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

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lied in the statutes and decisions OF this
State. Now TO show that the proof is eyi-
dent or that the presumption is great, what
deyclyes upon tie State? Il must prove
that the killing was wl!liul, deliberate,
premedtated 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 eyi-
dence of implied naiice. IN order to es-
tablish implied malice the killing must
have been done under circumstances, ex-
hibitipg, as the authorities say both an
abandoned and malignant heart; that is
heart brutal, dePraved, devoid OF natural
| feeling, destitute of sympathy, callous, de
graded, reyeling 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 ouigrowth,
but to any positive evidence which may
be before this Court relating to his position
to his family ties, to his age, TO his situa-
ton in life in short. to his entire history
III so far as it is disclosed by the record. |
cannot. of course, becausei | respect the
| Court and | respect myself 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 perSecfded, 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 to
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 as the result of the efforts and
the economy of
AN HONEST AND PROLONGED LIFE.
He is entitled to no immunities upon that
ground but he is entitled to stand up here
in this clear air and 10 look your Honor in
the eye and say, am an American citi-
zen; give me the same rights that Won
would give to the poorest creature who APP
preached the bar of justice and asked you
TO see that he was not deprived Of his
rights by mere intolerance and persecu-
ton A 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
any previous act of violence. cannot be
possessed of q heart cruel, abandoned,
brutal, depraved, devoid of natural feeling
destitute of sympathy, callous degraded.
revealing il crime and prone TO violence
The antecedentS, the elements of which
such man IS made up, establish the very
reverse OF all these and ally him. by the
force OF the facts themselves, to all that is
the best, the noblest, the most humane and
the most eieyating in our American civili-
zation. The criminal instinct is not spon-
taneOusly generated in such man. If he
kills a human being there must be some
extraordinary circumstances. SOM over
mastering impulse or necessity, some incl
dent reaching the vita! 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
in the breasts of juries. 1t is impossible
or next to impossible, whatever the appa-
rent quality OF his act, that such man
can be 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 vagaries of the Imagination,
but from
| THE HARD FACTS THE COLD RECORD
In this case-we have such man as | have
endeavored to depict and your Honor is
to determine, for the purpose of this inves-
| tigauon, whether this man wantonly,
without cause or provocation-w illfully,
deliberately, impelled by heart stepped in
wickedness- murdered human being;
whether, taking man in his situation, and
with the burden of disproving the presump-
ton of innocence, and of establishing that
his ot1ense 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 violent
death. That is the question, as | under
stand 1t, on which your Honor is called
upon to pass.
Now, the facts of this case have been
very ably, though tersely, presented by my
learned associate, by whom the argument
was opened, and | cannot hope within the
brief time which is now allotted to 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 any
| statement, if can avoid it. outside of the
| record, as to what might have been pre-
| sented, 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 preliminarily
| to this part OF the argument-a number of
cases from Alabama and from North Caro-
| lima read IN regard to what constitutes mat
ter in justification or exculpation of a per
son charged with murder. | thought the
law upon that subject was so thoroughly
| settled IL 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. to
/ determine what our own Supreme Court
has established in perhaps twenty de
cisions. The law is very simple Threats
may be given in eviderce 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
| he acted, what motion he made, so far as
any positive testimony in this record is
concerned, is not explained and not at
tempted to be explained, and is left entirely