death by violence at the hands of Arrison, in the manner and form as charged in the indictment?

It is the duty of the state to prove the affirmative; to prove the facts and circumstances by the evidence; the affirmative of the allegations, as set forth in the indictment, beyond the question of a doubt. When we speak of reasonable doubt, we mean that kind of uncertainty and doubt that would shock and stagger the mind of an honest inquirer after truth. We mean reasonable doubts in contra-distinction to mere captions or quibbling doubts, or, in the language of a learned Judge of our own Supreme Court on this point, as follows:

"We have frequently used the expression 'convinced beyond a reasonable doubt.' It is necessary that you should understand what we mean by the expression 'a reasonable doubt.' A reasonable doubt is an honest uncertainty existing in the minds of a candid, impartial and diligent jury, after a full and careful consideration of all the testimony, with a single eye to the ascertainment of the truth, irrespective of the consequences of their finding. It is not a mere speculative doubt, voluntarily excited in the mind, in order to furnish a pretext for avoiding the rendition of a disagreeable verdiet. Such a verdict is considered by the law merely captious. With the consequences of your verdict you have nothing to do, further than this: That they should induce you to examine the testimony with the utmost care, and to exert, in the very best manner of which you are capable, the facilities of your minds to ascertain the truth, for you have but a single duty to perform, and this is to find the truth."

To constitute murder in the first degree under our statute, the act must have been done "purposely and of deliberate and premeditated malice"-that is, of purpose with intent that the act by which the life of the party is taken should have the effect; "deliberately"—that is, with malice aforethought, and with "premeditation"-that is, the design must be formed before the act by which the effect is produced or perpetrated. The atrocity of this offense consists in the deliberate and premeditated malice of the offender. Malice, in law, is the willfully formed design to do another an unlawful injury, whether such design be promoted by deliberate hatred or revenge, or by hope of gain, or springs from the wantonness and depravity of a heart regardless of social duty, and fatally bent upon

mischief. Malice is said to be expressed when the cruel act is done with a sedate and deliberate mind, with settled and formed purpose. This kind of malice is generally evidenced by the circumstances preceding and attending the transaction complained of, as by threats, former grudges, laying in wait, concerted scheme to do injury, or by an unusual degree of cruelty attending the act. Malice is implied where the killing is sudden without any or great provocation, and also where the act done necessarily shows a depraved heart.

It is not merely an intent to kill that may exist without malice; nor does it mean mere passion, for the very existence of passion is often evidence that there was no malice. Passion is hasty, rash, following the first impulse of the moment; malice is cool, circumspect, slow, brooding, meditating, planning.

It is the duty and an obligation on the part of the state, under our system of the administration of criminal jurisprudence, to prove, by the facts and circumstances of the case, every and all the material allegations contained in the indictment, before asking a conviction at your hands.

A question as to the identity of the actor in this case has been raised by counsel. We look upon this question as one among the most important presented in the adjudication of this case. Hence you should examine the facts and circumstances proved by witnesses in this case with great care and caution, looking to the means of knowledge on the part of witnesses as to this point, and be satisfied from the same, beyond all reasonable doubt, as to the identity of the defendant. I will now give you the following special charges handed me by Judge Johnson:

1. Where circumstantial evidence is relied on for a conviction, each circumstance forming a material link in the chain of testimony must be clearly and unequivocally established beyond all reasonable doubt. 2. The connection between the several links of the testimony must be established with equal clearness and certainty. 3. Where several witnesses have been examined as to the same fact, and those witnesses contradict each other, though the jury believe them all to be honest, such contradictions are proper to be considered in settling the question, whether their memories may be implicitly relied on. And also it is the duty of the jury to reconcile the testimony, as far as possible, consistent with the

truth. If they found substantial conflict of testimony, material to the issue, to compare and find out the truth. 4. Where the identity of the prisoner is a question involved, and witnesses swear to marks of identity which are proved not to exist, although every witness may be honest, such mistakes will be considered with reference to the question whether the witness' memory can be relied on. 5. Whatever reliance may be placed in the testimony of old acquaintances as to the personal identity of the prisoner, the testimony of a mere stranger, or one who had been but a casual observer, must be received with great caution-with large allowance for mistakes. 6. If there are reasonable grounds for an hypothesis, though that hypothesis be not clearly proved, that another person committed the crime, the prisoner must be acquitted. 7. The facts proved by circumstances should be so clear and satisfactory as to exclude every other reasonable hypothesis than the guilt of the prisoner. And I will give you the following special charges, handed in by Judge Key:

1. That the jury cannot find the defendant guilty of murder unless they are satisfied, beyond all reasonable doubt, that he sent the instrument described in the indictment to Isaac Allison, and unless also the proof shows with moral certainty that the defendant thereby intended to kill Isaac Allison. 2. That whenever a jury entertains any reasonable doubt whether an offense is murder or manslaughter, it is their duty to find the defendant guilty of the lower offense. 3. That the sending of the instrument described in the indictment, to Isaac Allison, was an unlawful act, and if the jury are satisfied, beyond all reasonable doubt, that the defendant is the person who did send the instrument, the jury can only convict him of manslaughter, unless the proof show with moral certainty that the defendant intended thereby to cause the death of Isaac Allison.

And the following special charge handed in by Mr. Dickson: The rule of law is, in civil cases, that a preponderance of probabilities entitles the party to whose favor the preponderance is to a verdict, has no application in criminal cases. There must be a moral certainty of guilt; and each circumstance essential to conviction must be fully proven, as if the whole case rested upon it. The rule of law is that the state relies upon a connecting chain to make out the whole-a single link wanting, the fabric must fail.

Gentlemen, you have exhibited a degree of patience during the nine days' tedious examination of this case that seems to us demanded at your hands in view of its importance. The case is a peculiar one in most, if not all, of its leading characteristics; in fact, it stands alone in the history of criminal jurisprudence.

A few words, gentlemen, as to what you must say in your verdict, and we are done. If you find the defendant not guilty, you will merely say so. But if you find him guilty, the statute requires you to specify in your verdict of what crime he is guilty. Therefore, if you come to the conclusion that he is guilty as alleged in the indictment, you will say: "We, the jury, find the defendant, William H. Arrison, guilty of murder in the first degree, as charged in the indictment": or words to this effect.

Gentlemen, you have solemnly sworn to well and truly try the issue between the state and the defendant, and a true verdict to give, according to the best of your skill and understanding. Of this we entertain no doubt. Take the case, give it a fair, candid and faithful consideration, and return such a verdict as the law and the evidence require at your hands. I now confide the case to you.

THE VERDICT AND SENTENCE.

At half-past two the Jury retired in charge of the Sheriff, and shortly after six it was announced that the Jury had agreed upon a verdict.

The Clerk. "Gentlemen of the jury, have you agreed upon a verdict?" The Foreman. "We have; we, the Jury in the case of the State of Ohio against William Arrison, find William Arrison Guilty of Murder in the First Degree, as he stands charged in the indictment."

December 22.

Argument upon the motion for a new trial was heard this afternoon.

Mr. Dickson stated that the ground upon which they asked for a new trial was, that newly-discovered testimony had come to light, and that the verdict was against the law, evidence and facts of the case. He submitted to the Court the following affidavit of one of the turnkeys of the jail :

On this 22d day of December, A. D. 1854, Archibald M. Garroatte, Turnkey in the Hamilton County Jail, being by me duly sworn, declares under oath that Gresham Somers, on, or about the

5th day of December, 1854, came into the Hamilton County Jail, where the above defendant was confined, and pointed out Alpheus W. Poage as the person who had delivered to him the box referred to in the indictment.

Mr. Dickson referred to discrepancies of the witnesses as to the identity of the defendant, the box and the card, and appealed to the Court, whether or not these discrepancies and contradictions did not establish a doubt as to the guilt of the prisoner.

Mr. Pruden declined arguing the motion, stating that the Court was familiar with all the circumstances and evidence of the case.

Mr. Johnson argued the question of identity at length, urging that it was not conclusively established by the carpenters that the prisoner had the box made, nor the testimony of True and Robinson satisfactory as to the identity of the person who had the card written; and, further, there was no evidence that the card produced in court was ever on the box which caused the explosion.

JUDGE FLINN took the case under advisement.

December 23.

JUDGE FLINN. The affidavit exhibited but a single naked fact, having no direct bearing upon the main points of the case, and therefore could not change the features of the crime. There has been no legal proof adduced to disturb the verdict of the jury, and, therefore, the Court will not set it aside, believing it to be given in truthfulness and honesty, after a protracted and careful examination of the case. The motion for a new trial is overruled.

JUDGE FLINN. William Arrison, you were indicted by the Grand Jury, under the first section of the Crimes Act, for the murder of Isaac Allison. The case was submitted to a jury of your countrymen, and after a patient deliberation, a verdiet of guilty was rendered. Have you anything to say why the Court should not now proceed to sentence you?

The Prisoner. There are some things I feel need to be said, but whether they would avail me now, I cannot say. I fondly