Year: 1871




tion, must be presumed to do 1t wick
edly or from n bad heart. Therefore,
he who takes the life of another with a
deadly weapon, with manifest design
thus to use it upon him, with sufficient
time to deliberate and fully to form the
conscious purpose TO kill, and without
any sufficient reason or cause of extern
uation is guilty of murder in the first
degree.


But if from the circumstances of the
case and the evidence in the case the
jury believe the intent with which the
act was done, although deadly weap-
on was used, was not to take life, but
simply to do great bodily harm, the
grade of murder in the second degree.
All murder not of the first degree is
necessarily of the second degree, and
includes all unlawful killing, under
circumstances of depravity Of heart,
and desperation of mind regardless of
social duty, but where no intention to
kill exists or can be reasonably inferred.
Therefore, in all cases of murder, if no
intention TO kill can be collected from
the circumstances, the verdict must be
murder in the second degree. If there
exists reasonable doubt as to the in
tention with which the act was done,
such doubt should operate to reduce the
offence to the lower grade.


Deiberation being an act of consider
alton, the reason for and against


measure, and pre- meditation being the
act of thinking beforehand, it follows,


that where the mind from any cause is
deprived Of its power to form design


with deliberation and pre.meditation,


the offence is stripped of the malignant


features required by the statute to place


it on the list of capital offences. Intox-


ication is in no case an excuse for crime


yet where drunkenness is so great as to


render the accused incapable Of forming


a complete design, the law allows it to


reduce the grade of homicide from


murder in the first to murder in the


second degree. If the intoxication was


voluntarily produced for the,purpose of


stimulatingia meditated felony or nerv-


ing up the mind to the commission of


an offence, the drunkenness would be


but an aggravation of the crime; but


where the drunkenness was from acci-


dent or mere sensuality, and to the ex-


tent before stated, the intent and delib-


Grafton required by the statute to con-


stitute the offence being absent, the


grade of offence is reduced. Neither


courts nor juries can,lawfully dispense


with what an act Of Assembly requires.


Having explained to you the law of
the case, we will now state to you some
rules in regard to the law of evidence ;
, first remarking that it is not my pur-
, pose to comment upon the evidence in


detail, further than may be necessary
, in stating the points in connection with
which it is to be considered. / wish


YOU distinctly to understand in the out.
set, that all considerations which effect
the credibility of this evidence in gen.
. eral, such as the integrity, disinterest-
edness and ability of the witnesses


the consistency of their testimany-its
conformity with experience and its
. | luSlNNihIilS WIN
ces, are for the jury alone and not for
! the court.-When facts are proven to
, your satisfaction, you will draw your
g own infarences thercfrom uninfluenced
4 by any opinions which may appear to
t you to be entertained by the court
r Oar duty will have been performed


when we shall have given 10 you the
f principles Of law applicable to the case.
l The verdict you are to render is to he
s yours, and not that Of the court, and
n you and not the court are responsible.
a Where the inquiry is merely into mat,
). ter Of fact, or where the facts and law
-, can lie clearly Disseminated, | should
# wish this jury 10 leave the box without
>. being able to ascertain what the opin
= ion of the Court as to those facts may
t be, that their minds may he left entire
:. ly unprcjudiced to weigh the testimony
V and settle the merits of the case
j Should interfere with my opinion on
|, the testimony, should certainly steI
n out of the province Of u tdge into tha
e Of an advocate.


II The gentlemen concerned as counse
It for the Commonwealth, have reviewed
;. the evidence, and in able arguments
@ presented their views in regard to 1t


And the counsel for the defendant, will
IS signal ability, have discussed anC
l. brought 10 your notice the facts anC
e circumstances upon which the defend
r ant relies in his defense That tn
If counsel on opposite sides should enter
.e tain different views, is neither unusua
% nor surprising, and furnishes no grount
Le for reflection upon the judgment c
\. either. Nor does this state of thing
m lead to injustice. Each presents tn
m facts upon which he relies, and enforce
x his conclusions by such arguments o
ct are believed to be sound. And the jury
# having full view of the whole cas-
ii. and giving to the arguments of couns,


the weight to which they are respec
ST lively entitled, are thus enabled to rel
so der a sound and impartial decision.
o. In considering the evidence ever
At material fact must be proved, either b
7. direct testimony Of lis existence, or
I. must be necessary and reasonable il
Y ference from other facts proved in tn
,e cause. You will take nothing for gran
I'd ed, The humane presumption of Il
to law i that every man is innocent unit
h. his guilt is clearly established.


d, The Commonwealth charges, and
be bound to prove, that Wesley Eugei
te Shader came to his death in cons


quence of wound received at Il
III hands of the defendant on the 22d d.
Ii. of February, 1871. That he died on Ii
les first day Of March by reason of pist
,of shot on the day first stated is testiii,
ay by DIR. Ladd, DIR, Turner and other
1t and no question has been raised
10. counter evidence upon that subject.
IN. Was the fatal wound inflicted by Il
i'll discharge of a pistol in the hands Of 4
it deft ndant? Upon this subject you a


rafnrrnI tIn il stitnnp,, Of Mau,