COLUMBIA D12KOC!KAT I havo sworn upon the Altar of Cod, eternal hostility to every form of Tyrauny oTcr the Mind of Man. Thomas Jefferson. PRINTED AND PUBLISHED BY JOHN S. INGHAM AND FRANKLIN S. MILLS. Volume I. RkOOMSBURG, COLUMBIA COUNTY, PA. SATURDAY, FEBRUARY 10, 1838. NunVber 49. Tail CHAKGEIOF THE COURT IN TIIK TRIAL OK In the Oyer and Terminer for Columbia county, January Term, 1838, Judge LElPlS delivered thtlfollowing charge to the Jury. GnNTi,EMi:.v of the Jury : Thomas T, Poke, tho prisoner at the bar, is charged with the crime of. murder. The indictment charges him with the murder of John Doi noil by sinking him upon the head with an axe on. the 25th of November, 1837. To this indictment the prisoner has placed upon tiie record the plea of " not Guilty," and has put himself upon his coun try for trial. You arc that country, and it is for you, after you have heard the neces sary insttuctions from the court upon mat ters of law, to determine upon his guilt or innocence. If he should be found guiity of .murder of the first degree his punishment is death. It is therefore of immense impor tance that wo should give the case our most careful and solemn deliberation in orderthat we may arrive at a correct conclusion. We must guard against'tho commission of any "errors which we may never have it in our power to recall or correct. It is said that uti excitement prevails in regard to this trial. Where tho life of a fellow being has been suddenly taken away and a charge of murder is made, the sympathies of the people become enlisted and an excitement is usually produced. But it is not known, nor is it proper to bo known, whether this feeling is for or against the prisoner. It is to have no influence on your minds what ever. The solemn obligations you have severally taken require you to pay no re gard to any other considerations than those nrrisinjj from the law and the evidence in the case. There Js no 'icason to believe that there is any other feeling abroad than a natural desire to see justice administered according to law in a case so solemnly in teresting to the prisoner and the public. It has been slated in the opening that we arc answerable at the bar of public opinion and at the bar of God for the manner in which we discharge our respective duties on this occasion. Public opinion, on a proper occasion, is deserving of a most respectful consideration. But it is to have no influ ence whatever in this investigation. We arc to determine this case solely according to the evidence, and the laws of tho coun try, holding ourselves answerable only at the bar of that Omniscient Judge who judg es in righteousness as well as in mercy. Wc havo been aided in this trial rby able and efficient counsel. (Painfully as the prisoner's coun'seljmay feel tho'rcsponsibU itics which have fallen upon them, they may rest satisfied with the reflection that, whatover may be the result, they have dis charged their duty to the prisoner worthy of all praise. The learning and zeal which they displayed on the occasion in his be half fully acquit them of every obligation which they bwed to" their client. The commonwealth's counsel have, m a like manner, dischargo tho duties which they owed to the community with a zeal and hblility deserving of equally high commen dation. When wo owe an obligation it is proper 'to acknowledge it. It is all important, in bonsidoring this case, that there should be iio doubt in refcicnco to tho cause of John Dornell's death. Tho post mortem exam ination, skillfully conducted and clearly do- lailcd in evidence by Dr. Itusscl i'ark, Dr. -J. C. Murray and Dr. Win. McMahan, leaves no doubt on this subject. Tlioy found Upon examination a fracture in tho scull ex. tending from ono side abovo tho ear around tho back part of tho head to tho other side, of tho length of nino and a half inches, with a transverse fracturo extending three quarters of an inch from the large fracturo. They also found cxtravasatcd and coagula ted blood, between tho scull and the brain (I speak not of membranes, for they aro not material) in a mass of 3 or 4 inches in diametci and one inch deep. There were Other injuries apparent in the body of tho brain itself but the prcssuro of such a large mass of coagulated blood was sufficient, in tho opinion of these medical gentlemen, to produco death. On the correctness of this opinion there can bo no doubt ; and the court and jury as well as the community at large owe an obligation to theso gentlemen for placing tho facts in regard to this branch of tho case, before them with so much clearness that there can bo not danger of mistake. In proceeding to give the neces sary instructions upon the law of the case it is proper to apprise the jury that they are by the constitution in a caso of this kind tho judges of the law as well as of tho facts. It is the duty of tho court to instruct upon questions of law, but this instruction, al though onlitled to respectful consideration, is not absolutely binding in a criminal oasc. Tho jury may acquit contrary to the opin ion of tho court, and there is no power to set the verdict aside for that cause. But if they condemn contrary to the opinion of the court, it is in our power to grant relief by setting the verdict aside. This author ity was originally given to the jury in the country from which wo derive our laws, as a wholesome check upon the power and in fluenco of the crown, which was sometimes exerted in state prosccutibns to tho oppres siondfthc subject. Although there is no danger at present to be apprehended from this sourlc, still the power remains as al ready defined, with the jury, and wejeheet- fully recognise its cxistcneewithout any wish to withdraw it or encroach upon your rights and responsibilities in- this respect. It is a principle recognised in our law books that if the jury have reasonable doubts in regard to any question of law or fact arising in the cause, the prisoner is entitled to the benefit of these doubts, and those questions which the jury aro not satisfied, beyond all rational grounds of doubt, to de cidc against the prisoner, are, in accordance witli tho humane doctrine of tho common law, to be determined in his favour. On this Indictment it will be the duty of the jury to Uctcrmine and ascertain hi their verdict, in caso they find against the prison cr.whcther the crime of which they find him, guilty is murder of the first degree," "murder of the second degree," or "volun 't'ary manslaughter." In case they should be of opinion that ho is guilty of "involun lary manslaughter" only, it will then be their duty to.acquit him on the present in dictment, in order that he may be proceed cd against for tho latter ofl'encc. MURDER, by the common law, is "tho unlawful killing of another of malice afore thought." By our act of Assembly of the 22d of April, 1791, the crime is divided in to two degrees, Mulder of the First de gree is where the offence is perpetrated by means of poison, or by lying In wait, or in perpetrating, or in attempting to perpetrate any arson, inpe, robbery, or burglary, or ...I - .ll'-V., .,!., 1 uy any ouier wuyui, acuueraie, am pre meditated killing. This offence is punish. ablo with death. By tho samo act of As sembly, murder of the second degreo cm- braces "all bther kinds bf murder" to wit : all murder where there is no int'tntien to kill, but which happens in perpetrating other rraoNY than those enumerated in tho act of 170 1, or in tho deliberate perpetra tion of acts of cruelty or mischief which manifestly endaitgers life, or in their conse quence materially lead to bloodshed. This offence is punishable by solitary confine ment at labor in tho penitentiary. "Manslaughter is tho unlawful killing of another without malice, either expressed This rulo must lo understood with reference to tho caso under consideration, in which tho pro. vocation was sufficient to extenuate the criine't;to manslaughter provided tho patty was thcrchy de prived of deliberation. A caw may onso wheio thero is a want of deliberation arising from a pro vocation insufliciont in law to oxtcnuato tho oftenco to manslaughter, a In ti caso of it mere trowpasa upon landa or good or provoking worda without personal violence. When such a caso arisos its de cision will not bo nftectod by what U hero given as tho general rulo embracing casos of murder in tho second dgrco. or implied; which may be cither voluntary upon a sudden heat, or involuntary but in the commission of some unlawful act" un der tho degree of felony. It is only with oluntary manslaughter that the jury have any thing to do in tho present Indictment. With involuntary manslaughter they have nothing to do at present further than to ac quit if the prisoner is guilty of no higher offence Beforo we proceed to inquire whether tho prisoner is guilty of either of the offence charged in the indictment, it is proper to ascertain if he has any available ground bf defence. After hearing the evidence in re gard to the blow inflicted by tho prisoner upon the head of the deceased, with an axe, and the evidence of the three gentlemen who conducted tho post mortem examina tion, the prisoner's counsel very candidly and Very properly admitted that the blow was given by the prisoner, and that it cau sed the death of the deceased. Is there any substantial grounds of defence resting upon the principles of self-protection? Jus tifiablc self-defence is whem a man at tempts by violence or surprise to commit a known felony upon the person, habitation or property of another. In that case the individual whose rights arc thus assailed may, if he finds it necessary, to kill his as sailant in his own defence, and the act is perfectly justifiable in him. But on a sur vey of the evidence in this case wo find no indication of any felony having been at tempted by the deceased upon the person habitation or property of the prisoner. The court are unable to perceive any suffi cicnt defence arising out of this branch of the case. But if the prisoner is not per perfectly justifiable is he excusable, upon grounds of self-defence? The law has made a slight distinction between acts which are perfectly justifiable and thoic only excusa ble. At the present day if the prisoner is excused it amounts to the samo thing as being justified npon grounds ofself-dcfencc When there is an attack, under circumstan ces denoting an intention to take away life, or to do some enormous bodily harm, it is lawful for the party thus in danger to kill the assailant if all other means aro used o thcrwise tp prevent theinjiny or save the life of the party attacked. The means to be used in this case in order to avoid the alternative of taking the life of another in defence of your own, are such as retreating as far as possibly consistent with your own safety or disabling tho adversary without killing him if it be in your power. When the attack upon an individual is so sudden, fierce or violent as that a retreat would not diminish but increaso the danger, he may instantly kill his adversary without retrea ting at all. When from tho nature of the attack there is reasonable ground to believe there is a design to destroy life, or commit any felony upon his person, killing tho as sailant will be excusable humicide, although it should afterwards appear that no felony was intended. It is for the jury to decide whether the attack upon tho prisoner deno ted an intention to take away life or to do him some enormous bodily harm. If so, and ho had no other means of preventing the injury, or preserving himself, he is ex cusable, aiid ought in that caso to be acquit ted. In like manner, if the jury believe that tho attack was tnado under circumstan ces which induced the prisoner to believe that there was a design to destroy his life or to commit any felony upon his person, tho prisoner would bo excusable, although in reality no such injury or felony was in tended. It was for tho jury to decide whether any circumstaiiccs existed which presents a case of excusable homicide ac cording to the legal principles already laid down. Still the court will givo the jury tho benefit of their opinion on this question. Tho attack was inado without any weapon, and without any attending circumstances denoting an intention to take lifo qr do e normous bodily harm; and in tho opinion of tho court, did not excuse tho prisoner in tho use of a weapon so deadly as an axe. If tho prisoner is neither justified nor excused'm destroying tho lifo of the de ceased, of what offence is he guilty? It cannot bo said to bo involuntary man- slanghler where tho use of deadly weapon, as well as the manner of using it, strongly indicate an intention to kill. For the same reason, in the opinion of the court, tho pris oner cannot be convicted of murder in the second degree, which, we have already seen, is where there is no intention to hill. Still if tho jury believe that there was a deliberate design to inflict a grievous and dangerous wound, withou'tjtfsjjcaion or excuse, and without any design to kill, they may find the prisoner guilty of murder in the 2d degree. On this point, the court have already intimated their opinion thai the use of the axe and the manner of using it, sufficiently indicates an intention to kill, and if so, under the evidence in the cause, it is not a case of murder in the second de gree. If this view of the case bo correct the prisoner is guilty of either "murder in the ftrst degree" or "voluntary manslaugh ter" tho time depending, for its name and character, upon the finding of tho jury, on tho question whether the act was peipctra- ted with malice aforethought or without it, or in other words with deliberation or ivilhout it. If with deliberation , or with malice aforethought, it is murder in the first degree. If without deliberation or with malice aforethought it is voluntary manslaughter. It is alleged that this act was committed in pursuance of an old grudge of several years standing, and that the prisoner, at the lime ho killed the de ceased, was moved by tliat ancient hatred, and not by the sudden provocation which was given. If this be so, the crime is mur der in the first degree. In suppdrt of this allegation we have the testimony of John Armstrong, James Campbell, and Jamos McCarn, showing that a quarrel took place between the prisoner aud the deceased ih 1831, and that threats weie afterwards made by the prisoner against the deceased "provided the latter came through his enclo sure," or "insulted him again." But it is also in evidence, by the testimony of Free, man Poke, Wm. Sproul, David Eves, Sa rah Ann Sproul, and Wm; Wellivcr, that there was a ieconciliation between the par tics; that they were afterwards seen togoth. chatting upon friendly terms and that this good understanding continued between them even to tho middle of the very day on which this melancholy event took place. With this evidence to show it counterfeit, the act must not be presumed to havo been done upon the malice or threats expressed sever al vcars before. But it is alleged that the declarations of the prisoner, after the fact, sufficiently show that tho act was not done in a sudden pas sion, but upon deliberation. Mr. Justice Foster has boon cited to prove that hasty confessions made to persons having no au thority to receive them, aro the weakest and most suspicious of all evidence, often misunderstood and frequently misrepresen ted, through inattention ignorance, or ma lice. It Is certainly tnio that the hasty declarations of the prisoner should be exam ined with caro. But what are tho declar ations in this case? By tho testimony of John Kissner, it appears that tho prisoner, speaking of this transaction, declarc'd that ho "was in as good a humour as ho ever was." To Jacob W. Warner he said ho was "not angry at Domcll." To Caleb Thomas that ho was "not angry or mad," and to James Masters that he was not in a passion that he had nothing against the man that in a fright ho sprang from under Domcll, grabbed for something got the axo and struck without knowing what he had in his hand, It is the province of tho jury to decide upon the meaning of these declarations, and it is submitted to tho jury whether, when tho whole of tho prisoner's language is considered, it may not fairly be inforred that ho meant ho had no malice against the docoased, and that ho struck him on tho sudden spur of the occasion with. uut any previous mallco. It is the opinion of tho court that this is tho fair construction to be put upon tho prisoner's language Again Jacob Turner states that tho prisoner told him that his wife had "dis missed him as a murderer," and the priso ner added "I snpp'ose I am a murderer." It would be exceedingly unjust if a hasty declaration of the prisoner should give a character to his offence at variance with the conclusion of law upon the actual facts of the transaction as proved by witnesses wlio were present. The injustice of this would be more glaring in a case of this kind where, as the jury have seen, the learning of all the counsel has been called info requisition in order to fix a name for this offence, and that they have not yet fully agreed upon its namo and character". How then can an un learned man, like the prisoner, be expected, in a moment, to give it the appropriate ap pellation. If the fads of the case do not show it to be murder, the declarations of the prisoner afterwards will not make it so. As an illustration of this I will mention a case to the jury: A young man was carrying a the night and stabbed his adversary with a sum of money was attacked by a robber in pen knife so that he fell to the gronnd but was hot killed. Before the result of the injury was known, the individual who thus defended himself under circumstances not only commcndablo but justifiable, labored under the mistaken opinion that all killing was murder, and believed that this would be tho legal view to be taken of the act, if death should ensue. I can vouch for the facts of this case as well as for the mistaken notions entertained in regard to its charac ter, and the instance serves to show that we should judge of the character of every act, not from the opinions of those concern cd, but from the facts as they are provea by witnesses who where present What then are the facts of the case under corisid: ation? It is material to inquire whether there was more than one blow given by tho prisoner. If several blows Were given', it would bo evidence of less. Stephen Sproul, a small boy, is the only witness who testifies to several blows. He speaks of three. Tho jury will remember his ex treme youth and that when he was first call ed ho was unable to tell his own Sge or to give any information in regard to his know ledge of the obligation to speak tho truth, or of the nature of an oath. He was there fore rejected. After. an absence of somB lime, and after other witnesses had beeri examined, ho was again called and inquiry was again made of him whether ho knew the nature of an oath. To this he shook his head. He was then asked if he knew whero he would go if he did not speak the truth. He answered that ho would "go to the bad place," and on further inquiry said "that his father had taught him that long ago" He could give no reason, howeverj why he had not communicated this to the court when llo was first called. Under theso circumstances the court admitted hini as a witness leaving his credibility to tho 4- . V 1 .1 t It 'a jury. It is to oo rcmarKcct lariucr, mar before the Coroner's Inquest, ho desbnbed the three blows as having been given upon the back of the deceased. Now he states that one of the three was upon the head In opposition to the testimony of this little boy we have two witnesses who were pres ent at tho occurrence, botli of whorii aro of riper years. They say that there was but one blow given. It is truo that theie is a rule of law that where ono witness speaks positively to a fact observed by him, his testimony ontweigliSjSevcral witnesses who negative the fact so stated. But in this case there Is a question upon the credibility of the positive witness, arising from his watit of knowledge of his obligation to speak tho truth, and thero are also other consider ations arising from tho marks discovered upon tho bod', The physicians who made the examination, discovered no marks, of any blow but ono, and according to . thotr opinion thero was but ono blow, ot, if several, they must have been upon tho same spot. Under these circumstan ces the statement of the boy that there were
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