Year: 1871

in fear OF his life, that he advanced in menacIng


or threatening manner, and that he provoked or


brought on the difficulty which he might have avoid


ed averted without endangering his life or limbs,
| then defendant would not be guilty.
| II you should believe from the evidence that both


acting under the influence of fear and that both


apprehended that the other intended to do him great


bodily harm to take his lfe and that neither were


prompted by any other motive than self-defense, it


matters not which might have been killed, the other
would have been justified. af #3a ..f+#


You are to take all the testimony and weigh it,


ect from it that which you believe to be true and


ect that which you believe to be untrue. That which


is unreasonable is not to be taken because some one


has to it, Testimony is that which is produc-


ed before you the trial Evidence is that part OF


the testimony which s regarded as the true state OF


facts in the Testimony is to he dealt with as


any other of matter from which it is desired to


extract that which is valuable The Court can give


you no definite rule to apply to such process, ex-


cept few general suggestions: where witness


makes statements on the stand different from those


made at some other time upon some material point


in controversy the general rule is that he is TO be


disbelieyed entirely, unless supported by other unm


peached testimony But that variance must be upon


vital question in issue. The manner OF the
witness on the witness stand, his or her apparent
disnteresness and the reasonabeness of the state
ment ought in great measure TO determine what
weight to attach 10 the testimony. Witnesses who
attempt to be too minute upon immaterial matters
which transpired during scene OF excitement ought
To be viewed with suspicion unless there was some
good and substantial reason for their minuteness OF
observation.


You are TO take all the admissions of both defend
ant and deceased made against themselves as TO their
bad feelings threats against one another, but no
declarations OF good feeling be urged by either
in their behalf unless connected with the same
conversation transaction in which the bad feeling
was expressed Thus, where man makes d threat
against another, il is competent for him TO show all
that he said on the occasion for tle threat might nave
been qualified. The connection of the deceased with
the card OF McGelhcuddy has been admitted IN evil
dence for the purpose only OF showing the feeling OF


f4AsAa f4FE AaHs a shs4EfF
consider all of the connection Of deceased with the
card in order 10 determine whether such connection
was prompted by animosity towards defendant or
not. The dying declarations Of deceased have been
admitted in testimony, and il made against defend
ant they must have been made by deceased under
full apprehension by him that he would not recover
and the law presumes under such circumstances
that dying man wosd be acting under as strong an
obligation tell The truth If sworn in court, yet
such declaration ought TO be received with great
caution account OF the defendant having no OPP
portunity cross-examine the dying man, and such
10 be received against defendant ought
10 be corroburated by other evidence.


To apply the rule Of admissions aud declarations,
not under oath you have but 70 bring 10 your assis
iAncc a well known rule Of human nature that per-
seldom make admissions declarations against
themselves unless they trne while 1t often occurs
that persons protest against any intention 10 Go
wrong. Tie defendant is entitled 10 every reasona.
bic doubt. and in explanation TO what such doubt
IS cannot give better definition than that given
by Chief Justice Shaw IN the trial OF Dr. Webster at
Boston:


"Itis Term often used. probably pretty well un.
dersood. bat not easily deaued II is rot mere pos
sblc doubt. because every thing relating 10 human
affairs, and depending on moral evidence is often TO
possible imaginary doubt. II is that state Of
the which. after the entire comparison and con-
sideraton OF all the evidence. leaves the minds of
Jurors in that condition that they cannot say they
feel abiding conviction moral certainty, Of the
truth ~ the charge. The burden Of proof is upon
the prosecutor. All the presumptons of law, indie. |
pendent OF evidence are in favor OF innocence; and


ss=,s.1 lYs
proved guilty. If, upon such proof there is reasona
oe doubt remaining the accused is entitled TO the
benefit of II by acquitta For il is not sufficient
establish probability. though strong one, aris-
ing from the doctrine of chances that the fact charg
cd is likely TO be true than the contrary; but
the evidence establish the truth of the fact 10
reasonable and moral certainty certainty that con-
vnces aud directs the understanding, and satisfies |
ihc reason and Judgment OF those VINO are bound TO
act cousceuuGusly upon IT, This we take TO be proof
beyond reasonable doubt because If the law, which
mostly depends upon considerations Of a moral ma
tura should go further than this. and require abso-
ate certainty, it would exclude crcumstantial evil
dence altogether"


/ understand the rule to be that If from all the
evidence. reasonable doubt exists in your minds
the guilt of the defendant il is your duty to acQuit
and that while 1t is incumbent on the defendant to
Justify the killing that justification is made out, suf
fcien;ly TO acquit the defendant. IL reasonable
doubt, a defined by the learned Judge from whom
have quoted is raised in your minds.


This is one of those unfortunate cases in which |
there is a great discrepancy between the testimony
Of Witnesses and far this should effect the
question of reasonable doubt, / will say that
reasonable doubt ought to be raised in your minds
when considerable number of unimpeached. con-
,stent disnerested and reasonable witnesses testify
% such state Of frcts to raise serious and sub
;tanal question to the guilt of the defendant but
;ou should not hunt tor excuse upon which to
ound doubt but ii must be such doubt as thrusts
tsef upon the mind upon every theory of the case,
except that the defendant is innocent.


This is which has elected considerable dis
,usson throughout the country, and am well aware
is very hard for human nature to divest itself of
Impressions made upon the human mind. All kinds
If rumors float over the country following homi-
,ide in regard TO the guilt innocence of the slayer
& is your duty TO forget possible, that you
heard of this defendant this deceased, that
1ou ever heard of this difficulty until you
n the jury box.


II is your duty as well as mine to disregard any of
he surroundings of this either past present or
prospective, except the evidence given in to you dur
ng the trial OF this case ana the law given to you
)y tho Court in this charge. |,


The disapprobation of your friends or neighbors,
'r the friends neghbors of either the defendant
n deceased. should to you as the idle Winds in
making up your verdict We, the Court and Jury,)
responsible for the verdict in this case and not
hose who have long since made up their minds in
his case, whether for or against the defendant.


Our oaths and conscienees require and demand of
oblivion to every other consideration, except the
lw and evidence No man has obtained that emin.
nee in the scale of true manhood until he can say
Il don't care what others think of me when know
am doing what believe to be right" man has
usti cause to be proud when he brave public
pinion even to condemnation when duty demands
t. An American jury is supposed to be composed
t such men, and 1t will be sorry day for the Re-
ubhc when jures can be influenced by the press of
ubhc opinion instead of the law as given by the
'ourt. and the evidence as given in on the trial.


am proud to say that of such firm material be-
eve this jury to be composed, and / only refer to
hese matters account of the fact that human ma
ure is fra and it is necessary that only the jury