Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-03-27

| hypothesis of the existence of certain
| fundamental principles. either found IN the
general law itself or embodied and crystal
I lied in the statutes and decisions of this
state. Now 10 show that the proof Is eyl-
dent or that the presumption Is great what
devclyes upon tie State? 1t must prove
that the killing was wllliui, deliberate,
premeditated, the result of a settled design
to commit a criminal offense that both the
act and the intent concurred, and that the
act was done with malice prepense, either
express or implied. Now | say here. in
opposition TO the argument OF the other
side upon that point of the case, that there
| is no evidence whatever of express malice.
| Nothing was said, nothing was done, to
establish its existence. we are driven
then, so far as the State is concerned here,
| to the question as TO whether there is cyl
dence of implied malice. IN order TO es-
tablish implied malice the killing must
have been done under circumstances, ex-
hibitiDg, as the authorities say, both an
abandoned and a malignant heart; that is,
a heart brutal, depraved, devoid of natural
feeling, destitute of sympathy, caiious, de
| graded, reveling in crime and prone to
! violence. And upon this point, or rather
upon these points, the petitioner here is
entitled not only TO the presumption of
| innocence and to the presumption of char
! acter of which reputation is the outgrowth
but to any positive evidence which may
| be before this Court relating to his position,
to his family ties, to his age, 10 his sitQa-
ton in life in short to his entire history
in so far as it is disclosed by the record. |
cannot. of course becausei | respect the
| Court and respect mvself-I cannot make
! any answer here to anything that has been
said about our claim to any special or eX-
ceptional rights for this petitioner on the
score of his wealth, if he has any. We
present no such claim. He stands before
your Honor asking that he may be prose
cuted but not perSecded, asking that he
may have those rights, and those rights only
| which under the benificence of our Ameri-
can system of Jurisprudence are extended
as well to the beggar upon the streets as 10
the President in his chair at Washington
equal, exact, honest justice before the law
He is not to be punished because he is rich,
/ or because he happens to be rich, That is
no crime, especially when property is ac-
! cumulated rs the result OF the efforts aid
! the economy of
AN HONEST AND A PROLONGED LIFE
He is entitled to no immunities upon that
ground, but he is entitled to stand up here
in this clear air and to look your Honor in
the eye and say, " am an American citi-
J
would give to the poorest creature who APP
preached the bar of justice and asked you
/ 10 see that he was not deprived of his
/ rights by mere intolerance and persecu-
/ ton y man of 81, the father of a large
and respectable family, who has served the
State in its highest council who has ac-
cumulated properly by honest methods,
who is not connected with or allied to the
criminal classes, who has not been guilty of
] INV Y,rn e 81.
! possessed Of a heart cruel abandoned.
brutal, depraved, devoid of natural feeling.
| destitute Of sympathy, callous, degraded.
( reveliing III crime and prone to violence
| The antecedentS, the elements of which
/ such a man IS made up, establish the very
| reverse of all these and ally him bv the
/ force of the facts themselves, to all that is
! the best, the noblest, the most humane and
| the most eievating in our American civili-
zatlon. The criminal instinct is not spon-
taneously generated in such a man. If he
kills a human being there must be some
| extraordinary circumstances. SOM over
| mastering impulse or necessity, some incl
! dent reaching the vital parts of his soul
which, If they can be ascertained
will account for and explain his conduct
and relieve him from the possibility of
being characterized as a murderer in the
! first degree without the benefit even OF that
natural equity which the law has reposed
i'll the breasts of juries. 1t is impossible
or next to impossible, whatever the appa-
| rent quality OF his act, that such man
can be a common murderer and believe
| if 1t were true that human beings could be
| found whose natural instincts would lead
| them to seek to degrade such man to the
| rank OF common murderer, they would
| be themselves incapable of accurate dis
| elimination, and would exhibit in them
selves the very inhumanity with which
they would charge him. They would not
| be able to comprehend him or his situa-
| ton. They would dishonor, lower. pollute
the very sources of purity, of dignified and
exemplary manhood, of true and holy do
mesticity, in our American society. Now,
! | say that here we have such man-not
| by inference, not by assumption, not by
indulgence in yagaries of the imagination,
but from
THE HARD FACTS, THE COLD RECORD
In this case-we have such a man as have
endeavored to depict; and your Honor is
to determine, for the purpose of this inves-
tigation, whether this man wantonly
without cause or provocation- willfully,
deliberately, impelled by heart stepped in
wickedness-has murdered human being;
whether, taking man in his situation, and
with the burden of disproving the presump-
llOIl vi lHllOCtilCt anu Vi cSldDIlSnlDG InaI
his offense was capital, and the proof evil
dent and the presumption great, upon the
State, he has perpetrated an offense for
which jury ought to consign him To the
disgrace and TO the ignominy of q violent
death. That is the question, as | under
| stand it, on which your Honor is called
upon to pass.
Now the facts of this case have been
very ably, though tersel y, presented by my
| learned associate, by whom the argument
was opened, and | cannot hope within the
brief time which is now allotted 10 me, to
go over those facts with the discriminating
minuteness with which | should have de-
sired to bring them to your Honors notice
| But that is unnecessary. This whole record
has been read before your Honor, and your
Honor is quite as capable of comprehend
ing the facts as the counsel upon either
side. will Therefore. merely suggest what
| our view of the case is upon the record as
now presented, and | shall not MAKE anv
statement, if can avoid it. outside of the
record, as to what might have been pre-
scented, SO that your Honor may see the
| theory upon which we claim that the proof
! is not evident nor the presumption great.
| We have had-and | say this preliminarilv
| to this part Of the arguments number Of
cases from Alabama and from North Caro-
| Ina read IN regard 10 what constitutes mat
ter IN Jusuhcatlon or eXculpation of per
son charged with murder. | thought the
law upon that subject was so thoroughly
settled IN this State, that it could not be
made a subject of dispute between any
persons, and had no idea that 1t was ne
cessary to resort to Alabama or North Car
DINA, or to any of the Southern States. or
! Northern States either, for that matter. 10
i determine what our own Supreme Court
has established in perhaps twenty de-
cisions. The law is very simple Threats
may be given in eyiderce whenever at
the time an act of homie ,e is committed
a question arises as to which of two men
made the first attempt to shoot-that is. of
course, in case where death is the result
of shooting, and that is this case. You
might search all the records in the State
of California, or elsewhere, and you would
never discover one, will venture to saw,
so completely barren as the record in this
case is as to what Immediately took place
when the petitioner Harlan entered the
Byrns Hotel in Woodland-not, of course
IS evidenced by his acts, expecting to see
Craft on the bootblack Standard looked
or glanced up the room to see if he was
there. He did that first, and then
HE TURNED AND SAW CRAFT IN THE CHAIR.
What Craft did then, how he looked, how