Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1881-12-30
THE LUsRY-MABRY KILLING.
Conclusion of the Evidence and the Argu-
ment Opened.

Morning.
Yesterday, the third day in the preiinlin
ary hearing in the case of the State VS.. Don
c. Lusby, for the shooting and killing of
VIII c. Mabry, Christmas eve, was still the
occasion Of another large essemblage of peo-
pie. and the evidence fer the defense Vas
continued, the State having concluded the
day before.
David Brown, coiored: Was acquainted
with Msbry; saw him twice Saturday and
had q conversation with him both times.
Witness was asked if he had heard Mabry
make any threat that he would kill somebody
that night or before morning. Objected TO
by counsel for the State, and the objection
/ sustained.
Chas. f. Youngblood, policeman: Was
acquainted with Mabry; he was considered
/. dangerous man.
Sam Torbett: Acquainted with both Lus-
by and Mabry; was with them Saturday, be
fore sundown; didn't see anything between
them unfriendly; don't know that saw them
speak either way.
: ross-examined-Saw Mabry at Cars
stable, selling a load of corn, went out to
chicken fight, Mabry came there afterwards,
and was very drunk,
Dr. n. M. Alexander: Examined slightly
the wounds of Lusby Sunday morning, only
a casual examination. The Lord III His
l., - 10 a. %la
! forehead; there was little dent on the out
! side table, made evidently by the dish
with which Lusby was stricken, but not q
fracture. Witness was asked as to what
effect such an injury as Lusby received
would have on his reasoning faculties, and
replied that it depends altogether on the
, temperament and condition of the person.
Gross. examincd-The wound spoken OF
/ by witness did not cut the skin, but was
only dent. Any blow etfectipg the men,
tal9aculties would be accompanied by phys
ical prostratiop or paralys 8, though the
condition of the man, the amount of stimu-
! Tents in him, and Le being braced by anger
or otherwise, would go long way towards
sustaining him.
! JAS n Ray, Of counsel for the defense,
asked to correct a statement in his evidence
the day before, saying that after examining
and rejecting on the matter, he had con-
cluded that he was standing just in the par
tition door, and not against the counter.
The defense announced that they would
close the case here, aud the prosecution an
nounced that they had no evidence in re-
buttal.
The prosecution introduced and placed in
the hands OF the justice small dish, adj
Tni:ted to be about the same as toe one used
by Mabry in striking Lusby, stating that it
weighed eight ounces.
The argument of the case was opened by
, tIr. J. W, Caldwell for the State. Hechar-
acterized the deed as great crime, creating
great public excitement and public indigna-
ton, and for the State asked exact, equal
aud impartial justice, and desired that for
, the State and for the defendant, the law
shall DO administered In its purity. Upon
the facts in the case, not Individually, but
: professionally the prosecution regarded
this as most aggravated and cruel murder
though he protested against any i'm
plication of personal feeling agains
y the defendant, who, not in cold blood, per
, haps, but in cruel and .swenton manner
took the life of his fellow-rnan while he was
/ fleeing. The testimony shows the deceased
4 to have been O dangerous man when il
LIQUOR but quiet, peaceable and Of amiabl
disposition when sober, not matured in year
af he and
9 underhand or mean trickery was attached t.
his character. He was a hayward youn,
man, but had a redeeming trait, and what
ever evil there was in him. he was open
y bold and courageous On the other hans
the character of the defendant, who va
some ten years older than Mabry, was nc
put in question, could not be opened
= except by the defense themselves, who de
clined to do so; but it is in proof, he said
/ that the defendant, while constable of Oh
e county, violated the law by attendin
r. chicken fights, where gambling goes OF
ir and frequenting places of drinking, II
characterized the defendant as ali astutt
~ adroit and shrewd man, and charged tbs
OF all the terms of endearment and profession
of friendship by defendant towards the d,
= ceased were not real, but that under all tt
kindness there turks concealed anger al
10 hatred and deadly purpose. He quote
II the testimony regarding preyiot
h threats aud argued that at the corner
to Depot and Crozier street Saturday night WI
Ia the first time that the deceased r
allied that the defendant was his reai al
ST. secret enemy. Again, following up the tie
er timony, he argued thai when the tire
no of Mabry was communicated to Lusby
80 the bar, the determination was formed
- Lusby's mind to kill Mabry, and also argue
II that when Lusby asked Mabry to drink Il
IT. second time, he did it with the intent
ot further provoke the difficulty and seek Il
80 opportunity to execute his deadly purpos
Lusby being perfectly sober, co
lrs and collected as far as the record shows, al
its that Mabry was drunk, excited and IRE
st. ponsible. Then, with all these things
"a view, it is impossible not to conclude th
-" Lusby premeditatedly brought on and pl
y, voked the difficulty in which he knew II
S. the life of one or the other was the forte
knowing that Mabry was unarmed and
himself armed, and he is responsible for
nm consequences. He argued that it is q u
- versally known principle of law that whe1
- man provokes difficulty he is not allow
j. any advantages, bat if he kills his adverse
it is murder. He thinks the evider
quoted and the principles laid dow
fully justify the conclusion Il
10. this was wilful, malicious and deliber'
h. murder He produced and quoted autho
- ties on the definition and construction
the term malice" claiming that it is I
necessary to show previous and express
malice against Mabry, but state Of Mi
nd intent on doing some one injury; whei
ION killing is committed, the law presun
malice. He argued, from all the circu
stances, that malice certainly entered il
this case. The defense, he said can hi
:. only one defense, that the defendant &C
III in uncontrolably passion. In conclusion
as detailed the incidents OF the
the mediate killing. and concluded, me
.ba was there more cruel d.
perpetrated than that" and ibid ever N
~ h-lish malice than that Turk IN hun
srs hearth" he said. The last and fatal shot,
said, was fred with the intent to kill, ,