People's voice., 1894-12-13

said advice, plan and purpose, but
upon his Own motion and volition.
then it will be your duty to acQuit the
defendant"
But the court further inStructS the
jury that before Gray would be enti-
tied to such a defense it must be
shown to the jury that Mcdonald had
wholly abandoned his preparations to
kill Patton and hal absolutely given
up all preparation in that regard, and
that it is not sufficient to prove such
abandonment by the mere de,lara-
tiOn Of Mcdonald of a mental change
on his part; but that there must be
proof OtSOme substantial act showing
that such abandonment was real.
The jury are instructed that unless
Mcdonald committed some degree of
felOnious homicide in killing Patton
in self defense, he instruCts the jury
that if they believe that on the morn
ing of the killing the deceased and
Mcdonald had a personal difficulty
and that the deceased left the scene
of TIE difficulty, threatening to re-
turn within a short time and kill Nc
Donald; and if they further believe
from the evidence that Mcdonald
and the defendant, Gray, had reason
able grounds to believe that he in
tended TO carry out the threat, that
then both Mcdonald and the defend
ant Gray had right to make any and
every preparation which prudent
man would make under like circum-
stances to prevent carrying out
the threat, even to the procuring of a
gun and testing the accuracy Ofits
shooting; and if the jury should be-
lieve from the evidence that McDon-
aid and Gray did. as claimed by the
prosecution, take the gun and prac-
tice with same to test the accuracy
of its shooting, after the deceased had
made the threat to return and kill
Mcdonald, and that the same was
done for the purpose of enabling Nc
Donald to be better prepared to pro-
tect himself from the carrying ont of
such threat, and if they further be-
lieve from the evidence that after
wards the deceased was returning to
carry out the threat to kill Mcdonald,
and that Mcdonald took only such
means as an ordinarily prudent man
would take TO prevent the carrying
out of such threat, and in so doing
killed the deceased, then neither Nc
Donald nor the defer dant, Gray, could
be convicted on account of such kill
ing, and the court instructS the jury
that it was not incumbent upon Nc
Donald to place himself in a position
to be killed by deceased, or in any pO-
sitiOn more dangerous than an Jrdi-
narily prudent man would do under
like circumstances before exercising
his right of self defense, or before TAX
ing such action as an ordinarily pru-
dent man would take under like
circumstances to prevent deceased
from carrying his threats into execu-
tion; but if the jury believe that Nc
Donald and Patton had agreed to
meet at the point where the shooting
was done, and that Mcdonald went
there in pursuance ofthat agreement,
as he testified, and lying in ambush
shot Patton, then the circumstances
set out in this last instruction would
not justify the killing.
The jury are permitted to consider
all the evidence in arriving at a mo-
tion on Gray'S part for wanting Pat
ton killed.
The fact that several witnesses
have sworn differently in different
trials, is called to the attention Of
the jury, and they are instructed to
consider this fact, but they may, If
they believe a witness has sworn
in this trial, give his testi-
mony full credence.
The charge of the court is full, COM
plete and impartial. 1t was read to
the jury this afternoon and as we 20
10 press County Attorney Carver is
addressing the jury. The largest
,rowd ever in attendance upon any
trial in the county is present.
Tuesday
~