The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1880-04-30

aquestion whether Kennedys life vas In danger but
whether he, as reasonable man, believed It was
what be reasonably thought Defendant was justina-
bic in standing his ground. History and judicial in
vestigation cannot spare the dead We ar here to
ascertain the truth. There are come as bad people
dead as there are living. o. Conner knew 1t was Ken.
nsdys property and the right to defend It had passed
TO him. The possession Of the property 10 indsputa
ble He recited the maturity Of the mortgages the
legal right OF OConnor to haye possession and rea-
sonabe use of the property until the 14th-l7th OF
June. After that, unless Kenaedy obtained posses-
sion Of the property the mortgages were void to
inDcent purchasers or attaching creditors 1t was
Keanedys right to obtain the property without
hitting breach of the peace He had obtained pos
session aud had right to defend It.
Adjourned at SOS p. m. till Q a. m. Saturday.
a. m. Saturday.
Mr.. Robinson resumed-lf OConnor was attempt
ing to commit felony by violence or surprise in dis
possessinwN Kennedy Of his property then Kennedy
was jistidable in using force sufficient to cause him
TO desist The speaker thsn stated what constituted
felony under he statute. II 0'Connor went there
fnteadiag to commit violence to get that property
from Kennedy, then felony was intended and the
question resolves itself into one of the amount of
force necessary to epe the attempt. The testimony
shows Kennedy believed oConnor and King. In case
OF personal struggle, possessed 9 uicient feI ,e and
weapons to overpower him, and II hs believed the
pistol the only efficient he had of resisting
that force then Kennedy justified In using that
means to resist them. Counsel followed with an ar
gument to the Court the law involved, and closed
at II Is by claiming to the jury that defendant
was entitled to q verdict of acquitta
At2p. m. Hiram Knowles, ESQ., for the Defense
opened with argument to the Court on the several
points of law involved In the THE right of
possession Of the property covered by the mortgages
was admitted by the prosecution.l g.
Addressing the Jury Judge Kn owles argued % 70
heelemrnt of malice In he case, citing the conduct
Of defendant to Connor after the time OF the threat
alleged by Shields to the day preceding the hon.
ic.de when defendant helped OConnor In distress.
The question Of the possession of the proper ty under
the mortgages then argued, counsel holding that
Kennedy not Only entitled to. but was In absolute
possession Of the horses at the time of the homicide
The position Of OConnor and tho range Of the bali
cited 70 show that deceased Id not have been
lying on the ground when shot as testified by King
and appearing In one Of O'Connor's statements The
clubs In the hands Of OConnor and King were men,
to the defendant, who would reasonably believe
| conspiracy existed against him, which impression
was strengthened by witnesses for the prosecution
l
give in the thereby deprying defendant of oppor
tuny to explain the facts rebut their testimony
BY Others, and also by witnesses swearing to four
| shots being flied when IL was conclusvely shown
there were only three. Counsel referred to the time
Of X. purchasing the pistol the custom of the coun
try In regard to carrying firearms sho wed Ks belief
| that O'ConnoT was armed and about to at
| tack him, and explained the right Of self defense.
The business relations between Kennedy and deceased
were stated, the advance Of ey to assist him In
business, the further advance Of money which X had
borrowed and loaned to oC. at the rate he OBJ
sned 1t; the peril in which the property Of defendant
was placed the pressure brought him by creditors
the danger TO which the mortgaged property was liz
able unless permanent pos session was obtained by
K, the evident ingrattude deceased was exhibiting
and the thought OF ruin that must have seized X II
he abandoned this property and rode off to his home
perhaps soon to be sold away from him. The reasons
why X. could not accept compromise and the danger
of loss fro m attaching creditors was dwelt upon
In summing up, counsel asserted-the suddenness of
the attack prevented flight and X exerc sed the right
Of self defense, the attempt deprive X of his prop
erty was attempted felony and K had legal right 10
stand his ground and II necessary tak the lives OF
bis assaiants; the circumstances pointed to pupose
to assault X. The character OF K as proven was re-
ierred to- and strong appeal made to tn IN ry for
verdict of acquital, Judge Know les closed his arg
| ment at 40 p. m.
| District Attorney Mayhew closed the arguments
He held that the create est often on the part of &C
in driving back the horses forcible trespass The
issue Of self defense then discussed and author-
ties cited on the points. He did not dispute X had
the right OF possession to the property under the terms
OF the mortgage, bat he had right to commit fe-
ony or trespass to obtain that possess oa. There
was no evidence orc. made or attempted TO make IN
assault on K. Mr.. Mayhem then reviewed the testi.
mony relating to the position of the parties at the
time of shooting, repeated his belief that the testmo-
ny showed the defendant guilty of murder and with
an appeal for Justice to all submitted the case TO tie
jury.
Court adjourned els p. m. until sp. m
| sp. m.-on the reas embllng of court, His Honor.
Judge Galbraith read series of fttythree iptsruc-
tons to the jury Of which have only space for the
following bearing most directly on the cause at issue
Territory of Montana
Joseph j. Kennedy.
O. You viii observe fr ON the evidence that there IL
nothing to. show that the defendant, II he killed
Thomas Il oConnor, did in defense OF his habita-
ton, neither did he do so to prevent Thomas Il
oConnor from committing felony upon his proper
| IT, For II you find from the evidence that said
OConnor attempted to retain possession of the hors
es to the possession Of which the defendant was en-
titled against the efforts of defendant to take posses
sion OF the same or that he the said O'Connor at
tempted to retake them after they were in the DOS
session of the defendant in either case such act By
| the said OConnor was simply tre,pas,, and not
| felony. Neither did defendant kill Thomas H.
oConnor BY accident, nor misadventure nor In max
ing an arrest In accordance with the Judgment
| proper court
2. IL the defendant killed Thomas H. OConnor then
to render such killing lawful 1t must have been done
In Necessary self defense, that must hs We been
done TO prevent said deceased from incting upon de-
PENDANT great bodily harm, or from killing hum
g. The statute of our Territory provides that in Or
der to justify one man In killing another In self de-
Tense In must appear from the evidence that the dan
ger was 20 urgent and pressing that In order to save
his own life, orto prevent his receiving great bodily
harm, the killing was absolutely necessary And It
must also appear that the person killed was the az
sailsnt or that the slayer had really and in good faith
endeavored to decline any further struggle before the
fatal blow was given. ....# Hs5u ~ Et...
Q. Our statute also provides that bare fear that
ones life lie in danger, that he 10 about to receive
great bodily harm, will not justify one man in killing
another. 1t must appear from the evidence that the
circumstances were such az to excite tho fears of a
reasonable per,on that his life in DANGER or that
ne was about to receive great bodily HARM and that
the defendant II he killed OConnor really acted un
der the influence Of such fears and not in spirit OF
revenge. .aa#g9 "A =. En-
10. II the jury find from the evidence that Thomas
H. OConIor was making an assault upon the defend
ant with intent to take his life to do him great
bodily harm, or that thu circumstances were such a.
to excite the Tears Of a reasonable man, that said
o'Connor was making an assault upon the Defend
ant with intent to take his lite or to do him great
bodily harm. and that said defendant acting really
under the influence OF such fears and not in sprit
OF revenge killed said oconnor, and the danger was
20 urgent and pressing that in order to save his swn
life or to prevent his receiving great bodily harm, he
killed thessid oCcnnor, then said killing was iust,n
able. For. although said Kennedy had the right to
the possession Of said horses In dispute he had no
rfuhsf IN safA