Arizona citizen., 1871-12-16

both tribes -tl -ilr2 Wtr 1eathless tenacity. Ibee tribal organizations aa3 codes had Jeen recognIa u and re- s..-ed ty SI am and A Nco and they were in full existence when Ari- zona passed to the United States. They are also recognized and respected by the United States Beween the latter and portions of the Apache h. dians, treaties have existed for some years. All Indian Agency has also been established by the United States, very recently, with the Papsgo tribe.
 It does not appear that the United States have ever interfered with the laws of the Apaches or the Papagos, crude though they may be. further than to restrain the hostilities of the former, or rather perhaps to attempt to restrain them.
 These facts give rise to certain legal deductions, which will be found very important in the present case.
 The case itseleis one of the most re- markable in the annals of jurispru- dence. For mum bers tried it was doubt less paralleled in the Kings Bench after the Gordon riots in London, in 17SO. The aboriginal element of the present case, alike interesting in its legal, moral and physical aspects, never could have been found Ill Great Brit ain. In our own country only, could 1t have been found; but even here the case is without any parallel.
 The persons killed were, as already stated, Apache Indians. Lieutenant Whitman states the number of dead bodies which he saw at between 90 and 40. He Is certainly not as explicit as one, who then commanded there, who saw or ought to have seen all, and who has already written one or two reports on the subject, might have beeni ex- pected t. be, under oath One witness for the defense saw about seventy dead bodies The killing was the result of surprise and was perpetrated early in the morning. One old man and young Indian about Is years of age, were the only males excepting mere children. The whole number of h. diaiis then at their encampment is proved to have been about 45O, with a proportion of little more than one in five of men. This "ould have given more than 90 men then belonging to the encampment, and yet only one of all these was killed. Where were they As the attack was a surprise and made early in the morning, they must have been a)s nt, not from fear of all attack, but from some motive prior and indepeI lant Of that fact. Whe they were aaj what they were doing arl not proy6l. The absence is, however, an emphatic comment re- garding those whoare claimed to have been kept with any of the strictness of prisoners of wa. All but two of the victims were women and children
 The killing by tie pers ns indicted, has hal fly been denied slnce the plea of "Not guilty. It is il l:7cctly but clearly proven to have | ell done by them O. some of -hem. the pres ent case we have then est 0ished two of the three clements whi constitute murder. the homicide an the perpe- trators. The shin remail ng element is the motive, and that is t be deduced from the definition of ID rder.
 The indictment is unl the law of the United States, who's definition of murder is derived from lie common law ard not from our code. All or quite a. the definitions of crime under the law of the United States are de- rived from the common law this among the rest.
 The definition for the n- sent case is as folloys. Murder is here 8 per- son of sound memory and scretion un- lawfully kills a reasonau creature in being, and in the peace o he common wealth, with malice pre- alse or atore- though, either express ,r implied. "
 To constitute murder, the motive to the deed must be malice. Murderous malice is 8 simple mental or rather moral condition. It IS suC' delihar te hatred towards the vIcti r.u. ar as leads the parpetrator to aa . or such cold blooded in. ference to- wards inc lives of mel @ makes the perpetrator f a marc 9r, reckless whether the person whom he kills lives or dies. Elis is theinquiry which remain for y7v in the present ease. The mv~laroa motive must nOt be iu- sanity, or iaQtg or irresistible de- spair, or in 1ne tary, or ove Aelmiug fear, or morbid appreh-n: la which the ner1--.ratOr Df q hD l u -annOt