
was justified in killing because of the commission
OF the act of adultery by Key. This case from be-
ginning to end seemed to have been placed upon
that distinct ISSUE He laid it down, that yherey-
er there was an intention to kill, that afforded the
surest and most certain indication of malice. Yet
the gentlemen on theother side say there NAL
ice, because at the time of the infcton of the death
wound he stated the of his proceeding to take
the life of Key. He admitted his intention, and
said, "He has dishonored or defled my bed;" and
the defence say that proved that there no NAL
ice on his part. But did not his other exclamation
equally prove that there malice, when he said
minute or two afterwards, sis the damned william
| deadp'


The gentleman had also stated that if Kew could
| be now put upon the stand, he would say so and
SO. Would to God that he could be put upon this
stand. Perhaps much that is dark much that is
now covered with gloom, much that cannot now
| be understood, would be made plain as if by the
| flash of sunbeam. Perhaps the gentleman might
| himself be put in possession of facts of which he
does not now dream, and of which he does not
now believe the existence. 1t might show a very
different transaction from what has been painted
/ by the defence. The only party who could array
facts in his defence has been sienced in DEATH and
evidence that might have been summoned for the
purpose of vndicating him is unknown and un-
heard; and, so far as he is concerned, the same as
If it had never existed. He might have shown
perhaps that, although SHINING himself he was
sinned against-that instead, as had been charged
in this case, of his having entered into tie house
of bosom friend for the purpose Of seducing his
wife, and wronging him Indignantly, in defiance
! OI Jne laws OF TOu ana man, well as the sacred
obligations of friendship, he himself was seduced
by temptations continued and completed until
those high moral buwarks which should have
shielded a his character, gavs way beneath the re-
peated shocks. He would not say that it was so or
was not So. The only party who could have vim
dicated his character is gone.


Mr.. Brady.-Then it is little remarkable, Mr..
| Ould that he said she a mere child, and he
stood in paternal relation to her.


Here the jury took recess for few minutes.


Mr.. Oud proceeded to examine the argument of
the defence in relation to the question of insanity
That question had frequently been before this
Court, and he would therefore content himself
with citing some authorities instead of presenting
any crude notions of his own. He referred par
ticularly to the opinion of the twelve judges in
England which he read at length; also to the cases
of Preston the State, 25 Missouri Reports 3S3;
State Us. Stark, lst Strobe 479; Wharton's Crimi-
nal Law, 7l2, in Spencer's case. Where there were
two conflicting presumptions in law, the strongest
| one must control. He also exemplitied this point
by an aluson to civil suits, where there is plea of
| confession and avoidance. The confession stands
when the avoidance is not proved; and so in this
case, the intention to kill stands ii the insanity is
not proved. With regard to the liability that
insanity might be feigned, and thus crimi-
nails escape from justice, such considerations
must powerfully operate on the mind of judicial
officer.


There no likelihood that jury under any
circumstances would convict party in reference
to whom there was proof of insanity. The SYM
pathies of the human breast were too powerfully
excited in behalf of all such unfortunate persons;
and while the sympathies of jurymen led them
in that direction the law on the other hand hold
ing the reins ofjustice should tighten them. At
the same time it should take that no oppor-
tunity is afforded by stimulation deceit for the
criminal to escape the just punishment of his mis-
deeds.


The court then proceeded to instruct the Jury
in reference to the law of the case. The first
prayer on the part of the prosecution is in these
words


If the jury believe, from the whole evidence in
this cause that the prisoner on the dav named in
the indictment, and in the county of Washington
aforesaid, killed the said Philip Barton Key. by
dScharging at, against, and into the body of him,
the said Philip Barton Key, a pistol, or pistols |
loaded with gunpowder and ball, thereby giving
him mortal wound or wounds; and that such kill
ing the wilul and intentional act of the prison.
er-and induced by the belief that the said de-
ceased had seduced his, the prisoners wife, and on
some day or days, or for any PERIOD definite or in
definite prior to the day of such killing had adul
ferrous intercourse with the said wife-and that the
prisoner was not provoked to such killing by any
assault offer of violence then and there made by
the deceased upon against him. then such wilful
and Intentional killing, if found by the jury upon
all the facts and circumstances given in evidence-s
murder. But such killing cannot be found to have
been wilful and Intentional in the of this in
structon if it shall have been pro ven to the salts
faction of the jury, upon the whole evidence afore
SAID, that the prisoner was in fact insane at the
time of such killing.


This instruction embodes the law of this ca. e
upon the particular branch of it to which it re-
lates and is granted, with some explanatory re-
marks to insanity, with reference to which the
prayer closes. A quotation is here made by Judge
Crawford of his previous rulings in similar cases,
in which the opinion of an English Judge is cited
''lf the prisoner laboring under some con-
trolling disease which was in truth an acting
power within him which he could not resist then
he will not be responsibe;" and again, 'the ques-
ton is whether he laboring under that spe-
cies of insanity which satisfies you that he was
quite unaware of the nature, character and conse
quences of the act he committng-or in other |
words, whether he under the influence of a |
diseased mind and really unconscious at the |
time that he committed the act that it was crime. |
man is not to be excused from responsibility if he
has capacity and reason sufficient to distinguish be-
tween right and wrong to the particular act he
is doing, and knowledge and consciousness that |
the act he is doing is wrong and criminal, and will |
sub iect him to punishment.


In order to be responsible he must have sufficient
power of memory to recolect the relations in hich
he stands to others, and in which others stand to |
him-that the act he is doing is contrary to the |
plain dictates of justice and right, injurious to 9TH
and violation of the dictates of duty. On the
contrary, although he may be laboring under par
tial insanity, ii he still understand the nature char
acter, and consequences of his act-if he
has knowledge that it wrong and criminal,
and mental power sufficient to apply that know
ledge to his case, and to know that if he does
the act he will do wrong and receive punishment,
such partial insanity is not sufficient to exempt him
from responsibility of criminal acts.''


The second and third instructions prayed by the