Newspaper Page Text
Vj ' Iff' ! "If' '
I, A. BARKER, Editor and Proprietor.
j.TODD IIHTCIIINSON Publisher.
I WOULD BATHER BE RIGHT THAN PRESIDENT. Hkxrt Ca.
1 $1.50 I ADVAXCE.
Home from the War.
'"There'll be a bitin' black frost on the
tills to-night, I tell ye 1" said Moses At
tsrly, as be threw an armful of oak logs,
kinged with silver gray-moss, upon the
tone hearth, and rubbed his hands cheer
ily before .the red, roaring blaze that
tncircled the rude iron fire-dog in drifts
of ruby sparks.
He was a tall wiry-looking old man,
with mild hazel eyes, and a skin well nigh
as brown as the basket of butternuts that
stood in the corner a man whom you
miirht easily fancy to have grown up
among thoss rock-bound, wind-swept
wildernessej, as the giant pines on the
Eteep cliffs above had grown-: stalwart,
(tardy, and true to the very heart's core.
The room was very plain, with no cur
tains at the narrow-paned windows, and
no carpet ave the old zigSag veins in the
hickory boards that formed the floor j yet
there was an air of comfort in the splint
bottom chairs with red moreen cushions,
and the round table, neatly spread for the
evening meal. Over the fire an apoplectic
black tea kettle kept up a dreary song,
and Moses Atterly's only child sat, with
folded hands', in the chimney corner,
watching the vaporous wreath curling
fiom the spout a pretty soft eyed girl,
with a late rose in her braids of glossy
chestnut brown hair, and straight, clearly
cut features now in shadow, and irradi
diated by the cheerful torches of flame
that played at hide and seek in and out
mong the crevices of the great babblicg,
"Have you been l the post office to
night, father V said she, suddenly look
ing up as Moses gave the smouldering
lack log a sort of remonstrating kick.
'.No, but I met, Jim Grayling down by
the hemlock hollow, and he sail he was
going straight there so I told him to
ask if there was anything for our folks.
He'll be here directly, I calculate, for it
must be all of two hours ago."
"I am very sorry," said Bessie, almost
petulantly. "Father, I do detest the sight
of that man I" .
"My dear daughter," " remonstrated
Moses Atterly, "that ain't according to
either sense or gospel,"
'.'Well, I can't help it, father," coaxed
Bessie stealing her . soft, dimpled hand
iuto the rough palm that lay on Moses
Atterly's knee. "Somehow, he always
teemed to me like "
She stopped suddenly so suddenly
the late rose fell out of her hair and lay
on the stone hearth for, as she turned
her head, she saw James Grayling stand
ing beside them, unfolding a coarse white
sad red comforter from about his neck.
He stooped, without saying a word, and
picked up the rose for her.
"Why Jim !" said farmer Atterly,
"where on airth did you drop down from ?
1 didn't hear you come in I"
"Dida'tyouf I'm sure 1 knocked loud
enough," said Grayling, with a deep red
flash slowly fading from bis cheek.
"Pretty well to-night, Bessie ?"
"I am quito well enough' pouted Bes
e, without looking at him, and tossing
her recovered rose in among, the glowing
tinders. Somehow or other it had lost its
charms after having lain in Jim Gray- j
hag's band a second.
"Sit down Jim," said the farmer. "Any
can tor us to-night."
What a strange smile passed over his
kce as he saw the sudden downward droop
f Bessie Atterly's eyelashes the quiver
wound her mouth.
"othin' ! - That's queer. You see
Bessie's feelin' kind o' worried cause she
don't hear nothin' from Henry Ives."
James Grayling paused, a little mali
ciously, tohotice the sparklo in Bessie's
jes as eh6 leaned forward with reddening
rtficks afcTIHent look.
"What does he say ?" she gasped, as
Grayling spoke something to her father
1( whispered tones.
. "Well, I'm afraid you'll feel badly about
l; but a friend has written him a letter,
to which he says Harry Ives was captured,
ith half a dozen others, by a skirmishing
party, a week before he wrote."
"Ves, and that isn't all. He says that
jej didn't half believe Harry Ives cared
Aether he was carried down South or
Bot for he had taken a great notion to
pretty girl down in Virginia a
uier 8 daughter, I believe and "
i on'.t Deeve lt James Grayling,1
tail? T ' J '
P I Bessie, springing to her feec, with
ashing eye and passion crimsoned fore
head : "T l)nn'fUKAn , ...i : v
repeating some vile falsehood.
l knew you'd feel bad," said G ray'ing,
Jtto provoking mildness ; "but I thought
to d 0,1 ount o "know -how matters
lett an 8.hoW you my riend Sam'
. eri it that will be any more satisfactory.
Cever had much faith in Harry Ives a
caret ess, rollicking, dashing fellow, who '
"Hush ! I will not listen to another
sentence !" ejaculated Bessie,- angrily, and
with a certain 3trange dignity m ner girl
face and slender form.
. "Mr. Atterlv " said Gravlins with
aggravating moderation and calmness
"How long is it since your daughter re
ceived a letter, from Harrv Ives?"- ,-
"Well, It's a considerable spejl," said
the farmer : "but letters do take" time to
reach ue, you know."
" Yes. particular! v when they re never
0 a m
sent." sneered Gravlinr.
"Father, don't listen jto him ;" cried
Bessie. Dassionatelv. "If the whole world
were to tell me. Harry Ives was untrue, I
would. not believe them.
Anri "Rpssip fainted nnietlv flWaV. with
her chestnut braids of hair drooping over
ier latner s Knee. . .
Poor child! Could she have foreseen
the weary months of waiting for the letter
which never came from the tar on southern
hills, the hope deferred which maketh the"
heart sick, that wers in store tor her, she
might have been sorry that she had not
died then and there, holding fast to that
firm faith in Harry Ives' fidelity.
James Grayling a crafty, patient man
bided his time. It came at last when
the tender green of the hill sides shriveled
and grew, brown under the starry, silent
frost of the bitter December nights and
the keen wind rushed with thunderous
swell through the lonely pine forests in
"Daughter, it's the dearest wish of my
heart, said Farmer Atterly, solemnly, as
he sat with Bessie in the old silent room
"I'm gettin' well on in years - and if I
could but see you married to tome good
and true man before am taken away, I
should rest much easier iu my grave.
James Grayling has been almost a son to
me these moDths of trial and trouble. He
is coming for his final answer to-night.
Let it be Yes!" .
Bessie shuddered. That year of sick,
wistful irrief had changed her into' a pale,
fragile girl, with larga frightened eyes,
ever roving from side to side, as if seeking
something which never came.
"Wait father," she murmued, eagerly,
as if pleaJing for life itself; "wait a little
longer only a little longer I"
"I have waited, Bessie.. It is a year
and over since Harry IvC3 has sent you
either word br.niessage. : He may be dead
better dead than a scoundrel I but
James Grayling has been as true as steel
to me all" this time. He deserves you,
Bessie, and when you are once married,
you'll be sure to learn to love him. Shall
we say this day month for your wedding,
daughter !" '
That nieht. Bessie had laid her cold
hand in Janies Grayling's eager palm, and
said "Yes," dreamily, to whatever he pro
posed. What had life left for her ? As
well be James Grayling's wite as anything
else, God willed that she should live and
suffer on, and the dreary path of years
lay spread out before her listless feet !
The old smoke-stained walls were
wreathed with feathery garlands of cedar
and pine, with the scarlet berries of the
mountain ash glowing here and there j the
great fire roared up the chimney with fes
tive sound, and all the neighbors were
gathered round Farmer Atterly's hearth
stone for pretty Bessie was to be married
"She don't look as a bride ought . to,
somehow," whispered Mrs. Deacon Jen
nings to her companion, Mahala Bird.
"She seems to me jest like one o' them
snow wreaths down in the hollow yonder."
"Maybe it's that white dress," said
Mahala j "but she does look like a corpse.
Land o' Goshen ! what am I sayin' ? It
ain't considered good luck to talk about
corpses on a weddin' night."
. For the pretty bridemaids had just led
Bessie in, robed in pure sheeny gilk, with
6nowy geraniums in her hair, and not a
vestige of color in her cheek.
"There ! don't she look sweet ?" said
Susan Jennings. "Is it time to go into
the parlor yet ?"
"Massy ! no, my child I" said Mrs. Jen
nings; "not for an hour. Why, Jim
Grayling hasn't come yet."
So Bessie sat down in the midst of the
assembled maids and matrons, and played
with the white flowers in her bouquet,
thinking who know3 of what ? Perhaps
a lonely grave under the cruel Southern
stars ; perhaps the fair face of the woman
who had wiled her lover's heart away.
Somebody spoke to her ; she looked up,
and all of a sudden her frightened eyes
traced a figure ' beyond the open door,
opposite to which she sat a figure passing
hurriedly through the crowd. .
"Wbero is she? I will seo -my own
Bessie, wedding or no wedding ! Who
has a better right than I!" -
The next moment the pale, white-robed
bride lay, like a fair, still statue, in Harry
EBENSBURG, PA., THURSDAY, MAIiCH 24, 1864.
"Stand off, I say !" he cried, fiercely.
'Let no one come between me and the
Woman I love. I have earned her to be
my wife earned. her. by long months of
pain and suffering earned her by wounds
received upon the battle fields of the
country she loves 1 . Do you say she is to
be married to James Grayling? What
has James Grayling done with the letters
I sent to his care ? with all the messages
I entrusted to him? She had better be
in her grave than married to James Gray
ling! Mr. Atterly, you are a just and
a good man judge between me and the
treacherous fox I fancied was'my friend."
'Harry, Harry 1" faltered the old man,
"I never dreamed of this. Tell us all
about it, my boy, for my old head swims."
And Harry Ives, still holding Bessie to
his heart, revealed the story of his own.
truth, and James Grayling's villainous
duplicity. When he had . finished the
impassioned recital, Moses Atterly clasped
the brown, strong hand between his own
horny palms, and said solemnly : 5
"My boy, I ask your pardon for every
doubt that ever crossed my mind, and I
thank the merciful Providence that has
sp'ared Bessie from bein' Jim Grayling's
wife. We were calculatin' to have a
weddin' here to-night : and it isn't too late
yet, if Harry hasn't any objections to bein
married in his soldier clothes."
"Father !" interposed Bessie, now as
rosy as a whole bouquet of blooming car
nations blended into one; but Harry took
her hands in his, whispering:
"Love ! I shall not feel secure until I
can call you tcife," and the remonstrance
died aWay upon her lips. .
"Are you all ready for the ceremony.
Elder Wilkins t" said Mcse?, "'cause I
b'lieve the young couple is."
Ah I she looked like a bride now, with
the hazel light burning in soft fires under
her long curved lashes, and the carmine
dye3 .coming and going upon her cheek.
like a proud and olushing virgin.
I he ceremony wa3 scarcely over before
the silver chime of sleigh bells sounded at'
the door, and James Grayling's voice wi j
heard, exclaiming : -
"I'm "afraid that I'm a little late ; but
the horse sprained one of his legs, and I
had to get him changed at Squire Warren
ton's. However "
"Yes, Jim Grayling, you are a little
late," said Moses Atterly, taking an unu
sually prodigious pinch of snuff; "for my
darter s married already.
"Married ! ejaculated James Grayling,
a? if more than half uncertain whether his
iutended father-in-law was not a fit candi
date for the lunatic asylum.
"les to Harry Ives!'
As Grayling's bewildered eve caught
sight, in the brilliantly lighted room be
yond, of the young soldier bending his
head to listen to some whispered word
from Bessie, he turned a dull dead yellow,
and -a chill clew broke out around his
"What does this mean ?" he asked.
"It means, Jim Grayling, that you're a
scoundrel !" said the old man, with sudden
tire . flashing ' in his eyes. "There's the
open door, leave the house before Harry
Ives sets eyes on you, for he's a spirited
lad, and much mischief might come of it.
And now, hark ye never let me see your
villainous face again !"
Silently, and like a wounded snake,
James Grayling crept out into the chilH
darkness 01 the tempestuous night, a
detected, disappointed man. And so ef
fectually did he take Moses Atterly's
advice that the quiet little village in the
hollow knew his name and presence no
And Bessie Ives, the happiest little wife
in the whole world, sings softly over hr
work, counting the days until, "when this
cruel. war is over," she shall welcome her
soldier husband back to the grand old
pine forests of Maine once more.
. JBSF A lady who has just opened a
boarding house up. town, has pasted up
the following "rules and regulations :"
The gentlemen must not put their feet on
the mantel in the winter nor out of the
window in the summer, and no lady must
write her name on the glass with a quartz
pin. If she uses an air-tight, she must
regulate the damper herself and not ring
every ten minutes for the chambermaid.
The single gentlemen must not play
the trombone nor make love to the
servants, nor comb theirwhisker& at the
tatTe. If he does, he won't answer.
No lady must turn up her nose at any
thing upon the table, unless she has a
natural pug, and none of the party must
drink with a mouth full - of victuals nor
must they fight for the top buckwheat
cakes. Terms liberal, and board to be
paid weekly in advance."
J6y Artemus Ward thinks it is a bad
thing not to have a wife a gentle heart
to get up in the morning to build a warm
tire, . .
Com'th. vs. Joseph Moore I Mur
derCharge to the Jury.
Last week, we printed a portion of his
Honor Judge Taylor's charge to the jury,
in the case of the Commonwealth versus
Joseph Moore, indicted for the murder of
Jordan Marbourg ; this week, we give it
entire, revised and corrected :
Joseph Moore, the prisoner at the bar, is
charged in the indictment which you have
been sworn to try, with the murder of Jor
dan. Marbourg. The case requires of thi3
court, and of you, gentlemen of the jury, the
discharge of the most solemn and responsible
duty ever cast upon a court and jury. Ihe
life of this unfortunate nrisoDef, oh the one
hand, and, on the other, the maintenance of
the law made and ordained to shield and
protect life, are committed to U3 J and the
discharge of our respective duties to the one
and to the other, is required of us alike,
according to our best judgment, nnder the
solemn sanction of an oath. It i3 our duty
to state to you the law, and to indicate the
questions for your decision which arise in
its application. It is your duty to applj
the law, as you receive it from the Court, o
the facts in evidence, as you have received
them from the witnesses, and heard them
discussed by counsel, and so make up your
verdict. We have written and pondered ev
ery word we have to say to you; and it is
our earnest prayer that you maybe guided to
conclusions which will discharge the solemn
obligations of the oath taken by you all when
vou entered that box. and result in "a true
deliverance between the Cog&monwealth and
Murder, as denned by the common law,
is committed, "when a person of sound
memory and discretion, unlawfully killeth
any reasonable creature iu being, and in the
peace of the commonwealth, with malice
prepense or aforethought, either express or
implied." "A person of sound memory and
discretion" i3 one who ha3 sufficient knowl
edge to know and understand the nature of
the act, acd that it is a violation of his moral
and social duty, and will subject him to pun
ishment. Bnt every one is presumed by the
law to be sane, and to possess tlm measure of
understanding, and he is responsible for his ,
acts, unless this presumption be overcome by
facta and circumstances disclosed in the proof
of the principal fact, or shewn by affirmative j
evidence in the defence. Jfalice, in its legal,
as distinguished from the popular sense of
the word, does not mean spite or malevolence
against the deceased in particular, but that
the fitct has been attended with such circum
stances as are the ordinary symptoms of a
wicked, depraved and alignaut spirit; a
heart regardless of social duty, and fatally
bent upon mischief. It is either expre or
implied. Express malice i3 when Jhe killing
i3 with a sedate, deliberative mind, with
formed design, manifeited by external cir
cumstances, such as previous threats cr
menaces, formejr grudges, and concerted
schemes to do the party bodily harm. Implied
or legal malice means that the fact has been
attended with such circumstances as carry
wifh them the plain indication, of a malevo
lent spirit. The law implies malice in every
deliberate, cruel act committed by one per
son against another, however sudden. Every
unlawful killing is, therefore, murder, unless
it-be shown to be a less cllcnce, or no offence
at all. '
This is murder at common law and tills is
murder in Pennsylvania. Our statutes f ir- j
nish no new definition of the crime. What ,
wa3 murder at common law is still mnrder ;
but our statute, for the purpose ot more just
punishment, distinguishes between different
acts of malicious homicide, and divides mur
der into murder of the first and murder of the
second degree. It is declared, in the laguage
of the Act of 22d April, 1794, re-enacted in
the Act of 31st March, I860, that "all murder f
which shall be perpetrated.by means of poi- J
son, or lying in wait, or by any other kind of I
willful, deliberate and premeditated killing,
or which shall be committed in the perpetra
tion of, or attempt to perpetrate, any arsott,
rape, robbery, or burglary, shall be deemed
murder in the first degree, and all other kjnda
of murder shall be deemed murder in the sec
ond degree ; and the jury before whom any
person indicted for murder shall be tried,
shall, if they find such person guilty thereof,
ascertain in their verdict whether it be mur
der of the first or second degree."
The duty is imposed on the jury, when they
find the prisoner guilty, ot discriminating
between the two degrees of murder, in the
verdict. It is not difficult, usually, to rec
ognize the murders in the firtt degree, here
specifically defined ; but more difficulty has
arisen in determining whether a particular
murder is included in or described by "any
other hind of willful, deliberate, and premedita
ted killing." This phraseology evidently
means a degree of deliberation similar to that
indicated in the defined case3 of "murder
perpetrated by means of poison or lying in icait ;"
and from the case of mulatto Bob, tried by
.Chief Justice M'Kean, soon after the passage
of the act of 1794, down to the present day,
the uniform judicial construction has been
that whenever there plainly appears to have
been formed design, or a specific intent,
however suddenly formed, to take life, it is
murder of the first degree. " When such
design, or intent to kill, is not shown beyond
a reasonable doubt, or when there is a reas
onable doubt whethegtithe murderer, when the
mortal wound was iutiicted, intended any thing
more than to do great bodily harm, it is mur
der in the second degree. The test inquiry is,
did the prisoner, at the time, deliberately
aim at life, and intend to kill t
A response to this inquiry must be given by
the jury, from all the evidence. Such delibera
tion and design may be shown, and it is for
the Commonwealth falways to make it out
beyond a reasonable doubt, by express evi
deuco of such design, or by circumstance and
conduct which necessarily imply it. It maybe
an irresistible inference from the weapon used,
afid the manner of its use. If, for example,
one deliberately aim a loaded uistol at the
head or breast of another, and discharge it ; or,
. i i i-i . . . . . . .
ii, wun aeuoeraie aim, ne cleave tne skull
with an axe, it could not admit of a. moment's
doubt that he intended to kill. And if he had
time to deliberate and form such design,
tnougn but for a minute, and did so, it is
"willful, deliberate, and premeditated killing,
and murder of the first degree This has bea
toe unitorra construction of onr statute ; and,
with the report of the commissioners to revise
the penal code before them, that they had
made "no attempt to interfere with the law of
murder as it has existed since the act 1794,"
for thef reason that it had "been so thoroughly
consideredtond its construction and ita meaning
so entirely settled by a long course of judicial
decisions," the Legislature, in 1860, adopted,
without the change of a word, the old statute.
A homicide, indicted as murder, may be
reduced to manslaughtert by evidence which
rebuts the presumption of malice ; or to no
offence at all, by evidence showing it to be
Justifiable or excusable.
Manslaughter is the unlawful killing of
another without malice. It is a killing which
usually happens in a sudden heat and quarrel,
and upon sufficient provocation. The law, from
tenderness to human infirmity, considors a
homicide committed in passion, upon what it
judges sufficient provocation, as committed
without malice, and therefore only manslaughter.
Provocation without passion, or passion with
out provocation, is not sufficient for tbe purpose.
And provocation, such as will avail for the
purpose, has a defined legal signification. No
breach of a man's word, no trespass to his lands
or goods, no insult by words, no matter how
provoking cr insulting they may be, will free a
party killing from the guilt of murder. And
this is especially true where the party, killing
upon such provocation, makes use of a deadly
weapon. "This ia most wiicly settled," as
Judge King remarks in the Com. vs. GreCn, 1
Ash, 237; "for dreadful would bo the state
of society m which the law would listen as an
apology for taking human life, to such notions
of insult or provocation as a licentious and ill-
governed spirit would give rise to.
This is tue law of homicide, so far ns it is
necessary to stale it, at least at present, in
this case ; and we now turn to the evidence
to which the law is to be applied, ine tes
timony of the mauy witnesses proving the
homicide, which is not denied, presents, as
wa3 properly remarked by one of the prison
er's counsel, no conflict, except that slight
discrepancy in the statement of details which
is always to be expected wuen several un
dertake, to describe an exciting transaction.
We, learn from I hem that on the nxorniug f
the 12th February, about S o'clock, the pris
oner, wno, as it appears Dy otner evidence,
had been informed by Lis niece, living with
him, of a report in circulation about his wife
anu the deceased, the truth of which ho had
in the meantime been iudustriously engaged
in investigating, was observed standing at
Frazers corner, in view of the house of Jor
dan Marbourg, ihe deceased, and the pest of
fice, iu Jolpstown, looking one way and the.
other, and noticeably excite J. From there he
walked to Mr. Wehn's store, and upon Mr.
Wehn's invitation, went in and sat down, and '
remained there about half an hour. During
that time, Mr. Wehu was reading or talking
to him, though he appeared to pay no atten
tion, but seemed to be steaaily looking to
wards the street through the glass door. He
then rose up and went out. Mn Wehn, who
had seen Marbourg pass, followed to the door,
anu says that when he came to the door, he
saw Marbourg coming out of the post office,
and saw the prisoner catch hqjd of his coat
collar. Abcut this time, the noise attracted
the attention Of a number of other witnesses,
who all give substantially the same account
of the horrid occurrence which followed, with
some discrepancy respecting the expressions
used, the order and turn in which they were
made, and perhaps some other unimportant
details. We gather frcm all their statements
that the 'prisoner caught and held the de
ceased by the collar with his left hand, bran
a pistol, which he held in his righH
hand, over his head, and pushing him back
against the building, and drawing lam out
from it, at one time striking him on the fore
head a slight tap with the pistol. Before he
took the pistol out of his pocket, and after
ward, he accused the deceased with havinjri
seduced bis wife when he was in the army
fighting for his country ;. with having ruined
his family ; that his wife had confessed all
that morning; told him to get down on his
knees and confess, or repent ; said he would
be justified in shooting him, but hated -to
have his bWod on his soul. Ilis appearance
is described as wild and excitedj His manner
violent and boisterous, and his language pro
fane. During this time, the deceased made
no resistance, Beeraed to be paralyzed, and in
a subdued or low tone was denying the charge.
At length, atsome expression made by the
deceased, the prisoner became more excited,
let 2 k3 hold, stepped back, brought the
pistol down to a level with the head of Marbourg,-
aimed, and fired the pistol. Five
shots were fired, all of wliich took effect, one
of them, which fodged in the brain, being
sufficient, as Dr. Lowman testifies, to have
produced instant death. This altercation
lasted about one and a half or two minutes.
The prisoner, after the shooting, put the pis
tol in his pocket, took off his hat, and walked
away some distance, talking aloud, and to no
one in particular. Dr. Jackson said to him,
MJoe, that's a terrible revenge ;" he replied
"he had ruined him and his family." To
another, at the same time, he stated that he
could not help it. Soon afterwards, he went
to the office of Irvin Rutledge, Esq., and said
he had coute to surrender himself into the
hands of the law. This is an outline of the
evidence as it describes the homicide. You
haw heard it all from the stand, and heard
much of it read, and frequently, referred to in
the argument. Your recollection will supply
the various and varied expressions of the
prisoner and the deceased during the alterca
tion, and the language used by the witnesgej
iu describing their appearanuo aud manner.
It will bo renioniLcred that Levi Ii. Cohitk
testifio3 that on Saturday the prisoner, when
engaged in. ferreting out the report, maJo
the remark that if it was truer he could set
tle the matter between him and Marbourg fa
a very few minutes, and on Mondaj "he told
tae- that if the report was true, he would
shoot Marbourg in one or tiro minutes'
Thompson Kimmell testifies that about th
Cth of February the prisoner remarked to him
that it was bad enough, and that if it wa
true, he could settle with Marbourg In a min
ute. He turned to- Marbourg and said "if
this report was tree, he-would kill him ia
two minutes he would come Sickles over
him." Capt. Hite testifies that on Friday,
5th February, the prisoner, in a conversation
with him, said "if he found they were goiltr
be was rather under the impression it waj
a slander upon bis wife, .but if he found Mar
bourg guilty, by the eternal God he would
kill them dead in their tracks." The witness
understood him to say in this connection that
if he found it to be a slander, or that they
were guilty, he would kill either.
This simple statement of the undisputed
facts, in view of the law as we have given It
to you, eentlemen of the jurr. discloses, be
yond any room for reasonable doubt, if th
jjusuuer wm at me time responsible, a will
ful, deliberate, and premeditated killing.
"The defence," as stated in the oneninir ar
gument for the prisoner, "is two-fold : 1
"first, tnat tbe homicide was justifiable,,
under all tbe circumstances.
"Second, that the defendant was not a re
sponsible agent." - - .
I. Lpon the first proposition here stated.
it is surely unnecessary to dwell a minute.
We are surprised, indeed, to hear it asserted
or hinted even, here, whatever might be said
elsewhere, that, if the prisoner was at the
time a responsible agent, this is, or. in anv
possible view of it, could be a justifiable
homicide. Justifiable! There is no ground
for a reasonable doubt that the prisoner ac
ted at the time under the belief that the de
ceased had committed adultery with his wife'
ui ma, ue uau tsumcieni reason lor tnat
belief. J udging from his terrible earnestness
when he uttered it, added to the evidence of
the giilty intimacy which he had discovered.
and of course iuvolving her, it is no doubt
true, as he said, that she had "confessed it."
But, if he had caught them in the Very act and
instantly killed Marbourg, ifcwill not be claim
ed surely that our law would hold himguiltless
It would not have been justifiable homicide
That vould have been such a provocation as
would have reduced the killing to manslaugh
ter. inati3aii. liut He would still beguilty
of manslaughter. We are told that the Jew
ish law punished adultery with death; but
that is not the law of Pennsylvania. This
court and you, centlemen. have not been
sworn to administer the municipal law of the
Jews. Our law has not made adultery a capi
taJITence how could it justify the infliction
of that penalty ? Or, if that were the penalty,
how could it justify auy injured party in ta
king the law into his own hands, becomingtho
prosecutor, court, jury, and executioner, and
in sending witliout a trial, or aa hour s war
ning, the accused culprit into the presence ot
his God? To come to such a state of things
rwould, we submit, be 'progressing' backwards
There would be exceedingly wild work ta
king place in the world," Judge Park well res
marks, "if every man were to be allowed to
judge in his own case.", --If he may claim to do
it iu one case, why no In another? As ft
remedy, too, (as the facts in this unfortunate
case afford the most touching illustration,) it
is absurd almost to madness. Without any.-,
resulting good, without restoring any thinelost..'
it gives one hundred fold more publicity to the
family disgrace under which hesmarts,beside4
bringing upon himself the indelible stain of
blood. And while, as aremedy for his wrongs, he
brings these aggravated evils upon himself, by hia
lawless act, he inflicts the deepest injury upon .
others who are innocent as himself of the crime
he would punish, and as much injured by it.
Mrs: Marbourg, as, with true christian phileso
phy, she reminded the prisoner, was as much
injured (since a woman must be allowed as keen,
sensibilities as a man) by the criminal conduct
of his wife and her husband, as he was bv the
guilty conduct of her husband and his wife :
aud each one of her nine children was as Inno
cent as his son ; and yet his act visited her with,
the desolation of widowhood, and made her chil
dren orphans. There are persons, we know,
who ignorantly and thoughtlessly, or wickedly,
proclaim that the adulterer should besbot down,
and who busy themselves in propagating that
morbid and mischievous sentiment; but it
requires very little discernment . to see how
much wiser the law is, than the reckless impulses
of human passion. ' -
We repeat, gentlemen, the homicide wai
not justifiable under all or any of the circum
stances. Nor have we been able to arrive at
the conclusion that the prisoner had legal .
provocation such as would extenuate it. We
do not find the law to be so. Besides, to say
nothing of the evidence of express malice
dating back a week, could it admit of a reas
onable doubt that there was more than suffi
cient time for passion to co.ol ? We turn
therefore, to the other ground of defence.
II. Was the prisoner, at the time of the.
homicide, a responsible agent ? orj In other
words, was he insane ?
The just principle upon which this defence
rests, is, that one whose perception of right .
is pervertgd or destroyed by mental malady;
is not responsible for his actions, any more
than an infant. The law imputes to them no.
guilt whatever; and, when such a state of
mind at the time of the commission of an act
sought to be punished as a crime, is shown
to have existed, it is the duty cf the jury to
find the defendant not guilty; And by a re
cent statute of this Commonwealth, the Act of
31st March, 18C0, known as "the revised penal
code," it is enacted that "in every case in
which it shall be given in cvidence'upon the
trial ot any person charged with any crime or
"misdemeanor, that such person was insano
at the time" of the commission of such offense;
and shall be acquitted, the jury shall be re
quired to find specially whether euch person '
was insane at the time of the commission of
such offence, and to declare whether he was "
acquitted by them on the ground of such in
sanity." This, as it is indicated in the stat
ute,' so that be shall be treated and provided