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