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No. 2  Jan Sess 1878
Comm. of Penna.
Henry L. Croll,
First Count} Manslaughter
Second Count} Inv. Manslaughter

And now 12 Jany 1878 The Deft. being arrained pleads Not Guilty ______.

Jane Ann Swartz

To the Jury.
The defendant is charged by this indictment (1) with voluntary & (2) with involuntary manslaughter.  The first count has not been sustained, there being no evidence of wilful or intentional killing, and you will dismiss it ________ consideration.
The Second count is the only one to be considered.  that the defendant while out gunning on the 22d October last killed Levi Swartz by shooting him is not denied, but whether that was the result of accident or carelessness is the question trying.  If the killing was done under circumstances which disclose a want of reasonable care in the use of a deadly weapon by the defendant he _____ be guilty of unintentional killing.  It appears that on evening of the 22d Octr. last, the defendant while out hunting and while is was growing dark came upon the east within range of an isolated chestnut tree standing in an open field.  This tree was covered not only with dense foliage of its own, but also supported a ripening grape vine, with green and abundant foliage & fruit, and the defendant seeing a motion among the foliage such as phesants _____ make while of feeding, and believing that the motion was made by birds, and not being able to see a human being if upon the three from where he stood, fired, and ___ed Mr. Swartz so fatally that he died the next day.
Now, the question for your decision is this, namely, was the shot fired by the defendant under the circumstances detailed a careless act, that is made without reasonable caution.  In other words, would any ordinarily careful man have fired a shot into a tree bearing fruit upon a motion, which could have been made by a human being as well as a bird and without ascertaining that the object was in fact a bird, and from a point where it was impossible to see a human being even if on the tree, by reason of the density of the foliage.  
Homicide by excusable misadventure is where one doing a lawful act, without any intention to do bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another person.  Thus the inquiry shifts to the degree of caution, the amount of care, exercised by the person thus unintentionally killing another, to avoid such accident.
Well, the caution and care to be employed depends upon the probability of danger, the time ____ where the shot is fired, and the chances of it reaching the human being.  Firing a loaded gun in a t___ on the levels of the streets and even at elevations would require great are, because there are many persons on the streets & in their houses in lower & upper rooms, and the danger of injuring some one is very great.  Firing into trees in the woods, where people do not dwell, would apparently be attended with no risk, still the marksman must use sufficient care to avoid injuring any one who may, notwithstanding, be within range.  The caution which the law requires, is not the utmost caution that can be used:  it is sufficient that a reasonable precaution be taken.
Then you return to the case in hand.  The caution which the defendant was bound to exercise before firing a shot into that tree was such as would be reasonable under the circumstances of time and place.  It is not sufficient for the defendant to show that some others would have done the same thing, but whether any reasonably cautious man would have done as he did.  Now, what did he do?  He did not ascertain with any certainty that birds were making the motions which he saw.  He fired on a strong probability at best.  he did not see a bird at all, only movement resembling those of a bird.  He could not see by reason of the dense foliage, what it was and there was space for a human being to be concealed from sight; and it was growing dark & all objects were becoming indistinct.  It was a well known three, with grapes upon it.  To sum up, he fired, without discovering what it was that he was shooting at.  Then in your judgment was this shooting without due caution under the circumstances?  If you think it was and that the defendant cannot be charged with carelessness in the use of a deadly weapon, then acquit him.
But should you reach the contrary conclusion, then it is your duty to the public to say that he is guilty of involuntary manslaughter.
That the defendant intended no wrong to the deceased, we are all convinced and we access him our sincere sympathy but this is all that we are permitted to give--the law calls for its own vindication rather more for example than correction in this case.  If you see your way to acquit him, it is well & we will rejoice; if you convict him and recommend him to mercy the punishment will be but nominal.  The responsibility is with you.  You have the power to deliver the accused, and none can ____ you can convict and none can gainsay.  

And now 12th January 1878 defendant excepts to the charge of the court.  This bill sealed.
B. F. Junkin (seal)

Thomas Reckord
Ezra Bupp
Samuel Smith
D H Graham
W D  __d
John Raffensberger
John Reeder
H. D. Kopenheffer
Dan Swartz


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