With inc. mi it,.
What Their Verdict Will ee
Can Only i:f. Con j kctvr ed.
A REMARKABLE CASE.
GEN. A. H. COFFROTH PLEADS WITH
THE JURY ON BEHALF OF THE
PRISONERS FOR MORE THAN
THREE HOURS.
Hn JOHX CtSSMA CLOSES THE CASE FCS THE
COl!0IWEALTH IN THE HOST POWERFUL
ARGUMENT EVER HEARD IX A SOMERSET
COUNTY COURT.
A Wosdemtl Speech by
Old Mis."
THE "GRASD
AN ABLE CHARGE BY A LEARNED
JUDGE.
The Charge Conceded on All
Sides to Have Been Fair
and Impartial.
A Verdict Expected This Morning.
Promptly at S:.50 yestenlay morning the
Court resumed the trial of the now fa
mous I'mberger case All witnesses in
the case having been (Uncharged the day
before in time to start for their homes,
the attendance was less than it has been
at any time since the ease was called.
The prisoners were in their accustomed
peats immediately in front of the bench
and facing the jury. Their appearance
did not indicate that they had had a re
freshing night's sleep, and their greeting
to their wivesand aged parents was silent
and sad. Their counsel, Messrs. Coffroth,
ltuppel and Koontz .all showed Bigns of
Wing fatigued after more than a week
of ceaseless work and worry.
Atthe Commonwealth's table sat Messrs.
P.ieaecker, Koneer. and Cewna ; theyoung
er men looking tired and exhausted,
showing the great strain they had been
under, but "your I'ncle John" was look
ing fresh, vigorous and fully prepared
for the irreat effort lie was to make
during the ilav.
A. II. Ci'ifroth, Esq., commenced his
argument to the jury at the opening of
the court and consumed the entire morn
ing session; his argument was forcible,
logical and argumentative and was list
ened to with 111 irked attention bv the
jury and the vast an lience. He spoke
f ir three hours uud ZZ minutes. John
Vssna, Esq., made the closing argument
for the Commonwealth, lie spoke for
two hours and thirty-five minutes and
bin speech was the most powerful marsh
aling of facts ever heard in a Somerset
county court. It was a speech befitting the
high reputation of Mr. Cessna ami the
importance of the came far which he
pleaded. The court room wis crowded
with, friends and admirers of the justly
celebrated lawyer, all of whom were ea
ger to bear him in one of the greatest ef
forts of his long and busy life. They
were more than aatisSed. It was a grand
Hjieech by a grand old man.
Jl'ISlE BAER S I'HAR'.K TO THE JVBV.
Gruflsinrn vflhe Jury :
A long and necessarily tedious trial is
nearing its close, and goon the whole re
sponsibility of a true verdict will rest on
you. You have patiently and with com
mendable attention listened to the testi
mony as detailed by thewitnessesofboth
the Commonwealth and the prisoners at
the bar, and have, I am sure, given due
consideration to the able argument of the
learned counsel on the material facts in
evidence.
The facts yon Uke from the evidence
as given by the witnesses on the stand.
The arguments of the counsel do not
make facts; but they are a discussion of
thejevidence, and of the materiality and
credibility of it as bearing upon the guilt
or innocence of the prisoners, and are
entitled to due consideration ; neverthe
less, the jury cannot surrender its own
judgment fairly formed on all the mate
rial facts and adopt the views of counsel.
the solemnity with which yoo were
chosen from the body of the qualified
electors of the county and impaneled
as able, sober, intelligent and judicious
men, may well inspire yon with awe, in
view of the great responsibility put upon
you.
You were sworn to well and truly try
and trnt deliverance make between the
C Miimonv e dlh of Pennsylvania, and
the prisoners you have in charge, and a
tnu verdict give according to the law
and the evidence. Yon are not to sim
ply find a verdict, but your duty is to
find a true verdict according to the law
ai-d evidence.
The law, you receive from the Court,
and as to it the Judge is responsible and
alone rcf-i-f.nj.ible if you act upon the
law as he gixea it to yon.
The evidence is wholly for your con
sideration, and from the material evi
d 'nee in he rasr, as given by credible-
witnesses, jou are to find the facts, and
itv istocn i a ver.i..". on
You bp not nsponsible lor the Ian bid
down, nor for the facts established by
the testimony. If the evidence lead the
jury, in the exercise of a sound judgment,
to a verdict of guilty there it is yonr duty
to go without slopping to impure what
consequences f How. Yon, as jurors,
have nothing to do with the consequen
ces, and the fear of any possible conse
quence should not for a moment mis
lead you to rendering a verdict which
yoar judgment does not approve. In like
iBsnner, if the law and the facts lead.'joo
tn toe exercise 01 a eouna juaguiem iu
verdict of not guilty, there it will be
your duty to go, no matter what conse
quences follow. Yoo should arrive at a
conclusion, as your oath implies, on all
the evidence in the case.
Grave and arduous as yonr duties
seem, the task of finding a true verdict
from the evidence nnder the law as given
you, is not a difficult one, if you will
constantly keep in mind that you must
arrive at any conclusion you come to.by a
due and careful consideration of the evi
dence in the case nnder such instructions
as; to the law as have been given yoo, free
and unaffected by public clamor, private
sympathy or feeling, and in total disre
gard of anything you have heard or read
in or out of court bsfore yoa were sworn ,
as jurors in this case, and that you act as j
judicious men without fear, favor or affec-1
tion, looking nowhere but to the law and
the evidence. For on these and these
alone can a true verdict be based. j
To find a verdict otherwise than on the
law and the evidence would be a verdict j
indeed, but your consciences would not j
be easy. Looked npon in a proper light,
the task imposed upon jurors is not so
severe.
The jury heard rueh witnesses as the
Court deemed competent Endeavor to
remember what they said; observe the
witneeses on the stand their demeanor
and manner of testifying, and whether
candid or biased. Observe whether their
statements are consistent or contradic
tory ; whether contradicted in material
matters by others, and whether they
have been assailed ortheireredibility im
peached; and then, looking at the wit
nesses, including the prisoners as wit
nesses, their interest in the issue, their
testimony and manner on the stand, and
the consistency of it, the jury determines
the amount of credibility that should be
given to each witness.
Then, giving due consideration to the
testimony of all credible witnesses for
and against the prisoners, and due regard
to the discussion of the material evi
dence, the jury find what are the facts
proven, and having found the facts, they
consider them in connection with the
law as bid down by the Court, and
find a verdict in accordance with the
law and evidence. If the juror has been
careful to observe the evidence and the
law, the result or conclusion he arrives
at should not disturb, him, what
ever conclusion reasonable, naturally,
fairly and truly follows from the law
aud the proven facts should be the ver
dict, whether that be a verdict of guilty
or not guilty. Peace of conscience
would only be disturbed by finding a
verdict contrary to, or in flefiance of, the
law and the evidence. The verdict,
whatever it may be, thonld be found
upon due and careful consideration of
J all the evidence in the light of the law
laid down, and should be entirely free
from the emotions of fear, favor, affec
tion, symjiathy, bias, prejudice, hatred,
ill-feeling or revenge, and should be in
total disregard of public sentiment or
feeling.
A human life has been taken.
Herman Cmberger, a former citizen of
this county, is no more. He was sudden
ly taken off without warning by peeous,
whoever they were, that did not fear
God, but openly and boldly served the
devil and imbued their hands in his
blood at the hazard of their souls.
Sad as is everything connected with
that death, we must not let our sym
pathy for the bereaved ones, pity for the
dead or indignation against the felons,
sway us frjra the clear path of duty.
Our duty is in the line of justice and not
of vengeance. The laws of the land and
the laws of God have been ruthlessly vio
lated. The rights of personal liberty
and security have been invaded and a
life has been taken.
For taking this Iile the prisoners at the
bar arc on trial, and on thus jury de
volves the duty of ascertaining uliat it
the offense, and are the prisoners the
offenders. Whatever the offense may be
found to be, if the prisoners are not the
offenders they will be set free; if they
are found to be the offenders, the majes
ty of the law must be maintained and
crime punished.
The indictment charges the prisoners
at the bar with the offense of murder.
S.ich an indictment, if the offense be
proved, would sustain a conviction for
murder of the first d'gtee, murder of the
second degree or manslaughter, as the I
facts and circumstances in the case
might warrant
It becomes necessary, therefore, to de
fine the several offenses or grades of of
fenses, so yon may not err in the conclu
sion you arrive at, if you find an offenre
was commit tel.
At common law, murder is deserilied to
be where a person of sound memory and
. r .. .. ,
for a trie an. I ; -!is.-n-t:..n -Ui..i'- .:i
I repeat,! b'e crwtaw in
. . i r . I .
the law ! jvr.ee uscw.uu
kills any reason- a-.-i-ig
a-s-i ur.-b'r the
"i:;V. -'ai.ii, xvi'.h li'-alal-
.--t j-r.p!i.-I.
part of the C-emmon-
I: is -ilic-ied on
wealth th-t, H.-r.uan I'mber-i-r, i.tte of
this county, was a reasonable creature in
being and in the peace of the Common
wealth, on the 27tb day of February
last, an.l was then killed. If you find
this to be so, tiie next question is, who
killed him? The Commonwealth charges
the offense upon the prisoners at the bar.
The burden is upon the Common
wealth to satisfy you beyond a reason
able doubt, by evidence produced, that
the prisoners killed him ; and mast a!o
by like proof, show that they killed him
with malice aforethought, either express
ed or implied, in order to convict of
the offense
or SILBDE8.
Every killing is not necessarily inur
dorbut every killing of man by man U
homicide.
Homicide may be felonious, excusable
or justifiable. We have to do in this
case with felonious homicide ; so the in
dictment charges the offense, designating
it in tho indictment as murder ; and, on
this indictment, if a proper case be es
tablished to satisfy a jury of the offense,
and the persons who committed it, there
can be a finding of murder of the first
degree, or murder of the second degree
or manslaughter.
The distinguishing criterion ef murder
is that of malice aforethought. Man
slaughter is the unlawful killing of an
other without midiet expressed or impli
ed. There must be an unlawful
homicide to constitute either murder
or manslaughter. The distinction be
tween the two grades is, that an unlaw
ful homicide with nmlurt aprtlhnnjltl,ex
pressed or impliedis MinUr; whereas,
an aunlawful homicide without malice
ai'tnt!tiitjht is manslaughter.
Keeping this distinction in mind, you
inquire whether the offense committed
was murder or manslaughter. Murder
at common law embraces cases
where no intent to kill existed but
where the state or frme of mind,
termed malice, in its legal sense,
prevailed ; and it includes all unlawful
killing nnder circumstances of depravity
of heart and a desperation of mind re
gardless; of social duty, but where no
intention to kill exists.
I have aireaily said the distin
guishing criterion of murder is mal
ice aforethought. A particular ill will,
a spite or a grudge is or
dinarily understood as malice, but, mal
ice as it appears in the definition of mur
der, is 4 legal term ; it comprehends not
only ill w ill, but every case w here there
is a wickedness of disposition, hardness
of heart, cruelty, recklessness of conse
quences, and a niind regardless of social
duty.
I'nder all th.i evidence and circum
stances surrounding the killing, your
first inquiry should be, was the killing
murder?
The testimony of Ella Stearn, Mrs.
t'mberger.Xannie Horner and Pr. Walk
er, if believed, shows that I'mberger on
the night of the 27th of February last,
was killed by two men, who entered his
dwelling by night for the purpose of
committing a felony, and that he was
both robbed of a large stun of money and
killed by means of a deadly weapon used
upon his person at a vital part, and bis
dead bodv was identified and death
from the gun shot wound established,
if the evidence is believed,
The Commonwealth alleges th3 killing
as testified to by the witnesses named
and the defense do not deny that Cm
berger was both rubbed and killed by
some persons. It the jury lrom an me
evidence find the homicide was not com
mitted in self defense, as to which no
evidence appears, or not by misadven
ture or upon heat and passion, upon a
sudden quarrel, or by accident or mis
take, as to which no evidence apiears,
but find that life wa cruelly, w ilfully,
wickedly ami recklessly taken in total
disregard of social dutv and when at
tempting to commit robbery, after de
manding, "your money or you life," they
will be warranted in rinding that the
homicide was murder.
There is no evidence in the case to
bring it within tbo definition of man
slaughter, aa we view the evidence. If
you could on the evidence find it to be
an unlawful homicide without malice
aforethqught, it would be manslaughter.
If you find it to be murder, was it of the
first, or the second degree ?
The laws of Pennsylvania distinguish
murder in two degrees; murder of the
first and murder of the second degree;
murder of the first degree is where a de
liberate intention to kill exists; murder
in the second degree is where no intent
to kill exists. The jury nnder the stat
ute, if they find a verdict of guilty of
runnier, must find and ascertain whether
it be murder in the first or in the second
degree. The 74th section of the statute
of 31st March lSiJO, reads:
"All murder which shall be perpe
trated by means of poison, or by lying in
wait or by any other kind of w illful, de
liberate and premeditated killing, or
which shall be committed in the perpe
tration of, or an attempt to perpetrate
any arson, rape, robliery or burglary.
shall be deemed murder of the first de
gree, and all other kinds of murder shall
be deemed murder of the second degree,
andthejnry before which any person
iadicted f -r muoi.-j w.ui! be trie I. sb-di,:
irtiwy fmdtt'-l. j -' thereof, :
..ertbiil iii ti.i-ir -:fbict x-.b---l.er it If,
nmr.ier in lU r!i.-t .-r wu2 dcyp c '. .
li is iiot the nre kUiinj of a person
in the perpUr.r.l.m or the attempted ir- j
petration of pd,'ry er bursary that ;
constitutes the etn n.-'f murder in the I
first degree. T'ue killing while engaged ,
in perpetrating i;r attenqting to perpe-j
trate a roblwry or a burgiaily in or-J
der to constitute murder in the first de-1
grec, must be such as at common law j
would have been murder; uiuiis.u
must have been a killing with malice
aforthought.
Iffrom all tbe facts in proof attendirg
the killicif, tbe jury cm felly, rfarocably
and satisfactorily infer the existence of
the intention to kill and the malice of j
heart with which it was doce, they will;
be warranted in eo doing. Judge Agnew, j
one of our ablest judgea, held that: '"He
who uses npon the body of another, at
some vital Frt, with a manifest inten
tion to use it ujion him, a deadly weapon,
as an axe, gun, knife or pistol, must in the
absence of qualifying facta, be presumed
to know that his blow was likely to kill,
and knowing this he must be presumed
to intend the death which is probable
and ordinary consequence of sneh an
act. He who uses a deadly weapon
without a sufficient cause of provocation
must be presumed to do it w ickedly and
from a bad heart."
Therefore, gentlemen of the jury, he
who takes the life of another with a
deadly weapon and with a manifest de
sign thus to use it upon him, with stiUi
cient time to deliberate, and w hile en
gaged in perpetrating or in attempting to
perpetrate a robliery or bftrglary is guilty
of murder in the first degree. All mur
der not of the first degree is necesearily
murder of the second degree. You alone
are the tribunal that must determine
whether the offense is murder of the first
or second degree or manslaughter, in the
light of the law, on the evidence heard.
Passing from the law the q lesti-m to b
determined is, was Herman I'mlierger, on
the 27th of February last, killed by the pris
oners at the lar '
That be was killed, and the manner in
which he was killed, was eslaiililied by the
testimony of Eila ."steam. Mrs. Cmlxrjrer
and Nannie Horner, lr. Walker and Henry
Ranch.
The inquiry you make docs not take the
form of who killed him, but did the defend
ants kill him ? J
IKtes the testimony int out tbe prisoners
at the bar as the men .'
Tbe evidence is so voluminous 1 can only
call yonr attention to tbe material substance
of it as given by each wilne-s, leaving you
who are the only judges of it to find on all
the evidence whether the prisoners com- j
mitled tbe offense. Klla Stearn, Mrs. I'm-,
berger and Nannie Horner, the little girl, j
saw two persons niter the house at night,
sit down at the stove for a while, and after
9ome talk begin to search the house, alleg
ing they were doing so by virtue of a s. arch
warrant. They detail at length and particu
larly the manner of search, the robbery
and the homicide. Eit-b one of
these wit nestcs in turn staling all she saw
aud heard.
Simeof them say the men wore, one of
them, gum boots, the oilier, leather b-jots.
All of them say one was taller than tbe
other; that one was maked or bad on a
false beard and a hat ; the other two, hand
kerchief tied over the face in tbe manner by
them described, having part of lne fare
above the month, exposed ; the no?e. ey,
forehead and part of the chetks were ex
lwed.
Ella Stearn' and Nannie Horner describe
tbe hat and say it had a piece out of the rim
at the time it was worn in the liotise: ail
say one of the handkerchiefs was a red one
with small white spots; all describe it as a
brown bat.
The witnesses describe the overcoats then
worn ; one as a dark or brownish one,
the other as a grayish one. The
little girl says tbe gray coat worn by one
bad a little brown patch on the side. Could
she have seen the coat at the hearing at
Rauch's was it there had she never seen it
but at tbe homicide; each one details how
she came to observe what she saw. "
Neither of thm knew the parties at the
time. The girls say that at the hearing be
fore Squire Uiucb they sawtbeconstabie ull
a red liandken hief with white spots from the
hip pocket of David Nicely, and tliey iden
tify it as one worn that fatal night, and the
girls on tjie stand in court undeitake to
identify the handkerchief, and tbe hat, and
the coats and including the widow, they say
the prisoners at the bar are the men who did
the robbing and killing.
Yon have beard all they said, and will con
sider it in connection with all other evidein-e
in the case.
Each says the little man had the hat on.
and tbe larger one his face tied up. Kurd of
them undertake in oourt to identify the pris
oners; how they come to identify the men
you have heard in the evidence, and you
will consider it. The old lady is not certain
about the handkerchief, and did not see the
break in the rim of the hat.
His Honor here reviewed tbe remainder
of tbe important testimony at considerable
length.
Having instructed you as to the law
relating to the offense and having called
your attention to the evidence, we now
instruct you on the law of the evidence.
The prisoners set up the defense of an
alibi. They allege that they were at a
different and distant place at the very
time of the homicide and for some time
immediately preeeeding and after, and
that therefore they not only did not com
mit the offense, but by no possibility
could have committed it at tbe time and
place where the homicide was com
mitted. They, agree that as one body
t.t ;
I..-. .
1
Law
vl Feb- their t-s:.... .ny
r in ' estuion." s-ane.- s :
I m;.e ' m.4ler:.. t;! .tb-r
And fact-" and tti: n:
C Kl IV t
e.-;nr.n i 7 S V
een:n : of tbe u'.ui vt t ie -J.
r.iary, and at tbe sarin- ti
Lard county, at as nr.i- i as i-j
. .r- fn.m tbe Cmbercr j.O'l-e;
tbat therefore. notwit:.sUt..!it.i tbe tti-; ny it.sj-.st w, !'!.!.
moiiy orthe Gmn-.ionweailb, . i ""' " ; Ml--i de .,f tbe t.-t :-. ,.
endeavors to identify them ii the per-, , ere present and j : -sons
who committed tbe off-n.-, that the ; tify the hfeudant ti ... , ..
Commonwealth's witnesses must be mts-; hs sought b couuet t
taken as to the identity of '.be. parties ' circumstantial eiider:,-. v. .
who committed the homicide an 1 tiiere- jnit charge is to be ; r !
fore tiiey should be acquitted. ' ..taatUl evidence, the t :
It won't be denied that if tie accused only comusteut t;,. , ,
bave fUcceswfaUy shown that at the time : bat it should be lzc.t.t.',z ,
of the homicide they were really itt ; other rational eon. : ..: - -another
pUce saiHcien'-ly remote from j which inculpate tl:e ;r.r.w"
the scene of the olfer.se, so that ; absolutely incompatible ;:h .;
they could not possibly have be-n pres-; cence of the accused ..:-. a-.;
ent, then the conclusion would ts? irresia- ble of explar.a'iwn r.;..- a .
tible that they could not have committed i p, .thesis than that of z
the offense. produce in effect a re-.. ., .
It ia undoubted law that an a:ibi is as ; rt-rtainty that the a.-. !
much of a traverse of the crium charged, : else committed the , ,;! n. t - ..
as any other defense, much, however.j ThecouiiM-i have i:iv... ! :!V :
depends on the strength of th-J alibi. ! tion of iun-Keme a-a -The
stronger the evident of th truth j presumes every n;a i .!,.. .-.-; :
of the alibi, the more irresisrib e wiil be j eunimission of a:i j.
the conclusion of innocence, but, trie time : jn,I this b-.-.d pre-t::.;-. . .
relied onto establish the alibi ahouM ', fri-tevts hi:u until
correspond closely with the tiuif of Uus estabtbdie rfui:t of the f!. r.
commission of the crime, so as t show j the indictment, ar.-t
that tiie accuse ! pi rty ould b-j have j the guiit beyond a rea-.na..
been at the place w here tiie elleuse was j X;ie burden of .r , f i
committed. Or tho evidence of the ahb i niuuweaith. nil. ...
should beau strung, taken ta connection tne material a. oiin,. ;
with all the evident, as to raise a rea- j uient, so as t- -a :-'V !:...
souable doubt of the pre-nce of theac- (the whole case- l-.v ,r; 1 i ..
cased parties at the homicide. That is, doubt. If this is n-.-t i ::
though the proof of the alibi should not ! should acquit. If t be - ; .': i,
be clear, yet if tbe proof .' to es'ablisb t esta'.iishc 1 1 y..i, 1 a ,-. a .
an alibi, this, with all the other f.n-ts in te jury sbouid ..in i. t.
theca.se, if it raise a reasonable doubt,: It is not the rule that t!..-r..-:-.
would acquit. j
In cases where the Commonwealth ,
rests upon positive an, I tin lou:t--'ii prom, aouut, to ar.iuit. s.,
tending to prove guilt, it should not be' grave aud sub-tan:;. ii a- .. ;
overcome by lews than fall, clear and j the mind of tbe j ir..r . n;.
satisfactory evidenca tending to prove i long and anxious nn. .-r:.i ,!v
the alleged alibi. verdict he should g'.vc. I r. -
The burden of proving jfuilt bos on . a reas.naile d..nbt, n jr.,
the Cjtu;n rn wealth and is at uo tiuie all nssiUle or iu.agn.try .1 . u
shifted: hence, the Commonwealth ' proof as excludes eery r-j,,:
must satisfy the jury of guilt U-yond a j potheis, evpt that
reasonable doubt. All tbe evidence j support. It is that sat.
which tends tn establish an alii: i and j which after tbe eu:ie c-.-iq-tr
that which tends to disppje it is fr the ; cotisideration of trie e ;!. :... :.
jury and the jury alone. j minds of the jurors in il.a. .
The inquiry into an alb-gjd alibi in-! tlial they cannot ,-iy t:., y
volves time, place and person, as well as , ing convict ioti, to a u. .ral .
the credibility of the witnesses and the j the charge, but a!.!..te .
reas.)nab!en?ss of the a'ibi set u;. The required.
jury are to consider whether tiie? alibi as j Cbief.Iust.ee Ajm-.v - . '.
to time is ma leout, for.it miht ha:pen. j '"e Uoui.t mn-t ue an l,-?.-:
that the fact of the parties presence at a : sciettu.ua ditbculty in i -':-.
certainlplace on a certain oecisi-m may j one merely subtle and .:
be true, yet there may be a mistake as to I miw out of tue ex k-s..?
time. The jury mu.-t consider the al- j Le fam-ifnl n-r be .-.t:j m-i
leged time of the homiei le, and the al-i consequences : it must .tr.fcc
leged presence of the prisoners at the! with such force as f. i-ti.j.-: :
same tune, and ascertain w hether any i m j leiaing wi.n.
one is mistaken ; this they must do how- In conclusion, geiit.emen -I
ever on tiie evidence. n the indictment, the xti. :
dereil by you should ! La
nce, and it :n l-t s;-. v
an;uitt:il in all inl-.
juiures a my
An alibi when duly established is one
of the most decisive defences; but the
evidence adduced to support the aiibi
reqiiirt to be minutely consitrered- The
diirerence in time pieces, and the transit
from one place to the other, and dis
tance apart, and wh-.-ther the ni!eg-.l
transit was on foot must be considered.
Yon should consider
I. The lime when the homicide was
committed.
2. The time of the alleged alibi. Was j
the alibi proven by credible witnesses,
evid
degree of the bonded. . S-j:
a moment thought tie'
manslaughter, as xoii -a;.! jr
chide under the dctim!.. n !
Was it murder? If s... y.i
whether it was mur-e-r t:..-;
or murder of the second dew.
j the pri-sonera have not bcr:i .
I ty beyond a rcanah,e -1 ;,
dii t would lie generally "T-.t .
... . .
I you nn-i iiieui giuiiy, .
I I . t.il tier ".milfif at' u.tiriltr
sneaking the truth ? Are witnesses who
, , , , . i degree or j.nu!!v t.l iii'ir-
testify as to siting the defendants at the i , , ., ..."
i i .i ii . .!. i , second degree. 1 be a-e i-
plact-s namcl thoroughly tnilhful and . , , ,
. " , on tne ex ideiice, wh'cn v u
certain as to the time, or may thev be i . , .'
. , - . ; aider fir yourselves, a:id
mistaken as to tbe time; and are the i , . . ,
.... ... . , as to anv-opinion of .--.
w itnesses to the homicide p-rtatn as to . . , , .
,.. , , ,., . . evidence, for it expn-. ti :
the idenitv of the parties? An alibi is . . .
, - ;., .. , , . . .. . 'sinuates ujU-.-:y -i an-i.-:t : -
a defente like any other defense, but it is ,
iii. r ii ; det tde for vuiirsem s.
often abused. It may be Founded m . ,
t . i i i i . u , i , .. I lite roltw-u; p -i its s...i:
falsehood, and when it is it should fail. .... ,
, , . , , . . -a lei.dalit s ti,ii;- 1 a;.--
it le-omes as strong negiti.e evidence as
can beoffered.and when well established
should prevail and acquit.
The weight to be given an alibi. I
reeat, is solely a question for the j iry,
who should examine all the evidence
i low-
"(.vim a exi.rii
J.Kl'll AMI l'v:t Nd :
Tbe 1 oii.-t is r.-t :i.
; the jury as matter t.t -..v
i I. That tbe d.-feiidat.:
tn-aring ujxin it with caution, and then ! i,in,K,.,t ,,f -i , r '.me v
m
if
on the ex ideuce of the alibi and the exi
denceof the whole case, giving the priso
ners the benefit of the doubt, if any ex
ists, determine the guilt or innocence of
the accused.
An eminent physician and surg-'on
bl-tiried as to the health and physi-.-al
condition of Lavid Xieely from the lima
he was isnpris med until now, and says
that as a physician, be is able U say that
tbe atiliciion is one that inu.st have exis
ted before the time of the offense, lie
tel's you the effect it has Uon him and
upon bis powers of work and endurance
; and the effect fast walkinz or running
i might have. The jury are to look at tiie
evidence of the doctor as that of an ex
pert in his calling, in connection w ith all
the evidence in the ease and give it such
weight as, in their opinion it should
have. You are not bound to act upon it
to the exclusion of other evidence, but
give ii just weight, land deteranine from all
the evidence in the case, whether I.-uvid
Nicely could or could not have leen at
chargx!. and this -ri.i n ; !
in. til it is oxertbrr.wn t y i
if the ' '.nmonwraitb v-1
j;llilt of the defendant y-'t
doul t. Albrnnd.
'2. That a reasoiiah'e .: -'-'
case whicii after tbe in: re .
riH:ideru:on of all tb- ex :
minds of the jurors in t!...t
they cai not say they l-.i nu
i lion to a morai certai'i'y
ehan-'e. Atlirmed.
3. That the charge in ti- -dtfttvdonls
are utility t.f ti. '
degne. tliel'omnwinwea - h
ri-;id comp.iam-e with ti.. r'i
of tbe accused must b-. j
reasonable doubt, and d
eoiHpurison of all the
there is reaonal.'e d..-::.t - f
ilefendanl", then they u'1-' "
quittal. Atlinnul.
i 4. That it is the !.; "
wealth in this c-ar-e t.. ni.i-..' 1
j tial feature of the criti.- .n
fndan:s are ib-ir'd. a'.-!
nriw.f lievund a rca-ott.i - '
the place t the time, as one. of the per- j lis tie" ,,. .- ,,I: r i
t-etrators of the homicide. The persons Kyt tliat ihed. f-n-l
who testified were all oinpetent witness-1 coniniiittd tlieern.e. :.
es under our laws. Tbe defendants are ' all tbe evidence in t! e
made competent by statute. The credi-j ia a reasonable di.nbt "I l:
bili'y of the witness is for you alone, the crime by tbe ,d
!t.
3
It
it
P:
f
tb