Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1882-01-12

terday morning by refusal to admit the
prisoner to bail
The case underwent, it will be remem-
bered thorough preliminary investigation
before Justice j. NJ. King, consuming al
most an entire week, and the prisoner was
bound over to Crimal Court and committed
to jail Immediately upon the assembling
of the court Monday, Jan. I'd, a petition for
a writ of habeas corpus, to show why the
defendant should not be admitted to bail,
was fled and the hearing was fixed for
Friday, 9th inst, during which time the
grand jury returned a true bill for murder
in the first degree.
The hearing on the petition was COM
menced before Judge Hall on Saturday
morning, with the following counsel: For
the State, Attorney General D. D. Ander-
son, Col. ". A. Henderson, w. L. Ledger |
wood and J. w. Caldwell For the defense,
Maj E. C. Camp, j. C. j Williams S. G.
Heiskol, J. n. Ray and Horace Foster. The |
same evidence adduced before Justice King,
together with some additional evidence, was
brought out, consuming, together with the
argument, three full days, and the an
nouncement that Judge Hall would render
his decision brought another very large
crowd of spectators to the courtroom at
$50 O'Clock this morning.
In his preliminary remarks, Judge Hall
said that inasmuch as the case
would have to De investigated
before a jury in any event, he would
be just as brief as possible. He would
make no extended comments that would
have tendency to influence or prejudice
the case one way or the other in the final
trial, but would contine himself to recital
of the points that had Influenced him in
making up his opinion. He had given the
widest latitude he said, and opened the
door to both sides to introduce all
their evidence, 50 as to get
at the real merits, believing he could
distinguish between the legal and Illegal
testimony. Much OF it, he said, had moth
| ing whatever to do with determining the
case. All the evidence about previous diff
culties, conversations or threats by either
Lusby or Mabry, he laid aside, he said, they
having no influence in the formation of his
conclusions in the matter. Therefore ne
would bring it down to the day of the fatal
difficulty, and confne himself to the evidence
on that point. He must remark that taking
| the whole transaction, as it occurred at night
and by gas light, the witnesses for both
sides had given remarkably clear account,
with seemingly little difference or variation
as to the main facts.
We find Lusby ard Mabry, he said, to-
| gether and apparently friendly, up till about
night, the day of the difficulty, and late that
evening some sort of a difficulty was
testified to as taking place at the corner
of Crozier and Depot streets. Now,
whatever that difficulty may have
been, he said Mabry evidently
imagined that he had been wronged by Lus-
by, whether it was SO or not.
Coming then to the difficulty in the bar.
Lusby, he said, was shown to be an officer
Of the law, acting on his oath all the time to
keepthe peace, audit was his duty, besides, as
a citizen, attending chicken fights and gam
bling places, to report the same; but laying
all these things aside, III making up his YER
dict, he would strip Lusby OF all Official
responsibility.
When they entered the bar Mabry had
blood on his face and had been hurt, but
IuSby said he didn't do it. That ended
that, and they came together as friends
Mabry certainly had right to refuse to
drink and Lu5by should not have been irri-
tated at it. Then Mabry went to the back
room and Lusby was informed that Mabry
was seeking something to kill him with, but
Lusby's reply that he knew his business in
dictated that he was ready for difficulty
and destroyed the effect of the warning
Then, another drink was offered Diabry;
the lie was passed and Mabry slapped Lus-
by, which put him (AIabry) legally in the
wrong, for it is a well settled principle of
law, that no words can amount to the JUST
hcation of an assault. But Lusby had his
t overcoat off and struck back, and seemed to
: get the advantage of habry till they reach.
ed the corner where Mabry struck the blow
with the dish. Lusby was taken hold OF
but got loose by Mr.. Steele being accident
ally tripped up, and by that time Mabry was
out of the door, fleeing.
No principle of law is better settled than
that a man has the right to defend himself
I be he officer or not if attacked, and he ha:
1 | the right to use sufficient force to free him
, himself from the attack. Now, the question
t comes up, did Lu6by use more force thaI
, was necessary 2" for it can't be
denied that Mabry attacked him
l Then, at the moment of the attacl
s in the heat of passion, suppose Lusby ha(
have shot and killed Mabry, no court or jur.
i'll the world could say he was guilty O
L murder in the first degree. But it is also {
d principle of law that man has no right Il
|. H. /,
~ does he becomes the aggressor, and he car
ries it to the extent of killing he may b.
guilty of murder, although he himself wa
/ first attacked.
Now, AIabry had passed out of the doc
and Lusby followed. Was he freed from
the assault? What induced Lusby to follow
By the time he reached the door he had hi
pistol. Now, coming to the turning pom
IN the case, when Lusby got to the door
J being at the time an officer acting on hi
Il oath to keep the peace. He had been free
!. from an assault which he was legally autho,
), lied to repel. Now, did he commence a
' assault? Lasby was evidently looking 70
y Mabry, and it seems Mabry was facin
when the first shot was fired.
We can't presume malice from an inten
to kill. A man may kill another to say
his own life. Was Lusby doing this to say
Ii his life? The first shot is supposed to hav
IT been induced by passion alone. 1t is show
2, that Lusby knew the first shot hit Mabry
\ Then comes the point in the case. 1t is i
- proof by witness that Lusby, after til
~ first shot, and after Mabry exclaimed, Il al
shot," said, II will kill him." Mabry at IL
time going from him.
err The intent and purpose to kill may exis
sr in one moment. Give Lusby the benefit
the heat of passion in firing the first sho
bat he fired the second, in rapid succession
as fast ar a man could shoot. Then /
% turned around, seemed satisfied and said
,g had shot him, although he said, Hes mu
dered me-" or something to that effect No
was Lusby justified in firing the secor
shot d?
He had said this much he said, believin
it to be his duty, and ha
Il looked at the authorities CAREFUL
!, but IN his judgment they Gid not govel
81 the facts in this case. Every case stands {