Devils Lake inter-ocean. (Devils Lake, Ramsey Co., Dakota [N.D.]) 1884-1905, 1886-05-08

tenn examinations also Messrs Morgan. Hurst and Bel
witness did not disinter the body the coffin was open
but the body in it, body was not much decomposs,
but In pretty good state Of preservation; it did
smell very tsl; the body WAS scwel up the heart
lungs were in the thoracc cavity they III,
normal position but there; felt the ball In th.
back by feeling for it, and then cut down to it;
traced it from the thuracic cavity.
Adjourned to Wednesday morning.
MORE ENPERT TESTIMONY.
Court met at $50 a. ~, OH "Wednesday morning, au,
the ination Of pr A. J. Smith was continue,
BY MIR. Erwin. The heart and lungs werr remove,
from the thoracic cavity We examined the inner lor
tion carefully: found nothing aud then turned III,
behind followed the course Of the wound and foun,
hall in the back about two and halt inches to th
rsght Of the spinal column. Witness requested b,
District Attorney Morgan to meet at about IL O'Clock
the request was made about hour beforehand tn,
heart and lungs were not put back into the body:
hHys seen them in the possession of Dr. Rllis.
NJ e. Camp WAS called by the prosecution and sworn
l. physician and surgeon; has been practcing abou
about thirteen years; Mcwecney's rrmnns at his
former residence tho night before last. Drs Rugsr
Ellis and Smith and Messrs Bell Hurst and one or tw
others We're present. The thoracic cavity was opcnc,
ny Or. Ellis and witness We found wound on tn
back In the glutea region; followed it up and found
leaden bullet: We found superficial wound ON the nt
tiuni found wound in the anterior wall Of the horaN
six inches higher than the opening Of the wound il
front: found rib fractured; rib tho back was frac
tnred this wound was mortal wound.
MIR. Erwin here offered to PROFOUND til. same ,,lrs
tiois to the witness in regard to the secrecy and seatl
OF the last postmortcm examination. Overruled.
W. ). Hurst recalled by the prosecution. Is the un
deraker who took charge of the remains of McWeens
he assistsd in their dsintermant found tho outsd.
box. the coffin and the remains he had buried them
III January; was requcssdo to cxhume tho body by join
J. Bell.
Dr. O. c. Ellis WAS recalled by the prosecution. Wa,
present at the first and lust postmortsm examination
the body Of McWeeney; the remains upparcntl,
in the same condition the night before last when
tho first postmortem was held; found n wound in tn.
right gluteal region followed it up with the probe
found bullet near tho inside Of the hip; found
perfcia wound on the left hip; examined the wound
on the anterior wall of the thorax followed it up alld
found bullet in the buck n,bcd,iod in u m,,sc: /,
passing into the posterur wall of the toruN II flic
tured or spncred rib tho ball foou the chest
went through the TISSUE the heart tho right yentrcle
the pulmonary artery aud into the back between thu
seventh and eighth dorsu verte that the ball
in front just below the sixth rib, testified to In ia,
direct examination, as IA mistake; DR. Ruger ana my
sell dll tho cutting aud made the examination. am
Dr. U DnnnelI made the notes. from tho examination
1rs made we could not On account Of darkness ami
poor facilities rupture in the pulmonary artery
dipped out two three pnts Of blood at the first ex
animation went the first time at the invitation Of DIR
U DohAsl who used the witness Instruments in wit
Witness opinion the wound ia the che 1t fatal.
Cro1s- Examination by Mr. Erwin--The heart and
lungs were not pn back In tho body the night hrior,
last.
Redirect examination Cannot tell how the mi,
take occurred to the location of entrance Of w"ui
In chest NlcWcencys heart WAS healthy.
DIR. H. II. Rugor was called by prosecution. Assist
e ut tho pustnlortcni on MCW"eney the night tctor,
last; DR. Ellis and witness srwe up the remains nitc
tho first examinations there was indication Of I'll,
remains having been tumperri with; witness sl,oWi
y bullet and asked ii il is the bullet found ia the giu
teal region, and says it is; thu wound of entrance
when tho examination was commenced cut III,
stitches and took ont the heart and lungs clenrc,
out the cavity aud searched for the ba it felt il
the back the remains were turned over and
inntion made from the exterior Of the back the mli
tered In front between the fifth and sixth ribs entrrc,
the heart ind went out through tho pulmonary urter
into the back after the percnrdium was opened at III
heulthy und without disease IT was red there WIS r
in the back fractured; the wound where the l,c
nssed In front WAS necessarily fatal.
lrOss- Examination by Mr.. Erwin-Thc wound il
the back VIVA about three inches higher than IN from
where tho ball entered The evidence heretofore give
HI to entrance Of the ball in the chest based III
correctness Of the notes taken at til" examination.
The prosecution then announced tina
it rested their case.
W. W. Wishart, the j,lstic" before whom tho rrcliu
inary examination took place. called and trs,ic
that the printed copy of the evidence taken at tll
examination was compared with the original short
hand notes The printed copy was then accepted II
correct by 10th sides.
Mr.. Erwin here read from the prclim
mary testimony Of various witncsse.
and compared it with the evidence o
the same witnesses at this trial, counsc
on both sides going through and mark
ing the points Of inconsistency. Mr.
Erwin's object was to build up basi.
upon which his theory of scf-dcfenst
should rest.
DR.. Wheeler recalled by the defense. Mr.. Erwi,
here stripped himself to the belt for the purpose .
showing marks previously made upon his body by TN
wit ness to illustrate the of tho ball AccDri
I" the diagram upon Mr. Erwin'u breast the wi,nrr
stated that ball fired 4" ungle of 40 degree, n
ward and backward would mis-. the heart.
Dr. Swnnso" recalled by the defense, aud t.,,ihr'
that n ba fired at "A very short range upward am
pnssng Just below the NTH rib would hit the heart
Dr. UDonn"ll recalled ife testified that II ball 81,
term. as described would simply Craze the heart N
mony II fired described. Witness stated that he wa
stronger in the belief than that the ball c,,
tered McWecnry's heart.
Both sides then rested their case.
AT the close of the case the prosccll
ton moved the court to take the cas-,
from the jury except rs to the grade O
crime. whether it be murder or man
slaughter IN the iirst degree. Some dis
cussion arose as to the time at whcl
this motion should be taken up, and j
was finally decided that the jury with
draw and that the attorneys enter i'm
mediatcly upon the discussion Of it
The attorneys brought in their law book
and Mr.. McGce commenced the argll
ment Of the motion. The position takcl
by the prosecution is that the evidence
tends to show that there is nothing in i
to justify the shooting. 1t was the dc
fendant's own unlawful act whicl
brought on the attack from McWeency
The first assault was maize by Oswald
Attention was then called to the dcfini
ton OF the word "assa,llt" and the dclin
ition Of the word "willfulIy."
The prosecution then referred to
case tStofcr vs. The State, Is, Obi,
Stat, Az which holds that while tn,
party who first commences the mali
cious assault continues in the comba
and does not put into exercise the dut,
of Withdrawing from the place, although
he may be so liercely pressed that h
cannot retreat or is thrown upon tn
ground, or hriorn to the WALL he cannO
Justify taking the life Of his adversary
however necessary it way be to save hi
own, and must be deemed to hav,
brought upon himself the necessity O
killing his fellowman. Reference wa
then made to the Gay case reported il
the Dakota reports in which it was he'll
that it is proper to instruct the jury tha
evidence which only tends to reduce
the grade Of the offcnsc is not to be con
sidered by them AS tending to excuse o
justly the killing and that there bein!
no evidence tending to excuse or jllstf,
the killing, it is not error to instruct TIN
jury that "if you regard the oaths yol
have taken, your verdict must he mur
der or ruaps1 n I1Ohtnr'' -