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Perry County Democrat; 22 November 1849
On Monday last, Mr. Benj. Bender, of Greenwood township, was lodged in our county Jail, on the charge of murdering his brother.  The said Bender is supposed to be deranged.

Perry County Democrat; 10 April 1850
For the Murder of his Brother.

Benjamin Bender,

In the Court of Over and Terminer of Perry county, April Term, 1850
Indictment for Murder.

April 2, 1850, Prisoner arraigned, and standing mute, his counsel endorsed for him the plea of Not GuiltyEt de hoc, Attorney General, Similiter--Issue.

On calling Jurors, five were challenged for cause, one ordered to stand aside, ___ excused, and thirteen challenged perenapterily, when the following Jury were empannelled and sworn or affirmed.

George Robinson, William J. Graham, Joseph T. Steel, Geo. Wetzel, (Spring) Samuel Waggoner, Abraham B. Wilson, James Martin, John Shearer, (Toboyne) William Bergstresser, Thomas Lackey, Jacob Bruner, sr., (Penn) and Lewis Gingerich.

The prosecution was opened on the part of the Commonwealth by WILLIAM A. SPONSLER, Esq., Dep. Att'y General.

It was clearly shown by the testimony of witnesses on the part of the Commonwealth, that the prisoner did kill his brother William Bender on Sunday evening the 18th November, 1849, by stabbing him in three places on the breast, of which wounds he died in a few minutes after.  It appeared by the testimony of his sister, Sarah Miller, that the deceased had been away, and came home early in the evening.  She prepared supper for the family, and she, her mother and the deceased sat up to the table and eat; but the prisoner refused and sat at another table.  He had two shirts, put one off, the other on, and thus changed them alternately for one hour.  The witness, her mother, William and the prisoner met at the kitchen fireplace.  Witness took up a bucket to feed the hogs, and as she passed by the prisoner took up a split stick of fire-wood and threatened to hit her, and said, "I will have my rights."  Her mother said he must behave if he wanted to be in the house.  As witness and William walked out, William said he had better go for somebody, as the "could not stand it with Benjamin," and he (William( walked down below the house.  Prisoner then came out and asked William where he was going, and he replied "no where, just up here."  Prisoner then said two or three times "come back, William" and he returned.  Prisoner said "I'll hurt nobody in the house,"  witness saw them (William and Benjamin) inside of the kitchen.  But dim light--could see Benjamin's arms reach over towards William-- came in, they had hold of each other moving towards fire place; tried to part them; caught prisoners left arm; tried to loose it from William's waist, but could not.  Witness ran for assistance and when on the road a short distance, heard William run out of the kitchen, and while following her, heard prisoner call William the second time, and while speaking to a neighbor, William said "he dirked me!  Oh! Lord!  I am dirked to the heart!  I will have to die!"  There was no difficulty between prisoner and the deceased or any member of the family-- no dispute about rights.  William was living from home, and when he came home on Saturdays, they (Benjamin and William) were "good together."

The mother died, and was buried the day before the commencement of this trial.  Her deposition previously taken by consent, was read, in which it was stated that the prisoner and the deceased struggled from the fire place to the room door, which flying open, Wm. fell into the room and prisoner upon him, and after some moments they ran out, the prisoner following the deceased to the kitchen door.

Abraham Brandt heard the expression of William, "I am stabbed to heart; I must die!"  He was on his hands and feet. A couple of neighbors carried him into Lewis Long's house; sat him on the floor, where he exclaimed, "I am stabbed to the heart, and I must die-- Jesus have mercy on me!"  and in about a minute or so died.

Prisoner was arrested in about one hour; after he committed the offence, up stairs in the house where the murder occurred, having made no effort to escape, ____ found with the dirk knife in his possession, with a blade 4 inches long with blood on it.

The grounds of defence made, was that the defendant was insane; and to main___ the evidence in substance was-- that about ten or twelve years ago the prisoner was attacked by an inflammatory fever, the severity of which continued about three weeks; but that he remained for some months thereafter to be feeble in body and mind; from which he recovered; after this time, he removed to Lycoming county to pursue his trade, that of a tailor.  While there, about the year 1840, his mind became so disordered as to unfit him for business, and his uncle had him sent home; after his return his mind was disordered, but not to an extent requiring restraint, nor did he then or at any subsequent time, manifest any mischievous disposition; from this he also recovered, but always manifested a moody silence, without any disposition to communicate freely with any body.  He had also learned the shoemaker trade, and occasionally pursued both occupations.

There were few of his neighbors, altho many of them saw him frequently, who had any knowledge that his mind was at all deranged.  Two or three of the witnesses, however, stated that the father of the prisoner had said that "Benjamin's mind was not right."  The Father died about the 1st of October preceding the day when William was killed:  after this event his mind seemed to be more disturbed.  His sister who was examined as a witness, and whose testimony made a strong impression of its candor and truth, testified that after his father's death, he was worse; that he would do nothing, and that when she would go to do the work which he should have done, he would follow her--when she would life the axe to chop firewood, he would take the axe out of her hand, and say that he would chop--when she went to feed the cattle, he would follow her and prevent her by saying he would do it, but afterwards he would not do either.  At this period he was suspicious that persons talking together were speaking of him.  He was also at times restless at night and wandered about at night, leaving the doors open.  He also imagined that there were persons outside of the house talking, when there were none.  Said he saw such strange sights at night, and that such queer things came into his head.  He had taken an empty trunk and placed it on the stairs.  He kept it there some two or three days, then removed it to a room and thence to some other part of the house, not even permitting the children to look at it, although it contained nothing.  This singular conduct and train of thinking existed long previous to this commission of the murder and up to that time at different periods.

On the morning of the day when the wounds were inflicted upon his brother, some friends of the family were at the house, and when the family sat down to supper, the prisoner refused to come to the table, and while they were eating he employed himself in taking off his shirt and putting on a clean one, and then taking it off and replacing the first, and thus he did for some time.  There was no proof that during that day or at any other time in his life, did the prisoner make use of any incoherent or foolish expressions, nor was he ever guilty of any malicious or wicked act; but on the contrary, two or three witnesses testified that on that day and the day before he conversed as sensibly as usual.  On the evening of Sunday the 18th Nov., about sun set, the mother, sister and brother of the prisoner were in the house together, when the sister got up to leave the house to feed the hogs, when she was about to pass the prisoner, he made an attempt, without any previous provocation, to strike her with a stick of wood--his mother remonstrated with him, and afterwards went out--the sister having gone out, the two brothers were left together in the house.  When the sister returned the two Brothers were struggling together upon the floor.  The sisters attempted to separate them but could not, immediately after William came out and ran about one hundred and fifty yards and fell down and died.  Benjamin went up stairs and remained there until he was arrested:  then he exhibited great anxiety to know where William was, and when his mother asked him what he had done he said, "O Lord, mammy, William won't die."  He was afterwards taken to see the body of his brother and he examined the wounds and said, "I didn't intend to hurt him so much."  There was found upon his person, in his pocket, a dirk knife with a blade about four inches long, with blood upon the blade, and was undoubtedly the instrument with which the wounds were inflicted.  There never has been any dispute or difficulty between the brothers, but on the contrary, they were kind and affectionate to each other.

Since the prisoner has been in confinement, he has had no communication with any one, refusing to converse even with his Counsel or to give them any information with regard to his case, and during the progress of the trial, manifested total indifference to what was going on.

Messrs. W. A. Sponsler, Dep. Att'y. General and J. MacFarlane, for the Commonwealth and
Messrs. B. F. Junkin and J. C. Kunkel, for defendant.


WATTS, President Judge.-- The offence with which the defendant stands charged, is a crime of the highest grade, which is cognizable before any earthly tribunal.  You and we, constituting the Court, are now to determine his guilt or innocence upon the evidence which we have heard, aided in its consideration, by the arguments of the learned Counsel who have so ably prosecuted the accusation of the Commonwealth, and advocated the cause of the defendant.  They are eminently entitled to their own consciousness of having performed their whole duty, and to our kindest consideration for the candid and considerate manner in which it was discharged.

It is one of the frailties of human nature that the fears and cowardly apprehensions of men deter them from a firm and conscientious discharge of duty.  Looking at the responsibility of holding in their hand the issue of life or death, the trembling judgment is apt to falter and compromise with truth, and thus secure for itself a temporary relief at the expense of justice and its own future, quiet reflection.  The excitement of public opinion, too, always cause the timid man to hesitate between the honest convictions of his own judgment, and his responsibility to that tribunal which, of all others, is itself the most irresponsible.  A cowardly fearfulness of a just responsibility always misleads a trembling conscience into error, whilst conscientious, dispassionate firmness is the surest avenue to truth.  We desire, therefore, in the outset of your investigation, to admonish you to divest yourselves, as much as possible, of all such illegitimate influences; that you may, with dispassionate minds and a steady purpose, pursue the inquiry-- Is the defendant guilty in manner and form as he stands indicted, or not guilty?  With the consequences of any verdict which you may render, you have nothing to do; if there be ultimate responsibilities, let them _____ upon us, and we shall not hesitate to discharge our duty which rests on so firm a foundation as the law of the land.

The learned philosophy of the human mind, which ages have served to accumulate in our _ooks, is badly calculated to enlighten the mind of a jury.  The consideration of the nice distinctions which have been attempted to be drawn between moral and mental insanity, and partial and total derangement, with which you have been enlightened, will not much aid you in coming to a just conclusion on this point.  That is a branch of legal jurisprudence which belongs rather to the Court than to the jury; it is a species of legal learning which enables us to consider and duly appreciate those rules which, while they secure public justice, afford protection to those who are charged with crime.  But with the facts of this case before you, there are a few common sense considerations by which you should be governed as to this part of the case.  A man who is deranged, either ____ or mentally, partially or totally, is not a responsible being; and the law will not, therefore, punish him for any act he may do.  Your inquiry is-- Was this man deranged at the time he committed the fatal deed with which he is now charged, and which resulted in the death of his brother?  And to enable you to come to a conclusion on this point, it naturally occurs to us to instruct you as to the degree of derangement which relieves a man from responsibility for crime.  His derangement must have been such that he could not appreciate the nature or the consequences of the act which he was committing; his mind must have been disturbed by disease or other natural cause, to an extent, to deprive him of the power of reasoning on the subject of the act which he was about to commit.  If he had mind enough to reflect, think, and know the difference between right an wrong at the time he gave the fatal blow which caused the death of his brother, then he is a responsible being, and subject to all the penalties by which the law punishes crime.  The prisoner's case, if one of insanity at all, seems to be that of partial insanity.  For it is clearly proved that, during his whole life, he has had mind enough, at times to transact all the ordinary business of life, and this, indeed, up to the day when this act was committed.  But it is also proved, and, it would seem to us, very clearly, that there were several periods in his life when his mind was disturbed, deranged, to an extent at least, which attracted the attention and apprehension of his family.  It does not appear positively, however, that he was in any of those periods so far deprived of his reason as to make him irresponsible for crime-- he did not talk incoherently; he did not exhibit say such ___ of mind as would induce us to believe that he could not think and act ____ to avoid the commission of ___.  But the nature of insanity is such as to make the state of his mind at the various periods of his life important subjects for the consideration of the jury, to enable you to come to a conclusion as to its condition at the time when he committed the act with which he is now charged.  All knowledge and experience teach us  that the human mind is subject to periods ____ of det__gement--that it acts with all the power and vigor at one time, while at another, the subject may be a maniac.  That his mind was disturbed and not within his own control absolutely, and to its whole extent, at certain periods of his life, that it was _____ to many of his neighbors that his mind was not right; that his father in his lifetime spoke of it; that it was an unoffending brother who was slain; are all important circumstances for your consideration.  Was that mental disease with which he was afflicted, of that progress___ character which ultimately resulted in producing this homicide?  If this was the cause, then the humanity of the law interposes between the prisoner and punishment.  If his own mind was beyond his own control when the deed was done, it will be your duty to pronounce him not guilty.  But in weighing this subject, you will also consider the prominent features of the evidence on the part of the Commonwealth, who, conceding the existence of disease of mind to some extent, at certain periods, ask you to consider whether at any time there was such an absence of mind, such a deprivation of reason, as to make the prisoner an irresponsible being?  Did he exhibit on the day when this deed was done, such conduct or acts of insanity as rendered him incapable of committing crime?  Did he converse as usual with his brother-in-law and other friends, up to the very evening of that day?  Did he reflect and reason with regard to the extent of the injury which he had inflicted, immediately after?  Did he say himself, that he had a design to inflict an injury, but not "To hurt him so much?"  These, too, are all subjects for your consideration.  You will also recall the evidence with regard to his acts and conduct, as evidence of insanity, since the commission of the deed.  These, however, are not entitled to the same weight in your minds, because they may have been produced by impending punishment of the offense.  But generally, it is the duty of the jury to consider all the circumstances of the case, both before and after the commission of the deed, which have a tendency to elucidate the question.  What was the quality of the prisoner's mind at the time he inflicted the mortal wounds?  Was he then capable of thinking, reflecting an knowing the nature of the instrument he used, the probable result that a wound from it would produce-- the consequences of such a result?  or was he so deranged as to be incapable of distinguishing right from wrong?  To exonerate a man from a responsibility for crime, it is not necessary that he should have perfect intelligence at all times.  All the law requires to justify punishment for crime is, that at the time the deed is done, the person should have mind enough to know what he is doing, an that it is an unlawful act.  This strikes us as being a sensible rule, and one which comes within the comprehension of an ordinary understanding; and whilst it will do justice to the humanity of the law, it will protect the accused.

This question of the sanity or insanity of the prisoner; is one which you should first dispose of; for if you should be satisfied beyond a reasonable doubt that the mind of the prisoner was not such as to enable him to commit crime, then further inquiry is unnecessary; and you should render a verdict of not guilty.  But if you should come to a different conclusion, then the next inquiry is-- Is the prisoner guilty of murder in the first degree, murder in the second degree, or manslaughter, or either of them?  Without further explanation of the rules of law than such as are applicable to the facts of this case, we instruct you, that if the accused premeditated on the subject, previously designed to stab his brother with a knife, and prepared that instrument or took it out of his pocket for that purpose, and thus the wounds were given; then he is guilty of murder in the first degree.  In such case the law implies malice.

If there was no premeditation, or previous design to kill, but the stab was given in the heat of passion, and without reflection or thoughts, then the accused would be guilty of murder in the second degree.

If he got into a sudden fight with his brother, either by his own fault or otherwise, and while they were struggling together for the ____, the accused drew out his knife and stabbed his brother, then he is guilty of manslaughter.

We have said to you that, if you come to the conclusion that the prisoner was insane when he inflicted the wound which caused the death of his brother, it is your duty to render a verdict of not guilty, ad we now instruct you that, if the prisoner be acquitted on this ground, it also becomes your duty to certify to the Court that such is the ground upon which your verdict is founded, that we may be enabled to make each other ____ in the case as that the public safety may be protected in the mane provided for by the law.

If the jury ___ a reasonable doubt with regard to the guilt or innocence of the prisoner, that doubt should __ weigh in his favor as to secure his acquittal; but such doubt should be a reasonable  ___ such as causes the jury to hesitate in their own minds as to whether the defendant is guilty or not, it must be more than a probability.  If, as a matter of fact, it is doubtful whether the prisoner was sane or insane when he inflicted the wound that caused the death, then it would be your duty to acquit him.

April __, 1850.  ______________________ jury ________charge of Judge Watts.  ____________ the jury returned with the following verdict.  "Defendant not guilty" and we further find that the said Benjamin Bender was Insane at the time of the commission of the offence with which he is charged in the indictment and we do acquit the defendant on the grounds of insanity." 


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