El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-06-16

out the court room. A recess OF NV
minutes was taken.
JUDGE PARKER'S CHARGE TO TIKI
JURY.
There was profound silence during
; the reading of the charge to the jury
, by Judge Parker. The charge was az
follows:
In the District Court of the Third
!, Judicial District of the Territory OF
county, at the May, A. D. 1899 term
thereof.
Territory of New Mexico, plaintiff,
versus Oliver NJ. Lee and James r.
Cilltiand, defendants. No. GA. Muir
der.
Gentlemen of the jury:
~ The defendants, Oliver M. Lee
and James r. Gilliland. are on trial be-
fore you for the murder of one Henry
Fountain on February 1st, 1896, in the
then county of Dona Ana and territory
of New Mexico, having bet jointly in
dicted for the offense with one William
McNew.
(2) Murder is the unlawful killing of
human being, with malice afore-
thought, either expressed or implied.
The unlawful killing may be effected
by any of the various means by which
death may be occasioned.
(3) Express malice ia that deliber-
ate intention unlawfully to take away
the life of fellow creature which is
manifested by external circumstances
capable of proof.
! az Malice may be implied when no
considerable provocation appears, or
where all the circumstances of the kill
ing show q wicked and malignant
heart.
(5) Malice is not confined in it's
meaning to ill-will toward the person
killed. but it denotes an act done with
d wicked mind, devoid of the sense of
social duty and fatally bent on mis-
chief.
(6) The statute defines murder in
the first degree as follows:
All murder which snail be perpetrst-
ed by means of poison, or lying in wait,
torture, or any kind of wilful, deliber-
ate and premeditated killing, or which |
is committed in the preparation OF or
attempt to perpetrate any felony, or
perpetrated from deliberate and pre-
ciOusly to effect the death OF any hu-
man being, or perpetrated by any act
greatly dangerous to the lives of 9TH
ers, and indicating q depraved mind re-
gardless of human life, shall be deem
ed murder in the first degree.
(7) Wilfully means the doing of an
act knowingly and Intentionally and
one which is not the result of accident
or misfortune.
(8) A felony is public offense pun
ishable with death, or which is, or, in
the discretion of the court, may be,
punishable by Imprisonment in the
peniteutiary or territorial prison; or
any other public offenss which Is, or {
may be, expressly declared by law TO
be felony.
(9) Bearing in mind the definition ,
n Ia /
you that if you believe from the evid- '
ence and beyond reasonable doubt t
that on February 1st, 1896, or at any J
time within ten years next prior to 9
Both, 1898, in the then q
County of Dona Ana and Territory of q
New Mexico, the defendants, or either t
If them, or together with some other 8
person or persons, unlswfully, and ma i
iciously killed Henry Fountain by b
means of poison, or lying in wait for d
linn, or torture, or by any kind of will t
ul, deliberate and premeditated kill O
ng, or in the preparation OF or at +
empt to perpetrate any felony, or
lesign unlswfully and maliciously to t
effect the death of any human being, i
n by any act greatly dangerous to the b
ives of others and indicating deprav- a
ID mind regardless of human life, go a
hat such killing was without excuse q
n justification, then you should find t
he defendants or either of them who II
vas so concerned in the killing, guilty 8
4 murder in the first degree in man n
Ter and form as charged in the indict- t
nent. y
(10) AS to generalization and deli be- d
alton l charge you that il you believe d
rom the evidence beyond reasonable d
Ioubt the defendants or either of them
ormed the purpose maliciously to kill II
toiv 1oI I
elaborated upon SO doing before they II
lid kill him, If they did so kill him, t.
hen no N after how short the time of C
UGH elaboration and generalization, t.
hough it be for q single moment, it e
will be sufficient; all that is required o
n THE point is that the design TO kill u
vas really formed in the minds of the C
defendants or such an one Of them as v
'ou may believe from the evid ence be- a
ond q reasonable doubt was concern t.
d in the killing, at or Immediately be- p
ore they so killed him, if he was go il
Tiled. Il
uD The statute defines murder in d
be second degree as follows: g
All murder which shall be perpetrat- tt
d without design to effect death, by
person while engaged in the commits Il
ion of misdemeanOr, or which shall q
g perpetrsted in the heat of passion Il
Iithout design to effect death, but in a q
rusl and unusual manner, or by means Il
dangerous weapon. unless 1t is tt
ommitted under such circumstances 81
5 constitute excusable or just st
liable homicide, or which d
hall be perpetrated unneces- W
arily either while resisting an at tC
,mpt by the person killed to commit IL
nv offense against person or property,
r after such attempt shall have faileds st
hall be deemed murder in the second CT
egree. b.