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responsible insane person may know those things, but ity of the accused at the tine of committing the set was the act done as the result of an insane delusion, charged against him as a crime, they should give him or was it committed under an influence or power which the benefit of that doubt, and should find him “not the accused could not resist by reason of his unsound- guilty, by reason of insanity." ness of mind ?

10. The jury are the sole judges of the credibility of 2. Although the accused may have known what he witnesses, and have a right to take into account, in was doing, and that what he was doing was contrary weighing the evidence, any apparent feeling or interto the law of the land, yet it, when he performed the est manitested by witnesses on the stand, their mander act, he really believed that he was thereby producing a of testifying, their compensation or want of compensapublic benefit, and was actuated by an insane delusion tion, and any other circumstances connected with their that he was carrying out an inspiration of divine origin testimony which the jury may think would influence or approval, and would not have done the act but for them. such insane delusion, then the accused is not guilty of 11. If the jury believe, from the evidence, that the the crime charged against him, and the jury should prosecution have willfully suppressed evidence of the tind him “ not guilty, by reason of insanity."

mental condition of the accused during two weeks next 3. Insanity constitutes a defense it, by reason of it, following the shooting of President Garfield, which it the accused, at the time of committing the act charged, was in their power to have produced on the trial, the did not know what he was doing; or, if he did not jury have a right to take that fact into consideration, know that what he was doing was contrary to law; or, as raising a presumption that such evidence, if proif the act would not have been done by hiin but for duced, would have been unfavorable for the prosecureason of the insanity.

tion. 4. The only evidence in the present case tending to 12. If the jury shall believe, from the evidence, that show an irresistible impulse to commit the homicide, the prisoner was of sound mind, or pot so insane as to or that the accused acted under the pressure of an in- be irresponsible for the act, at the time of shooting at sane delusion in doing the act, is found in the conduct the President, on the 2d day of July, 1881, and that he and words of the accused as detailed in evidence. The then unlawfully and willfully, but without malice in question whether the free agency of the accused was fact, in the District of Columbia, shot at and thereby destroyed by a conviction on his part that the death injured the President, of which shooting and injury of the President was required for the good of the the person so injured subsequently died in the State of American people, and that he was divinely inspired to New Jersey, and within the United States, then the remove him by death, is one of fact to be determined prisoner is guilty of the crime of manslaughter, and the by the jury from all the evidence in the case, and such jury should so tind. evidence includes the acts as well as the words of the 13. The jury are instructed to find a separate verdiet accused. But such conviction, if it really existed, upon each count in the indictment, and, inasmuch as could not afford any excuse when the party knew what it is charged in the first, second, fourth, fifth, seventh, he was doing, and that it was contrary to law, unless and eighth counts of the indictment in this case, that it was the product of an insane delusion, and he was the death of tho President took place in the county of impelled to do the act by such delusion.' Such delu- Washington, in the said District of Columbia, and sion may exist as to a divine requirement, or as to an there is no evidence of such fact, therefore the jury are inspiration from God. No mere delusion, unless it be directed to find the accused not guilty upon each of the product of an unsound mind, nor error of judgment, said counts, separately. nor even the fixed belief that what is prohibited by the 14. Inasmuch as the evidence is uncontradicted in law is commanded or approved by divine authority, this case that the wound was inflicted upon the Presican exempt the accused from responsibility for break- dent by the accused, on the 2d day of July, A. D. 1881, ing the law, if at the time he knew what he was doing in the county of Washington, in the District of Columand that it was contrary to law, and he was not acting bia, and that the President subsequently, and in the under an insane delusion. To have such effect, the month of September, A. D. 1881, died of such wound committing of the act charged must have been the re in the State of New Jersey, the jury are instructed sult of an insane delusion of such force as to deprive that, by reason of these facts, the accused is not guilty the accused of the degree of reason necessary to dis of the crime of murder charged in the indictment, and tinguish between right and wrong in respect of the the verdict must be “not guilty," unless the jury shall act, as sane people generally judge of such conduct. find him guilty of manslaughter, as charged in the The delusion must have been such that at the time of twelfth prayer of the defense. committing the act he either did not know what he

Arguments to the court on these points were was doing, or, if he did, he must have acted under a controlling conviction that the act was right. Al made by Messrs. Davidge, Corkhill, and Porter though he may have known that the act was contrary for the prosecution, and Reed and Scoville for to the law of the land, yet if he did it under the insano the defense, accompanied by some sharp critidelusion that it was commanded to be done by God, cisms on each side with reference to the consuch knowledge on his part would not make him liable duct of counsel on the other. The District to punishment.

6. Whether insanity exists or has existed at any time Attorney took occasion in his argument to with the prisoner, and the degree of insanity, it any examine the question of jurisdiction. On the existed or has existed, are questions of fact to be deter- 10th of January, after the close of the argumined entirely by the jury from the evidence. 6. If the jury find from the evidence that the pris on the prayers submitted on both sides-first

ments, Judge Cox proceeded to state his views the act charged against him as criminal in this case, giving his attention to the question of juristhen it is also the duty of the jury to find whether diction. He said that at an early stage in the said act was the result of such unsoundness of mind case he had expressed a preference to hear of the prisoner.

that question discussed in a preliminary form 7. The punishments of the law are intended for rational persons, and no one but a rational person can

by way of demurrer, or motion, or plea, becommit the crime of murder.

cause a determination of it adversely to the 8. Insanity may be interposed as a legal defense in jurisdiction would have spared all the labor any prosecution for an otherwise criminal act, and, it and trouble of the trial. Counsel, however, such defense be established by the evidence, it takes had the privilege of making the question at away the criminality, and the act ceases to be a crime in contemplation of law.

any stage of the case. The jurisdiction of the 9. If the jury have a reasonable doubt as to the san- court had been publicly discussed and seriously

challenged, and he had felt it incumbent on that independently of the law it would be. It can him not to ignore a question so vital to the

not be right for him, although he may think it is right rights of the accused. He had deemed it his commit it in violation of the law. But, while a sane

notwithstanding the law, and that he may rightfully duty, therefore, to investigate the question man is responsible for opinions contrary to law if carthoroughly. After a very exhaustive review ried out in practice, an insane man is not held to the of the English and American authorities, he same responsibility: He may know the law of the expressed his conviction that the English au- that'it is not the law for him, but that he is acting thority was decidedly in favor of jurisdiction under a higher authority which supersedes it. If, where the blow had taken place, and that in therefore, I am to rule upon this proposition as prethis country there was a strong array of au- sented, I'grant it only with a qualification, and I give thority in the same direction. He felt at

as a substitute therefor my own (marked No. 1), as

follows: liberty to adopt and announce the doctrine

No. 1. The legal test of responsibility where insan(which conformed to common sense), that the ity is set up as a defense for alleged crime is whether jurisdiction was complete where the fatal the accused at the time of committing the act cbarged wound had been inflicted, and that, therefore, knew the difference between right and wrong in rethe place of death was immaterial. Conse- spect of such act. Hence, in the present case, if the quently, it would be improper to grant the jury find that the accused committed the act charged thirteenth instruction prayed for by the de- of his crime knew what he was doing, and that what fense, because the offense charged might be he was doing was contrary to the law of the land, he tried and conviction might follow under those is responsible; unless, in consequence of insane mencounts of the indictment which averred the tal delusions or other form of mental disorder, he was death to have occurred in the District of Co- ble of understanding the obligation of the law of the

laboring under such defect of reason as to be incapaJumbia. For the same reason the fourteenth land and the duty and necessity of obedience to it, instruction relating to jurisdiction had to be and of understanding that his act was wrong because denied. When it became his duty to charge it was in violation of the law. the jury in the case, it would be his effort to all that I think is correct in the remaining instruc

I have prepared instruction No. 2, which embodies expand and illustrate so much of those instruc- tions asked for by the Government, and in the first tions as he considered correct; but, for the four instructions asked for by the defense. It is as present, he merely desired to express his opin

follows: ion sufficiently to guide the counsel in their the act charged, and at the time thereof knew what

No. 2. If the jury find that the defendant committed arguments to the jury. He then proceeded to he was doing, and that what he was doing was conconsider the first and second prayers of the trary to the law of the land, it constitutes no excuse, prosecution in connection with the third, fifth, really believed that he was producing a great public sixth, and eighth prayers of the defense. The first instruction asked for by the prose- required for the good of the American people; nor

benefit, and that the death of the President was cation-namely, that the legal test of respon- would such excuse be afforded by the fact that in the sibility where insanity is set up as defense for commission of the act he was controlled by a dealleged crime, is whether the accused at the praved moral sense, whether innate or acquired, or time of committing the act charged knew the And even if the jury find that the defendant, as a redifference between right and wrong in respect sult of his own reasoning and reflection, arrived at the of such act”-he regarded as correct. He re- determination to kill the President, and as a further viewed at great length the questions involved result of his own reasoning and reflection believed in the McNaughton case, and quoted from tes- that his said purpose was approved, or suggested, or timony given by Lord Justice Fitz James inspired by the Deity, such belief 'would afford' no

But it would be different, and he would not Stephen before a parliamentary committee be responsible criminally, if the act was done under which had before it, in 1874, a bill to define the influence and as the product of an insane mental the law of insanity. He referred to this, he delusion that the Deity had commanded him to do said, simply to show that the answers of the the act, which had taken possession of his mind not judges in the McNaughton case had not since of his own will and reason, and with such force as to

as a result of his own reflections, but independently been regarded as clearly establishing the prop- deprive him of the degree of reason necessary to disosition that a mere capacity to know the law tinguish between right and wrong as to the particular of the land subjected persons to criminal re

act. In such case, even if he knew that the act was sponsibility. Since the MeNaughton case a sponsible if his reason was so perverted by the in

a violation of the law of the land, he would not be renumber of homicide cases had been tried at sanity that he was incapable of understanding the nisi prius in England, and he had not been obligation of the law of the land, and that the act was able to find one in which a knowledge of the wrong under the obligation of that law and wrong in law of the land had been laid down as a test.

itself. In the United States there were numerous Judge Cox continued as follows: cases that applied to a knowledge of right and . In this connection I add the words " wrong in itwrong in regard to the particular case, but the self,” because I can conceive a case in which one instructions had been in the most vague and might believe, insanely, that the law of the land progeneral terms. He would therefore state his vided no punishment for murder, and yet the person own views, which he did as follows:

might be perfectly aware of the moral enormity of the

crime. I would be unwilling to pronounce such a To a sane man an act, whether morally wrong or person irresponsible. not, is wrong if it is in violation of the law of the land. I have omitted from this instruction one important It can not be right for him, although he may think feature of that asked for on the part of the defense.

It is expressed in the first sentence of the first prayer, to show that these impulses are always or generally in these words: “Or was it committed under an in- associated with some insane delusion, if there are facts fluence or power which the accused could not resist tending directly to show the existence or absence of by reason of his unsoundness of mind?"It can not an irresistible impulse, they may perhaps furnish solne be denied that some of the most respectable courts in evidence of the existence or absence of insane deluthis country have recognized it as possible that a sion. But I think, in view of the undisputed features man may be driven against his own will to the com of this case, it would only confuse and perhaps mismission of an act which he knows to be wrong by an lead the jury to give them any instruction directly insane, irrepressible impulse within him, overriding upon the subject of irresistible impulse, and that this his own will and conscience; and those courts main- particular case does not call for any qualification for tuin that, as under such circumstances the will to do the general rule adopted, as I have mentioned, as the wrony (which is the very essence of criminality) is test ot' responsibility. wanting, he ought not to be held criminally responsi The twelfth instruction is drawn with reference to ble. They, therefore, hold that the test of the knowl- section 5342 of the Revised Statutes. I do not unedge of right or wrong ought to be qualified by the derstand that statute to create any new species of further condition whether the person had the power manslaughter. It uses the common-law definitions of to choose between doing or not doing the act. The both murder and manslaughter, and (perhaps in view question is a dangerous one alike for courts and juries of the doubts I have already spoken of) applies them to handle, and I do not intend to express an opinion to two cases where the mortal wound was intiicted in upon it, further than the facts of the case require. one jurisdiction and the death occurred in another. Those facts seem to relieve me from the necessity and The terms malice" and " maliciously," used in the the responsibility of discussing it generally. If we statute, would have no meaning except by reference struck out of this case all the declarations and tes to the common law. We know that the term - maltimony of the defendant himself, we have no light ice," in the definition of murder, does not require that whatever on this subject. There are circumstances, proof shall be given of any special batred or ill-will to such as his actions and conduct, which, his counsel the deceased, but that the deliberate intent to kill, may argue, of themselves indicated some aberration, from whatever motive, constitutes all the malice that and are corroborative of and explained by his testi- the law requires to be shown, and that the term "withmony. But of themselves they would have afforded out malice” in the definition of manslaughter means no indication of the particular motive or special form simply without premeditated intent, as where the killof delusion that actuated him. Of this we have no ing occurs in the heat of passion or sudden quarrel. indications except in the declarations, oral or written, As this I will explain to the jury when it becomes of the defendant himself. But he has never claimed necessary to charge them. But the instruction-in that he was irresistibly impelled to do an act which its use of the phrase " without malice in fact ".--might he knew to be wrong. On the contrary, he always convey the idea to the jury that if the killing was claimed that it was right. He justified it at the time, done from the motives declared by the prisoner, and and afterward, in his papers, as a political necessity if he had, as he says, no personal ill-will toward the and an act of patriotism, and whether he claimed in- President, it was not murder. It is objectionable on spiration early or late, he has claimed that the act this ground, and every object that could be properly was inspired, and therefore right. He has used the sought under this head will be attained by the explanawords a

pressure” and “ inspiration” interchange- tions which I have indicated to be made to the jury. ably, as it were, to express the idea. This has no It becomes important, in the first place, to settle the meaning unless it be that he was under an insane de- rules of evidence by which the jury is to be guided in lusion that the Deity had inspired and commanded weighing the proofs. the act. He has certainly not separated the idea of In reference to the question on whom rests the burpressure and impulse from the conviction of inspira- den of proof where insanity is relied on as a defense, tion and right and duty.

three different and conflicting views have been held The defendant has asserted no form of insanity by three different courts. According to one view it is which does not involve the conviction that the act was incumbent on the accused to establish the fact of his right, and I feel sure that I am not transcending the insanity at the time of commission of the alleged crime privilege of the court when I say that there is no evi- by evidence so conclusive as to exclude all reasonable dence in the case outside of his own declaration tend- doubt of it. But this view derives so little support ing to prove irresistible impulse as a thing by itself from authority that it may be passed over without and separate from this alleged delusion. Therefore, comment as inadmissible. Another view is that the the case does not seem to me to present or call for any defense of insanity is an affirmative one, which the ruling on the hypothesis of an irresistible impulse to party asserting it must establish to the satisfaction of do what the accused knew to be wrong and what was the jury by at least a preponderance of evidence. against his will. Whether there is such a thing That is to say, the evidence in favor of it need not be as irresistible insane impulse to commit crime, and so conclusive as to leave no room for reasonable doubt, whether it has existed in any particular case, are ques but it must have more weight with the jury than the tions of fact and not of law. In this case, I think, evidence against, so that they would feel justified in there is no testimony showing that it can exist by its finding the fact as they would find any fact in a civil self as an independent form of insanity, but rather suit, in which all questions of fac are decided accordthe contrary. There is, hɔwever, testimony tending ing to the weight of the evidence. Still another view to show that such impulses result from and are asso is that the sanity of the accused is just as much a part ciated with insane delusions, and especially with an of the case of the prosecution as the homicide itself, insane delusion as that the party has received a com and just as much an element in the crime of murder, mand from the Deity to do an act. But if such an the only difference being that as the law presumes insane delusion exists, so as to destroy the perceptions every one to be sane, it is not necessary for the Govof right and wrong as to the act (which is substantially ernment to produce affirmative evidence of the sanity, the defendant's claim), this of itself is irresponsible but that if the jury have a reasonable doubt of the insanity, and there is no need to consider the subject sanity they are just as much bound to acquit as if of impulses resulting from the delusion. On the other they entertained a reasonable doubt of the commishand, if there were no insanity, but a mere fanatical sion of the homicide by the accused. After a careful opinion or belief, the only impulse that could have examination of the authorities, some of which are actuated the defendant must have been a sane one mere dicta, and others not well considered or even such a one as, in the most favorable view of it, a mis- consistent statements of opinions, I am satisfied that taken sense of duty-which impulse the law requires the best reasons and most weighty of them sustain the him to resist and control.

views which I now proceed to state. I have examined In connection with the medical testimony tending all the authorities with great care over and over again.

The cases that are referred to in support of the second passion, inordinate vanity, and unregulated amrule are somewhat more numerous than the others. bition, and not insanity. Mr. Davidge was foltions of the charge of murder. A great many of the lowed by Mr. Reed, who occupied one session cases are mere dicta, and some of them involve utter of the court in summing up the evidence for the contradictions. Not one of them contains the least defense. He took the ground that the accused show of argument. With us there is no statutory had been shown to be a mental wreck and an definition of murder. nition of murder as occurring when a homicide is irresponsible lunatic, whose conviction and committed by a person of sound memory, discretion, punishment for crime would be a disgrace to etc. The opinions which support the last view are American jurisprudence. decidedly entitled to most contidence. They are rea On the first day of the arguments before the soned out from first principles, and their reasonings jury the question was raised of allowing the answerable. In the case of Stone, tried in this court prisoner to close the case in his own behalf, as a few years ago, the instructions were as follows: "In he desired to do. His counsel seconded his a capital case the detense of insanity is required to be wish, but the District Attorney objected. The made out by most clear and convincing proof. In matter was not settled at the time, but, after the this case the jury must judge of the evidence offered delivery of Mr. Reed's address, the proposed the evidence in connection with the assumption that speech of the prisoner was given to the press what a man does is sanely done, the jury entertains a and published on the 16th of January. It was reasonable doubt as to whether the prisoner commit- made up of a reiteration of his claims to patriotted the homicide charged, or as to whether at the time ism, piety, and divine inspiration, and contained of the commission he was in a sane state of mind, they nothing new of a noteworthy character. He must acquit him.”

I shall, however, adopt the suggestion which is claimed, as he had repeatedly done in the course found in some of the later authorities--that is, not to of the proceedings, that he had the sympathy of instruct the jury to acquit if they feel a reasonable a large and increasing class of good citizens, doubt about any one fact in the issue; but I shall in

that public opinion was growing in his favor, struct them as to the nature of the crime and as to all the elements composing it, including that of responsi- and that posterity would justify his deed, and bility. I shall instruct them as to the presumption of condemn any action against him. innocence and sanity, and shall tell them finally that, Mr. Scoville occupied nearly five days in adon the whole evidence and on the consideration of dressing the jury, beginning on the 16th and doubt of the guilt of the prisoner, the prisoner is en concluding on the 20th. He went over the

ground covered by the evidence, examined the The tenth and eleventh instructions asked for on the law regarding legal responsibility, contended part of the defense do not involve any serious ques- that the prisoner had long been an insane man, tion. The eleventh instruction asks me to say that, denounced the spirit and method of the prose“if the jury believe from the evidence that the prose- cution, and attacked prominent politicians who cution has willfully suppressed evidence of the mental condition of the prisoner during two weeks follow- were, he claimed, responsible for the state of ing the shooting of President Garfield which it was affairs which wrought upon the disordered facin their power to have produced in the trial, the jury ulties of the accused and impelled him to the have a right to take that fact into consideration as a presumption that such evidence, if it had been pro

deed of July 2d. He closed with an appeal to duced, would have been unfavorable to the prosecu

the jury to save the country from the disgrace tion."

of executing an insane man in obedience to Any instruction ought to be based on some evidence popular clamor, after an unfair trial, and for the in the case, and if I were to grant the instruction in purpose of screening from detestation men who that form I would be assuming that there was some evidence in the case tending to show a willful sup

were responsible for his deed. pression of evidence by the prosecution. I can not

At the close of Mr. Scoville's address, the Disso assume. It is always, however, open to either side trict Attorney withdrew all objection to the to argue that evidence which might have been pro- prisoner speaking to the jury, as he did not duced and which has not been produced should be regarded as injurious to the party refusing to produce record upon which there was any possibility

i intend that any error should get into the it. But I do not think the court ought to give a formal instruction in the shape of either the tenth or that a new trial should be allowed.” This exeleventh prayer. I have already given my views on planation called forth an acrimonious protest the twelfth and remaining prayers.

from the defense, and Judge Cox granted the At the conclusion of Judge Cox's decision prisoner's request to address the jury, remark, the prisoner remarked, “I am satisfied with ing that some of his brethren of the bench" had the law as laid down by your Honor.”

very serious doubts whether, in a capital case, The arguments before the jury were begun on the prisoner could be denied the right to adthe 12th of January. Mr. Davidge spent two dress the jury.” Accordingly, on the 21st of days in summing up thé evidence for the prose- January, Guiteau read the speech which had alcution and discussing its bearing on the plea of ready been published, with a brief preface referinsanity. He endeavored to show that the deed ring to a decision that had just been made by of the accused was deliberately planned and the New York Court of Appeals, to the effect systematically carried out, having for its motives that the proof of insanity, beyond a reasonable desire for revenge, love of notoriety, and hope doubt, rested with the prosecution. of escape from consequences through miscalcu On Monday, the 23d of January, Mr. Porlated political influence. His career was treated ter began the closing address in behalf of the as showing depravity and wickedness, unbridled Government, and occupied the greater part of


three days. It was devoted largely to portray- prove any ill-will or hatred on the part of the accused ing and denouncing with scathing invective the toward the deceased. Wherever a homicide was shown character of the accused as revealed by the with deliberate intent, it was sufficiently proved to evidence, and demolishing the defense of in- have been done with malice aforethought, and malice sanity. It described the prisoner as a monster was not disproved by showing that the accused had of iniquity, animated by selfish motives and no personal ill-will to the deceased, and that he killed vengeful feelings, presuming at first on the pro- through mistaking him for another, or (as claimed in

him from other motives—as, for instance, robbery, or tection of a political faction to be benefited by this case) to produce a public benefit. If it could be his deed, whose moral standard he assumed to shown that the killing occurred in a heat of passion be as low as his own, and resorting when this or under provocation, then it would appear that there dependence failed to a pretense of divine inspi- was no premeditated attempt, and therefore no malice ration and irresistible pressure. The address aforethought, and that would reduce the crime to was frequently interrupted by the most bitter say that there was nothing of that kind in the prese and violent interjections from the prisoner, ent case. The jury would have to say either that the and occasionally by heated objections from the defendant was guilty of murder or that he was innocounsel for the defense, who claimed that the cent. In order to constitute the crime of murder, the speaker went beyond the evidence. The only nical terms, he must be “ of sound mind, memory

assassin inust have a reasonably sane mind-in techcheck which the court found occasion to admin- and discretion.” An irresponsibly insane man could ister was to prevent a reference to expressions not commit murder. If he was laboring under a disof public opinion, intended to counteract the ease of the mental faculties to such an extent that he prisoner's often reiterated assertion that the did not know what he was doing, or did not know it American people sympathized with him, and de- memory, and discretion that was a part of the defini

was wrong, then he was wanting in that sound mind, manded his acquittal.

tion of murder. In the next place, every defendant Immediately upon the close of Mr. Porter's was presumed innocent until the accusation against address, at 3.15 P. M., on January 25, 1882, him was established by proof. In the next place, Judge Cox delivered his charge to the jury. was equally true that a defendant was presumed to After speaking of the rights which were guar- be sane, and to have been so at the time the crime anteed to accused persons, he proceeded: was committed—that is to say, that the Government

was not bound to show affirmatively, as a part of its Every accused person, he said, was presumed to be proofs, that the defendant was sane. As insanity innocent until the accusation was proved. With what was the exception, and as the majority of men are difficulty and trouble the law had been administered sane, the law presumed the latter condition of every in the present case, the jurors had been daily wit- mun, until some reason was shown to believe to the

It was, however, a consolation to think that contrary. The burden was, therefore, on the defendnot one of those sacred guarantees of the Constitution ant, who set up insanity as an excuse for crime, to had been violated in the person of the accused. At produce proofs in the first instance to show that that last the long chapter of proof was ended, the task of presumption was mistaken, so far as it related to the the advocate was done, and it now rested with the prisoner. Crime, therefore, involved three elements jury to determine the issue between public justice —the killing, malice, and a responsible mind in the and the prisoner at the bar. No one could feel more murderer. After all the evidence was before the jury, keenly than himself the great responsibility of his if the jury, while bearing in mind both those preduties, and he felt that he could only discharge them sumptions-that is, that the defendant is innocent by close adherence to the law, as laid down by its till he is proved guilty, and that he is sane till the highest authorities. Before proceeding further, he contrary appears--still entertained what is called a wished to notice an incident which had taken place reasonable doubt on any ground, or as to any of the pending the recent argument. The prischer had fre- essential elements of the crime, then the defendant quently taken occasion to proclaim that public opin- was entitled to the benefit of that doubt and to an acion, as evidenced by the press and correspondence, quittal. was in his favor. Those declarations could not have It was important to explain to the jury here in the been prevented, except by the process of gagging the best way that the court could what is a reasonable prisoner. Any suggestion that the jury could be in- doubt. He could hardly venture to give an exact fluenced by such lawless clattering of the prisoner definition of the term, for he did not know of any would have seemed to him absurd, and he should successful attempt to do so. As to questions relating have felt that he was insulting the intelligence of the to human affairs, a knowledge of which is derived jury, if he had warned them not to regard it. Coun- from testimony, it was impossible to have the same sel for the prosecution had felt it necessary, however, kind of certainty that is created by scientific demonin the final argument, to interpose a contradiction to stration. The only certainty that the jury could have such statements, and an exception had been taken on was a moral certainty, depending on the confidence the part of the accused to the form in which that ef- which the jury had in the integrity of witnesses, and fort was made. For the sole purpose of purging the in their capacity and opportunity to know the truth. record of any objectionable matter, he should simply If, for example, facts not improbable in themselves say that anything which had been said on either side were attested by numerous witnesses, credible and in reference to public excitement or to newspaper uncontradicted, and who had every opportunity to opinion was not to be regarded by the jury.

know the truth, a reasonable or moral certainty would The indictment charged the defendant with having be inspired by that testimony. In such a case doubt murdered James A. Garfield, and it was the duty of would be unreasonable, or imaginary, or speculative. the court to explain the nature of the crime charged. It ought not to be a doubt as to whether the party Murder was committed where a person of sound mem- might not be innocent in the face of strong proots of ory and discretion unlawfully killed a reasonable being his guilt; but it must be a sincere doubt, whether he in the peace of the United States with malice afore- had been proved guilty. Even where the testimony thought. It had to be proved, first, that the death was contradictory, and where so much more credit was caused by the act of the accused, and, further, should be given to one side than the other, the same that it was caused with malice aforethought. That result might be produced. On the other hand, the did not mean, however, that the Government had to opposing proof's might be so balanced that the jury

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