Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-06-24
TEE HARLAN CASE.
OPENING STATEMENT OF COUNSEL
F0R TIE DEFENSE.
The Defendant Claims That He
Acted in SelEDefense-Th
Defense Outlined.

at IL CLOCK yesterday, the prosecution
having rested, II. E. Highton of counsel
for defendant, made his opening statement
in tie Harlan murder case. During the
protracted trial no intimation had been
given as 10 what line of defense would be
pursued, and the one outlined, that of self
defense, was the least expected.
Mr. Highton spoke for nearly two hours,
extemporaneously, using notes only when
citing authorities or quoting legal opinions.
AT the outset he said if the defendant had
committed murder he SHOULD be adequately
punished even though the punishment
should deprive him of his life He should
have fair trial. and if he is deprived of q
single right that he ought to have and be con-
victed, then the defendant himself would
be murdered. All connected with the case
had solemn duty to perform his Honor,
who is the depository of the law; the lead
ing counsel for the State; those who de-
fend, whose paramount duty is toward their
client; and, above all, the Jury sitting in
the box, the recipient of the law, who are
the sole judges of the facts, who are to ap-
ply the law and render verdict, their
combined and ultimate result. Represent
atiyes on both sides OF this unhappy COLI
troversy the Court, jury and all who are
interested, should appreciate the privilege
they possess of taking part in so moment
Gus question. Even the relatives of the
deceased are not without their obligations.
vengeance is mine, will repay. saith the
Lord" We should adopt here the highest
standard of law and civilization, should
y1acsiO1,laGe iupDirv ;ai
moderation, and there should be
A SUPPRESSION OF ARDoR
And enthusiasm. If he is guilty, let him
suffer the penalty of the law. Ifinnocent,
let him go free, and all law-abiding citi-
zens will acquiesce. The defendant is
charged with murder, which embraces
murder in the first degree, with the penalty
of death, or, if the jury so designates, life
imprisonment; and murder in the second
and third degrees, in which the punish
ment is inflicted by The Court. Murder in
all these degrees is the unlawful killing of
human being with malice aforethought
Counsel then entered into detailed state
ment explanatory of the meaning of the
law as expressed in the statute. There must
be malice expressed or implied. The diff
ference between murder in the first and
second degree is that in the first the killing
must be deliberate, premeditated and ma
licious in the second degree, there must
be an absence of willfulness, generalization
and malice.
Now if the act of homicide complained
of is neither murder in.the first nor second
degree it may be manslaughter, or may be
excusable or justified. The distinction be-
tween manslaughter and murder is the pre-
sence or absence of malice or premedita-
ton as defined by law. The act and the
intent must conform. 1t may be asked at
this point, what is the defense? 1t embraces
many elements. 1t paused to congratulate
itself, as to the circumstances of the homi-
eide, the State has absolutely and finally
closed its proofs,
NEVER AGAIN TO BE REoPENED.
There is no rule of evidence upon which
the authorities more fully agree than that,
that the defendant cannot hold back any
part of his case, and then bring it in in re-
buttal
District Attorney Sprague interrupted
Addressing the Court, he said he objected
to any assumed statements of facts. He
excepted to the statement so far as it re-
lated to the prosecution, and read Section
1893 of the Penal Code in support of his
objection. He claimed that the opening
guise of an argument. He charsed that an
effort was being made to inflame the minds
of the jury. When counsel says the State
is precluded from putting in additional
testimony he is presuming on facts. That
is matter for the Court to decide, and not
within the scope and meaning of an open
ing statement.
Mr. Highton claimed the legal right in
his opening statement to state TO the Court
his views of the law in the case, and to the
jury what his views of the facts are.
General Hart claimed that the remarks
were too much in the line of an argument
He never knew of case where Court al
lowed more than statement of the facts
upon which the defense relies.
The Court stated that in many States the
opening statement was allowed to partake
of the nature of an argument. A state
ment is simply statement of facts. 1t is
not an argument unless there is a deduc-
ton of facts, and that is not permissible
The defense can adopt at this time any
theory they may think proper. They are
bound by whatever theory they now adopt.
He saw no reason why elementary princi-
Piles of law may not be stated. He saw no
reason why the jury should not under
stand what constitutes murder or the
different classes of murder. He said he
would allow no argument to be made, over
ruled the objection and told counsel to pro-
coed.
PRESUMPTION OF INNOCENCE.
Mr. Highton, continuing, said: One Of
the theories upon which we rely. is pre-
sumption of innocence. This presumption
of innocence means that the individual
accused of crime is as innocent as this
jury, or his Honor, until he is legally
proven guilty. beyond question of reason
able doubt. The presumption of limo