The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-03-14
CAUGHT IN THE COURTS.
FRED FoaG's FATE IN THE HANDS
OF A JURY.
A Strong, Plain Recital Of Facts in Judge
DuBose's Charge-Business in the Va.
rious Departments Of Justice-Trans-
fers, Etc.

The jury in the case OF Fred Fogg, the
murderer OF Wash johnson, on Presidents
Island, about eighteen months ago, is still
out. Judge DuBose, in his charge to the
jury, thus recited the facts, in semi-inter-
rogatory form:
You will then look to the proof in this
case TO determine whether the act of kill
Ing deceased by defendant, as charged.
was done willfully that is, OF purpose with
bic intent that the act OF shooting him, by
which his life was taken, should have that
fefiect deliberately, that is, vast done with
4 cool purpose, maliciously, that is, with
+ malice aforethought and generalization,
that is, was the design to kill the deceased
(, johnson, formed in the mind OF defend
4 ant before the act was performed by which
his death was produced. What does the
proof show in this case? Did the defend
ant and Wash johnson, ON the day
prior to the alleged killing, meet
and have difficulty, and were
they separated by mutual friends, and a
short time, or a few minutes thereafter. did
the deceased johnson 90 up TO where de-
PENDANT was and apologize 10 him and ex-
press desire to drop the matter, and to
become once more friends; and did the
defendant then refuse to accept his apol-
ogy and receive his prohered friendship,
but went away several miles 10 his home,
where he remained during the night, and
the next day returned to the place where
deceased was living, armed with double
--harrelled shotgun loaded with buckshot,
and did there lay in wait for the deceased
near the place where he was compelled to
psss in going TO and from his house to the
field where he was at work; and was his
presence at this place of concealment dis.
covered, and deceased, who was coming
on, and in few minutes would have come
up to defendant, but being notified by
signs from some other person that he
might apprend danger ii he continued to
advance in the the then direction, and did
he, deceased, then retreat some fifty yards,
more or less, TO friends house,
and there procure gun with which 10 de-
lend his person from some supposed at
tack, and in the act OF coming out OF this
house, or just after emerging from the
same, aud in two or three feet from the
doorway, nc was fired upon and shot TO
death by defendant, who had followed de-
ceased and secreted himself in a cornheld
near by Tor the purpose OF lying IN wait
and taking the deceased unawares II
OF facts, then you might well conclude
that the act Of defendant in taking the life
OF deceased was murder la the iirst degree.
II the proof show the existence OF deiber-
ate malice on the part Of defendant toward
the deceased, originating from the diff
ticulty OF the previous day, the pre-.
sumption is that II continued down
10 the preparation OF the medita,el
act oil killing, unless there is evidence
10 rcpel II, aud there should be evidence
10 show that the wicked purpOse
had been abandoned II IL existed
II. on the other hand, the defend
ant and the deceased WASH had met
Unexpectedly on the day OF the killing and
deceased intercepted him upon his lawful
road, he having legitimate business at
the place and in lawful pursuit thereof,
the defendant accepted the fight when he
might have avoided il by passing ON, the
( prOvocation being Sudden aud unexpected,
the jury may, II the facts 80 appear, pre-
sumo that the killing was not upon the old
grudgc, but Il was upon the otler Of de-
: ceased 10 renew the former difficulty, which
might be evidenced by his hasiy retreat
on seeing or learning OF defendants pres
cnce near his path, aud going 10 the house
Of his friend and there procuring gun
and coming out In n threatening manner
when lac had no reason for believing that
lac was in danger, the law would not pre-
sumo under such circumstances that the
killing was upon the old grudge aud the
defendant would not be guilty OF murder.
but at most lnanslaughier. II the killing
was the result OF the old grudgc and the
previous prcmoditatcd malice Il wond be
murder in the iist degree. II, however,
IL wis the result Of malice suddenly pro.
duced 10y the sight Of his former antago.
mist, without previous generalization. IL
would be murder In the second degree,
aud TO determine this you must look TO
the proof In the case.