The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-06-21
JUDGE POWERS GREAT GRAFTON
that they burn and scar into his con-
science.
THE CHALLENGE OF THE STATE
ACCEPTED.

THE CHALLENGE OF THE STATE
ACCEPTED.
We are to try here a question of life
and death. The challenge has been
made by the prosecution, and 1 accept
il in behalf of this defendant. The
states attorney. speaking for the state,
has asked for the blood of this defend
ant. He has demanded nothing less
than a verdict Of murder in the first
degree. He has pictured the defend
ant as an inhuman, blood-thirsty mon
ster, working with deliberation, crawl
ing upon his victim and striking him
down with the generalization and de-
liberation that marks the act of muir
der in the first degree. Speaking for
the state. he says: I'VE demand
blood" Speaking for the state, he
says. 1--WE ask this mans life!" He
has tried to prejudice you in every
way against the defendant. He cries
out for revenge. forgetting that the AL
mighty has said, vengeance is mine:
/ viii repay" But l accept the guage
that has been thrown down. l will ar
que this case upon the lines that have
been marked out that this man shall
either surrender his life to the state,
or that he shall go free. The county
attorney has not sought, he has not
seen fit, to direct your attention to the
fact that human nature is not infal-
hble; that there are circumstances I'M
der which the taking of human life is
juStifiable. But upon theories of his
own, outside of the sworn testimony in
this case. and perhaps melted thereto
by a powerful influence that stands be-
hind the state, he has sought to con-
Wet this man. This, l say, he has done
upon theories and upon that which is
not sworn evidence. upon that which
exists only in the irridescent fantasy
of his brain. | accept the challenger
L will argue this case upon the propo
sftion that there must either be a ver-
dict OF murder in the first degree, or
that this defendant shall have a YER
dict of not guilty!
THE DAY AND THE TRAGEDY.
The testimony discloses that the first
day of March Of this year was the Sab
bath day. Il was the seventh day of
the week; il was a day OF rest. AS il
is said in the Bible, God blessed the
seventh day and s3nctified it, because
that in il He had rested from all his
work which God had created and
made" During the preceding night,
the snow had fallen: il covered the
earth to a depth of many inches. and
along towards the hour of 10 O'clock
ell over the city, there reigned the SILL
ence, with the snowf1akes falling one
after another. millions of them float
ing through the air, when there comes
over all nature d DeacefulneSS that
seems as if it was born in the home
of the Almighty. Then it was that the
good people of the city were preparing
to attend their various places of wor-
ship. Many were awaiting the ring
ing Of the sacred bells that would sum-
mon them to the altar where they
would turn their minds from the bust
ness of the preceding week and con-
slider that which is of the future. Sud
denly three sbess, fired in quick sue
cession. their very rapidity awakening
terror, startled the winters air, and
the echoes of which soon rang through
out the city. From the iron lips of
the revolver. which has been offered
in evidence, gTaSped by a. heart broken,
by despera te man, were hurled the
bullets which sent Walter Dinwoodey
to his Maker, which carried sorrow
and distress to his bereaved parents,
which marked the destruction of a
home, which blasted fond hopes, which
crushed out happiness, and brought
this defendant here to the bar upon
trial for his life. Those shots empha-
sized once more the command of God
himself, that Thou shalt not covet
thy neighbours Wife
THE ELEMENTS OF THE CHARGE
AGAINST HYNDS.
Let US now look at the charge that
is made for few moments. The
counsel for the state has hastily con-
sidered it and lightly spoken of its
elements, and he has argued to you
that this is a. case of murder in the
first degree. Murder is divided, as the
court will instruct you, into two de-
grees. 1t is the unlawful killing Of a
human being with malice aforethought.
To make the killing murder, there
must be malice. Malice is of two
kinds. 1t is either express or it is i'm
piled. 1t is express when manifested
in a deliberate intention to unlawfully
take the life of a fellow creature. So,
then, to find express malice in this
case; to make of this murder, you must
find that there was a deliberate inten-
ton in the mind Of Hynds to take the
life of fellow creature. True, the
intention may be formed, but it must
be a deliberate intention to take away
life. For, if the life is taken law
fully, it is not murder under any cir
cumstances, or any conditions.
Again, malice may be of another
kind, which is called implied malice
That is, when no considerable provo
cation appears, or when the circum-
stances are such as show an aban-
doned or malignant heart Apply,
then, to these definitions of malice, ex-
press and implied, the facts as they
have been detailed to you in this case,
and tell me whether you can find the
deliberate intention from these facts
that is necessary to constitute express
malice; whether in this case there was
no considerable provocation, or wheth-
er the facts disclose that it was done
with an abandoned and malignant
heart. Murder in the first degree
must be wilfuI; it must be deliberate;
it must be premeditated. The differ
ence between that and murder in the
second degree is that in the second
degree the generalization is lacking;
the malice exists, but the deliberation
and generalization does not exist In
the first degree it is not only wilful,
it is deliberate, it is premeditated. And
ask you to apply the facts in this
case and then tell me, upon your oaths,
whether the state is entitled to a ver-
dict of murder in the first degree. 1t
asks for nothing else; it takes no mid
die ground; it is blood that is wanted
it is a life that is demanded; it is an
lQudiilSu NeTulCI Indt Is asked, or
else. as has been indicated to you, this
man must go free.
The law in its mercy holds that al
though a. killing may be unlawful, it
is not always murder: and there is a
subdivision of the offense of homicide
that is called manslaughter That is
divided into two classes. There is vol
untary manslaughter and there is in
voluntary manslaughter. Voluntary
manslaughter is where one kills an
other in a sudden quarrel or heat OF
passion, as if two men come together
and fight. or as if some great insult
had been offered to you, and in the
passion flowing from that insult vn11