Year: 1861

An exception was also taken from the
Court below to the rejection of an offer by the
defendant to prove that he always had been
known and reputed among his neighbors as
kind hearted man. This offer the Court over
ruled in the terms in which it was made, but
accompanied its rejection by permission to
show the character of defendant for peacea-
bleness and regularity of conduct and of good
feelings towards the deceased in any other as


pect which had proper relation to the SUBJ
ject matter Of the prosecution. We cannot


say that here was error. We do not discover


that any right of the defendant was denied.


The door was opened for him to show his rep


utation for peaceableness and for regularity


of conduct, and for anything that tended to


show the improbability of his having perpe-


trared the crime of which he was accused. 1t


was his peaceableness, bis regularity of con-
duct, his quiet habits, his freedom from law


lessness, that was assaled. All these he had


full permission to defend by adducng the O.


pinion of his neighbors and his general repu-


taton.


We pass now to the errors assigned to the
charge. They cannot well be understood, un-
less we bear in mind what the case was, and
what application the charge had to it. That


the deceased was killed by gun-sho wound
inflicted upon her by the defendant, was not
in controversy. 1T was fully proved, and, in
deed, conceded by the defendant. There was
| no evidence that the deed was done in sudden
heat, or in an affray, or in consequence of pro-
vocation. The defendant made such alle-
cation, but he insisted tn at the case was one
of excusable homicide that the gun was ac-
cidentally discharged, and that death was the
consequence of the accident Here the


turning point of the case. The first and main
point of contest between the Commonwealth
and prisoner was the question, whether the f.
ring of the gun and the death of the deceased
were accidental or Intentional Ii the form
er, an acquittal was inevitable if the latter,
the homicide was murder. If the killing was
not accidental, then malice and design to kill


were TO be presumed from the use of deadly


weapon, for the law adopts the common and
rational belief that intends the usual
and immediate, and natural consequences of
his voluntary act. Human reason will not
tolerate the denial that man who Intentional
ly, not accidentally, fires musket ball thro'
the body of his wife, and thus inficts NOR


tai wound. has heart fatally bent on mischief,
and intends to kill. Whatever therefore, in
this case, tended to prove that the killing was


not accidental contributed also to establish


that it was wilful, malicious, and with de-
sign TO kill.
Keeping in mind, then, the case as it was
presented, it is apparent that the first and Sec
ond assignments of error in the charge, are
entirely unsustanable. In noticing the argu-


ment used by the counsel for the Common


wealth against the prisoners allegation that
the shooting was accidental, and by conse-
quence, in support of the averment that it was
malicious and with design to kill. the learn
ed Judge remarked as follows, "again it is
urged by the Commonwealth as a reason for


inferring malice and a design to kill, that the


prisoners account of the affair to Mr.. Ray
and others; his manner of accounting for the
breaking of the gun his relation of the posi-


tion and employment of himself and wife
when the gun went off, are inconsistent with
the other proof in the case, and improbable in
fhap,c caly b,pa ord tha


and can Judge of the force of such an infer


ence. The testimony of Samuel Ray as to
what was said about the breaking of the gun,
and of Thomas Cathcart as to how the gun was
broken, and of other witnesses as to the cond-
tion of the gun before it was broken, is refer
red to you as bearing upon this part of the
case.p 1t is not said, nor indeed could it be,


that the Court expressed any opinion either
that this argument was, or was not well found
ed but the error is said to consist in this,
that even if the prisoners account of these
things was believed TO be false, yet that fais-
| ty of itself would not sustain an inference of
malice and design to kill, and therefore that
| it was wrong TO refer this evidence to the jury
| as tending to prove design to kill. But did
it not tend to prove that the killing was not
innocent-was not the result of an accident
The fabrication of false and contradictory ac-
counts, for the sake of diyertng inquiry or
casting off suspicious. by an accused criminal,
lI
If the jury believed that the statements made
by the prisoner of the occurrence were false,
his falsehood was therefore at least circum-
stance afiording some presumption against his
innocence and if he not innocent, the
legitimate inference was that the shooting was
intentional-in other words, that it was mali
cious and with design to kill. In this as
pect of the case, the Court was perfectly right


in referring, as they did, this evidence to
the jury.


Similar remarks are applicable to the Sec


ond assignment of error, and they show the
direct bearing of the evidence referred to the
jury upon the question of intent and malice.
The third assignment is that the court erred


in saying to the jury that sswhen once homi-


eide is proven, and the prisoner proved to
have committed the act, the offence will a


mount to voluntary manslanghter; for every


killing of a human being is presumed to be
unlawful. The burden of proving the act eX-
cusable or justitiable lies on the prisoner" 1t
is insisted that the qualification should have


been added, ssuness the circumstances excus-


ing the act arise out of the evidence produced
against him. In regard to this it is enough
to remark, that the rule laid down as
found in the books. The qualification conten-


ded for is practically of no Importance. In


this case the alleged circumstances excuSing


the killing did not arise out Of the evidence


produced against the prisoner. Besides, the


observations of the learned Judge were Who'll


ly outside of this case, and could have done


the prisoner no possible HARM 1t was not


case of manslaugbter, and neither party con-


tended that it was. The instructions given in


regard to murder were correct, and the re-


marks of the Court complained OF, were only


Introductory TO the charge, that the burden OF


the proof lay on the Commonwealth to cstab-


iish that the offence was any higher grade than


manslaughter.


The fourth and sixth assignments allege err