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Show V ' THE BAD MOTHER. 11 TO fJfliHffl TEE MS) v : ' fJOTElK IN THE BAD T CASE; PITY FOK ONE, SCOSN FOR THE OTHER ' MRS. CHARLES J. HOLMAH, MOTHER OF EVELYH NESBIT ' THAW. 1 DON'T DASE YOUR VERDICT ON SYMPATHY, ORDERED THE JUDGE Justice Fitzgerald began his charge to the Jury by saying: "Gentlemen of the Jury, it now becomes my duty to give to you such Instructions upon the law as are necessary to enable you to perform your duties aa Jurors and to define to you the legal guides by which you are to be governed in considering con-sidering the evidence and reaching your conclusions. "It has been particularly gratifying to me to realise that you were selected by the people and by the defendant as fair-minded fair-minded men after the examination of SS7 talesmen and before the peremptory challenges chal-lenges allowed by law bad been ex hausted. "Let me Impress upon you the impor-I impor-I tance of the Issue you are to decide. The 1 life of a citizen within the protection of the law. It is charged, has been taken by the defendant and the defendant Is here to answer to the law for that. "You must take the law absolutely i from the court of the facts you are the I sole judges. "A defendant In a criminal action is presumed to be innocent until 'the contrary con-trary be proven, and in case of a reasonable rea-sonable doubt that his guilt Is not satisfactorily sat-isfactorily shown, he Is entitled to an acquittal. "Let me begin by instructing you upon the general construction of the law. The statute of homicide Is divided into general gen-eral divisions, which in turn are subdivided, sub-divided, as I will later explain. The two chief divisions are homicide that is criminal and homicide that Is not criminal. crim-inal. The Different Degrees. "Criminal homicides are murder In the first degree, murder in the second degree de-gree and manslaughter in the first and second degrees. "Such homicide, unless excusable or Justifiable, Is murder in the first degree when committed from deliberation and premeditation with a design to effect the death of the person killed. If it is committed com-mitted without premeditation or deliberation, delibera-tion, but with a design to kill, it is murder mur-der in the second degree. If the homicide homi-cide is committed In the heat of passion, without design to kill, but with a dangerous dan-gerous weapon, it would - be manslaughter manslaugh-ter in the first degree. All lesser criminal crim-inal homicides are classed as manslaughter manslaugh-ter In the second degree. "Homicide which is not criminal is classed as Justifiable or excusable. Homicide Homi-cide Is justifiable when committed in the lawful defense of the slayer, or his wife, 1 or his child, brother, sister, master or servant, or other person, when there is reasonable ground to apprehend that a crime is about to be committed against such person and there is Imminent danger dan-ger of the design being carried out. "Homicide is excusable when by accident acci-dent or misfortune it Is committed in lawfully correcting a child or doing some other lawful act In a lawful way. "Homicide is also excusable in insanity. insan-ity. The law is contained in sections 20 and 21 of the penale code. Section 0 says an act done by an Imbecile, idiot, lunatic or Insane person Is not a crime. This language is very broad and would at first glance appear to apply to all persons per-sons of unsound mind, without regard to the degree of Insanity. "But section 21 limits section 20 as follows: 'A person is not excusable from criminal liability as an idiot, imbecile, lunatlo or insane person except upon proof that at the time of committing the alleged crime he was laboring under such a defect of reason as neither not to know the nature or quality of the act, or to know that the act was wrong.' Must Be Premeditation. "Before murder in the first degree can be done, a distinguished jurist has said, it must appear that there was some act of deliberation and premeditation. This of necessity is for the comprehension of the Jury. What may be deliberation and premeditation in one man might fall far short in another. Men differ physically and mentally. Each case must depend upon its own facts, one case may be proved by a long train of circumstances, another by a few sharp facts. "And In still another case the Jury may And in the act, in the manner in which it was done, the weapon used, the time and place, the disposition of the victim, vic-tim, everything necessary to satisfy them of the presence of deliberation and premeditation. pre-meditation. "If you are satisfied that there was a design to effect death, but without deliberation de-liberation and premeditation, you may find murder in the second degree. The defendant may be convicted under this Indictment In-dictment of murder in the first or second degree, or manslaughter in the first degree. de-gree. "When it appears that the defendant committed a crime and there is a reasonable rea-sonable doubt of which degree he Is guilty, he can be convicted of the lowest only. "As I have tried to Impress upon you since this trial began, the character of the victim furnishes neither excuse nor justification. The general character of the victim is not the issue and no matter mat-ter how bad he might have been he was entitled to the protection of the law. "The personal avenger of private or public wrongs is not recognized under the law. Every person is under the protection pro-tection of the law. Good or bad, exalted or humble, all are alike covered by its shield. "The plea of not guilty is a denial of every material allegation charged against the defendant and such evidence may be presented as will offset these allegations and establish his Insanity at the time of the commission of the act. The law presumes pre-sumes that sanity is the normal condition of man and wherein Insanity is the plea, as the condition of mind of the defendant at the time of the act, that becomes the crucial question of the Jury to decide.' "If there existed In the mind of the defendant de-fendant an insane Illusion it is not an excuse unless the illusion is of such a character that if true it would result In his injury. "Proof of partial or Incipient Insanity Is not sufficient as an excuse. The settled set-tled law of the State is that as long as that power to appreciate the nature and quality of the act is present, no man must commit crime If he would escape the consequences. Did He Realize Act? "If he cocks, alms and discharges a re- tragedy and prior to her marriage, or any other act should be weighed In connection con-nection with her story. "A wide latitude was allowed on cross-examination. cross-examination. You should give due credit to all that was developed along with other facts. The letters, the will, and the codicil before you were not admitted under any ruling as to their competency, but by consent of counsel. .- "There has been no denial entered here volver, as It is alleged here, did he know when he cocked and fired the weapon that the act was wrong and that It would probably destroy a life, and did he know that the act was forbidden by law? That is the question which the law must have answered. "Under the rule of evidence the story, claimed by the defendant's wife to have been told by her to tne defendant, Is admitted not aa affecting the character of the deceased, but that you might consider con-sider what eltect such a story would have upon the defendant's mind. In considering consider-ing her story, her credibility as a witness is highly material, and everything that she has said or done must be taken into consideration. Her admissions regarding the relations existing between herself and the defendant prior and subsequent to this that death resulted from pistol shot wounds inflicted by the defendant. "The legal presumption is that the defendant de-fendant was sane when he committed the act. It was not incumbent on the prosecution prose-cution to Introduce preliminary testimony to show that he was sane. "The burden of proof is on the defence." de-fence." "Whoever denies sanity must prove that insanity is present. The law assumes as-sumes that all men are sane aa it assumes as-sumes all men innocent. The burden of-proving of-proving a crime Is on the prosecution, but the burden of overthrowing sanity la on the person claiming it. The defendant defend-ant la entitled to the benefit of the doubt in this case. The Hypothetical Question. "The hypothetical questions answered by the experts assumed certain facts and the answer was only the opinion of the expert on those assumed acts. Tou are not obligated, nor are you permitted to accept opinions as you would facts. In considering the testimony of medical experts ex-perts you are to consider their experience experi-ence and knowledge, and you should con- sider the quality of the medical testimony , and not Its quantity. "The so-called irresistible Impulse has no place in the law and is. not an excuse ex-cuse nor Is every person of a disordered mind excused. While the burden of proof of Insanity is on the defendant, be also ' is entitled to every reasonable doubt on : the subject. If the defendant knew the 1 j v (Continued-on Page 8. v . that this defendant is guilty of murder, in the first degree, but have no doubt' that he is guilty of murder in the second' degree, you may find in the second -de-' gree. And so with manslaughter. I "You may in this case, let met, say one; , more, find the defendant guilty of mur- . der In the first degree, guilty of murder in the second degree, or guilty of man- fla" slaughter n the first degree. - ' 1 "If you vote for acquittal on the ground , of insanity, you may state that1 ground In your verdict. , t Sympathy Mustn't Prevail. ! "You must be guided, gentlemen, en.' tlrely on the evidence. Clamor, prejudice' j or sympathy must not prevail. You must ' t be guided by your reason and your Judg. 1 . 1, ment. "The case has been fully tried.' and I' have not attempted to make any epitome) of the evidence. If in any allusion I havel made to. the facts my statement does not' agree with your recollection, you should! take your own recollection. . "It- is the fluty of each juror to con- . slder the evidence, all the pertinent statements state-ments of counsel and the suggestions of your fellow-Jurors. "I have endeavored faithfully to guard the rights of the defendant as well as the rights of the people in the many rulings I have had to make, and I have tried with - clearness and fairness to Instruct you in the law. j "The facts must carefully be weighed.! Remember the oaths you took 'to well' and truly try" this issue. Weigh the evl-i dence carefully, consider It and discuss iti and return your verdict according to your oaths." - ) Justice Fltxgerald supplemented his; charge by rjrn clearly defining the legal definition of reasonable doubt and saying! no man should vote for a verdict as long! as a reasonable doubt existed In his mind.. He did this by request of Mr. Jerome.j The defense also requested a special charge on several points, but Justice i Fitzgerald said that he had practicallyl dwelt on all of them, with the exception! of a few on which he declined to say; anything. He granted the -defense an exception to his ruling. The Jury then! retired, at 5:17 p. m. J Under the statutes of New York, murder mur-der in the first degree Is punishable with' death: murder In the second degree, byl imprisonment for life; and manslaughter,! In the first degree, by imprisonment noti to exceed twenty years. If the verdict I should be one of acquittal on the ground of Insanity, the disposition of the prisoner would rest with Justice Fitzgerald. Thaw! having already been declared sane by the! report of a commission which Justice' Fitzgerald has - approved and confirmed.! it would seem that the prisoner must be1 released. , JUDGE'S INSTRUCTIONS. (Continued from Page 7.) nature or the quality of his act, or knew the act was wrong, then he committed a crime. All men differ mentally and physically phy-sically and this makes It Impossible, as I said before, for the court to lay down a I fixed rule as showing deliberation and premeditation." l"As to the distinction between reasonable reason-able doubt and a possible doubt, you were thoroughly examined when you were about to become Jurors. The law does not require that the prosecution shall efface every possible doubt. It only requires re-quires that the prosecution shall go beyond be-yond a reasonable doubt. As Recorder Smlthe once charged a Jury, the defendant defend-ant is entitled to have hta guilt established estab-lished by competent evidence and beyond every doubt. It need not be established beyond all doubt, for that is an impossibility. impossi-bility. Nothing in this world Is beyond all doubt. The defendant Is entitled to every reasonable doubt and that Is all. I"A reasonable doubt Is such as might arise In the mind of an Intelligent man who. If called upon to give a reason for such doubt, would not be at a loss to de so. A reasonable doubt is not an imaginary thing. It is such a doubt as arises from the evidence. It is such a doubt as a painstaking man. might have after a full, fair and impartial weighing of the evidence. To all such doubts the defendant is entitled. '"If any of you have a reasonable doubt 1 |