Year: 1859

VERDICT OF AcouITTAL.


CRIMINAL COURT OF THE DISTRICT OF CO.


LUMBIA-JUDGE THOS. II. CRAWFORD


PRESIDING.


WASHINGTON, April 26, 1852


The Court opened at the usual hour, and the
prisoner having been brought in, the Jury were
called and severaly answered to their names. II
being supposed that this would be the last day O
the trial, the crowd in attendance was very large
and much interest was manifested.


MIR. Ould resumed his argument for the prosecu
ton. He referred to the principles which he haG
laid down in the former part of his speech, and
briefly recapitulated the points iovolved viz: that
previous to the time of Charles H., the finding the
parties in the act of adultery would not be regard
ed by the common law mitigation of the offence
of Staying from murder to manslaughter, and thai
Twisden then, in mercy and tenderness, exten
ded the rule. 1t would overturn the yery foupda
tions of society to admit the doctrine that mar
can act iustihaby in Staying another from revenge
and hence the principle is universally established
that where there Is revenge, in the language OF
the law, where there is ''malice aforethought, nc
Justification or mitigation of the offence can be
allowed. These principles universally recognized
in England have also been sanctioned and adopted
by Courts in this country. Mr. o. then read ar





he had alluded last night, but had not then the
book before him. The Court recognized the princi
pies in that case laid down by the Attor
ney General, that all homicide was to b,
regarded as murder unless some mitigating
circumstances were shown, and that the
burden of proof in such cases always rested upor
the prisoner that the killing of the adulerer ther
and there found in the act of adultery would bt
merely manslaughter, but if he was subsequently,
killed from revenge, it was murder. The only cast
that would render it justiiable homicide was wher
the connection against the woman's consent
and then the husband might kill the ravisher or
the principle of Sc defendendo. These principle,
met the distinct appreciation and approval of the
Court in that case, and upon those principles the
prosecution here are willing to stand If the theo
ry contended for by the defence were true, what
did the Judge in that case mean by saving thai
Ryan's case might be murder or it might be man
slaughter? 1t was admitted that there had beer
previous acts of adultery and if adultery excused
the Staying of the adulterer, either when taken il
the act or subsequently, that case could by nc
possibility have been either murder or manslaugh.
ter.


Mr.. o. then took up Jarboe's case, and alluded
to the decision this Court in that instance where
the ruling was that such crime neither amounted
10 Justlhcatlon or provocatiOn. Some of the cases
quoted on the other side were cases where the trials
were conducted by an examining Court as it i,
called, or magis trate's court. man was tried
by his neighbors; and we have no knowledge upor
what principles of law those cases were decided Ir
the case of Singleton Mercer, the whole scope OF


the defence was that the prisoner was insane at the
time he slew the seducer of his sister. The same i:
true with reference to Smiths in Philadap hia
the defence of insanity set up, and he believed
it was substantially proved. He did not know how
it was in Stump's case in MARYLAND; if JUDGE Le
grand Or any other Judge had laid down the prin
cIples contended for by the Defence let the decision
be produced. 1t must have been reported some
where; and the fact that no such decision had beer
shown was good ground to believe that there wa:
no such decision.


The defence also contended that it was NOT ne
cessary that the parties should be caught in the ac
and fact of adultery, but any proximate acts look
ing towards the commission of that crime were
sufficient to afford justification for the killing OF
the offender What were the decisions of law on
that question? There is only one method of nrov
ing that party is found in the act of adultery.
The fact that signals were made, or that Kew had
hired house and visited it in company with Mrs
Sickles, was proof that adultery had been com
mltted; but 1t was no proof that the parties were
found IN the act of adultery The old rules of law
are explicit. No matter, though proof be piled upon
proof as high as Heaven, that adultery has been COM
mltted, yet If the husband pursue and slay the
adulterer it is murder.


1t was also contended that no matter tbourh the
wife gave her consent, it was still an act of force.
because the husband did not consent That doc,
trine oblterates all distinction between rape and
adultery. If that theory be true, why was not
Barton Key arraigned under the statute of 1881
and sent to the penitenitentiary for rape? What
becomes OF their other theory that the common law
affords no remedy to the wronged husband, and
that therefore he has right to take summary ven.
geance with his own hands? One of these theories
completely answers the other. They cannot both
be true 1t Is not law, and it ought not to be law
that man is just as guilty who commits adultery
with the womans consent as he who by force and
violence ravishes her. ALI laws, human and divine
have recognized this fundamental distinction found
ed upon the right of sefdefence, and the power OF
every woman to dispose of her person by her own
consent. He quoted authorities to show that a wo-
m an nIfrht bar Il, I,.4A
to kill the adulterer


Another erroneous principle laid down by the
gentlemen on the other side, was tAat no violence
was lawless which was exercised in defending a
right. A man has right to be paid his dues; but
il the debtor refuses to pay, the creditor has no au-
thority to commit assault and battery upon him
The law fixes the extent of human rights and clear
ly defies the remedy for their Infringement


The last doctrine of the other side was that this
case rested on the principle of selfdefence Doe $
selfdefence have any reference to past acts Clear
ly not. The adultery had been already committed
and was consummated. This defence excludes all
the past and all idea OF provocaion, and only looks
to the future. man has right to defend himself
against approaching evil; but this right should nev
er be coniounded with the act of taking vengeance
for past I'M juries. has a right to defend him
sell not only against rea but against apprehended
dangers and if this theory of selfdeence be true the
prisoner at the bar had right to kill Kew,
although he had never committed adultery with his
wife, II he had reason to apprehend that he was
about to commit such crime. Society could new
er exist on such basis; as had been before said
civilization would become an impossibility were
such principles allowed to prevail and to receive
the sanction of our courts of Justice To Justify one
person In taking the life of another, it must appear
that his safety required him to do So Several an
thOrties cited bearing this branch of the
subject. People Us. Doe, Manning's Reports, Hal
sted's Reports. 1t is necessity which can alone ex-
cuse homicide, and this must be judged by all the
circumstances of the case Was there anv great
danger bodily harm n how,
he met L. Barton Key on the corner of Pennsylya-
MIA avenue and Madison place? If not, on the the
ory OF selt-detence he is not excusabe for the hom
icide, no matter if he had reason to believe that
hey was then on his way to commit adultery with
his wife.


Mr.. o. denounced the doctrine that the protec-
tion of the wife's the daughters virtue in this
District was only to be found in the husbands or
the fathers revolver. This might do in other
countries and under forms of society; but in a
Christian community like this, the best safeguard
Is found In her own purity and virtue. Every
woman can carry that weapon with her and no
seducer adulterer can resist it, That is far more
potent than all external safeguards; the instinct of
woman teaches her whether the intentions of a man
are honorable or dishonorable; and she can stife,
not in death but in shame, the unworthy assaults
of the fbertine. The very moment you BRING the
law OF force for the purpose of protecting female
honor, you sacrifice female honor; and unless it
can protect itself, it is unworthy of protection-
Wherever woman has been left alone for the pro-





contaminating hand of violence from her even for
the purpose of protection, she has risen in her
purity far above the attacks of those who " would
destroy her.


Mr.. U. quoted from the fourth book of Black
stone, to show that this theory of selfdefence was
utterly exploded by that learned commentator
Whatever power individuals possess, in state of
nature, to redress their own wrongs is now vested
in the magistrate alone. But the defence tell us
that whenever society ceases to redress wrongs a
man is remitted to his natural rights A man liv-
ing in community is supposed to give his assent to
the laws of the community in which he lives Now,
admitting that there is adequate penalty inhct-
ed here on the adulterer yet there is law against
murder. Sickles is supposed to have given his as
sent to that law and in taking the life of Kew for
the crime of adultery, he became himself a wrong
doer. The crime of one does not Justify or ex-
cuse the crime of another man.


1t had been said that the jury were Judges of the
law as well as of the facts in the case. He did not
so understand it, 1t was the function of the Judge
to expound the law, and he was the sole authority
questions of law. All questions of fact were for
the jury to decide, and they had no more right to
decide questions of law than the Judge had to de.
eide questions of fact. The Executive was left to
decide upon the propriety of punishment. He had
SAID and he now repeated it, that all questions of
Justification, of provocation and of cooling time
were questions of law, and were exclusively left to
the consideration of the Court. The fact that uues
tons of law had been repeatedly argued before this
Court and submitted to its decision in the course of
mission OF all parties these questions were not with
in the province of the jury at all. He cited Ben
nett, Missouri Reports; Phenix The State, 18th
Alabama Reports 720; Commonwealth Us. Mosely
4th Barr, 268 Mitchun rs. The State, IL Georgia.
6l5; Whiteford Us. Commonwealth, 9th Randolph