The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1897-06-24
THE SHADOW LIFTED.
Text of the supreme Court Decision
Granting Another Tr1al-It Was
Because Of Only One Qnession, and
That Was the Instruction Of the
Sefs-DefeBse.

A1EC&En. WHO were convicted OF Inc EiAr-
der OF Joseph Cicero al Ayondaie In Aug
ust. lsss have gone to sleep and awakened
with the picture Of gal!ows before their
eyes Their existence has been one Of
torment. and with every creak;ng OF the
big steel door OF the prison they have
wondered IL they were 10 learn their Fate
Would The state supreme court 60 back
on its former decision condernning them
70 b. hanged b. the neck until dead. or
say tae word which granted them one
more chance 10 show that they were not
cold biooosd nur5erers7
It is Impossible for people on the outside
OF prison. those who have not stood
before bar Of justice listening 10 the bat
tie which means life or death to have any
idea OF the awful anxiety that fills the
mind Of the man who Is hoping against
hope.
How many times the door OF the prison
had opened and still no word came. The
very silence bore down on the condemned
men ard wasted their nervous energy.
The sun that came from below the hor
izoa yesterday morning bringing warmth
and brightness crepr into the prison. but
its meaning was lost TO the Mccain boss.
Their senior counsel. ". II. White. had
given UP the case, and Col. James Ham
Iton Lewis saw nothing but black clouds
In the future. Only Walter Fulton. WHO
had known the boys from the time they
went bare-footed and got stone bruises
on their feet. was of brave heart. He had
fought for a rehearins and had declared IN
the face Of great opposition that the
supreme court would coma 10 his way of
thinking.
Yesterday afternoon a messenger boy
ioafed into Mr.. Fulsons ONCE, ard after
whistling God Save the Queen" with
variations, dropped a message or the
table and said in a laconic voice, Sign
for IL. mister" Rather nervous was Mr..
Fulton as he tore the envelope and ran
his eye over the brief sentence. Then ne
grabbed his hat and fastened to the coun-
- Jail. 1t seemed TO him as if he never
would get there. and after arriving how
long Il took 10 undo the fastenings of the
Jail. AZ last he was with the Mccain
boys.
They looked al him, Not a word was
spoken. Silently Fulton handed them the
message, and they read:
The supreme court has remandea the
Mccain case for new trial.
The shadow OF the gailows was lifted
from the brothers, and In their joy they
We're speechiess.
The spell wore away. and they said.
We Will sleep tonight"
The Opinion.
The supreme court opinion Is a. follows:
1T will not he necessary to reconsider
the entire case as we ale satisfied with the
Views indicated in the former opinion in
the discussion Of number of the ques-
tons. and a number OF them will not be
likely TO arise upon q retrial of the cause.
Some Will be eliminated on account OF the
acguittal OF Michael Mccain. We have
been led 10 grant a retriai upon the fur
Their consideration OF the case as TO one
question only. and that is the instruction
Ct yars Ia rF,- -. ~. r.
3ect of seif-Gefense, wherein the court
charged the jury that To Justify the TAX
ing Of life in self-defsnse il must appear
from the evidence that the defendant or
defendants not only really and IN good
faith endeavored 20 decline any further
struggle. and TO escape from their assan-
ant before the fatal shot was fired etc
The Objectionable part OF this instruc-
ton Is the clause wherein the court told
the Jury that IL was incumbent upon the
defendants 10 endsaYor TO escape from
the deceased. We are not entirely salts
fed with the instruction upon the former
hearing. 1t must be conceded that the
meaning which wonid ordinarily be at
tachad 10 the word escape as here used
would be 10 get away fee. and in that
sense we are Of the opinion that II would
have been erroneous. bat we ara also Of
the opinion that IL had not been excepted
Ia upon that ground. and that frorn what
did appear relating TO the exception talk
On thereto and OF It's having been followed
by the other two instructions set forth.
mentioning the matter OF withdrawing,
etc. Il was probable that IL was not ln-
derstoo6 in the sense that the defendants
were called upon 20 run away when the
deceased appeared with the rife. Upon
further consideration Of the question. the
court has come To the conclusion IN
considering the exceptions, which were
taken. requested by defendants and re
fused by the court as well as the exCep-
tons TO the Instructions which were given
upcn this phase % the case. that said in
struct{on should b. deemed excepted -
In the particular mentioned. and as the
Jury may have understood therefor, that
= was incumbent upon the def n0ants 20
Zee when Cicero appeared with the gun.
il may have been prstGdical TO the0
Regarding the request for instruction
with regard 30 the guilt Of James Mccain
the court SAYS. We see 10 rea son why
more particular Instructions should not
have been given upon this subject as re-
ct.eSted although we found no error in the
premises. considering the instructions that
we're given thereon. Where instructions
requested ara pertinent and clear. Il is de-
ssrable that they should BE- given rather
than TO have others OF a mere general ia
ture substituted by the court