Year: 1878

ne purPOse 10 commit an act punish abl
with death and in the execution Of sucl
purpose he killo another.


End. Where there 10 not .h. evi.
dence OF any such purpose or plan, anc
, yet person is killed In consequence Of
a fslonious act on tho part Of the &C
cused, or II an act that denotes dis
, regard or recklessness Of the lives anc
. persons OF individuals generally, it /,
murder Of the sscond degree. And al
, homicidss above grade OF manslaug htel
. and not reaching that Of murder OF tn.
irst degree are murder Of the SECOND
, degree.


: 3rd. Where there is no malice OF
evil design either in fact or in law, and
yet death ensues from merely unlaw
ful act or from lawful act done in an
improper manner, whether 'by exces,
or culpable ignorance the offender il
!, guilty Of manslaughter.


In connection with this 1t is proper
! to say that the prisoner at the
! bar was unlawfully npon the
, trace of the railroad company; he
had no business ,here but a trespasser


and his act Of obstruction was an ag
gravation OF his trespass. Therefore


should it turn out that you find your


selves unable to bring him in guilty OF


one or the other degree of murder you


should convict him Of manslsughter, and


let Inc repeat to you that he uould be


clearly guilty o. murder of the first de-


gree if he.intended the death Of Babes


the engineer on that railroad train, and


aimed at the attainment Of his purpose


by his act of obstruction; or Of murder


OF the second degree even il he had no


actual intent to produce death but


meant evil or mischief Of any kind by


his conduct, Or of manslaugh ghter, b-caus use


viewed In any light his act was an un-


lawful one.


Whether the crime of the prisoner at


the bar is reducible to the grade of man


slaughter depends entirely upon your


belief Of his motive as he gave it, for


placing the log, or tie upon tho track


OF the railroad. II you do not credit


that he is guilty of murder in the first


degree If he intended to kill George


Babes or do him some great bodily


HARM of murder in the second degree


if his act was one only OF mere mischief
for this is legal or implied malice;


this act having been proved to you as


| have before said to be the natu-


raj and probable ones growing
out of sach performance, and thus


fixing him as the felonious slayer or


murderer OF George Babes as charged in


the indictment, ana with respect to the


motive he assigned for his act of un-


lawfulness, of that motive you have
only his oHn statement to rebut the


legal and rational presumption tina: by


that act he intended the consequences


whatever they might be, that should re-
suit, you may you feel that you are
constrained to do SO, believe his state


ments and acquit him of malicious


homicide, and find him guilty of man.
slaughter. But you are not bound to


believe this statement tho gh you
must consider It along with what he
said against himself. In all cases of
admission the whole of what the party
said at the same time, and relative to
the same subject. should be given in
evidence; but it docs not follow that all
parts of the statements are to be received
as equally worthy of credit; for the jury
is to consider how much of the whole
statement they deem worthy of belief,
including as we'll the facts asserted by
the party in his own favor, as those
making against him.


But in this case the learned counsel
for the prisoner at the bar in his well
made and able defence OF his client,
alleges and insists before you and this
court that as well before and after, as
at time, when the act of the prisoner,
so terrible and destructive of human
life in its consequences was committed
or done he was insane, had not sufficient
mind or reason to distinguish between
right or wrong. This is the nature of
his plea for the prisoner--that he was
at the time when George Babe was slain
"h' lol tllt
near Claymont was made, person of
unsound mind, but that such unsound-
ness was of that extent and complete
ness, that made him as to the act com
mitted, an unaccountable being. If
this be true, in point Of fact, and you
are the sole judges of that, then you
should render verdict of not guilty in
this case. 1t would be an inetfaceable
stain upon the reputation this State is
entitled to for the tender regard her
laws have of human life. and lasting
to you as jurors, il an ire.
'ponsIble being should be punished for
that he did not and could not know
was u crime at all. In all jurisdiction
everywhere, and among all peoples,
civilized or savage, defect Of reason
hat renders one unaccountable for his
acts, is viewed with commiseration, and .
he subject of it shielded from reproach
wen. 1t is one of those visitations of ,
he Creator which all humanity respects
md which conters immunity upon him ,
80 unfortunate as to be the victim Of it !
ii may use an expression ol seeming :
the law so well Shields I
" guards against punishment for all ,
lct committed under its influence, that !
when once insanity is established by ,
proof, it is presumed to continue until q
estoration to reason has been estab.
ished by evidence also. But until it 4
$ shown to exist, another rule
# law which is of equal force also I
prevails; which is this-that every man i
$ presumed to be sane, that is respon- q
ible for all his acts, until the contrary :
'e shown by him, or in his behalf $
hose are maximsof law, and by keep f
ng them in your minds you will be t
realty aided in fnding your verdict I.
lpon this indictment, which charges I
..l A Han rs