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504 X. AMERICAN STATE TRIALS.

gomery killed Attucks; and Langford swears Killroy killed
Gray, but none of the witnesses undertake to say, that either
of the other prisoners in particular killed either of the other
three persons, or that all of them did it. On the contrary, it
aeems that one of the six did not fire, and that another of them
fired at a boy as he was running down the street, but missed
him (if he had killed him, as the evidence stands, it would
have been murder), but the witnesses are not agreed ag to the
person who fired at the boy, or as to him who did not fire at
all. It is highly probable, from the places where the five per-
sons killed fell, and their wounds, that they were killed by the
discharge of five several guns only. If you are upon the evi-
dence satisfled of that, and also that Montgomery killed
Attucks, and Killroy, Gray, it will thenee follow that the
other three were killed, not by the other six persons, but by
three of them only; and therefore they cannot all be fonnd
guilty of it. And as the evidence does not show which three
Killed the three, nor that either of the six in particular killed
either of the three, you cannot find either of the six guilty of
killing them or either of them. If you are satisfied, upon the
evidence given you, that Montgomery killed Attucks, you will
proceed to inquire whether it was justifiable, excusable, or
felonious homicide, and if the latter, whether it was mali-
eiously done or not. As he is charged with murder, if the -
fact of killing be proved, all the circumstances of necessity
or infirmity are to be satisfactorily proved by him, unless they
arise out of the evidence produced againat him, for the law
presumeth the fact to have been founded in malise until the
eontrary appears.

You will, therefore, carefully consider and weigh the whole
of the evidence given you respecting the attack made upon the
party of soldiers in general, and upon Montgomery in partieu-
lar. In doing it, you will observe the rules I have before men-
tioned, and not forget the part that some of the witnesses took
in this unhappy affair, and if, upon the whole, it appears to
you that Montgomery was attacked in such a violent manner
that his life was in immediate danger, or that he had suffi-

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