UNITED STATES v. WOODS, 28 F. Cas. 762

THE 'COURT (MORSELL, Circuit Judge, absent), decided, that the attorney of the United States had a right to examine .witnesses to rebut the defence set up, and, for that purpose, to examine again those who had been before examined, although they had remained in court after their first examination.

THE COURT, at the motion of the attorney of the United States, instructed the jury, that if they believe, from the evidence, that the deceased was in a weak state of health, from a previous miscarriage, and while in such state,'was cruelly, deliberately, and wil-fully so beaten by the prisoner, as apparently to endanger her life, or to produce some great bodily harm, and that such beating, and such state of bodily health, arising as aforesaid, weie the combined causes of the fever of which she died, then the prisoner is guilty of murder, if the said beating was inflicted with malice aforethought; and of manslaughter, if inflicted without such malice; unless they should be satisfied, by the evidence, that the fever became mortal by reason of some positive misconduct of the deceased during her last sickness, or the mismanagement of her attendants.

And on the prayer of the prisoner’s counsel— THE COURT (nem. con.) instructed the jury that if they should not be satisfied by the said evidence that the death of the deceased was occasioned by the said wounds upon her body, or that the wounds which occasioned her death were caused by the violent acts ot the accused, then the prisoner is entitled to a verdict of not guilty; and that if the jury should be of opinion, from the said evidence, that the wounds so received by the deceased, were not mortal in their character, but that the fever which caused her death, was rendered mortal by some positive, supervening cause or stimulant- independent of and not produced by the wounds or beating, or other act of the prisoner, then the prisoner is, in like manner, entitled to a verdict of acquittal.

On the first day of the trial, the court and jury having been in session from 10 a. m. to half past 5 p. m., without having taken any food or refreshment, it became a question what should be done with the jury. There were thirty or forty more witnesses to be examined, and it was impossible to finish the cause that night. The prisoner and the attorney of the United States were willing that the jurors should separate and meet again in the morning. CRANGH, Chief Judge, thought it might be so done by consent. It was so done in Berry's Case [Case No. 1,352], in this court, in December, 1830. But MORSELL.

Circuit Judge, being clear that the court had not the power to make such an order, and CRANCH, Chief Judge, and THRUSTON, Circuit Judge, doubting, it was decided to be the safest course to keep the jury, and it was so ordered, and they were so kept by the marshal on Monday and Tuesday nights.

The following is the order entered on the minutes of the court: “By consent of the prisoner, the trial of this cause is adjourned until tomorrow morning at 10 o’clock; and the marshal is commanded to keep the jury together until the next meeting of the court, and then to bring them into court; and in the mean time not to speak to them himself, nor to suffer any other person to speak to them relative to any matter touching the trial, of this issue; and it is ordered that the bailiffs who may be employed by him for that purpose, be sworn accordingly.” The jury retired at half past 8 p. m. to consider of their verdict, and at 10 p. m. returned with a verdict of acquittal.