Omaha daily bee., 1883-10-04

''f
o'clock in the afternoon.
On the opening of court in the after
noon, one Of the attorneys for the State
n. NJ. Pussy, addressed the court as t
whether DIR. Cross should be admitted t.
bail. He cited numerous authorize
showing that the premeditation and delhi
Grafton need not be but for the briefes
period of time in order TO make 1t mur
der instead of manslaughter, andthat tn
time in which the Fermentation wa
formed before the act was committed dlt
not affect the matter. Thepremeditatiol
might be for an instant or a year. Mr.
Pusey cited also authorities on the ques
ton of provocation to the effect tina
provocation at the time of the killing
could not be used rs an excuse for tn,
killing, when the premeditation and NAL
ice on the part of the prisoner preceded
the provocation. He then proceeded t.
review the testimony, and e~ndeaNored I,
show that DIR. Cross had malice IN IN
heart for a long time before this affair
The conversation had with Mr.. Nichols
two wears or more before, in which DIR
Cross said that if DIR. Mckune eve,
touched him he would shoot him, showed
that he had malice and generalization il
his heart. Then his telling that he woulC
get DIR. MGKune to Int him first, M
would bother him until he did, anC
would then shoot him, and get clear OF
self defense, showed that he had
not only malice but had a plan, ano
he had tried to carry out this
plan. Then he had said in the
presence of Mrs. Brooks and her little
girl that he would kill DR.. McKune if he
ever got a chance, and that he would get
even with him. That was about a year
ago. Then about q week before the
tragedy DR.. Cross told Mrs. Metcalfe
that if the court had done its duty he
would have sent DR.. McKune across the
state, and that he would get even with
him yet. With the light from this sen.
tence thrown upon the scene of that
nights tragedy, it seemed that it was
murder and nothing else.
Mr.. Pussy then reviewed the testi-
mony of the conflict itself. He called
attention to the fact that DIR. Cross was
first on the ground, that he was first seen
by MI. Sargent at the corner, hesitating
and about going eastward. The next
witness saw him standing on the opposite
corner. Then at the time of the encoun-
ter it appears that DR.. McKune was on
the retreat. Miss Berger, when she first
saw them, noticed that DR.. McKune was
with his back toward her, and the par
ties were moving to her. Then in the
struggle DIR. Mckune retreated into the
gutter, with DR.. Cross and him clinching
and there DIR. Cross had the advantage,
being on the higher ground. The testi-
mony showed that DR.. Cross was not
knocked down at all. When knocked
against the fence, and DR.. McKune stood
there without following him up, DIR.
Cross should have retreated, instead of
pulling his revolver. DIR Mckune Vas
standing five feet from him, without any
weapon, and without offering any further
violence: when DR.. Cross, instead of re-
treating, pulled his revolver. DIR. Nc
Kune then did what any man would do.
He rushed forward to get the revolver
and save his W life. DIR. Cross carried
out the threat which he had made long
before, that the first chance he got, and
the first provocation that DR.. McKune
gave, he would kill him.
Mr.. Pusey did not care to discuss the
testimony of the boy, Seaman, as it was
contradicted by the testimony of every
one of the other eye-witnesses to the en-
counter.
John N. Baldwin, in behalf of the de-
Tense, then entered upon an able argu-
ment and reply to the counsel of the
prosecution. The attempt to make it out
murder, on the slender foundation of a
threat made, was ridiculous. The threat,
to be of any account, muse be shown to
be in conformity with the act itself,
which was far from being the case. Were
it not for the fact that the carrying of
the weapon had not been explained on its
examination, a clearer case of self de-
Tense could not be imagined. There was
nothing in the evidence to show that DR..
Cross had bothered or 'teased" DR..
Mckune, or provoked him to an assault,
so as to get an excuse to shoot him. The
States own witnesses testified that Cross
was going home, unsuspicious and peace
able, when DIR. McKune came up with
him, spoke to him, and turned about and
hit him. The counsel for the state had
said that perhaps DIR. McKune said ''geod
evening" How improbable that such was
the ~salutation that was followed up by a
blow knocking DIR. Cross five feet! A man
going home peaceably, suddenly saluted,
turns about, receives q heavy blow, turns
to defend himself, is struck another giant
blow, knocked against the building, and
nearly crushed to the earth, and not
knowing how many other blows, or what
other injuries he will receive, pullshis re-
volver. A clearer case of self-defense
could not be conceived. 1t Was not ne
cessary that there should be real danger
to his life. If DR.. Cross had real grounds
to believe that he was about to receive
great bodily injuries, as he certainly did
have, he was justified in shooting hin. If
DR.. Cross intended to shoot DIR. McKuns
if he had premeditatian, why did not DIR.
Cross pull his revolver when first saluted
by DIR. Mckunel Why did DIR. Cross
fight and try to defend himself instead
of shooting at once2 The facts all point
ed to the fact that there was no premed-
itation and that it was self defense.
There was no evidence but that DIR.
Cross when he pulled his revolver, did Sc
with the simple intention of using 1t, il
DIR. McKune followed up the first attack.
DIR. Mckune did follow it up, and then
DIR. Cross used the weapon, clearly in
self-defense, All the witnesses testified
that DIR. McKune had knocked DIR. Cross