The daily gazette., 1879-12-10
all reported for the 0a xette.

special reported for the Gazette,
NEw CASTLE, Dec. lO-Deputy-
Attorney General Cooper resumed ms
argument Ia the jury In The Dugan trial
shen Court opened this norm z, ut ten
o'clock.
Briefly summing up what he had said
to the jury, last evening. IN which he
had dealt with the deliberation of the
deed. There had been no assault on
the part OF McGaugl,ey upon Dugan, ,and
no words on his part would Justify the
c. mmissiOn Of murder. According to
the testimony of Martin Coleman, Nc
Gaughey called Dugan a son Of B.,
aud hit at him. Mctisughey says thai
Dugan rushed nj him and he pushed
him away, say ing that he did not want
to have anything TO do with him. This
tes imopy can easily be rcconcled the
showing away Of Dugap by McGaughey
~as certainly mistaken BY Coleman for
q blow. John Cavern says lie saw no
blow.
Now, the Court will tell you, think,
that II even Dugan had been slight,
struck, 1t was not sufficient legal Provo
cation, and In addition 10 this he was
not In the heat Of passion. Even If he
had been In the heat Of passion he had
plenty Of time To cool, aud the Court
will tell you how long II takes man to
cool down. He certainly must have had
time to reason,fo Rowe and McGauehey
talked awhile about fences.
The third ingredient In this crime, Is
that 1t was premeditated. (Mr. Cooper
here read the law In reference to to pre-
meditation, which had no defined limits,
and IL the conception OF moment, it is
AS deliberate as IL Of the planning Of
years. After he got the pistol Martin
Coleman demonstrated with him, but he
seemed full Of the devil, then he put /,
in his pocket and walked TO the door,
and again he took II out and Gavin said,
"don't do that" but he deliberately fl ed.
But this is not the only proof; he went
had McGsughey been killed ?), and
when asked about the pistol he said he
thought he put IL on the shelf. How
deliberate Gavin says he feared that
Dugan would kin his brother also, aud
as he went out, saw the weapon leyelled
at McGaughey by some one; 1t must
have been Dugan. The prisoner also
said to Sergeant Whelan that he "had
shot Al McGaughey and killed Rowe"
which shows that II was no accident.
Mr.. Cooper proceeded to reconcile the
testimony of Martin Coleman with that
of John Caven in reference to the hold.
ing OF the pistol. DIR. Maxwell had
testified that the wound was transverse
horizontal one through the base Of the
brain. Richard Rowe was n tall man,
and the wound could not have been
exactly horizontal IL Dugan held the
pistol no higher than his hips, as Cole
IN Nh had said. II was therefore held on
. level with the prisoners eye and fired
carefully.
IE the speaker's opinion the defense
| raised was one OF the most singular he
ever heard OF. In one breath they say II
was accidental and in another that 1t was
IN purpose but in self defense. Ins
common phrase then it must have been
accidentally on purpose IL the shoot
ing was accidental, the taking down q
the pistol, the putting II In and taking n
out OF pocket, and the del berate aiming
| al were accidental. Neither was The
deed done in self defense for he war in
no danger at all and could easily have
gone away from cGanghey. Meth r Of
tbese claims can be anything Else than
| -heer nonsense.
81 ha b. a put In o gidcnce that Dugan
nad iump on his forehead ahd said IL
was caused by a blow from MEG anghry
| Ii was not then whup he first came Ia
the pnhc station or the officers would
have seen It. IL was certainly put there
by Dugan In bis cell 10 give himself "a
pretex. 'or the shooting.
Only one question is TO be considered
and that is do you believe the testimony
of John CaveD. Edward McGaughey and
Martin Coleman? IL In all competent
testimony and the State would be willing
To have the testimony Of McGanghey
out, but his character for veracity has
nOt been successfully iDpeached. The
| defense may CLAIM n verdict of murdOr
| IN the secosd degree, but If the jury be-
beve that he had va malicious intent 10
take either the life of either Rowe or
| McGaughey he should be convicted of
| murder In the first degree. Mr. Cooper
pr, ceed ITO defend the character of Il Q
States witnesses. at some length.
Mr.. Cooper concluded at IL O'Clock,
| and Mr.. Bird addressed the court uIon
the points of law in the case, which he
said he would lia- to have considered IN
the charge to the jury. He cited the fol-
lowing:
/ Wharton on American Criminal
Law. page y49, seuuon 9i5: "Expr-ss
malice Is where one with sedate and
J deliberate mind and formed design Kill
another Upon that law he would
stand, for that Is certainly the law OF
express malice. ~ 10 has always been
laid down by this Court.v
As to implied malice he would ask the
Court to charge Getting "Stevens' Digest
of Criminal La }" page 384), first In
respect to the manner of the deed, "as If
one kIlleth another without any provo
cation on the part OF him who WAS
slain" Secondly With respect to the
person, as in the case of a crimin nal exe-
cuted by the Sheriff in the performanc
OF his dnty, etc. Thirdly As in the case
where A assaulted Is, with intent to rob
him, and Is resisted and A kills him. A
and Is having met for the first time and
there being no previous grudge or ilfee =
ing between them, the law pronounces
implied malice on the part OF A.
He then cited the case OF State vs.
Lewis List, tried In the Court at New
| Castle in 1866, for the murder of one
Bay liss, a policeman, and after review
ing the facts Of that case, called the at
teutio on of the Court to the following
cases People Us. Rector, Xxx page
$50 State as. Decorn, New York Re-
ports State Us. Carroll XIII, A labama,
page % ; Patton Us People XVIII, Mich
igan, page 3i4 Grafton Us. People, 53rd
Illinois, page 295. In closing to the
| Court he said he would be content with
the law laid down by this Court, (Judge
| Hollston who CHARGED the jury in the