The record-union., 1899-04-05

out if witness bad ever heard anything
about witness reputation, but Attorney
Ryan objected to the form of the ques-
ton and was sustained
Attorney Moynihan then stated that
he had several other witnesses as TO
character, but did not think that char
acter cut any figure in the case and he
would not offer them
THE CASE DISMISSED.
The case was closed and Attorney
Moynihan opened the argument and
was answered by Attorney Ryan and
Attorney Clarken concluded the argu-
ment.
Mr.. Moynihan urged that the accused
be held to answer, saying that if he
was liberated the feeling of the relatives
against him would be much more bit
ter and that serious results might fol-
low.
Mr.. Ryan said that under the testi-
mony introduced in this unfortunate
Iaffair there was no probability that a
conviction could be had. There had
been no intention or expectation of a
serious result when the blow was
lstruck, and it would, he thought, be
against public policy to hold the de-
PENDANT to answer and put the county
to the expense of trial. He there
fore asked that the charge against de-
PENDANT be dismissed
Mr.. Clarken recalled defendants story
as to the first part of the difficulty. If
the language that led to the blow was
used, as claimed, defendant would have
been rAf
sented it, but when he did so, the blow
was an unlawful one and resulted in
Imanslaughter
Justice Davis said it was an unfor-
tunate affair, and that being the case,
he had endeavored in this examination
to arrive at the facts and had there
fore allowed more latitude of testimony
than usual 1t had been ably tried on
both sides. A great burden of respon-
sibility attaches in a case of this char
acter, but he had never been afraid to
assume the responsibility and the man
who was afraid was not fit to hold his
position. The question for the mag
istrate to determine in all felony cases
| is the probable cause.
When We take the testimony, the act
! that carried death to Francis occurred
it. Deceased and defendant had not
been on friendly terms for some time.
While the feeling was not sufficient to
make one wish to do deadly harm to
the other, it was sufficient to make
bad feeling. That feeling existed and
they met 1t was a word and a blow
and the blow resulted in the death CT
Francis Counsel asked that Sherburn
y hold
that he struck the blow that caused
death and is therefore guilty of that
offense. That was SO, many years ago,
in common law cases, but now it is not
so and in the books there are cases
under which he should decide this case.
The, cases quoted by counsel are not in
line with this, but are entirely differ
emit He must look at the case as a
jury would.
There is no man in California that
does not understand the meaning Of
the words used by Francis: No hui
man being, in his opinion, who under
stands the words, and who has the
least spark of manhood about him,
would not resent them. The man who
uses that language expects to fight, and
the man to whom it is used will fight.
There was no generalization and no idea
in any ones mind five minutes before
it occurred that any such thing would
happen. The statute covers this case
and says that homicide is excusable
sometimes in case of sudden passion.
He was inclined to think that there
may be more than a little resentment
in this case. 1t was an unfortunate
case, but while the family of deceased
may feel aggrieved, there is no punish
ment that could bring deceased to life
again, and if he We're John Sherburn,
he would rather be in Francis place.
He believed that defendant realized this
and received as much punishment as
the court could give. He wanted to
say to counsel that in all cases of this
character. where the provocation would
have been clearly defined and known,
no jury would convict He hoped the
relatives on both sides would go out
of the court room without any feeling
toward each other. He felt it his duty
as a magistrate to discharge the de-
PENDANT and he would so order
During the courts remarks young
Sherburn was visibly affected and when
the allusion to his punishment was
made, he broke down entirely. 1t was
an affecting scene.