The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1897-02-06
THE NCANN CASE.
a RECENT SUPREME COURT DE-
cIsToS THAT TOUCHES IT.
A Supplemental Petition Filed at
oiympfa Making New Points for
the Defense-A Question of See
aaa Assault. which. IL Is Claimed
wss Not Considered

Not A0Dst1cEEds
Walter rulter. who Is che OF the asfor-
news " no have charge o. the case Of Joan
- lanes deCann, convicted OF murder
- Tssaoh cicero. returned from Olympia
xestg~sav- after having fled IN the SUI
rvanaa esyurt a Supplemental petition % the
rsasiFion already hIe5. asking for re-
hea~sng IRE Iast petition = az g-sat I'M
xsortancs. a. i dsals villa The question Of
two assaults and brings ont nss de-
clsion q fhe United States supreme court
re swe main points oroaghs out IN the
original petition wsFe those relative 70 the
a4rnfssfsiIlyy o. statements % Michael
Mccain father Of the condemned men.
and two separate assaults. In connection
with the frs. pont IL Vas claimed that Z
vas an error On the part OF the superior
court 70 admit statements and declarations
OF Michael McCann against and binding
upon ais sons, bat tn any event the jury
should have been instructed t5st these
statements could not be used against the
Rseys unless T. was found that there was
conspiracy On the part az the three BIC
Cams II is not thought that even though
a conspiracy really existed, these state
rssntS could have been SO used. IL being
contended that they amounted to mere
threats and I'D not come witail the rule
admitting declarations OF conSptTatoT as
binding upon his co-consptrators. IL was
conten7ed on the second point that the
court erred IN refusing an instruction 20
the effect that even though the jury be-
lieved the Mccain boys 20 have been the
aggressors IN the beginning. yet. II the
jury further believed that the ARRAY in
which the appellants were the aggressoTs
had ended. and the deceased, after al
necessity had ceased. preeipitated the fatal
~ Iaa3tx- ha
McCanns, the fact that the McCanas were
in the wrong In the beginning would in
no wise resolve Itself as against their
right OF self-defense.
After the petition for rehearing was
fled the United States supreme court.
December 81 last, handed down decision
in the case OF Rowe VS.. the United States
IN which the principles eontended for by
the McCanus is said 10 be directly II point
as to the contention OF the NcCanns that
there were two separate assaults. This
man Rowe had g fight with man and
killed him. The petition says that the
only facts from which the jury in the case
OF Rowe vs.. the United States could have
found that the defendant had ceased hos
tihties with the deceased, and had with
drawn from any further combat with him
was the fact that after kicking the de-
ceased, he stepped back and leaned against
the counter In the hotel office IN which
the ARRAY took place. whereupon he was
assaulted by the deceased with a knife
II was held by the supreme court that Il
should have been LEFT 20 the jury 10 say
whether the conduct OF the defendant
after kicking the deceased was 8 with
dFawal In good faith from further contest.
The case OF the appellants Is much
stronger. ia cur opinion" says the petit
ton, than the case of Rowe vs. United
statss 80 FAR as the evidence showing a
They emphatically testify that after the
nrst assault upon the deceased by James
MrCann, which was only the giving OF
blows, they withdrew and intended and
deceased: that after this first ARRAY had
ended, deceased left them, went TO HIS
house, procured 9 rifle and Immediately
returned down the road TO where they
were: that they called upon him. when
they perceived him coming. to STOP to
40 oack. fact from which the jury
might well have inferred. with proper in
strucifons on the point. that they were
seeking. in good faith. 10 withdraw from
any further struggle and hostilities with
the deceased, and that thereby their right
20 self-defense was restored even though
they were the aggressors in the begin
ming
After exhaustively reviewing the facts
in the case OF Rowe vs.. United States, the
supreme court says:
Tt should have been submitted TO the
jury whether the act Of the accused. in
stepping back and leaning against the
counter, not in an attitude for personal
conflict. was intended TO be, and should
have been reasonably interpreted as be-
ing a. withdrawal by the accused in good
faith from further controversy with the
deceased.
we do not mean TO say that the jury
ought 20 have found that the accused at
ter kicking the deceased lightly, withdrew
n good faith from further contest and
that his conduct should have been so in
terpreted. IL was for the jury 10 say
whether the withdrawal was in good faith.
or was "A mere device by the accused to
obtain some advantage OF his adversary.
But We are OF the opinion that under the
circumstances they might have found that
he kicked or kicked at the deceased. did
not provoke the fierce attack made upon
him bg the latter with knife In hand in
any sense that would deprive him alto
gsIher OF the right OF self-defense against
such attack"
The petition then continues: las We
have heretofore IN our petition for re-
tts instructions told TIE jury under what
circumstances a persons right OF self
defense would be restored. although the
agEressor in the first instance. That IT
was the duty OF the trial court 10 so in
struct Is sustained, We think, by the au-
Thorities We have heretofore cited IN our
brief and IN our petition for a rehearing,
and most empnatically sustained by the
case OK Rowe vs. United States. supra
the case IN the light or all the facts. and
this they could not DO without Instructions
from the court as 70 the law applicable
% these facts"