Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-12-23

Be held Without bail to await The
action Of the grand jury.
Judge Powers in his argument
said sometimes In the extreme heai
OF passion man IL killed In an en-.
counter with another. It has moi
been shown here by the prosecution
that O'Brien was killed .at an nv
Raymond. Not one Of the nurnbef
Of witnesses examined have testified
that they were witnesses to the fataI
deed.y - - ll--
Some saw defendant before de.
ceased was killed, some after. but net
at the fatal instant. The prosecution
in THE case have shown themseIyes
raanifestly unjust by eude:.,r;ny
70 suppress tess..a.vny that would s.
isS-raoie to the defendant and ali
for purposes Of professional pride
and success. They hey have been
very careful to secure all the testi-
mony possible frcrn then vino did
not zee anything. The defendant
was in his own habitation, . place
from which he was not required to
retreat according to the contempla-
ton Of the common law; the ground
Was sacred and any offensive iuya-
sion thereon cosld b justifiably
resietsd, even to the taking Of fife.
An individual e not only iuati-
ned In the taking Of the LIE Of an
assailant when he believes that hin
own life IL In danger but, aiso.
when he belIsves that he Is in
danger ~ great bodily harm. The
testimony Of every witness is that
TIE shooting was all done behind
the bar. According 20 the isv
then, tbs,defsndant was justified in
elecung the deceased frcr that %.
sition, and, that the dseeased really
was behind the bar is evident from
the fact had the bar, which 10 ad-
mitted as being very high, inter-
vened between them, il would
have been impossible to have
shot the deceased at as low q point
OF the body as the abdomen. After
reviewing the testimony Of the wit
nesses the Judge aeked that the de-
PENDANT be admitted on bail or be
discharged from custody.
Mf. Murphy offered the c,oairg
argument for the ptosscisicn in
substarc- q foilows.-Counsel has
Cast reflections upon and criticized
the action Of the prosecution by the
accusation that they have snppress-
ed Testimony favorable to the de-
fend.rs ,of purposes of professional
pride which is certainly unjust. Ii
would be reprehensible on the part
OF the prosecution as representative
OF the people 10 introduce evidence
from witnesses whose relationship
to the defendant either by ties Of
blood or bond. OF busiuess, which
would prejudice them in his favor.
IL any one who were witnesses to
the killing have not been sum.
moned TO testify in this cess ,,.sj
are OF the clsss nser..6ned. We do
not de.ss That the deceased went
Blind the bar; he went to the
end Of the lar first for
the purpose Of getting his
lantern with the intention of de-
parting to his work. but was cred |
upon by the accased. Tut without |
effect. At this point the deceased |
sprang from the end OF the bar be- |
hind IL, in order to defend himself |
and disarm his assailant.
The statement by the defense
hat the prisoner was justified in
committing the deed he did, on the
ground, that he was In his dwell
ing place is too far fetched.
Not scintilla Of evidence has
,een adduced to show that thi. was
ieiendants res idence. 1t l. simply a
,lace Of business.
The homicide was wilfnl, deiiber-
Ute and prerneditsted, and we ask
hat witness be renanded back TO
all to answer to the charge of muir
Ter in the first degree.
After Mr.. Murphy had closed his
Irgunent, Judge Laney said:
Ii has been. shown that n bomi.
'ide was committed; the court after
rearing the evidence in the case
an only determine what grade Of
homicide has been committed, based
My upon the evidence produced in
he preliminary nearing. There
~ three degrees Of homicide, viz:
'Excusable," '.iustifiable'' and
defined as follows:
homicide is excusable
Siien committed by accident
r misfortune, or in Ioing any
awful act by lawful means,
With usual and ordinary cau-
ion and without any unlawful in
ent, or when committed in. the heat
( passion, upon any sudden and
t. hicient provocation, when no un-
ue advantage is taken, and when
70 dangerous weapon is used.
Justifiable homicide, is killing
ommitted by public officers in
bedience to any Judgement of n
court in the execution 4
some legal process, or in retasing
lions vino have escaped from
ustoiy, or, fleeing from justice or ,
esisting arrest.
FeloniDus homicide is committed
y the execution OF a premeditated
esign, unla sfnily and maliciously.
ELECT the death Of 4 human being 3
nj evidepcing a deprived mind re-
ardless Of human life. In the
ourt's opinion, the accused is
Utility offelonious homicide, deliber- Z
iely PLANNED, and is therefore or. :
cred back to jail TO await the action
the tsraud fury