VOLUME i. JOHN B. ADLINGTON, FOR THE MURDER OF Sidney B. Cunningham COMMONWEALTH Jndi&ed us. > foi *• J. IJ. ADLINGTON, ) Homicide. TH ( DKSDAY, March 21, 1867. (CONTINUED.) Lewis Z Mitchel. fo« Cemmonwealth. 1 am sorry, very sorry, to bp called upon to say anything , after the yery eloquent remarks which have been made before this jury!' lie was glad the. >.sponsibit ity did not rest upon h'm to decide the case. His duty was to advocate vin dication of the laws of the Common wealth. Kingdoms, nations and dynas ties had been swept from the face of the earth, but God's word remained intact: "'•Whoso sheddeth man's blood, by man shall his blood pp shed." This was Tinging in our ears, at this day. "Thy brothel's blood oryeth from the ground uuto mo," and"l will require it at your hands." Tl* seals of justice were hold blindly, and uo outside sympathy could move tl/c beam. Stern facts must be weighed. If it were not so, you might tear clown the jvalls of the temples of justice, abolish your courts ; break down Ithe barriers which protect life, and let the rs a sin's knife riot in murder. Mr. Mitchell, spoke very eloquently in his opening. He then remarked upon cir cumstantial evidence. He said the de- Vbncp would have us believe that it must |be proved that the knife must be seen to enter the side ; must be seen to bi turn ed in the wound; niu.-f be reen with elrawn; before we could be called upon to convict. You mny see the lightning str.ke the oak and shiver it. hut unless you 3in see the streak all the way from the ebrid to ihe oak —trace it down the tree to the root;'yoti are not to conclude 112 that thy'lightnitjg shivered the tree 'IVc *nen were stricken down, and as ■"•,e)l remarked by the couusel for the do tVndant by the Same hand. They wtre cruelly, cowardly, dastardly murdered.— Shame on the cowardly mi n who were there, and puricipate iin it. It was a cowardly act. Who did it ? You, gen !! men, me the ■ iiserva» ns ul trie I w Kvciy i.. ■>! 4ii ibo Ootultii nwou-: wl u lie irii.is ty n.l al night, depends upon the rcrdict if jurors, tor tho security of his fife. He re erred to the attacks upon the witnesses by one of the defendant's counsel. They take ll'n ground in th first place, that it was John Oliver, Cal vin Weller aud Sidney Oliver, who per petrated the killing ; and next, that if it was defendant who struck the blow, it was done in defence ol John Oliver ( Ouv theory is that two men were killed at \hc house of John Oliver,on the 21tli of De ember ; that they were killed with a l.nite, and that it was defendant who done it. His opinion was '.hat Cuuniug h»:n> was killed at llie t'«ic he drew the Vnuir to strike Oli,ve,r ; but his ojiiiim went for nothing. 110 believed that 'I i epic leccived his death wouutl when 112 jilting wnli Oltvi v mid Shaffer. 'l'h y ' were killed. Who did il ? It was dons with a kni e, theie is n<i doubt about that. It was done in tJ..J room, and ■ they died of the wounds there and then received. It was done with a double edged knife. Science proved this. The doctor proved it. Who had the knife?— Can you.h«ve any ehubt that cicjj'eiidanl had such a knife.it September? It was desciibed by several witnesses, th*t de fendant had such a knife. The black smith proved that he made such knives —had them in his shop window—de lendant was sseri coming out of the shop with a knife, and if was a little i usly- Is not this a link in the chain ol circum stances? He carried it in his breast and in his boot. Had he the knife on the night of the murder ? Here we call in human testimony. Calvin Weller says ho saw the knii'o in defendant's hand on that night in the doqjr of the room ; he dcecNbtr d it—blade five or six inches long : doutde-edged ; side ol the blade toward him; itich and one-quarter broad in tlje blade. Rut the defendant's counsel say .elctJ.'t believe him, he is swearing the o from around his own neck. Now, we prove that Si 'ney Oli ver saw it in the hand of the defendant on- that night. He spoke of the meet ing of the defendant and Oliver and others, iu the evening- when a cocibina tion was formed l —when Oliver toll Ad lington not to bring hiis knifo, and he told him he had not dono so, —when Ol iver told Weller to put Etoues in bis pock et, and Sidney Oliver to.take a tumbler, and Ambrose to tnk'> a poker, and him self a revolver to bo used as a knuokter. This is the reason, why young Oliver would be more likely to sec the knife.— -He was in the sc jret or the ring; he knew of the coml ination. Adjourned till 2 p. m. AFTERNOON 828610N. Court met pursuant to adjournment.— Tire prisoner was bionght into 'Court by the Sheriff. 'I he jury were called over and ar£iverr,d to their N HUM L Z Mitchell, £M.,T Ml' Dion wcu.lt .o sunieo. — Mad ti e Deleu'laut i..e knife ? Did Calv : ,u Weller see it? Di 1 John L Jones sc cit ? Hid Sidney Oliver see it ? Did Mrs Adlington say', when the wit ness leaned over the bannisters and crio'i out, "John, John, dou't shoot." "Is ii. my John ?" was it the knife or a pistol which he had in his breast ? It is said, . that when one commits a crime "he is moved and instigated by the devil," who ig,.the father of liars May it not bo that the deleu'laut.,iiad stiuok the blow, v. \ :■ . i . •. « AMERICAN CITIZEN. lie ran to the kitchen; thrtkt Miss Camp bell aside and demand the knives; — "Damn it, where are the knives?"—was his exclamation —that he iptended to Lave it to say I ha 1 no knife, you cap not lav the murder to my charge. Did he say, "1 must hide this knife?," Was he talking to himself '/ Was his con science sni ting him whe i ho uttered these words ? W as he saying to himself, "ibuu can's' not'-hake thy gory locks at aie ?" Sidney Oliver told the Defend ant, before the pool of blood was dry upon the floor, that he W"uld have to swear tlra*, he had a knifo that evening Did the dependent use the knife? We have proved that he had keife befire this time, ml at this time lie then went on to show that he w*s in afa shion to use' it. They were stabbed with a knife. In the early part of the eveuing he was told uot to biing his knife. This connects him with the knife. It seemed to him that the evidence of Mrs. Wilson wasun. favorable to the defendant, and that it was probable Adlington got the knife when he went to tee the children. When Mrs Adlington cried out "Don't, John, for God sake John, don't let him !" Dbnlt let him do what ? This sentonce has never been finished. It was at this time the fatal blow was struck at Cun ninghaim It was when Oliver was pros trate on the floor, Adlington was beside Cunningham—then it was that ti.e b'ow was stiuck. descanted at length upon the evidence. John Jc'ees was a peace "maker ; wss one of whom it i- - said blessed aro the peace makers."— calls his atteation to another pert of the rcoui, and then rushes to the tight between Teeple and Oliver, knife's him, and raises the chair and strikes—as be says—Oliver by mistake. He conies te> Teeple, when he is jfros'.rate nnd bleed ing, and|grilids Lis bend beneath hishe.-l. Not once, nor twice, n r thrice, but rr peated it until he was forced back. Did he use the knife? If die did not, who did ueit ? Ilespfke tU leugth ou this branch of th* case; and then jverit onto chow that it waa used deliLe ately, pre in edit ate ly. He was neither struck tior insulted. It was u-ed if at all deliber ately. He would ba 112 Howe Iby his col league. lie wanted tlip jury to feci for the defendant's wife and chil hen, but he w isU#l the jury t > ;i;now that there were other teais i-li-d and to bo she'd in• Ihi c-i e Tlio nioilii is ai.d-ister-nf Temple and Ciuin.nu> u<i wnuhl ne> < yiimt i«' hold tl.e r AOII9 and t .oilier-. ill 'i'».t:n ha 1 gy.ic down m ilot Mr M.tche.l closuu w th a very eloquent i.pp al on he half of the bereaved relatives of deceas ed, and of the outraged in j sty of the law ; and humbly invoked the jury to give the prisoner a safe deliverance il in nocent. Mr. M'Juukin closed .for the Coinnnm wealth tie said he thought l.c sh uTd have done his eluty, by Mm ply sayii g tie I','iicu r?I 112 ully wth the i.be - 'go-- meiit t-t in.-, e ilie-iii.no ; tin tin wi- a tluiy Uevtiivmu ii| n bin wh cb l e inns perinrui, wlo-thur t< '<•• ulit wish t.■ :,v<mi it or not i iiv wio't wo ni'-u Mi nek down in ilie i , onti \ouiti, in >he til il,i 11 in i I'Le dvt« o,i,int fia> sat heoe tliioilgliout iho hoirid do' tsui.i id, this bloody tragedy, and his cold tdu-j eye has nuver qu,ii!-.'l nor moisten ed. II s lea'nlv- we're as C4,1u as his iiiurdeii us heart. 1 believe lie lias tlie mark ot a cold bl< O.djd murderer written U] I'll Jus bit w. He was knovn to cany a. knife—a hiTiid .builier knile —Hl bis t osotii and iu his boot; and none bu a man who was written all over with murder, would be in the habit of carrying a knife thus in a peaceable community. Mr. MoJunkin went oij to examine Ihe evidence and comment upon it; bu' as it was much in the same vein as that of his colleague, we shall u»-t pur sue him through this part of the case. If an assassin were ii that room seeking an oppoitunity to stab, when Would he have done it ? Why, when the chair was drawn by-Cunningham to strike 01 iver—when his eyes were hid Jen fnm him iiy the chair. Then it was that ha struck the fatul blow. He then crouched in the corner, until opportunity offered to stab Teeple. He wis uot sure that ho had struck Teeple to the-death ; he fol lowed him vp, and raised a chair to give him the fiuishiug blow; but by mistake, struck Oliver. Still Jie followed him up with bis murderous intent, and stamped him wheii lying helpless upon the flloor. It had been said that the defendant had been a soldier. So far us he upheld the honor of his country's flag 1 honor hiin ; but when he ured the ass-issms knife, he condemned hiui. Ho did not know but lie may have been the pet of the regiment; but he did not believe lis ever h,!»d ihe spirit of a true soldier; a good soldier would never strike a fallen foe. A brave soldiur would never strike a man behind his hack. Whose fault, he asked, was it that the disturbance commenced? They hnd apologized to Oliver ; had mingled in ihe dauee-; were silt ng guiet ly before the fire. There had talk between two of the Portcrsville' boys; and there can be little doubt something insulting was said about New Castle, which the quick ear of Cunni rghnm Caugh',auti I ho light instantly commenced. A gia nt real bail l.evn said* aliQut the Will' an . en id>- - ; Lpl he a.-or. b< mie l h« Oyui i w u.d v.l iliu jury. K 11 that ii.atte-1 lhey hijo liotl iug lo do il was not their fault if the defendant had placed them in this positiou He had no tears or him. If he had tears to shed, it would be for the widowed mother of the murdered uian. If justice and Hie law s.iy Uiis man is guilty, it will be y:ur duty to fiudjiini so; and then you will tiud. the degree of homicide. Ha des carted upou tlve weapon used ; the man j ner it wa- used ; t lie place (ihe lefi side); where the.liuife penetrated; all weutto "Let us have Faith that Right -makes Might; and in that Faith let us,Jo the end,dare to do our (My as wo understand jt"--A. LTWCOLN HUTLER, BUTLER COUNTY, PA., WEDNESDAY, APRFL 17, mi. show premeditation. It was not accident. It was not done in a passion. It was de litafafe, premeditated murder, lie did not slash about as a man in anger and sudden passion would have done, lie yas not i$ ifjiinent peril of his life; and. therefore, it could not have bccD done iu self-defence. The character of .the wounds precludes the ilea that it was done in self defence, or for the purpose cf protecting Jolm Oliver. The wounds were all on the left side—within an inch, of the- same spot, on both the murdered men. They were made secretly, ar,d with due deliberation. The defendant lias given himself the reputation of a fighting mm. This must bo taken as his reputation, w.ben the fact is consider ed that he had not offered a single wit ness to support his character for peace, liuiler ce.uii.ty and the whole country was open to him, yet he has not produced a single witness. He close Iby saying that the jury, if they believed the evidence, wou'd have lo find him'guilty of murder in the first degree, in manner and foriu . she stands indicted. CHARGE OF TIIK COURT. GE.NTI.KMEN OF TIJE J.CRX !*-We have now arrived at the point when it becomes the duty of the Court to sub mit this case, to which you have given j such painful attention during the last eleven days to the evidence, to you for your d^tCrmination and your verdict ac cotding to law and the evidence which, has Leeu laid i efore you. To.all concerned this case is of import-, ance To the prisoner it is most certain ly one of vast importance, for liis life hang* on the issue. To society, it is of j great importance, because the welfare of a community depends on the faithful and careful admtnistiationof justice, and t'uo punishment of offenders Jwhe'n crime is found to have Icen committed. And, gentlemen, it is ol nj 'ess importance to you who are acting in the discharge of a duty which you have solemnly sworn to ] peiform according to the and i tor the manner in which you shall dis charge that duty in view of your aecoun- ! tabili'y to your own consciences and to God. 1 lav : observed the patience which ' you hi stowed to this Lfng n-ial, and the i attention you have given to tli£ able and cVolient arguments of ti e counsel of the I art is who L::vo nddrCs-eil 5011, and I # :IIU sTiriff'i'tl hi >'ii Senile iufportai'icc I nt tin else tm 1 tJiY considerations I liave s ami that you will endeavor to do your w hole duty. This ease presents facts of a somewhat peculiar character. In tlie midst of hilayty and scenes of pleasure, two dig- j gi'irei-ful and hi rriblc homicides aro com- | initte.il in the san e hotel, with'n a brief HRa ci 112 tine 'I wn youug men, in the 1 nil etij'vmciit .of health are stricken lown 'vith a deadly weapon, and "hurri- ' eil hence to tha lar oft• o 1 to answer for ' tin' deeds done in the body." This gives I n's aii' lfier instance to adil to our belief th t ciinifls o! ihe higher character are 1 n the increase; and an utter disregard 112 b 11111:: 11 lite seems to pervade the eom louniti in which we li> T 6. You have before you a mm in middle life—with n fond and affectionate wife who clings to him in the hour of his trial; who are bles.'td in their-union with 1 -ix young children dependent upon their I father fir Uicir support and education | —suddenly brought to the bar ol ju-'icc j tn answer mi 1 ceiisation of the commis sion of 1 lie of the higlii st crimes known to the catalogue of offences. The tlc fet elnnt, John Ii Adlinglon is indicted, arid before y 111 for trial, for the murder of one of these tjtonicn—Sidney 15. Cun ningham; and is charged with having tuken his life < n the night of the 24th of December hut, in the hotel of John Oi \ iver, situate in the borough of Pirrtcrs- : viile, in this county, by mcansof wounds I inflicted with a knifo upon his left side. 1 which pioduceul death. And the Sur» geoo who made the examination of the wounds within a B'iort time from their infliction, testifies that "upon removing the clothing of ihe deceased, he found one on the left side of the body just in side anterior superior spinous ptoeens of the illium;" that the bowels of deceased protruded from the wyund-about 11S large as his fist ; that the wound jvas about one and a half inohos in breauto ; that t c bowel l ins not cut ; ; that lie replaced the bowel, and thou found another out high er up. on the same side, about the same width, and apparently made with the same knifo. ltr was between the seventh and eigth ribs,counting the number from above. He further says it corresponded with the 1 ther wound in size; that it was four and a half inches in an up waid and inward direction—penetrating 1110 left lung'. That he thdn found the man in a dying condition, with accult hemorrhage in the chistjthat be believed his death wascaused by liemori I the lung from the uppei wound; that this upper w u id, from its e'haias:cr. would uecessaii ly'be fatal; that the knife cut through the ci at, vestmdsh'rtof tliede ea e I; thitlhe wounds Were exactly alike iu their ex tremities, and would indicate that the knife hnd been a d iuhle edged one. The nature of fiio in-truuient u-ad, gentle iiicii. is gaeatly to be deduced from the wound iindl ; and ii is said in cuts or .-uUiii. the W 'ui.d will a_ r ree with in-tiu tneiit used, particularly it inflicted by a J,.g«er or 11 knife. Ist, Then, gentlemen, it becomes our duty to instruct you upou -the law as ap plicab'.o to this ca-c—to present to you lor your coosi delation, such position* as arise upou the evidence adduced : audit is your duly fo apply the law, as you may receive it from the C'Qurt, to the proof h-n're you as you have heard it froin tbo mouths of the witueases wiio may hnvc testified as well for the deliecd- ant as for the Compionwealth, aud to make up your verdict as you may be warranted therefYom, in view of the re sponsibility you have assumed a» jurops. The indictment contains two counts in which the defendant is charged 1 with murder, and .if the evidence warranfe, he may bo found guilty of murder of the first, or of the second degree, or of manslaughter, on this indictment. Murder, at common law, is the unlaw ful killing of any reasonable creature in being, in tlife peace of the Common wealth with malice aforethought, either express or implied. 'lbis definition is adopted in Pennsylvania; and our Leg islature, by an act of 22d April, 1791, provided punishment for the offence declaring and defining what shall b« con sidered murder in the first and seiond ' degrees and under this aet our courts had so well defined the offence, and it has been so well settled attteiiig the pro fession, as to induce the codifiers of our criminal law, in 1860, to retain it un changed, and the Legislature tore enact it without any modiScation whatever. — I will now read it to you : " All tnurder which shall be perpetra ted by •means of poison, or by lying in Wait, or by uny other kind of Wilful, de liberate and premeditated killing, or which shall be committed iu the perpetration of, or attempt to perpetrate any arson, rape, robbery or burnlary, shall »bo deemed murder of the firs degress and all oth er kinds of mfirder shall be deemed mur der ol the second degree ; and the jury befoie whom any murder shall be trn-d, shall, if tliey find siich person guilty thereof, aseeitain in their verdict wlieth er it In: murder of the first <-r second de greo ; but if such person shall be con "icted by confession, the Court shall pro cecd, by examination of witnesses, to de termine" the degree of the crime, and to give senteuee accordingly.'' It will be observed that all murderjwr petiateil in the attempt to commit the of fence of arson, rape robber;/, or burglary, w herein life iB taken intentionally or oth- 1 eiwise, in tlje oommission of either of these offences, is murder in the first de gree; and the Commonwealth is not bound to show 011 tho trial that it was the intention to take life; because, while in the commission of either of these fel onies the aet makes the taking of life niurdei in the first degree. 11 is not contended in this case that the o'fTencc, for which the prisoner is put upon liis trial to answer, Comes within tho provisions of this clause of the act. The other clause of this portion of the act <>celaics that when life is taken by meaneof poison, or when the party is found lyingin wait —or the offence is cntmnitt d by any Other ki/id of wilful, deliberate and premeditated killing, it is also mur der iu the first degree.. 'finder fliis clause the mixing and-preparing the p lisonous cup for another, lequires de iberi tion ; or, lying in wait —which is to lie in am-, bush, to be secreted, in Older to fall by surprise on the enemy—requires deliber ation aud design. "And by any other kind of willul, deliberate and premedita ted killing," icq'.'ires reflect, on and tho't; and, in all , thetti last described in <his clause, the intention is the essence of the crime; and, wheocver that intention'is murderous, the killinjjjs murder in tho fir.-1 degree. And then all other kinds of 'murder not included in the foregoing clause, which I lur c explained, will be deemc 1 illulotr in the second degree ; and luciudes all cases of deliberate iioin iouieaf) where ti.e intention is not to take life ; and instances are givcu 11s our law writers To illustrate 1 as, where a workman thtows timber from a house in astieet of a populous city where lie knows many persons are passing and repassing ; or, the shooting at a fowd with 1111 intent to steal it and killing an indi vidual ; or, where death takes place in a riotous afiruy where there wi.s DC intcn tiftti to kiU ; or.it a pregnant woman bo killed in ay atfcinpt to pioduco an abor tion. altl ough no intention to take life— it is murder iu the second degree. The qflestiou lor your inquiry will be, —if satisfied of the fact thstthe defend ant committed tho act, —was the killing d'cliierato and premeditated with intent to lake life, or was it merely to do bodily harm ? W lieuever the deliberate inten- j tiou is to take life, aud death ensuo, it is murder in the first degree ; whenever it is to do bodily haitn or other mischief, without tho intention to take lile, and diath ensues, it i/murder in these oud degre.. The law. in the case of unlawful kill ing, presumes malice; and express malice' is where o.ie kills another wit'< a sedate and deliberate uiind, or formed design ; and this foimed design may be discover ed by the evideuce of surrounding cir cumstances .connected wifb the defend ant, which uiay show to tho jury his in ward thoughts and his intentions; or, by bin threats and dcclaiations, or menaces towaid the deceased ; or, by bis lying in wait for the deceased ; or, by any p»cooii certed plan to do him bodily harm Malice is implied by law from any de liberate criminal aet committed by one pcr.-on another, however sudden ; and, in a legal sense, any act done wil fully and purpn-tly to the prejudice and of another which is unlawful, is. as aginst that pen-on. malicious. Thus, where a peiaun kills anothersuddenly without ttfy, or any considerable, provocation, tbo law impliis maiiee; for it supposes no per son — unless of a wicked heart—would bo gui.ty ot sueh an ac* upon very slight, or i :io perceptible causo ; and I may remark., as a general rule, all homicides aro prc -1 i-uuied to be malioioys, aiid Will .be no treated by the law until the contrary ap pears—or, until the surrounding circuit - at the time of ihe commission of the act alleged, show something of exicii uation. excu«c or justijication. Malice. however, can seldom be directly proved —and therei'ore th: evideuco—being cir cumstantial, as flirt* which goto atford an inference of its existence,—is admis sible. And our Supreme Court lias said in a case* in giving construction lo our Act of Assembly : "Oar State adopts the oonrnon law definition of murder, audit is distinguish able icto two degrees ; defining tiro first degree specialty, by certain enumerated cases ; and generally* by the words "other kind of wilful, deliberate and premedi tated killing." A careful study cf our jurisprudence on this subject, eleariy re veals the fact that sudh terms as a lie. liberate purpose, or a deUberate arid pre meditated intent to kill, arc sometimes substituted for the words of the statute; yet. our reported jurisprudence is very Uniform in holding that £ho true criterion of the first degree is the intent to take life—the deliberation and premeditation required by the statute are not on thfi in tent, but upon the killing. It is delib eration and premeditation enough to form the intent to kill—and nit upon the in tent after it has be6o formed. An intent actually formed, even fdr moment be fore it i§ carried into act, iscnough ' And his Loaor, Judge (fco:iipii,u in the cafe of the Commonwealth vs. Kelly, Ist. in delivering the opin icn of tho Court, declares what is the proper construction of our act, and gives instructions to the Judges below in charg iug juries in reference thereto: Isy the act of 1794, (and now by act r»f i860,) murder by means of poison, or by lying in wait, or any other wi'ful, de liberate and premeditated killing, is mur der in the first degreO. hen the crime was not committed in the attempt to per petrate either of the felonies mentioned in the act iu which a specific intent is not an element, the Legislative will is mist carefully expressed to limit the capital offence to cases where it is the result of a wilful, deliberate, wicked purpose. Poisoning and lying in wait are enumer ated, and "any other wilful and delibcr kte killing," is placed along side us equally henioOs, because equally there suit of the wiejted settled purpose, and 10 be followed by precisely tie saiyo pun ishment. The collocation of those varieties in which tho crime may occur, serves to show that all belong ta the samd species that they sprung from the same root— which is will, deliberate purpose. Jt must here ba remembered that this dispo sition of mind, leading its victim ihto murder, all aware of its wicked pursuit and intent ufou the result, is tho dis tingh'shing trait betweon murder in the first and second degree. It is a positive element, and its presence must be proved, according to law, beyond the possibility "of a reasonable doubt. If it benot provd, there ss no capital offence Xjt is essen tial to its grade as is killing itself, and caniiot.'bc supjplied by any other ingredi ent. If it be'not proved, and the killing be wi.Ch malice, hut upon a sudden quar rel, or on gneat provocation, it is by the act of Assembly deemed to be murder in tho second degree. If not found to be long to tho first class, it is presumed to belong to the second ; and this should bo carefully presented to the juror's mind in all such trials; and he should eonsci cntiously act upou it, regardless of any thing but duty." Then, gentlemen of tho jury, your inquiry would naturally lie \thai length of tin c docs the la«' declare necessary for deliberation ? In addition ti what has already been sail, Judge Lewis, in his Criminal Law, gives us the spirit of the authorities on that point. He says ? "Jf the defendant has time to think and in tond to kill for a as well a3 an hour, or a day, it is delibeiate, wilful, aud premeditated killing—constituting murder in tho first degree. To kill a person wilfully is the same to killing him on purpose—it must be deliberate —but the law fixes no time to deliberate to constitute murder. It is not required tba' he shall ponder ever the crime for any period of time. To deliberate ij to reflect with a view touiaiea choice ; and if it nppearea that tho party did reflect, though but fot a minutelieforc ho acted, it is unquestionably a scfficicnt delibera tion within the act of Assembly. To premeditate, is to think of the matter beforehand. It is to conceive of a thing bofore it isexbeutod. The word "pre meditation" would seem to imply some thing more than deliberation, and may mean that the party had not only delib> era ted, but had framed in his mini the plan of destruction No time is too short '/of. a nick 2d man to form in his mind a scheme to murder, and to coutrivo tho manner of accomplishing it." Then, gentlemen, under the statute, wlnn it appears from the whole ovidence, that the crime was, at tho moment, de liberately or ifetendjdly executed, the killing is murder. It is sufficient if tho [ circumstances of wilfulness and 'delibertx- I tion are proved, though they arose and i were generated at the period of the trans j oction. 1 112 intention to kill existed, and j if the jurf are satisfied bcyound all pos sible doubt, that defendant did the act, and that tho weapon used was sullieient to produce death in the manner it was used by the prisoner, and" tho act was de liberately premeditated, then it is murder in the fir t degree ; for tho law in tht: absence of circurasfances and evidence that the Wow was atruck with intent to dd great hedily harm, will presume an intent ta .kill from tho use of a deadly weapon. And if a deadly weapon be used by tho defendant* tho propagation must be very great to reduce tho grade of criuic from murder to manslaughter. * * * This, then, gcntlenie->, brings us t> co quire whether tho evidence establishes in your mind., tl.at (tore w;'.j prav- eat'ol. Tlielia" eleelores toat although in homi- ciile t'\cro may be pro' ication of such ch-.iractor as to rebftt the lojial inference ofmalaee, yet provocation has its defined legal limit?. No breach ot' n man's word ; no mere trespass on his lands or goods; no insults ly woros, however of fensivo they may be, will free a parfv killing from the guilt of murder. This rule holds giod when a prrty. killing upon provocation, mikes use of a deadly weapon, or otherwise uiauitests an inten tion to kill. Malicious destruction of property is likely, and as well calculated to provoke, as any thing that can he done by one man to hi- ueighb'or— yet thi law, by wisely judging that too great latitude should not ha given to the taking away ot human life, refuses to. extend to the provocation 1 havo mentioned, particu larly when the party killjng use a deadly weapon. No provocation whatever, can render homidide justifiable, or oven ex cusable. The best it can do is to redtice it to manslaughter. An unintentional trivial ajsiutt tlong a street or densely ly populate! town ar city, or in a lawful ly assembled gathering of people crowded togetl er, a3 by a jostlo—-nor, as has been said, a trespass against his propeny, (not his dwelling house,) is sufficient provo cation to warrant the owner i,i using a a deadly weapon in its defence; and it lie d<r, aud with it kill the trespasser, it will be murder; and this though the killing were actually necessary to> prcveut the trespass. And it will be no answer to express malice, an l when provocation lus been received, and when a party, at the time, or afterwards, u<xS expressions indicating an intention to be revenged, using such language as satisfies a jury that l:o ha 1 formed a design, and alt r wards carrying his designs into cxccu-' tion, lie will be guilty of murder.— * * * * * * Manslaughter is the unlawful killing of another without malico aforethought eithei express or implied. It may be commit voluntarily upon a sadden heat, or qu&rrp.l, Or fight—or it may be iuvoluntary, but while ia the commission of some unlawful act -(or contrary to law,) below tho degree of felony. ■ A homicide having been duly proved, to extenuate it from muidcr- to man slaughter, tho evidence tndst prove both provocation and passion to exist. I'rtiv .oration alone will cot reduce the offence. Nor will pm.iion without provocation.— \nd this provocation must bo such as the law will deem sufficient to put a man in sucll a stale of temper as to prevent due deliberation. As 1 have already said, no mere words of insult orContumo ly, ar epithets used, nor tresspasses to lands or goods, are sufficient. Hut an assault or battery upon tho person or blows, aw deemed sufficient to excite the passions to tutli an extent as deprive tho mind, for the moment, of the power of deliberation. Was there ovidonco in this caso of any provocation, given by the deceased to the defendant ? If you uio satisfied he gave the fatal blow ; if so, what was it ? When aud where was it given and received? If thero was, did it produce passion ? II so, to what ex tent; and was the defendant smarting under tho provocation st, the time?— Was it so recent and so strung that he might be considered as not being, at the moment, master o! his own undetsttnd - ing? It' so, then the ofTenco would bo manslaughter. Hut, gentlemen, if you shall find thero was provocation sufficient to produce pis sion, audit actually existed iu conso quence of it-—yet, if,-after the provoca tion, thero had been sufficient timo fot the blood to cool, and for his passion to resume its place, betoro the fatal blows weio struck, tho offence would be mur* der. Tho law has not fixed limits within which cooling timo may be said to take place. Every case, of course, must dc. peud on its own circumstances ; buithe time iu which an ordinary man, in like circumstances would have cooled, may be said to bo a reasonable time. And as to the fact of whether thero has been a re suming of the cttntrol ol reason, it is 'said if tho prisoner displayed thought, contrivance and design in the mode of possessing himself of tho weapon, and again replacing it immediately after tbe blow was struck, such cxcrci.so of eoatrivai.ee aud design demonstrates rather the presence of judgment and reason, than violent and ungovernable passion. Or if, between the provocation and the stroke given, tha prisoner fell into another discourse, not connected with tho immediate object of his pas sion ; that it is believe I by the juay his attention was called off from tho provo cation —or, ifhc should pursue bis busU ne.-s in the usual way for a reasonable length of time, any subsequent killing of his adversary—especially when a weapon of any kind, the UST of which will produce death, is used, it is murder. And to which we may add that, wi/en a man is assailed, and i.» secure in his sep aration from further personal aggression, he has no rijjht to return aritiod to the sceue of conflict, or hunt up his assail ant aod engage in a new combat with him. If he do so and slay hijy, ho is guilty of murder or of mantluughtcr , ac cording to the circumstances under which the houiicido is committed. j ****** ! One of the defendant'# counsel, in his j argument, read to tho Court and to the : jury some authorities in reference there i *o, and cor.tended the facw in tho case protected the defendant uudet the the j principle of so!/"defence. I Homicide in self defence. —As a gen j oral rule the. danger to t>. party most be j actual. Iu CASES of jxSrsoaal couflict, (J | :.rder to n?'.7o suef- defence nviiiuKo. it | must, app/ar that party-killing hi I ' ret real en is far" as he oopld by NUM J3ER ia | reason of some wall, or other impediment |to his retreat; or, far as the suddeil tack or hepceness of the assault would: permit hihj. If it appear, however, that the conflict wqji in any way premeditated by the defen lant, the defence can no loa ger ba used. AnS, as I havo saicf, it must be pro van the assault on him was perilous iu the extreme. There may be cases wheie the assault may have beetj so fierce as not to allow time to retreat'a step witlyuut manifest danger of his life, or other enormous bodily harm; and then', in his defence, if there be uo other way hf savin;/ his own life, ho play kill hid. assailant infant ly. An attack, provoked or renewed by the defendant, will be no defcuft Therefore, if ho will provoke an ai tack, the law will not shild him un« der the plea of necessity, should he kill. An instance is givcu, as, "whejrn iu the course of a quarrel, the prisoner was ?)et).- acod by the deceased' whOifc skcogih was greater than his own, with a brickbat, and could have escaped by flight, but not choosing to do so, turned round and mor> tally wounded his with a dagger which he had concealed on his pcrscn : it was held manslaughter. '- ' f ' ! 'i'Jia ne&essity ceases to exist when tho defendant, though originally in iminent danger, escapes,—arms himself with a dangerous weapon—returns and slays his antagonist.. The plea of self' defence tests on the natural light every man has to protect his own life against the unlaw ful attaok upon It by another. If, how ever, when ho is secure from dunger b? going away br retreating frdm liis-assail ant, if he voluutarily return and renew the combat, it.could not bo pretended ha is acting in defence of his own life against inevitable destruction. And, gentleinco, this right of protec tion, with the same limitations as those I gave just now, extends fo'fnaster and sfef vaut to parent and child, husband and wile-wind, in defence of each other res pectively, are excused by of tho relation each stands to tho other ; and tho law humanely treats the act as if in defence of' tli% party himself. But tho principles I have just explained oU extcud to persons not standing in the same relation. It Uftrtje that, where a i attempt is mada to burn your house, or to bieak iota your house burglariously, you, or any of your family'—or even a hdger in your house—may lawfully kill the assailant for the preventing tho mis chief intended, (n such caso tho parly killed ie tjio of the crime of arson or burglary, which aro among tho highest grade of offences, next lo murder; and, thercfoic, ho tuay be re sisted even unto death. . ' 11 two men lail out and quarroi, and a thiid person (who had not any quar rel) iimrfero in revenge of bis friend, and stiifco the olher man.of which stroke ho died ; this would be manslaughter, because it, happ'enc 1 of a sudden manner in revenge of It is ' friend. But it must be intended that tho two m<;n pho fell out must be fighting together at tho time ho rtruck the fatal blow—for, if words bad only passed between them it would have been murder; for thero must bo open affray or'a ! rflri.viftg; being such a provocation to one person to meddle with an injury done to anotht-r as wjll lessen the offenco to manslaughter If' the man is killed Ly tho person so meddling— where a thirl pirty interferes from hot blood alone and kills one of the oombati tants, this is manslaughter. If, howeycr. in anticipation of a difficulty, and with malice in his heart, bo deliberately form ed the design w etaso there should be an affray between combatiliUs engaged thorfe to interfere, and take tho life of one of tho combatants —whether he did it secretly with a kuife, or openly with some other deadly weapon (ho himsc-lf not being at tacked fy any one*) —and ho there with the weapon, "took-.life, it would be murder in the fiast degree. If, hdwever, his in tention was not to tako life, but to do bodily Inrm. it would be murder in tho second derjree. Tho following technical points were sub mitted by Mr. Thompson, counsel, for defehdant, and the Court requested to in struct 112 he jury : Ist. That the timo and place of the homicide axe material averments, and must b<? proved as laid in the indict.r.ent. 2d. Tho day on which tho deceased died of the alleged mortal wound, niU3t be averred and proved 113 averred. To the first and second points wj answer: Tirno and place must be at tached to. every material averment. But place is sufficiently desefibed if laid in tho county, without specifying the par tlcu'ar sp"t where the offence was com mitted. The time of committing the offence may be laid on any day previous to the finding of bill, and where timo docs not enter into tho n.-.tufe or esietice of the offence (as in this case) and proof of the facts of the blow struck and death ensue anterior to tiw finding of tho bill, within a year before that period, it is sufficient. 3d. That if the jury Cud that tfce said Sidney B. Cunninghah) received tho mortal wound on tho 24th day of De» comber, A. 1) .1,8(50, but did Dot die that i day, but ih*t he languished; and, lan guishing, died on the 26th day of the same month ; the defendant cannot be convicted under this indictment. 4t.h. TJiat the phrase laid iu the in dictuieut "inttnntly dH d<r" r.;oans that there was no pcrceptiblo or appreciable ofttins,i s , between the time the wcard was inflicted and the death it caused--that'death followed th'J stroke that produced it instantly—at the same insta:;: —without the lapse of time sth. T! at ii tuo Otic&aseti ,iiv«fyj an i hour, or about one hour, after ho
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