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StLett ipttu.
[From the Elevator.]
EAILTELLY LOVE.
=
A diamond fell from the crystal sky
And nestled on a rose,
And many a hue of gorgeous dye
Did its liquid light disclose.
But the summer morning's fervent sun
Now envied me that light,
And long o'er half his raco was run
It faded fiom my sight.
And back to heaven the brilliant gem
Had fled in one short hour,
And for the loss of its diadem
All withered was that flower.
So love once lit upon my heart,
And painted future days
With colors brighter far than art,
With its golden, rainbow rays.
But fate, o'er onviotu3 of our joy,
That comes so pure from heaven,
Took back that gem, without alloy,
And left my heart all riven.
„Out
THE LAWYER'S STORY.
A TALE OF THE MURRELL TIMES.
"Your story of Mr. Roberts," said Mill
ward, "brings to my mind a strange transac
tion that I witnessed upon the same river.—
It was not very long after the crusade against
professional gamblers had been prosecuted
so vigorous in all the lower towns, and the
scamps no longer carried so high a hand as
they had done. It was not over safe to at
tract the attention of officers or passengers
by plucking their pigeons too incautiously,
except, perhaps, upon such boats as were
owned by gamblers, of which indeed there
were more than one.
" I was descending the river in the old
Thunderer, one of the finest boats that I have
ever seen. She met with a shocking fate the
next year, being destroyed by fire, and of her
passengers, numbering nearly three hundred,
but few escaped.
"My room-mate was a very bright young
fellow, a New Yorker, out upon a collecting
tour for his employers, and, as a game of eu
chre, that I played with him for amusement,
convinced me, a very skillful and honorable
and gentlemanly player.
"He was returning to Now Orleans with a
considerable sum of money that he had col
lected for the house he was attached to in
New York, and I thought it proper to give
him a word of warning about playing for
money at all, especially with strangers on
board of a steamboat.
"He, however, laughed at my caution, said
that this was not his first Southern trip that
when last winter he went up the river, he
fell in with a gambler who seemed to have
taken a fancy to him, and who appeared to
know all the principal tricks and marks of
cards.
"He added, that as to these tricks, he had
not the dexterity required to play them off,
nor would he do so if he had, but yet was
able to detect them in a moment; and that,
playing a straight forward, open game him
self, with plenty of money and unflinching
nerve, he had always the advantage of gam
blers—so much of their attention being taken
up by stocking the cards, and when their
plans were defeated, being always annoyed
and thrown off from their play.
"He farther said, that against the gam
blers he entertained a particular spite, as his
brother, some years since, had been nearly
ruined by them, when on a business trip
similar to his own ; and that, although ho
never sought a game of poker, he also but
seldom declined it.
"I still urged upon him the great danger
to which he exposed himself, but he laughed
at my advice, and...finally called my attention
to three persons then in the cabin, who, he
said, he was morally certain, came on board
for no other purpose than to bleed him ; and
he added, they shall have the chance.
"Of course, there was nothing more -to be
said by me, and before night he had gently
slipped into the sporting gentlemen's net—as
they supposed—and was playing a quiet game
with moderate stakes.
I watched the game very closely. It was
evident that, although rappat'ently playing
each for himself, it was a joint business, af
ter all, among the chavaliers d'industrie; and
after the game had lasted for a couple of
hours or so, when the betting ran at all high,
there was but one hand opposed to my room
mate in any one deal, and that one proved
the strongest of the three.
For some time after the commencment of
the play, the gamblers evidently intended
that their pigeon should win ; but they need
not have taken the trouble, for win he did
and would. As he said, he had nerve enough
for anything ; plenty of money, knew when
to press his play, and when, from the run of
cards against him, to keep in shore.
Presently one of the gamblers proposed to
go to the bar and procure a new pack of
cards.
"Do you suppose that I am going to run
any game on you, sir ?" demanded the gam
bler, in the ancient pistal style.
"No, was the quiet reply ; I KNOW you are
not."
After this there were no more attempts at
careless playing. The three did their best,
but continued to lose.
Supper time drew - near, and the game was
necessarily - discontinued for a time. The three
went forward, but I kept my eye upon them,
and observed the party assembled on the hur
ricane deck, at the stern Of the boat, evident
ly engaged in animated conversation.
Of this I informed my friend, and advised
him to break of the game where ho was; but
no, he would not hear a word of quitting,
them or frightening them off.
After supper they went at it again with a
$1 50
1 50
ITI
3 00
WILLIAM LEWIS,
VOL XIV.
much higher ante, and the betting propor
tionally increased. Many of the passengers
were assembled around the table, watching
the game with interest, and evidently to the
great annoyance of the sporting gentlemen,
who made as many remarks and hinted quite
as broadly as they dared about intrusion; but,
as I remarked before, their day of rule was
over, and they dared not, upon any ordinary
occasion, exhibit the insolence, which, backed
by their ever ready weapons, had made them
feared, dreaded, and too often submitted to,
upon the river boats.
Among the spectators was a tall, portly
gentleman, of a very dignified and command
ing appearance, who, after intently watch
ing the gams for some time, gave me a quiet
hint that he had something to communicate
to me, in private, and then walked out upon
the guards of the boat.
"Is that young man, a friend of yours ?"
asked he.
I told him all I knew of him, in a few
words.
"Well, sir," said -he, "it's a bad business
that he is engaged in ; yet he seems to be a
fine, honest fellow, plays fairly, and, I think
the best game of poker I have ever seen ; but
he is playing with three of the greatest scoun
drels unhung. THEY do not know ME, I
think I do THEM, and it will be a black day
to the rascals when I find them ashore in my
State. They will play him some cantrip yet,
mark my words ; there is nothing that they
are not up to ; and even if his purse escape
their clutches to-night, and there is no other
way of fingering his money, they will rob
him if allowed to remain on board the boat;
but that I will see to. Have you enough in
terest in the young man to remain by the ta
ble with me as long as they continue to play?"
I replied that I had.
"Are you armed ?" asked he.
A case of pistols in my state-room, answer
ed I.
"Get them, then," said he, "and meet me
at the table in a few minutes. I wish to
speak to the captain and clerk." °
For half an hour longer, this game went
on as usual ; but, at last, one of the gamblers
whose turn it was to deal, dropped the cards
upon the floor, and, as I was very sure, chan
ged them for another pack, probably kept
under his handkerchief which was in his lap.
My dignified friend gave me a look, and then
placed himself in such a position that the
gambler could not remove or conceal the first
pack, without being seen, if it were indeed
beneath the handkerchief, as I supposed.
This manoeuvre had not escaped the notice
of my acute friend, who chose to let it pass
for the moment, not intending to bet on any
hand, however good it might be, that ho
should hold this deal, as he afterwards told
me. The most determined man, however,
cannot always resist temptation.
As he took up his cards, I saw them—he
had four aces (an invincible) dealt to him,
as I thought at the time, by mistake, but the
after betting puzzled me.
They had been playing for an ante of
ten dollars, each putting up the whole pool
in turn ; the oldest hand had to put up a
a " blind" of fifty dollars, and it was my
friend's first say. He " saw" the blind—
that is, he laid down one hundred dollars,
and then bet two hundred " better"—a cap
ital play, and one very likely to be mistaken
by his opponents for a " bluff." The next
hand " passed," and then drew his card—
the dealer " saw" the bet, and also bet two
hundred dollars "better."
Now, it was the oldest hand's turn, he
had passed the first "say" by "going blind."
He did, not " make his blind good," but
threw up his hand, and the contest was be
tween the New Yorker and the gambler.—
At this juncture, you will perceive, there
were on the table seven hundred and ten
dollars, and it was the New Yorker's turn.—
He appeared in deep thought for a moment,
examined his hand, studied it, took a pocket
book, and not finding what he wanted, un
buttoned his vest, and, after some time,
pulled out a money belt, and took from it
several bills.
"I will cover your bet, and bet you a thous
and and forty-five more," said he at last, cool
as a cucumber.
" And what is the forty-five for ?" asked
Legs.
" If you "se.e" my bet, it will make even
money," answered New York.
It was now the gambler's chance, and
seemed very much excited, and his compan
ions particularly figety; he drew a roll of
bills from his pocket, then asked his right
hand man for the tobacco ; it was handed
to him under the table, and then he made
his bet.
"I believe you're bluffing me, boss, and
have a good mind to call you," said he, "but
I won't. Here, I'll "see" your bet, and go
five hundred more."
The game was becoming very exciting, and
at this moment I saw my dignified new ac
quaintance give a slight nod to the clerk of
the boat, and the latter walked out upon the
guards.
New York was counting his money. "See
your five hundred and go another thousand,"
said he,.laying down three bills of the United
States Bank.
Legs examined the money, looked very
critically at the pile of bills the New Yorker
had by his side, which were seemingly of
small amount, took a critical survey of the
money belt, consulted his companion's eyes,
and then said with a hateful sneer:—
"Well, here's your thousand, and that
makes six thousand on the table. Nice little
sum, most enough to open a snug, quiet, little
bank at New Orleans ; but here is five thous
and better."
" Hold on, hold on, stranger I" cried New
York, " you over-size my pile ; must have a
show for my money, you know."
" The d-1 you must," retorted Legs—" If
you back down, say so, and then, if you are
flat-footed, I'll lend you a stake to start on.—
If you don't dare to call me, say so, and don't
whine like a puppy or a baby, but give up
like a man."
The Now Yorker turned very pale, raised
his' eyes to the surrounding crowd, as if to
ask whether they deemed this fair play, then
pretended to examine the money in the pool,
but did not reply.
" Quit handling them shinplasters, hoss,
it's no ways likely to trouble your pockets ;
and just call me, or I'll rake down the pile,"
growled out Legs, in an excessively insolent
manner. • -
"One moment, sir," interrupted my new
friend. " Here, sir," throwing a pocket
book to the New Yorker, " call him if you
wish."
Up jumped the three gamblers, pistols
in hand ; but before either could grasp the
money, they were seized behind by three
stalwart fellows, and then the swearing com
menced.
" This game shall be played out, noise or
no noise. Open my pocket book, sir, and
use the money as you please. Mate gag
those fellows if they swear another oath,"
said the portly gentleman, in the tone of one
born to command.
New York opened the book, found the
requisite amount, placed it on the table, and
then called.
" Call! do you ? Do you think outsiders
can come around, looking at our hands, in-
terfering with my game, and lending you
money ? No, sir-ee, hoss," yelled out the
gambler.
"Will you divide the money, then ?" asked
the gentleman.
"Not a bit of it. It's mine, and I'll have
every red cent of it but your five thousand,"
replied Legs. " Say, strangers, (addressing
the spectators,) can't you see this is a put
up thing—and these two gamblers here are
trying to rob a gentleman ? Are you going
to stand it ?"
" Turn over their hands," said the gen
tleman, paying no attention to the other's
words.
The cards were faced ; New York had
four aces ; Legs had two jacks, king, queen
and ten.
" Pretty hand, that last, to bet eight thous
and on," remarked the gentleman.
"Bloody robbery," yelled out the gambler,
" but I'll have justice when. I get to Or
leans.
" You shall, sir, and before too; and when
you make your complaint, tell Mr. Baldwin
that you were robbed by the Governor of
this State, sir ; and if I had you ashore, you
should have an opportunity of complaining
that you expected to be murdered also, on
short notice—for, as I live, if I ever do catch
you there, you will be handed over to the
Safety Committee before you can turn up a
Jack, smart as you are at it. We have been
looking for you three gentlemen for the past
year, and if you had been found anywhere
on the left bank of the river, we should have
had you rotting in prison, with your friend
Murrell, long ere this, or, more probably,
dangling from a blackjack, with your cronies,
Cotton and Saunders.
" Captain continued ho, address
ing the commander of the boat, who had
just made his appearance on the scene, " is
there any island about here that it would pay
to colonize ?"
" Just exactly the very place," returned
the Captain. " We're right above Dead
Man's Island—going into the chute now, sir."
"No inhabitants, I believe," demanded
the governor.
" None sir, but rattlesnakes, moccasions
and mosquetoes. Shall I land them there
sir ?"
" Yes, with a week's supply of bread, not
one drop of liquor. Take their weapons
away, and any tools of their trade that they
may have about them ; and if they have any
letters or papers on their persons, let the
clerk seal them up and deliver - them to Mr.
Baldwin with my compliments. Adieu, gen
tlemen," continued he addressing the gam
blers, as the mate and his men were taking
them off, gagged and bound; "you will find
your baggage and traps at the Recorder's
Office, when you arrive at New Orleans."
" And now, sir, (to the New Yorker,) you
may return my loan ; and I might advise, I
think you had better present the large sum
you have just won to the orphan asylum,
when you arrive ; and also, if you will ex
cuse friendly advice, let cards alone for the
future, at least among strangers and steam
boat travellers."
" I feel truly grateful to you, sir," replied
my young friend. " The money shall be dis
posed of as•you suggested, and I have done
with games of chance for life."
And now, Uncle Billy and Mr. Sam Slick,
I should'like to ask, if for a quilt little ad
venture, this is not a match for any of your
card-playing experience ?
1101 V COFFEE CAME TO EE USED.-At the
time Columbus discovered America, coffee
had never been known or used. It only
grew in Arabia and Upper Ethiopia. The
discovery of its use as a drink, is ascribed
to the Superior of a monastery in Arabia,
who, desirous of preventing the monks from
sleeping at their nocturnal services, made
them drink the infusion of coffee, upon the
report of some shepards, who observed that
their flocks were more lively after browsing
on the fruit of that plant. Its reputation
rapidly spread through the adjacent coun
tries,- and in about two hundred years it
reached Paris. A single plant, brought in
1641, became the parent stock of all coffee
plantations in the West Indies. The extent
of consumption can now hardly be realized.
The United States alone, annually consume
at the cost of its landing, from fourteen to
fifteen millions of dollars. You may know
the Arabia or Mocha, the best coffee, by its
small bean and dark color. The Java and
East India, the next quality, is a larger bean
and of yellow color. The West India Rio
has a blue, greenish, gray tint.
"fi The ugliest trades," said Jerrold,
" have their moments of pleasure. Now if
I were a grave digger , or even a hangman,
there are some people I could work for with
a great deal of enjoyment." •
• AEV2' You cannot manufacture a conscience
out of. expediency.
par A fine coat may cover a fool, but nev
er conceal one.
-PE'RSEVERE.--
HUNTINGDON, P
~ MAY 4, 1859.
Going the Entire Porker
Old Levi Allen used to go tin peddling in
his younger days, at which business he ac
cumulated quite a fortune, before he was
seven-and-twenty. The neighbors of the bor
ough where he finally settled, as the propri
etor of a pretty farm, would often insinuate
that Allen had not been any too honest in
gathering together his riches, and such was
,the fact. A fellow sinner has since revealed
some of the old man's youthful short comings
and over goings, and there was one "dodge '
of his so original that it is worth a mention.
It was this :
Wherever our dealer in tin ware chanced
to put up for the night, he was pretty sure
to make his way to the best bed in the house.
From this bed he would take a bag full of
feathers, fetching in a bag from the cart for
that purpose, and contrive to smuggle out the
same and get it stowed in his "kit" before
any one was stirring. This proceeding, giv
ing him several pounds of good geese feath
ers every day, did not a little towards swel
ling the profits of his business, and we are
assured that it was only one of many similar
practices in which he indulged.
On one occasion Allen slept in 'a bed which
was very scanty—a diminutive bed, a bed of
few feathers, but all it contained were " live
geese," and unusually good at that. The
speculative tin ware merchant thought it
would be rather small business to take away
feathers from a case containing so few—in
short, that his only sensible mode of proce
dure was to take the entire bed. Ile accor
dingly rose before the sun, and commenced
shoving it out of the rear window, with the
intention to go down on account of "that'ere
colic," and stow it away before any one was
"up." But as ill luck would have it, the host
had arisen, and was out under the window
gathering some light chips and fuel for the
morning fire, and when he saw the bed "loom
ing up" in such an unnatural position, and
just ready to fall to the ground, he cried out
to the pedlar:
" Halloa there, stranger! what are you do
ing ?"
The astonished "operator" saw that he was
caught in the act, but his ready wit helped
him out.
" Doing ?" he rejoined, with a look full of
wrath, as he thrust his head out and took a
survey of the field, ." I guess some of these
infernal bed bugs will soon find out what I
am about—havn't slept a wink all night !"
With this, he "let" the bed out of the win
dow, and went down to the wood pile, from
whence he took a club, and gave the bed such
a beating therewith, as would have been fatal
to any sort of "creeping thing" ensconsced
therein. Ho then took it back to his room,
and looked so "darned honest" at breakfast,
that the host didn't charge him but half price
for his lodgings, and took it all in "tin."
A. Pen Picture, Faithful and Acceptable
to All
From one of a series of "Rustic" sketches
in the Erie (Pa.) Observer, we glean the fol
lowing:
The Poet Gray once said, "I have discov
ered a thing very little known, which is, that
in one's whole life one can never have more
than a single mother."
I said to a young artist once, in allusion to
the kiss that Benj. West, when a boy, re
ceived from his mother, for his picture of the
baby, " Sir, your mother ought to kiss you."
"I have no mother !" said he, and the emo
tion that filled his voice revealed the true
man. No mother Badly off is he whose
mother cares not for• him—still worse off is
he, who cares not for his mother.
Can a mother forget ? Not a morning,
noon or night but she looks into the corner
of the kitchen where you read Robinson Cru
soe, and thinks of you as yet a boy. Moth
ers rarely become conscious that their chil
dren are grown out of their childhood. They
think of them, advise them, write to them,
as if not full fourteen years of age. They
cannot forget the child. Three times a day
she thinks who are absent from the table, and
hopes that next year, at farthest, she may
have "just her own family there"—and if
you are there, look out for the fat limb of a
fried chicken, and that coffee, which none
but everybody's own mother can make. Did
Hannah forget Samuel ? A short sentence
full of household history, and running over
with genuine mother love, is tellingly bauti
ful. "Moreover, his mother made him a lit
tle coat, and brought it to him from year to
year, when she came up with her husband to
the yearly sacrifice."
A mother mourning at her first born's
grave, or closing the dying eye of child after
child, displays a grief whose very sacredness
is sublime. But bitterer, heavier than the
death stroke, is the desperation of a son who
rushes over a mother's crushed heart, into
vices, which he would hide even from the
abandoned and the vile.
Napoleon once asked a lady what France
needed for the education of her youth, and
the short, profound reply was "Morunas!"
ANECDOTE OF FRANKLIN.—When quite a
youth he went to London, entered a printing
office, and inquired if he could get employ
ment as a printer.
"Where are you from?" enquired the fore
man.
"America," was the reply.
"Ah," said the foreman, " seeking work
as a printer ! Well, do you understand the
art of printing? Can you set type ?"
Franklin stepped to one of the cases, and
in a very brief space set up the following
passage from the first chapter of the Gospel
of St. John. " Nathaniel saith unto him,
can any good thing come out of Nazareth ?
Philip saith unto him, come and see."
It was done so quickly, so accurately, and
contained a delicate reproof so appropriate
and powerful, that it at once gave him stand
ing and character with all in the office.
Dar" Pooh I pooh 1" said a wife to her
expiring husband, as he strove to utter a few
parting words, "don't stop to talk, but go on
with your dying."
Ae?''The pleasure of doing good. is the only
one that never wears out.
', • ~ - 411
JUDGE CRAWFORD'S CIIARGE TO TUE JURY
Gentlemen of the Jury. The court is ask
ed to give to the Jury certain instructions,
whether on the part of the United States or
on the part of the defence.
The first instruction asked for by the Uni
ted States is in these words: If the jury be
lieve, from the evidence in this whole cause,
that the prisoner on the day named in the
indictment, and in the county of Washing
ton aforesaid, killed the said Philip Barton
Key, by discharging at, against, and into the
body of him, the said Philip Barton Key, a
pistol or pistols loaded with gulitowder and
ball, thereby giving him a mortal wound or
wounds, and that such killing was the wilful
and intentional act of the prisoner, and was
induced by the belief that the said deceased
had seduced his (the prisoner's) wife ; and
on some day or days, or for any period, defi
nite or indefinite, prior to the day of such
killing, had adulterous intercourse with the
said wife, and that the prisoner was not pro
voked. to such killing by any assault or offer
of violence then used and there made by the
decease upon or against him, then such wil
ful and intentional killing, if found by the
jury, upon all the facts and circumstances '
given in the evidence, is murder. But such
killing cannot be found to have been wilful
and intentional in the sense of this instruc
tion, if it shall have been proven to the sat
isfaction of the jury upon the whole evidence
aforesaid, that the prisoner was in fact insane
at the time of such killing.
The instruction embodies the law of this
case on the particular branch of it to which
it relates, and is granted, with some explan
atory remarks as to insanity, with a refer
ence to which the prayer closes.
A great English Judge has said on the
trial of Oxford, who shot at the Queen of
England, 9 Carrington and Paine's Reports,
p. 533, " That if the prisoner was laboring
under ' some controlling disease,'" which
was "In truth the acting power within him
which he could not resist, then he will not be
responsible."
And again: " The question is, whether he
was laboring under that species of insanity
which satisfies you that he was quite una
ware of the nature, character, and conse
quence of the act he was committing; in
other words, whether he was under the in
fluence of a de'ceased mind, and was really
unconscious at the time ho was committing
act, that it was a crime." " A man is not
to be excused from responsibilty, if he has
capacity and reason sufficient to enable him
to distinguish between right and wrong, as
to the particular act he is doing--a knowl
edge and consciousness that the act he is
doing is wrong and criminal, and will sub
ject him to punishment. In order to be re
sponsible, he must have sufficient power of
memory to recollect the relation in which he
stands to others, and in which others stand
to him ; that the act he is doing is contrary
to the plain dictates of justice and right, in
jurious to others, and a violation of the dic
tates of duty." "On the contrary, although
he may be laboring under a partial insanity,
if he still understands the nature and char
acter of his act, and its consequences; if he
has a knowledge that it is wrong and crimi
nal, and a mental power sufficient to apply
that knowledge to his own case, and to know
that if he does the act he will do wrong and
receive punishment, such partial insanity is
not sufficient to exempt him from responsi
bility for criminal acts." 7 Metcalfe's Re
ports, p. 501 to 503.
The second and third instructions asked
for by the United States will be answered to
gether. They are in these words :
"If the jury believe from the evidence
that the deceased was killed by the prisoner
by a leaden bullet, discharged from a pistol,
such killing implies malice in the law, and is
murder.
" That the burden of rebutting the pre
sumption of malice, by showing circumstances
of alleviation, excuse, or justification, rests
on the prisoner, and it is incumbent ou him
to make out such circumstances to the satis
faction of the jury, unless they arise out of
the evidence produced against him."
Both these instructions are granted.
The fourth instruction asked for by the
United States is in these words : " That
every person is presumed to be of sound
mind until the contrary is proved, and the
burden of rebutting this presumption rests
on the prisoner." - This prayer of the United
States is answered by prayer' eleven of the
defence.
The fifth instruction asked by the United
States is in these words : " If the jury be
lieve, from the evidence, that the deceased,
previous to the day of his death, had adul
terous intercourse with the wife of the pris
oner ; and further, that the deceased on the
day of his death, shortly before the prisoner
loft the house, made a signal, inviting to a
further act or acts of adultery, which said
signals, or a portion of them, wore seen by
the prisoner, and that, influenced by such
provocation, the prisoner took the life of the
deceased, such provocation does not justify
the act, or reduce such killing from murder
to manslaughter."
Such, the court thinks, is the law, and
grants the instruction.
Now we come to those asked on the part
of the defence, the first of which is in these
words : " There is no presumption of malice
in this case, if any proof of ex
cuse or justification' arises out of the evidenee
for the prosecution."
There is, gentlemen, a legal presumption
of malice in every deliberate killing, and the
burden of repelling it is on the slayer, unless
evidence of alleviation, mitigation, excuse,
or justification arises out of the evidence
adduced against him. The alleviation, miti
gation, excuse, or justification must be such
as the law prescribes, and within the limits
already laid down in the instructions given
you.
The second instruction asked for by the de
fence is : "The existence of malice is not pre
Editor and Proprietor.
Verdict Not Guilty.
WASIIINGTON, April 26, 1859
sumable in this case if, on any rational theo
ry consistent with all the evidence, the hom
icide was either justifiable, excusable, or an
act of manslaughter." The answer to the
first prayer will be taken in connection with
this response to prayer No. 2. If, upon any
course of reasoning, consistent with all the evi
dence, "and the law, as laid down by you to
the court," and the rules by which it is as
certained, what is the legal provocation, what
is the justification or excuse, you should come
to the conclusion that there was such justifi
cation or excuse, or that the homicide was
manslaughter, then the presumption of mal
ice, which every killing of a human being in
volves is met. You will recollect that man
slaughter is the killing of a man without
The third prayer on the part of the defence
is, "If, on the whole evidence presented by
the prosecution, there is any rational hypoth
esis consistent with the conclusion that the
homicide was justifiable or excusable, the de
fendant cannot be convicted." The answer
given to prayer number two, is an answer to
that.
NO, 45.
The fourth prayer is : "If the jury believe
that Mr. Sickles, when the homicide occurred,
intended to kill Mr. Key, he cannot be con
victed of manslaughter." This instruction
the court declines to give. Manslaughter
may exist, and most frequently does exist,
where the slayer intended to destroy life,but
under circumstances which reduce tht, of
fence.
The fifth prayer is in these words : "It is
for the jury to determine, under all the cir
cumstances of the case, whether the act charg
ed upon Mr. Sickles is murder or justifiable
homicide." Neither can this instruction be
granted. To the jury belongs the decision
Of matters of fact; to the court, the decision
of matters of law, which it is the duty of the
jury to receive from the court, and, from the
evidence and the law applied to the facts, it
is the province and legal right of the jury to
return a general verdict of guilty or not guil
ty of murder or manslaughter.
The sixth instruction for the defence : "If
the jury find that Mr. Sickles killed Mr. Key
while the latter was in criminal intercourse
with the wife of the former, Mr. Sickles can
not be convicted of either murder or man
slaughter." If this prayer refers to actual
(existing at the moment) adulterous inter
course with the wife of the prisoner, the slay
ing of the deceased would be manslaughter.
And by existing adultery, I do not mean that
the prisoner stood by and witnessed the fact
of adultery progressing, for it is easy to sup
pose the actual fact to be established simul
taneously with the killing by other evidence,
in perfect consistence with the law ; if, for
instance, the husband saw the adulterer leave
the bed of the wife, or shot him while trying
to escape from his chamber. If, however, a
day, or a half a day intervened between the
conviction of the husband of the guilt of his
wife and deceased, and after the lapse of such
time, he take the life of the deceased, the law
considers that it was done deliberately, and
declares that it is murder. Vide Jarboe's
case.
The seventh and eighth instructions can
be answered together. They are as follows :
"If, from the whole evidence, the jury be
lieve that Mr. Sickles committed the act, at
the' time of doing so, was under the influence
of a diseased mind, and was really unconsci
ous that he was committing a crime, he is
not in law guilty of murder.
"If the jury believe that, from any predis- ,
posing cause, the prisoner's mind was im
paired, and at the time of killing Mr. Key,
he became, or was mentally incapable of
governing himself in reference to Mr. Key,
as the debauchee of his wife, and at the time
of his committing said act was, by reason of
such cause, unconscious that he was commit
ting a crime as to said Mr. Key, he is not
guilty of any offence whatever. (Day's case
pamphlet, page 17)" The instructions asked
by both these prayers are granted.
The ninth reads thus : "It is for the jury
to say what was the state of the prisoner's
mind as to the capacity to decide upon the
criminality of the particular act in question
—the homicide—at the moment it occurred."
To this prayer the court responds thus "It
is for the jury to say what was the state of
Mr. Sickles' mind as to the capacity to de
cide upon the criminality of the homicide,
receiving the law as given to them in relation
to the degree of insanity, whether it will or
will not excuse, they, the jury, findinm the
fact of the existence or non-existence of such
degree of insanity." The rest of this prayer
is, "and what was the condition of the part
ties respectively as to being armed or not at
the same moment. These are open questions
for the jury, as are any other questions that
may arise upon the consideration of the evi
dence, the whole of which is to be taken in
view by the jury." So much of the instruc
tions as I have now read I grant without qual
ification.
The tenth prayer reads thus : "The law
does not require that the insanity which ab
solves from crime should exist or any defi
nite period, but only that it exist at the mo
ment when the act occurred with which the.
accused stands charged." The instruction
granted. The time when the insanity is to
operate is the moment when the crime charg
ed upon the party was committed, if commit
ted at all.
The eleventh and last instruction asked
reads this way : "If the jury have any doubt
as to the case, either in reference to the hom
icide for the question of sanity, Mr. Sickles
should be acquitted," This instruction as I
mentioned; in reference to prayer No. 4 of the
United States, will be answered in conjunc
tion with it. It reads in this way : "That
every person is presumed to be of sound mind
until the contrary is proved, and the bur
den of rebutting this presumption rests on
the prisoner."
It does not appear to be questioned that if
a doubt is entertained by the jury the prison
er is to have the benefit of it.
As to the sanity or insanity of the prisoner
at the moment of committing the act charged,.
it is agreed by the United States that every
man being presumed to be sano, this pre
sumption must be overcome by evidence sat
isfactory to the jury that he was insane when
the act was done. This is not the first time
this inquiry has engaged my attention. The
point was made and decided at the June term,.
1858, in the case of the United States vs. Dev
lins, when the court gave the following opin
ion, which I read from my notes of the trial :
"This prayer is based on the idea that the
jury must be satisfied beyond all reasonable
doubt, of the insanity of the party for whom
that defence is set up, precisely as the United
States are bound to prove the guilt of a de
fendant to warrant a conviction. l.
. I am well
aware, and it has appeared on this argument,.
that it has been held by a court of high rank
and reputation, that there must be a prepon
derance of evidence in favor of the defence
of insanity to overcome the presumption or
the law that every killing is murder. And.
that the same court has said that if their is
an equilibrium, including, I suppose, the pre"
Gumption. mentioned, of evidence, the pre,