Show CHARGE to thompson Thomp sons twelve friends NOT MOT MUCH OP OF IT BUT PLENTY SUCH AS IT IS varlan varian and williams lor for the defense PULL MK mik BACK WHEN HE BE CONEs COMBS DERAILED A literary sud and a legal leal gem JUDGE FOREMAN BOREMAN I 1 intended to write out my instructions and I 1 have g got ot them partially written out and par bially not you have heard gentlemen of the jury Dury all the evidence in the case and athow becomes my duty to declare to you the law applicable to this case the defendant william thompson fr ar is accused in the indictment of the crime of manslaughter alleged to te have been committed by him on the day of december A D 1886 at the town ot parowan carowan Pa rowan county of iron in this judicial district and territory of utah by shooting one edward M dalton with a gun and by means of the shooting inflicting a mortal wound on the body of said dalton of which wound said dalton instantly died the particulars of the charge are set out more fully in ih the indictment which will be placed in your hands to this charge the thai defendant pleaded not tilla guilty this r 11 plea puts in issue every material allegation of the complaint and throws the burden of proof upon the prosecution to make out the case in the manner and form as charged the defendant is presumed to be in until the contrary Is proved and it if yo you a have a seasonable reasonable DOUBT from the evidence whether the defendants fend ants guilt is shown he is entitled to an acquittal A reasonable doubt is such a doubt as naturally arties in the mind ofa of a reasonable man a man of common 6 sense to convict the defendant ol of the crime charged the facts must not only be consistent with his guilt but incon with his innocence the evidence must exclude every other hypothesis po thesis but that of the guilt of the defendant the section of the statute under which the defendant was indicted is I 1 believe section 1921 it reads as follows manslaughter is the unlawful killing of a human being without malice it ii i ot of two kinds first voluntary upon a sudden quarrel or heat beat of passion second la involuntary voluntary in the commission of an unlawful act not amounting to felony or in the commission 0 of f a lawful act which might produce death in an unlawful mannerow mann eror without due caution and circumspection 19 if therefore you believe from the ev idenie that the defendant killed the deceased unlawfully and in the heat of passion it was VOLUNTARY manslaughter aud and you should so find but if you believe from the evidence that the defendant in the commission of an unlawful lawf ul get act not amounting to a felony or in ia the commission of a lawful f al act which might produce death in an unlawful manner or without due caution and circumspection shot and killed the deceased he is guilty of involuntary manslaughter and yoa should so find tae word unlawful as used lin this charge and in our ot statutes atutes in regard to murder or manslaughter means without right or without excuse an in violation of the law and against the law homicide is excusable in the f following cases all of which arle are not necessary f for or me to read I 1 only read such as is applicable to this case First When committed by accident and misfortune in doing any lawful act by lawful means without a usual and ordinary caution and without any unlawful intent if you believe from the evidence that the defendant killed the deceased at the time and place specified that he di did so by beel accident elit and misfortune in dong doing a lawf lawful ui act by lawful means with usual and ordinary caution and wi without shout unlawful ul intent your verdict should be not guilty otherwise guilty li was wag lawful ua for the defendant to endeavor to te arrest the deceased if you believe that the defendant was an officer and had bad the warrant alleged gas BAs to homicide when committed by an officer the language of the statute is as follows so far as it is applicable to this case IS justifiable when comm committed eted by p u I 1 i cers and those acting by their command in their id and assistance when necessarily committed in re taking felons who have been rescued or have escape escaped dg or when necessarily committed in arresting persons charged with felony bud and who pc are sice flee i inz from justice or resisting such arrest it therefore you believe from the ev evidence dence that the defendant was a public officer and was seeking the arrest of the deceased on a charge of unlawful cohabitation and that he killed the ae deceased ceased at the time and place charged and that the offence offense with which deceased was charged was punishable by imprisonment in the penitentiary tent iary and that said killing was necessary to accomplish the arrest of the deceased your verdict should be not guilty the punishment of unlawful cohabitation under the laws of this territory could be by imprisonment in the penitentiary tent iary A felony is a crime which is made punishable by deatle or by imprisonment in the penitentiary in bontem contemplation lato n of the territorial statutes rear therefore this was a penitentiary of fence if you believe from the evidence that the defendant was at the time specified in the indictment a deputy united states marshal then I 1 instruct you that he be was a public officer and if you further believe that the defendant was at the time specified acting under the authority of a warrant for the arrest of the deceased on toe the criminal charge of unlawful cohabitation and seeking to arrest deceased at that time and that deceased had been informed of the intention of the officer to arrest him and that the deceased was in the ACT OF FLEEING fLEE INC when defendant was attempting to arrest him then the afie defendant was authorized zed to use all necessary means to effect the arrest cr pr act see sec 81 you are the sole judges of the credibility of the Vit witnesses nesses and the weight of the evidence and the facts I 1 belaev be liev that is all Is there anything else gentlemen addressing the atto attorneys orneys mr varian I 1 suggest your honor that the jury jurk be instructed that the burden of justification is upon the officer I 1 believe that is the law that it is upon the officer and hould be so given to the jury 4 w court what is that section mr varian vanan it is section laws of 1884 1 I think also the jury ought to be charged that the apparent necessity for the act was as such that any ordinary careful cautious and prudent man would observe it is not to be determined by the tad individual actions of the defendant in each case and ought to not be limited in that way court to the jury that is correct gentlemen of course it ought not to be limited in that way it mastbe must be a necessity that is plain and apparent that would control any ordinary oid inary individual acting under the same circumstances and in a trial form for murder u ader or in a case of manslaughter it would be similar the bom commission mission of the hom homi i icide being proven the mitigation or justification of the action devolves upon the defendant unless the proof upon the part of the prosecution tends to show that the crime committed was justifiable OR OB EXCUSABLE in other words leaving leaving out that part in regard to manslaughter it would reid read this way the commission of the offense of homicide by the defendant being proven prove uto to lustily justify or excuse it devolves upon the defendant unless the proof on the part of the prosecution tends to show that the defendant was j justifiable asti flable and excusable mr williams il 11 would ask that thab a further charge be made to ta this jury in that connection that the burden of proof to sustain ce me justification be established by a preponderance anee of proof ind and that your honor define to their minds what a preponderance of proof is court do you mean the evidence on the part of the defense mr r williams williamd no on all the evidence it is sufficient when the burden is cast upon the defendant to show justification that it itis is supported by preponderance of proof court to jury if the preponderance of evidence gentlemen Is offered by the defense mr williams or supports the justification til court to jury if it supports the justification or it it satisfy your minds in other words if the evidence offered by the defense overbalances over balances in your mind overbalances over balances the evidence upon the side of the prosecution in favor of justification then of course YOU are bound to find him justified and as to what part of the evidence you are to weigh that Is for you to decide you are to take all ah the testimony together when we say a preponderance of testimony you yon are notto netto net to understand that that means more witnesses on one side than the other but the evidence that you consider of weight to control you 3 if that lies in favor of the defense in favor of the justification over that of the other course you are bound to j justify asti fy toe the defendant and him not guilty I 1 think that is all |