Year: 1879




to do, and you are in nowise responsible |
for the same. Ifit establishes the pris-
oners guilt, it is the law that affixes the
punishment, not you; if it vindicates his
innocence, it is again the law, and not
you, that restores him to liberty. A
shrinking from duty clearly imposed one
way or the other, by the facts and the
law of the case, would be not only gross
violation Of the obligations of the oaths
solemnly taken, but great crime against
human society.


Before noticing the important ques-
tions of law and fact presented by the
issues, will call your attention to those
great principles of criminal law which
have been adopted and are sacredly en-
forced by the Courts to the end of ar
irving at certainty of proof, whilst safe
guarding the rights of the accused. They
must never belost sight of by the Jury
in the course of their investigation. The
first of these is, that the accused is pre-
sumed by the law to be innocent until
his guilt is legally established by the
proof 1t is incumbent on the State to
prove his guilt, and he is not required to
prove himself innocent, since his inno-
cence must be presumed until his guilt
be established by the State.


Next, his guilt must be established by
the proof beyond the existence of rea-
sonable doubt before he can be found
guilty by the Jury. Every element con-
stituting the crime must be so proved
beyond reasonable doubt. OF course in
the trial of criminal cases absolute or
mathematical certainty can neither be
obtained or expected. All that the law
can or does require is that degree of
moral certainty which is expressed by
the axiom, that the guilt of the accused
must be established by the proof beyond
reasonable doubt 1t must be beyond all
reasonable doubt, not beyond every
doubt, perhaps captious doubt unreason-
ably clung to; but such reasonable doubt
as after honestly considering and weigh
ing all the facts and circumstances deyel-
oped by the evidence in the case might
still remain on the enquiring mind. To
the benefit of such reasonable doubt, so
remaining on the mind of the jury, if so
remaining, the prisoner in criminal
case is always entitled.


Guilt beyond reasonable doubt can be,
and in most cases is, established by cir
cumstantial evidence as wellas by direct
evidence. AS crimes are usually commit
ted in secrecy or in darkness, it is very
seldom that direct evidence to establish
guilt can be resorted to. AS crimes, how
ever, are an infraction Of the laws of God
as well as those of man, by an inscrutable
and wise disposition of Providence, the
criminal leaves traces ofh crime, gem
orally, and is surrounded and accompan-
led by a,web of circumstances which gen.
orally unerringly point to his guilt
| Often a chain of circumstances, well es-
tablished by the proof, will prove the
guilt of the prisoner with as great Ger
tainty as if established by eye-witnesses
Indeed in some cases circumstantial
evidence of guilt may be more reliable
and satisfactory than proof by direct
evidence. The Courts say it is difficult
to fabricate the connected links in a
chain Of circumstances so as to preserve
the semblance of truth. Circumstances
clearly proven never will lie; but wit
nesses detailing direct evidence may be
mistaken or may testify falsely. Besides,
as crimes are generally committed in
secrecy, unless circumstantial evidence
was resorted to in such cases most crimi-
nails must go unwhipt of justice.
Hence it is that even in the prosecutions
for the highest crimes known to law,
circumstantial evidence will suffice to
work a conviction, if the guilt of the
accused is thereby proved beyond the
existence of reasonable doubt. Guilt
is thus proven beyond reasonable doubt
when every reasonable. hypothesis of the
prisoners innocence is excluded by the
facts and circumstances established by
the proof.


will now call your attention to the
issues in the case and explain the law
applicable to the same, in order that you
may be enabled to determine these
issues correctly and properly as may be
required by the facts and law of the case.


The indictment is under the First
Section of Chapter of our crimes act,
defining the crime of murder in the first
degree, and providing for its punish
ment. 1t reads thus:


Whoever purposely, and either of de-
liberate and premeditated malice, or by
means of poison, or in perpetrating or
attempting to perpetrate any rape, arson,
robbery or burglary, kills another, is
guilty of murder in the first degree, and
shall suffer DEATH"


So far as this enactment is applicable
to the first count in the Indictment, in
order to make it clear to you, we may
read it as follows:


Whoever purposely, and of deliberate
and premeditated malice, kills lsanother,is
guilty of murder in the first degree, and
shall suffer death.


7 And so far as applicable to the second
count we may read it as follows:


Whoever purposely, in perpetrating
or attempting to perpetrate any robbery,
kills another, is guilty of murder in the
first degree, and shall suffer death.


Before entering further upon this sub
jeCt, will call your attention to another
provision of the law by which jury is
authorized on TIE trial of a charge for
murder in the first degree to render a
verdict, if the facts proven justify this,
for murderin the second degree, or for
manslaughter only. For this reason it
is important to know what constitutes
the respective crimes of murder in the
second degree and manslaughter Sub
stantially, at least so far as applicable to
the present enquiry, it is provided in the
third section of said chapter:


whoever purposely and maliciously
kills another is guilty of murder in the
second degree, and shall be imprisoned
in the Penitentiary during life.


And manslaughter, by another section
of said chapter, is substantially so far as
it is important to consider on the trial of
this case, defined to be:


Whoever unlawfully kills another. -.
is guilty of manslaughter, and shall be
imprisoned in the Penitentiary not more
than twenty years, and not less than one
year.


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