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treason; but by virtue of a late Statute it is now considered only as murder, and as such is indicted and prosecuted.

And every man who kills another in a duel deliberately fought, is a murderer.

Manslaughter is the killing another, either wilfully, or through gross negligence, but not from malice aforethought.

Homicide from accident is excusable-from necessity it is either excusable, or justifiable-when for the advancement, or in execution of public justice, it is justifiable.

Observing in the list of prisoners, returned by the Gaol keeper, that two persons are in custody charged with felonious homicide, it may be useful to you, in your enquiries, to mention some principles of law, relating to this subject.

In every charge of murder, the fact of killing being first proved against the party charged, to reduce the offence below that crime, by any circumstances of accident, necessity, or human infirmity, he must satisfactorily prove these circumstances, unless they arise out of the evidence produced against him.

When the act which occasions the death is unlawful, yet if malice either express, or implied, be wanting, the killing is not murder, but manslaughter, the act being imputed to the infirmity of human nature.

Neither words of reproach, however grievous, nor contemptu→ ous or insulting gestures, without an assault on the person, are sufficient to free the party killing with a dangerous weapon, from the guilt of murder.

An assault is any attempt or offer, with force and violence, to de a corporal hurt to another, as by striking at him, or even by holding up the fist at him in a threatening or insulting manner, or with such other circumstances as denote an intention and ability, at the time, of using actual violence against his person. And when the injury, however small, as spitting in a man's face, or unlawfully touching him in anger, is inflicted, it amounts to a battery, which includes an assault.

Any assault made, not lightly, but with violence, or with circumstances of indignity, upon a man's person, if it be resented immediately, and in the heat of blood, by killing the party with a deadly weapon, is a provocation, which will reduce the crime to manslaughter; unless the assault, was sought for by the party killing, and induced by his own act, to afford him a pretence for wreaking his malice. To illustrate this exception, a case is stated of the falling out of A and B. A says, he will not strike, but will give B a pot of ale to touch him; on which B strikes A, who thereupon kills B. This is murder in A, notwithstanding the provocation received by the blow from B, because A sought that provocation,

A man may repel force by force, in defence of his person, against any one who manifestly intends, or endeavours by yiolence, or surprise, feloniously to kill him. And he is not obliged to rẻtreat, but may pursue his adversary, until he has secured himself from all danger; and if he kill him in so doing, it is justifiable selfdefence. But a bare fear, however well grounded, unaccompanied by any open act, indicative of such an intention, will not warrant him in killing. There must be an actual danger at the time. And, (in the language of Lord Chief Justice Hale,) it must plainly appear by the circumstances of the case, as the manner of the assault, the weapon, &c. that his life was in imminent danger; otherwise the killing of the assailant will not be justifiable homicide.

But, if the party killing had reasonable grounds for believing, that the person slain had a felonious design against him, and under that supposition kill him; although it should afterwards appear, that there was no such design, it will not be murder; but it will be either manslaughter, or excusable homicide, according to the degree of caution used, and the probable grounds of such belief.

These principles have been recognised by the wisest and most humane writers on criminal law.

After a due and impartial enquiry into the several cases, that may require your attention, you will ascertain the facts, and afterwards apply the principles of law, to obtain a just and legal result."

On Tuesday, December 2d, the Grand Jury returned into Court, and, among other bills, presented the following indictment against Thomas Oliver Selfridge, Esquire :

COMMONWEALTH OF MASSACHUSETTS.

Suffolk, and Nantucket, ss. S

At the Supreme Judicial Court begun and holden at Boston within the County of Suffolk, and for the Counties of Suffolk and Nantucket, on the fourth Tuesday of November, in the year of our Lord one thousand eight hundred and six.

The Jurors for the Commonwealth of Massachusetts upon their oath present, that Thomas Oliver Selfridge, of Boston, in the county of Suffolk, gentleman, otherwise called Thomas Oliver Selfridge of Medford, in the county of Middlesex, gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fourth day of August in the present year, with force and arms, at Boston aforesaid, in the county of Suffolk aforesaid, in and upon one Charles Austin, in the peace of God and the said Commonwealth, then and there being, feloni ously, wilfully, and of the fury of his mind, did make an assault; and that he the said Thomas Oliver Selfridge, a certain pistol of the value of five dollars, then and there loaded and charged with gun powder and one leaden bullet; which pistol he the said Thomas

Oliver Selfridge, in his right hand, then and there held, to, against and upon the said Charles Austin, then and there, feloniously, wilfully, and of the fury of his mind, did shoot and discharge; and that he the said Thomas Oliver Selfridge, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth as aforesaid, the aforesaid Charles Austin, in and upon the left breast of him the said Charles Austin, a little below the left pap of him the said Charles Austin, then and there, with the leaden bullet aforesaid, out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, so as aforesaid, shot, discharged and sent forth, feloniously, wilfully, and of the fury of his mind, did strike, penetrate and wound, giving to him the said Charles Austin, then and there, with the leaden bullet aforesaid, shot, discharged and sent forth out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, in manner aforesaid, in and upon the left breast of him the said Charles Austin, a little below the left pap of him the said Charles Austin, one mortal wound of the depth of six inches, and of the breadth of one inch, of which mortal wound aforesaid the said Charles Austin then and there instantly died; and so the Jurors aforesaid, upon their oath aforesaid, do say, that he the said Thomas Oliver Selfridge, the said Charles Austin, then and there, in manner and form aforesaid, feloniously, wilfully, and of the fury of his mind, did kill and slay, against the peace of the Commonwealth aforesaid, and the law in such case made and provided. A true bill.

T. HANDASYD PERKINS, Foreman.

JAMES SULLIVAN, Attorney General.

The Defendant, being soon after brought into Court and arraigned upon the foregoing indictment, pleaded Not Guilty. Being enquired of by the Court* at what time he would be ready for his trial, he prayed for a postponement of it to some future day in the term. He stated that he could not at that time name the day, as he should have occasion to send to a considerable distance for witnesses, whom he believed essential to his defence, of whom he had understood that one was in the District of Maine, and another in the state of New York.

On the motion of his Council that he might be admitted to bail, which was not opposed by the Council for the government, he was ordered to recognize himself, in two thousand dollars, with sufficient surety or sureties in the same sum for his appearance de die, in diem during the present term, &c.

On Tuesday, the 23d day of December, which had been previously assigned by the Court, the trial commenced before the Hon. Mr. Justice PARKER.

* The Hon. Judge SEDGWICK was then sitting in the place of Judge

PARKER.

1

At nine o'clock the Court opened. The Clerk then proceeded to call the Jury in the following order:

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Mr. Selfridge. I wish to enquire if Mr. Fracker has not formed an opinion on this occasion.

Mr. Fracker being sworn to answer, was asked by

Parker J. Have you heard any thing of this case, so as to have made up your mind?

Ans. No.

Parker J. Do you feel any bias or prejudice for or against the prisoner at the bar?

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Mr. Selfridge. I wish Mr. Jackson to say whether he has not some bias in this case.

Mr. Jackson being sworn to answer, was asked by

Parker J. Have you formed any opinion as to the issue of this cause ?

Ans. No.

Parker J. Do you feel any bias or prejudice for or against Mr. Selfridge?

Ans. None.

Parker J. Swear him.

5. Ward Jackson-sworn.

Henry Sargent.

Mr. Selfridge I object to him as having been one of the Jury of Inquest.

6.

Francis Tufts.

7. Lemuel Gardner.

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For the Commonwealth, James Sullivan, Attorney General, and Daniel Davis, Solicitor General,

For the Defendant, Christopher Gore and Samuel Dexter.

Clerk of the Court. Gentlemen of the Jury hearken to the Indictment found against Thomas Oliver Selfridge.

[Here, the Clerk read the indictment, see page 7.]

Clerk of the Court. To this Indictment the defendant has pleaded not guilty, and has put himself on the country, which country you are, and you are now sworn to try the issue.

Mr. SOLICITOR GENERAL.

May it please your Honor, and you, Gentlemen of the Jury. You perceive by the indictment that has been read to you, that Thomas Oliver Selfridge is charged by the Grand Jury of the body of this county, with the crime of manslaughter. The indictment particularly states that on the fourth day of August, in the present year, he discharged a loaded pistol at Charles Austin, in consequence of which he instantly died. This fact is alleged, in the indictment, to have been committed feloniously, wilfully, and in the fury of the mind of the defendant; and this is the appropriate description of the crime of manslaughter.

It is not my duty, on this occasion, to pourtray the consequences that have resulted from the shocking event, which has brought Mr. Selfridge to the bar of his country. It is my more immediate and appropriate duty to explain the nature of the crime, and apply the facts which will be proved to you by the witnesses on the part of Government; I shall then adduce the authorities and cases in the books which are applicable to the present issue. It is impossible for me to discharge this duty with any satisfaction to myself, or any assistance to you, without recurring to the authorities, which treat on the subject of homicide. You will find by a recurrence to those authorities, that it will be impossible to understand them without attending to the subject of homicide at large. It will also be impossible to understand the crime of manslaughter, without a previous acquaintance with the crime of murder. Writers have so blended the different degrees of guilt attached to these crimes, and the shades are in many instances so faintly delineated between them, that it is difficult to be acquainted with the distinction, which it is your duty to make before you can understand and decide on the present case. Therefore I will, before I state the facts and call the witnesses to prove these facts, ask your attention for a few minutes to several passages that will be referred to, merely with a view to define the crime, and which you ought, in the beginning of the cause, to understand. I shall for your convenience and my own, trouble you no further than to read those authorities which contain the general definition; and then will state the facts which are to be proved by the witnesses that will be adduced, and then read certain rules of law which apply to this case in particular, and having done that, I shall have done all that the Government will require of me on the present occasion.

I have not been able to find, by attention to the several treatises on the subject of homicide, any book that contains a better gener

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