The semi-weekly messenger., 1898-01-14
THE sEMIwEEKLY MESSENGER: FRIDAY, JANUARY A. 1893.

O'Clock. and the state offered two Wit
nesses TO rebut testimony OF the de-
fence.
Mr.. Martin CtBrien, proprietor OF a
saloon corner Water and Red Cross
streets, was first introduced and tessi-
fed:
On Saturday night. October 30th last.
the defendant came into my place Of
business about IL O'Clock (Which was a
few hours previous to the tragedy and
asked me If / would do him a favor. /
asked the nature Of the favor. and he
replied the keeping of a dollar in
money for him, which I did and made a
memorandum of it. He then asked for
some wi1-skey. but as i thought that
he had already taken sufficient liquor.
/ rendered him beer, which he drank.
He had been drinking. but was not
drunk SO as not TO know what he was
doing. He next purchased tw7o cigars.
bag Of tobacco and some beer, after
which he obtained from me a quarter
Of the amount he had deposited and
then left. / saw a large pistol in his
overcoat pocket and cautioned him
about il.
Police Sergeant Gore was recalled 10
the stand and asked If when he was IN
charge Of the defendant on the morn
ing Of the tragedy did he Che defen-
danD make any statement TO the effect
that the pistol was fired off accident
ally, or by no action on his (defen-
swered in the negative.
After the testimony of the last wit
ness was concluded the state an
nounced the closing Of its case, and the
battle Of augmentation by counsel
commenced.
John H. Gore, Esq, was the first
speaker, and made fitting and earnest
plea in behalf of the accused, and
dwelt upon the insufficient testimony
the state had offered and great uncer-
tainty Of circumstantial evidence in
general. Mr.. Gore rendered to the
court the following prayers and re
quested that the jury be instructed ac-
cordingly, viz:
1. That the defendant cannot be con-
victed of murder in the first degree in
this case. There is no evidence to base
such verdict.
2. That the state must satisfy the jury
to moral certainty, beyOd a reason
able doubt, that the defendant wilfully
fired the pistol shot, before he can be
convicted of any offence in this case,
and if the state has failed to so satisfy
you of that fact, you should return
verdict of not guilty.
3. That if the jury believe and find
that there We're two shots fired, the
first by the defendant, and the second
accidentally, while one of the sailors
was wrenching the pistol out of the de-
PENDANTS hand, and the jury is further
of the opinion that the second shot was
the fatal one, they should return ver-
dict of not guilty.
4. That if the jury should find that
the two shots were fired as last above
set forth, and they are not satisfied
which of the shots was the fatal one,
they should give the defendant the
benefit of the doubt and return a YER
diet of not guilty.
5. That if the jury should find that
the defendant was lawfully walking
along the public highway, and was
| suddenly and violently attacked by
two or three sailors, and knocked
down, and was being beaten by them,
in the dead hour of the night, and that
he had reasonable ground to believe
and did believe, that it was necessary
for him to shoot one or more of his as
sailants, to save his own life or to save
himself from securing great bodily
| harm at their hands, and that he fired
| the pistol shot While down, and under
| the above circumstances, they should
| return a verdict of not guilty.
| 6. That if the jury should find that
| the defendant fired the fatal shot, and
| killed the deceased, while he was being
| robbed by the deceased and his COM
| panion, and to prevent the robbery s
| being committed, they should return a
| verdict of not guilty.
I. That IF the jury should find that
| the defendant fired the fatal shot at a
| time when he honestly believed, and
had reasonable ground to believe, that
| he was about to be robbed, by the de-
| ceased and his companion, and that it
was necessary for him to shoot one
| or more of his assailants to prevent
the robbery, they should return a YER
| dict of not guilty.
s. That if the jury should believe and
| find that the defendant made the ad-
! missions and had the conversations
! with the witnesses SpOOner, Hewlett
| and Loosen as detailed by said wit
nesses while he was heavily under the
| influence Of liquor, angry and excited,
that such admissions should not be
given the same weight by the jury as
| # they had been made and had While
| the defendant was in sober, quiet and
composd state of mind, and said ad-
| missions and conversation, If made and
| had, under the circumstances above
| stated by the defendant, should not be
| taken and considered by the jury as
substantive evidence of the fact that
| ne did the shooting as stated for the
reason that the defendant may have
| been speaking recklessly and making
| idle boasts.
9. That the circumstances Of the case
| rebut the presumption of malice raised
| by the fact of the killing with a deadly
| weapon and the defendant cannot be
| convicted of a greater crime than man.
| slaughter, taking the evidence against
| him in the worst light.
TO- That though the defendant is an
| interested witness, tesfying IN his own
behalf, he is the only living eye wit
mss who has testified 10 the facts Of the
killing, and if you believe his testimony
is true you should return verdict OF
not guilty.
u r S1rttO0 ESQ one Of the cOun-