Application for an Appeal —

Richard Smith
vs } Brief for Richard Smith
The Commonwealth

The Judgment in this case should have been arrested

1^st Because the Indictment is defective in not stating "The title of the prosecution, specifying the name of the courtin which the indictment is presented, and the name of the parties"

2^d Because the Indictment does not contain "a statement of the acts constituting the offence" of Murder (§ 121crim code prac.)

It cannot be ascertained from the face of the Indictment, in this case, what court it was found in. The statement, that it was found by a Grand jury of Cumberland County, does not supply the requirement that the "name of the court" should be stated in the indictment in the title of the prosecution.

The statement of the acts constituting the offence is deficient— It is charged that on a certain day in Cumberland county the accused "did feloniously, ^and^ with malice aforethought kill and murder

Elzy Morgan, by shooting him with a pistol" It is not stated whether the deceased died instantly, or whether he lived over a year and a day from the time of the shooting. This is essential. Whartons Amer. Crim. Law § 1073.

The Indictment must show in what part of the body the wound was inflicted. ib § 1069.

Although it may seem at first blush that the allegation — did Kill and murder Elzy Morgan by shooting him with a pistol, is a sufficient allegation of the death: by close examination it will be seen not to be sufficient because it is not every shooting with a pistol that causes death

The condition of the deceased should have been stated so as to show he was the subject of murder — He may not have been under the protection of our laws &

When the verdict of Guilty was rendered by the Adair County Jury, and a motion in arrest of Judg^t made, it reached the regularity of the change of venue in this case. The Adair Circuit Court had no jurisdiction to give judgment of death

on a Cumberland County Indictment — The accused had no power to consent to a change of venue without some cause existed recognized by law as good cause to change the venue — no such cause appears in this case

Instruction N^o 2 given for commonwealth (p. 11 of the record) rules the law too strong against the accused.

N^o 3. (p. 12) rules the law still stronger placing the prisoner upon the test of being able to discern right from wrong. It is well known there are cases where monomaniac knows it is wrong to kill but by an uncontrolable impulse he is impelled to the deed. This is moral insanity. Instruction N^o 3 cuts him off from the benefit of moral insanity Instruction N^o 4 is substantially the same as N^o 2.,

N^o 7 (page 13) is misleading — The Killing must not only be without provocation but the nature of the weapon and circumstances of the killing must be taken into consideration and Malice is always left to the Jury — In this instruction the court virtually excluded from the Jury the

question of malice or no malice

The latter part of this instruction, as to drunkenness, is is broader than the law.

Instruction marked (a) (page 13.) deprives the accused of all [...] benefit of his plea of insanity and evidence in support thereof. He had the evidence of his mother and the evidence of his captain tending to show insanity — also the evidence of a commonwealths witness saying at the time of the commission of the deed he looked silly. It was the province of the Jury to pass on this Evidence — not of the court. This instruction (a) makes his guilt or innocence turn on the fact of killing; totally excluding his defence of insanity.

Instruction (C) (same page) Is too indefinite and is misleading — leaving it to the jury to Judge of his accountibility without fixing the law and rules thereof.

An appeal is prayed
for appeA. J. James^lt

Rich^d Smith
vs. } Brief for R. Smith
Commonwealth