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OLUMIS 7 .
I WOULD BATHER BE BIGHT THAN. PRESIDENT: Hmbt Clay.
EBENSBUftG, PA., THURSDAY, JANUARY J. 1800.
: : ! 7
TSRilS:3'00 pER AMSUM,
' ' .QO IN ADVANCE.
NUMBER 13:
7HE GORE HOMICIDE CASE.
a Al. . w . a
Qore ana tuunci uoninion
i ...So . ec. Term, isro.
tit Cowt of Oyer and Terminer of Cambria
Countyuon. uto. Taylor, Jr. J.
CHARGE OF THE COURT.
The trisDner at the bar. John Gore.
ho is indicted with Charles Robinson for
. murder of Edward Holmes, on ar
gument demanded, as he had a right
do, a separate trial : and you have been
. : ..i ; l 1- -
torn to try me issue juiueu, uu iubk.c
ae deliverance between him and the
mmonwealth, according to the evidence.
0 fa if renmres tit the hands of this
1
Y;t, and of you, gentlemen, the dis-
ge of the moit solemn and responsible
7 ever
fe issue
i to the prisoner, and to the public
lehigh obligations under which we act,
lODiy oe discharged by a hrm perform
x ot our respective duties, in the ex-
t 1 A. 1 J 111 1
::-e 01 our uesi judgment, wuaout ai-
I L 3 1
mug ourselves to qo swervea oy preju-
ce oa the one hand, or sympathy on tte
fter; and without regard to consequences,
f which we will then not be respon
se, and over which we have no control.
a must take tor our guidance the law
cast upon a court and iurv.
is of momentous importance.
it is, and the evidence in tne cause,
chout undertaking to make or mould,
it is not our province to do, the one or
a other, to our own views, or prejudices,
sympathies, it is our outy to state to
i the law, and to indicate the questions
your decision, which arise on its ap-
Mtion. it is your duty to apply the
( as you receive it from the court, to
facts iu evidence, as you have received
;ifrom the witnesses, and so make up
:t-eraiet. we proceed, then, to cum-
:it case to yov.
'larder is the unlawful killing of any
ziu beine, with malice aforethought.
T!ss or implied.
Kalice, which is an essential element,
k distinguishing ingredient in murder,
u legal sense, as distinguished from
poDular sense of the word, doe3 not
a soito or malevolence aeainst the
o
Jsed iu particular, but that the fact
oeen attended with such circumstances
re the ordinary symptoms of a wicked,
rtved, and malignant spirit ; a heart
irdleis of social duty, and fatally bent
n mischief. It :s wickedness of heart,
oipting to tho commission of cruel and
iiful acts, in view, and regardless, of
consequences. It is either express or
malice is when the killing is
J.iri it
unrt-iiue, ucnoerate mina, ana iorm-
sign, manifested by external circum
pes, such as previous threats or men
p,v former qrucges, and concerted
pises to do the nartv bodilv harm
malice means, that the
been attended with such circum-
acw as carry with them the plain in-
fJUUnH oi a WICKPd nnrt mi Airn n
fit. The law imnlies mHff in owrv
tiibetaie, cruel act committed by one
"ou i?ainst another, however sudden.
ii uniawim killing, especially with a
Fy weapon, is, therefore, murder, un
?it be fihovn to be a less offence.
is murder at common law ; and
' murder la Pennsylvania. Our
"J law has not added any new ingre-
nS Ottttrn"tahed anv new dpfinit.Jnn. of
f cniae What was murder at common
F still murder. But. our statute law.
aa purpose of more int r,u,tiahmant
nguishes between a.ffof r
'Clous hcmicide. and ,V,t.;
murder ot tha fir,t j j r.t.
aceofrt? ttl deWin the lan-
ed in the A;;"vi Are-
Vrt . Vl lQe l8t March
dfclibenitA 7 l J , JCIDd of wl-
rauon nr """-u m tno per-
roo.ran,, ,u r Frpeirate, any
T . 1
been, that , whenever there plainly appears
to have been a formed design, or specific
intent, however suddenly formed, to take
life, it is murder of the first degree,
When such design, or intent to kill, is not
shewn beyond a reasonable doubt, or
when there is a reasonable doubt whether
the murderer, at the time the mortal
wound was inflicted, intended anything
more than to do great bodily harm, it is
murder in the second degree. A homi
cide may be, and frequently b, murder,
when there ia no intent to kill. If done
with malice it is murder. To determine
whether the crime is murder, the question
is, was: it malicious?.; To determine
whether a homicide with malice, which ia
murder, in a case like this, is a murder of
the first or second degree, is a question of
intention ; and, the test-inquiry is, did the
prisoner, at the time, deliberately aim at
life and intend to kill?
A response to this inquiry mast be
given by the jury, from all the evidence.
Such deliberation and design may be
shewn, and it is for the Commonwealth
always to make it out beyond a reasonable
doubt, by express evidence of such de
sign, or by conduct and circumstances
which necessarily imply it. It may be an
inevitable inference from the weapon used,
and the manner of its use. ' If. for exam
ple, one deliberately aim and discharge a
loaded pistol at the head or breast of an
other; or if, with deliberate aim, he
cleave the skull with an axe, it could not,
ordinarily, admit of a moment's doubt,
that he intended to kill; for such would
be the natural, if not the almost certain
result; and every one, in the exercise of
his natural faculties, it is reasonable to
conclude, contemplates the u.ual result of
his acts. The design may also be proven
by other evidence ; such as the deliberate
preparation of a deadly weapon, specific
threats, and the like. And, if the party
had time to deliberate and form such de
sign, though but tor a minute, and
(ilQ
P or lezal
ins of
in
Other!..-J .
i ma r fr t . . -
ier ; fr; "l er shall be deemed
any
ree; and the jury
person indicted for
K.. Z -
i r -u
between the two desrees nf
Tf ia nnf
. "Will he lreA ;r ,
a Person .: ,' ' " incJ nna
ore(nKJ'rk",;.,.,, oe ttUraer of the
-.vu ucgree."
kU uuij ui iurv.
'oiaato
Mr :. ..
: veraic 11 u not dif&.
hi' "cognize the murders ot
Emitted i Ti.J in3 tn waU
Uleu in the nurnnt...:.. -c
SpreH r&1ry. These
iLT'J declared to be tmtA in
'iT'- .But more difficulty has
o eterminmo' wWi. r
' is ; i j v yvwet a particular
lZ Sd?de II the description,
mJw,aJ rul, deliberate, and
xJr"? Thb Pt"aeology
to tWDS-aeSree of deliberation
"dicated in the defined
r,ruer perpetrated bv mean nf
3 n" . "V
S sol ' rJrwd bJ Chief Justice
judicial construction ha
so, it is a wilful, deliberate, and premedita-
lea muing, ana muraer ot tne Urst degree.
This has been the uniform construction
of the statute; and, with the report of
. L - . - ., .
iue commissioners to revise tne penal code
before them, that "no attempt had been
made to interfere with the law of murder
as it had existed since the act of 1794,
C aI 1 1 i . 1
iit iue reasoa mat it naa Deen " so
thoroughly considered, and its construc
tion and its meaning so entirely settled
by a long course of judicial decision " the
Legislature, in 1860, adopted, without
the change ot a word, the old statute.
A homicide, indicted as murder, may
oe reaucca to manslaughter, by evidence
which rebuts the legal presumption of
mance ; or to no oaence at all. by evi-
aence snowing it to be justifiable or ex
cusable.
Manslaughter is the unlawful kill.
another without malice. This ia
the distinction between murder and man
slaughter: the one is an unlawful killing
with, and the other without malice. The
latter is a killing which usually happens
in a sudden heat and quarrel, and uron a
sudden provocation. The law, from ten
derness to human infirmity, considers a
homicide committed ic passion, and upon
what it judges sufficient provocation, as
committed without malice, andtherefore
only manslaughter. Passion, without
sufficient provocation at the time inciting
it, is not sufficient. Passion, without pro
vocation, is malice. And provocation,
such as will avail for the purpose, has a
defined legal signification. No breach of
a man's word, no trespass to his lands or
goods, no insult by words, no matter how
provoking or insulting tbey may be, will
free a party killing from the guilt of mur
der. And this is especially true where
the party killing upon such provocation,
makes use of a deadly weapon.
This is the law of homicide, so far as it
is necessary to state it, at least at present,
in this case; and wo now turn to the evi
dence to which the law is to be applied.'
Introductory to the statement of the
questions to be determmea in this . case,
we recur to tne general tacts in evidence
immediately connected with the death of
Edward Holmes, which is averred in the
indictment as having- been- maliciously
caused by the prisoner and Charles Rob
inson, jointly indicted with him. In this
brief general summary, your recollection
will supply omissions of details in the ev-
dence calculated to throw any light upon
the whole transaction, and the questions
arising in the case.
It seems from the evidence, that about
the 29th of August, or a , day or two be
foro the shooting of the deceased, a war
rant was issued by Justice McKee against
the prisoner and others on the informa
tion of William Palmer, Esq., for larceny.
It was directed to Constable Davis, but
was put into the hands of R. P. Linton,
also a constable, who made an unsuccessful
attempt to execute it, the prisoner eluding
him and effecting his escape. He then,
as he testifies, gave the warrant to Edward
Holmes (the deceased) and Joseph Oster,
polisemen of the borough of. Johnstown,
and who, he says, agreed to execute it.
He does not remember to which of them lie
gave it they were together at the time
but he says he saw Holmes have it the
next morning, the day of the fatal occur
rence. : i
On that day, the 30th, about, 8 or 9
o'clock, according to the testimony of
Henry Chambers, John Grore,' the priso
ner, Charles RctSnson, and. another,. en
tered his shop to get shaved ; and while
there, Holmes, the deceased, entered, and
attempted to arrest Gore, "He' walked
up to him, put his hand upon him as
Chambers testifies, "and with that Robin
son struck him two or three times, and iu
the scuffle Gore got awy." . The parties
got out on the pavement, where the priso
ner attempted to strike Holmes, and felL
Holmes then, io defence, drew a pistol,
when his assailant desisted, and he soon
afterwards left.
Holmes, - it appears, went . and made
complaint against Robinson to William
Orr, the Burgess, who, as he testifies, is
sued a warrant against Robinson for re
sisting Holmes in the discharge of his
duty aa an officer; and about 11 o'clock,
ho further testifies he met Holmes and
Oster on the street, going, as they said,
to arrest Gore and Robinson, and he told
them' they were at Fend's saloon. ' Gore
and Robinson had, in the meantime, as
the evidence shows, after the transaction
at the barber's shop, gone to Patton's shop
and provided themselves with ' clubs, ut
tering threats against Holmes, and after
wards to Mr7 Swank's "hardware stored
where Gore purchased a revolver, and
there loaded two of the barrels himself,
and got Mr. Swank to load the others.. :
They proceeded: very soon afterwards,
as it would seem, to Fend's cellar. There
is some discrepancy, as might reasonably
be expected: in the testimony of the wit
nesses, detailing what there occurred, at
the time of the shooting. You will re
concile the statements of the witnesses, if
you can, and from all the evidence upon
this part ot the case, ascertain if you can
the true facts of the transaction. Gore
and Robinson had gone in, and were eat
ing oysters when the policemen entered.
Holmes, according to all the witnesses,
approached Robinson to arrest him, or to
arrest both, -as it was differently under
stood, and differently stated, by the wit
nesses. Violent opposition to "being ar
rested .was manifested, particularly by
Robinson, who was soon observed to be in
a scuffle or conflict with Holmes, in which
Gore approached and. participated. Very
soon afterwards, .tfore, the prisoner, was
seen to step back four to six feet, and
point a pistol at the breast of Holmes,
and nre. Holmes bent or stooped down,
or staggered, struck the stove, knocking
it down, passed up the steps, and through
the entry to the back part of Fend's pre
mises, where Dr. Lowman, when called,
found him. He lingered till the 22d of
oeptember, when he died.
The first general inquiry in the cause,
is, was the death of Holmes caused by
tho shot fired . by this prisoner ? This
question- ot tact, which is here contro
verted, lies at the very foundation of the
case. It is met at the very threshold of
inquiry, and mu3t be determined at the
very outset. It the death was not. and
is not plainly shown to have been, the re
sult ot the shot, there was no homicide :
the body of the crime has not been pro
ven ; and uoDody can be convicted. , And
it is for the Commonwealth to prove this
material fact beyond a reasonable doubt;
xi it nas Deen so proven, tne remaining
general inquiry is, what is the prisoner s
crime l . .
Was the death pf Holmes the result or
consequence of the wound inflicted by the
prisoner? Dr. Lowman, who was called
to see Holmes immediately after he was
shot, attended him during his illness, and
who made the post-mortem examination of
the body, expresse3 the belief that it was ;
and Dr. Sheridan, who witnessed the ex
amination, is of the same opinion. He
noticed the facts in the condition of the
body, mentioned by Dr. Lowman, and
upon which he based his opinion, and
states that it was his belief at the time,
and still is, that they were results of tbe
wound, and, together, the cause ot death.
On the part of the prisoner, Dr. Hart-
well and Dr. A. Ycagfey, were called and
examined, expressing opinions on some
questions: in the science of medicine or
surgery somewhat at variance with the
expressed opinions of tbe professional
witnesses of the Commonwealth ; but it
is oDservaDie that: neitner ot tnem nas
ventured to express the opinion that the
death did result from any other cause
than the conditions proven by Dr. Low-
man and Dr. Sheridan to exist, and which
is traced by them to: the pistol shot.
Neither of them saw tho body examined.
The question is not, what might,' possibly,
have occasioned the death, but what did
do it. Dr. Yeagley also testifies, or re
marks, in calling your attention to the
whole evidence on this subject, that with
in some short space of time, he had treat
ed the deceased for syphilis, and that
shortly before his death he had intermit
tent fever. Dr.' Lowman, however, states
that : on his examination of the body, he
found no evidence of secondary syphilis,
and that the diseased condition of the or
gans found to exist, and which together
caused. .the death, could not have been
producedby a recent attack of fever and
ague. : ; - - '. ' "'"' ;
. But, we will not , elaborate this point.
We merely call your attention to the promi
nent factS jin" evidence bearing upon it.
The deceased, up' to the time' he; was
wounded, . had . been in - apparently good
health .moving about attending t to : his
business. ',' Dr. .'Lowman J a . few. minutes
afterwards : found : him - with a. wound on
' TIMI u
the breast where the ball had entered,
w.uvui. o.ujr puiae m me wrist, Dallied in
cold perspiration, breathing with much
difficulty, and apparently dying, a result
which would usually and:naturally be ex
pected to follow such a wound in that
part' of the body. He - rallied a little
shortly' afterwards, and the doctor ordered
him to be taken to his house, where he
visited him every day,' except one, genera
ally twice a day, until his death. At first
he vomited' blood, which led to the con
clusion that the stomach had been pene
trated; but the course of the ball, and
the work it had done, could only be judg
ed of by symptoms. As death did not
soon follow, hope was entertained by his
friends, and even oy his physician, that
he might recover ; bat the symptoms af
terwards became more and more unfavor
able, aod he lingered in a low and weak
state, until the 22nd of September,' when
he died, -about three weeks' after receiv
ing the wound. It was disclosed upon
an examination of the body a : few-hours
after death,' that the ball had entered the
epigastric region about an inch to the left
of the centre line, and opposite the 7th
rib, had touched without penetrating part
of the stomach, which was found to be in
a highly inflamed state, part of it gan
grenous, touched the spleen which was
found to bo very large aud softened, and
passed through the left lobe of the liver.
A quantity of coagulated or disorganized
blood was found in the abdominal cavity,
and a large abscess in the liver, where the
ball had passed through, containing from
8 to 10 fluid ounces of pus. No further
search, in its course, was made for the
ball, which had lodged in the body, as it
was judged unnecessary,; and were dan
.gerous, to do so. These were results, such
as might reasonably be expected to follow
such a : wound in that vital region ; and
were sufficient, in the opinion of the phy
sicians who made and witnessed the ex
amination, to cause death ; while, it was
also disclosed that he had evidently been
a man in pretty good health, and no other
cause of death could be discovered. The
conclusion of Dr. Lowman and Dr. Sheri
dan, therefore, was, that it had been caused
by the wound ; and what other conclusion
could they have formed ? But you,' gen
tlemen, will determine this question - for
yourselves..: J.1 you have a reasonable
doubt upon this question, the prisoner is
entitled to the benefit of it. If you have
not, the remaining inquiry is, what is his
crimo i
If it is made clear that the deceased
was killed by the prisoner, it is not claim
ed that it was, or could be, a justifiable
1 - . J Tl - .
uoimciue. was, in any view oi it, an
unlawful killing, and, in legal presump
tion, murder, unless there is something
disclosed, and to be found in tbe evidence.
to reout tne presumption ot malice. Be
sides, there is evidence tendiug strongly
to show, and which, it is agreed on the
part of the Commonwealth, does show,
express malice. . And thete are but two
aspects of the case in - which the killing
might be only manslaughter.
The prisoner's counsel, in the point
submitted, assuming that Holmes was at
tempting to arrest him 1 and Robinson
without authority, ask us to instruct you
that he was so lar justifiable in resisting
that he would only be guilty of man
slaughter, or of murder on proof of express
malice. We cannot affirm these points in
the terms iu which they are stated. It is
true, if one undertakes to arrest without
authority, he is a trespasser, and the at
tempt may be lawfully resisted ; and, if a
sudden conflict ensues, in which, upon the
excitement and provocation of the occa
sion, the wrongdoer is killed, it is only
manslaughter, it is our opinion, also,
that Burgess Orr had no right to issue a
warrant, for the misdemeanor of resisting
an officer, and that Holmes had no author
ity, either by virtue of the warrant, or the
order giveu by Mr. Orr at the time, to
arrest Robinson. ' - You will judge whether
he had or had not authority, to arrest the
prisoner. Assuming that iiolmes was
attempting to arrest Gore, this prisoner,
without authority, or that he was at
tempting to arrest Robinson alone without
authority, and that Gore joined in the
conflict to assist Robinson, and that after
he received a blow from. Holmes, as testi
fied by Biershank, (who is not,, however,
corroborated in this by the other witnes
ses,) he, excited by that provocation, fired
the shot,, and death ensued, iu either
case it would only be manslaughter, unless
there should be found proof of express
malice. -In any one of these supposed
cases, it would have to appear that the
killing, to be manslaughter, was prompted
at the time ; by the sudden provocation ;
for, if the evidence shew that the deadly
weapon used had been previously and de
liberately provided for that purpose, and
the fatal use of it previously contemplated
and purposed, as this would be proof of
express malice, the killing would be mur
der; that is, an , unlawful-killing with
malice. " " J . ' :
You will decide the question of "fact
whether Holmes' was attempting to arrest
the prisoner, as well as Robinson, as some
of the witnesses state, and had legal au
thority to arrest him, known to him (Gore)
at the time. If so, there was no provoca
tion which would extenuate: the killing to
manslaughter, even leaving out of view
all tbe evidence of express malice. It will
be. remembered that a warrant had been
issued against the prisoner for larceny;
and that an attempt to execute it by Con.
stable Linton had been baffled : that this
warrant was afterwards put in the hands
of the policemen to execute, and was seen
by Mr. Linton in the hands of Holmes
that morning, and was, it would seem, in
his hands when he attempted to arrest the'
prisoner that morning at the barber-shop,
when Robinson rescued him. If Holmes
had that, warrant, ho had authority to ex
ecute it; and, if tbe prisoner knew, in apj
way, that he had it, his resistance was an
unlawful act. :A policeman, or even a
private person,' may lawfully arrest upon a
warrant for a felony. Does the evideuce,
or does it not, shew that Holmes bad such
a warrant, and that he was attempting, in
Fend's saloon, to arrest this prisoner as
well as Robinson 1 and does it, or does it
not, shew that the prisoner knew this
and does it, or does it uot, shew, that, in
any aspect of the case, the shooting was
with MALICE? i
We refer you, as tending to shew all
this," to the testimony of Mr. Linton ;
the evidence of what occurred ac the barber-shop,
when the prisoner was arrested
by Holmes, and rescued by Robinson ;
of the procuring of the clubs at Patton's
shop, and thei threat there male by the
prisoner, that ho would buy a pistol and
shoot Holmes;- of the attempt to procure
a billy by Robinson at Swank's, and the
buying of the pistol there at tbe same
time, and loading, or getting it loaded, by
this prisoner ; of tho apparent concert
between this prisoner and Robinson in
Fend's cellar, before the commencement
of the conflict ; the testimony of Esquire
iraimer, upon wnose lnlormation the war
rant for larceny had been issued, 'that the
prisoner, after the shooting, called to hiui
on the street, "Palmer, where are vour
police officers now t ' adding:, with an
oath, "all the police officers you have in
Johnstown can't arrest me; I don't regard
them;" and threatening profauely to
"attend to his case alter a while ;" to the
testimony of John Ash com, that the pris
oner afterwards stated to him that he had
shot Holmes, and holding up his revolver,
said, "aud there's the barrel I shot him
with, -adding, "I'll shoot any other sou
of a bitch that coes to arrest me :" -
the testimony of Joseph Alwine, that
Gore told him he had shot Holmes, that
"pe was going to shoot turn in the breast,
but missed, and shot him in the leg;"
and to the testimony of Win. Dysert that
the prisoner, When told by some one at
the lock-up that Holmes was dead, justi
fied the deed, saying that "Holmes had
been abusing him ever since he returned
from the army serving his country' aud
declaring "if the people knew what was
between him and Holmes, they would say
he Wa9 right he deserved to be shot."
: If, we repeat, the prisoner shot and
killed the. deceased when attempting to
arrest him on the warrant issued by Jus
tice McKee, knowing at the time the
authority under which the deceased was
acting, the killing was murder. If that
was not the case, -but you find that the
deceased was shot in an illegal attempt to
arrest the prisoner, or if you believe that
the killing happened in an attempt to ar
rest Robinson alone, and under the prov
ocation of a blow from tbe deceased, if
would be manslaughter, if there be not
plain proof of express malice. Rut if, in
any aspect of the case, the shooting wa
preconcerted and premeditated, it would
still be, and was, and is, murder. The
questions of fact it is for you to decide.
We have stated to you the only aspects of
the case in which the prisoner would be
only guilty of manslaughter. If you have
reasonable doubt upon this part of the
case, the prisoner is entitled to the benefit
of that doubt.
If your minds ara free from all doubt
here, and you find the prisoner guilty of
murder, the remaining inquiry is, and it
is your duty to ascertain and find in your
verdict, whether it is murder of the first
or of the second degree. We have already
explained to you the distinction, in a case
like this, between the two degroes of
murder. Every malicious homicide is to
be regarded as simply murder, or murder
of the second degree, unless it is plainly
shewn to be of a class which the statute
declares to be of the first decree ; and it
is for the Commonwealth always to shew
this beyond a reasonable doubt. If it is
shewn to have been committed "by meaus
of poison, or "lying-in wait, or "in the
perpetration or attempt to perpetrate any
rape, arson, burglary, or robbery," it is
shewn to be of the first decree. Where.
as in this case, it is not classed or included
with those specified and defined, but is al-
eged, as here, to be included and described
in the statute as "any other kind of tcilful,
deliberate, and premeditated killing,"
whether it is of the first or second degree,
is, as we have seen, a question ot inten
tion. Did the prisoner, at the time , the
fatal" shot was fired, deliberately aim at
life, and intend to kill? 11 he did, no
matter how suddenly the purpose may
have been formed, it was, upon; the well
settled construction of the Act of Assem
bly, a "wilful, deliberate, and premedita
ted killing," and murder of the first de
gree ; while, if such intention at the lime
is no clearly shown, or is left in doubt,
the crime is to "be deemed murder of the
second; degree."; j t :
Tbe evidence here is that the prisoner
deliberately procured the pistol, a deadly
weapoc, with, the .declared purpose,' as
testified by David -Patton and others, of
shooting Holmes ; that he aimed with ap
parent deliberation at a part of the body,
where the wound would be likely to prove
mortal at the breastas testified to by
Riershank, -corroborated by Fulton,' and"
afterwards admitted by the prisoner to'
Joseph Alwine,-when, as. that .witness
testifies, he said "ho was going to ehooa
him. in the breast, but missed, and shot
him in the leg;" and that he afterwards
justified the deed, impliedly confessing
that he had done it upon a grudge or-ia
revenge, when, as William Dysart testi
fies, he stated that Holme had been abu
sing him since he returned from the aruiv'
and declared that "if' the people knew
what was between them, they would' say
ho was right he deserved to be shot."
All this, it is urged on the part of the
Commonwealth, shows, not only that, he
purposed and intended to take the life of
Holmes when he fired the pistol, but that
it was premeditated, and done in revenue
and that it was, therefore, a wilful,-deliberate,
and premeditated killing, and uiut.
der of the first degree. . ; ,
For the prisoner, upon this question, it
is argued that he was at the time, and for
some days, in a state of intoxication ; that
he was so at the timo of making th 3 threats
proven against him,-which it ia further
argued were drunken bravado, aod all
made in the course of a few hours, and all
made, as well as his subsequent declara
tions, under excitement, and when he was
not in a condition to form and execute a
deliberate purpose to kill, or fully appre
ciate what he had done. And further,
that his threat was to "shoot," and that
it is not clear of doubt, in view of his ex
cited sondition, that: he intended more
than to wound or cripple. - And it is 'fur
ther argued in his behalf, that he did not
repeat the shot, when he saw no fatal ef
feet immediately follow it, and did not'at
ienipt to discharge any ono of the other
five loads in the pistol, as it is argued he
would have done,, when he saw Holme
pass out of the salooj, if he intended ut
the time, having it in his power, to kill
him. ' : -
Drunkenness, at the time of its' com
mission, is not allowed by the law either
to justify or excuse crime. The degree
of excitement under which a party, acts,
either from intoxication or any other
cause, is, however, we agree, properly for
the consideration of the jury, when the
question, as here, relates to tbe intention
with which a criminal aet was committed;
and so, gentlemen, the evidence upon "this '
subject, is properly for your consideration,
with all tho other evidence upon this cart
ot tho -case: in rnrnlpnimr hi nmn;,.
threats and subsequent admission, and in
determining the intention with whinh hn
fired the shot. It would Feom frrm th
testimony, that the prisoner was at tho
time, and for eonie davs had been Print
ing, aud was at the time, to some extent.
intoxicated. To what extent, .it is not so
easy to determine from the tcstimnnv rf
the witnesses, who are not at all aroerl n
their statements upon the "subject.0 Some
ot tnern represent mm aa quito drunk-;
others, ts under the influence of liquor,
but not so much so that he . did not seeux
to k'noff and understand what he was do
ing, it seems that he fell upon the street,
after ho left tho cellar. ; Refore that, ' ha
seemed to be actios out a purpose, which
he expressed, in Patton's shop ; and at
Swark's : and is described as ftiri vrltU
apparent deliberation in the cellar, wheu
eating oysters, and shortly before, and at
the time of the unfortunate conflict. But,
without detaining you longer with any
comments of ours upon it, we eommend to
your careful aud deliberate consideration,
the evidence upon this, point, and the
whale case.
It only remains for us to giva a formal
answer; to the poiuts submitted by ; the
prisoner's counsel, and which have been
all substantially answered in our general
char-re. ' '
fThe court here read, and answered,
the points of tbe prisoner's counsel.
And nDw, gentlemen, having stated and
explained to you. the law. applicable to
this ca?e in any and every aspect ot it,
and indicated the questions arisiog in it
for your declsiou, we have performed our
duty. It now becomes your duty - to-decide
the important questions involved in
the issue. We trust that we have been
intelligible, as we have desired to be, upou
every question ; so that a tedious recapit
ulatiou is unnecessary.:' '
r Was the deaths of Edward Holmes
caused by the shot fired by this prisoner ?
If it was, is the prisoner guilty of murder
or manslaughter ? If guilty of murder,
is it murder of the first, or of the second
degree ? '
It is your solemn and responsible duty
to answer. The result muse seriously af
fect the most important interests of tho
prisoner and the public. - Rut while we
say to you that it is your duty to give tho
prisoner the benefit of any reasonabla
doubt where we have instructed you he is
entitled to the benefit of it, we. remind
you here, as we Btated in the outset, that
your duty will be discharged, and only
discharged, by divestiDg yourselves pf any
conscious sympathy or -prejudice which
might influence your decisions, and by
resting your verdict " upon your uubiascd
judgment, formed just as you would form
that judgmeut upon any other suoject of
i!
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