Arizona republican., 1894-12-16

mendation to mercy, and courts from considerations of public policy alone always respect such recommendations. 1 can call to mind no instance in the history of the administration of criml nal law, where judge has 80 far disre- garded such recommendation as to in- tiict the death penalty in case where it was in his power to inf1ict lesser sentence, and have no idea that any words of mine are necessary here 30 far az the life of this young man is con- cerned. With respect to the duration of his mprisonment-whether it shall be for life, or for fixed period of years I-l have few suggestions which 1 de- sire to offer to the court.
 ''This defendadt had up to the time of the killing of Shurbert, only clean record. He was not brawler and 8 sa- loon frequenter, living upon the vices and follies of others. He was a sober, industrious young fellow, earning his living by hard and honest work. Mis- fortune or folly led him On that fatal night into the card room of the saloon. There is no dispute as to what occurred there. He was cheated at cards, and beaten, and threatened with further beating, and be went out of that that the occurrences of the previous night are no excuse in law for his acts the next morning, and yet morally they do present some excuse.
 ''Your Honor knows very we'll, you could not have reached your present years in active and successful practice of law without knowing that men are often possessed by evil passions and in- huences beyond their power to resist, and that it is possible for man to be legally guilty of crime, and vet be as morally irresponsible as if he were g maniac for life instead of maniac for minute.
 "I know that the law does not provide for the idiosyncrasies of individuals. It creates an ideal reasonable being and fits all cases to this standard. 1 look for an improvement in the philosophy of the law in this respect, an improve ment suggested by Mr. Wharton h the last edition of his law of homicide, I that it is time to relax the rule, and to | discard this book made reasonable be- ing from our criminal prudence, and to consider how things appeared to the particular individual on trial. There are so many elements which go to make up motives, and control acts, and determine the true measure of moral res possibility. The imperfectlv understood but memorable laws of here dity-the working out Of race germs, l the influence of early education. of 1 training and of surroundings. 'Verily 1t is n0t in ourselves but in our stars that we gre thus or thus' Shall we l hold the wild mountaineer, who, edu- cated to the code of the vendetta, pur- sues and slays hls adversary, to the same degree of moral accountability as the Massachusetts Harvard professor, who killed his creditor to. avoid pay ment of debt, and burned his remains in the laboratory furnace in order to avoid detection?
 "There are differences in temperament in all the animal creation, differences
 which we recognize and act upon. Strike the Conestoga or Percheron draught horse with whip and he will give little heed to ii. Touch the flank of the racer with the lash and he will leap almost out of his skin with nervousness and fright and rage One
 man will receive blow or a beating
 with indifference, while another will be crazed with the insult and the shame.
 To one nature the blow inHicts no in-
 jury other than the physical pain,
 while the other is made delirioua with
 passion, and reflection intensifes
 rather than assuages his rage To him
 minutes nor hours nor days nor weeks
 bring cooling time" He views his
 relations to his insulter through the
 lens of insane passion. All objects are
 refracted and lose their proper places
 and proportions, and he says to him.
 self concersing the indignitv he has
 received: The thought of it doth like poisonous mineral gnaw my inwards, : and nothing can or shall content my
 soul til 1 am even with him.
 "I believe that after the firing of the
 first shot the defendant in this case was in a con 1ition of transitory mania. The very atrocity of his subsequent acts
 present strong evidence that his reason , was temporarily Gethroned by passion. I will not review the evidence for 1t if fresh in the memory of the court. ] will ask your honor to remember the
 provocation. the temptation, the youth
 and the previons good character of Uni. [ young man. Do not close the prison
 doors upon him for life, See, he is very young. Leave him hope. Leave him
 an inducement to good conduct. Leave hlm the assurance that the later years : of his life may redeem him from hi. deed. Heed the recommendation of the jury. Heed the promptings of your owr heart, and remember the words of the
 great poet, those words which, howeve, , often quoted can never become hack. neyed:
 "'The quality of mercy is not strained ] It droppeth like the gentle dew from
 heaven upon the earth beneath. It il