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