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

charged, Dut reasOna BILE dOu bt Is not
g mere possibility of innocence or a
caprice, shadow or speculation as to
1 innocence, not arising out of the testi-
3 mony or the want Of 1t.
> (25) The jury should patiently and
dispassionately weigh and consider the
testimony and bring to bear upon it
the exercise OF common sense and
Judgment as reasoDa BILE men, and if at
} Ter considering all the evidence YOU
| can say you nave an abiding con viction
OF the truth of the charge, then YOU
are satisfied beyond reasonable
, doubt.
(26) You may find both the defend
J ants guilty, both not guilty, Or one
guilty, according as you believe the
truth to be.
(21) | hand you for forms of verdict,
one of guilty of murder in the first de-
gree, one of guilty of murder in the.sec-
ond degree, and one in the third degree,
and one of not guilty.
In case You adopt any one of the
name of one or both of the defe ndants
whom you determine to be guilty and
add to the form of the verdict in case
you further find one of the defendants
not guilty the words land we do find
The other one (naning him) not guilty."
in case you find both not guilty you
will adopt the last form.
| kECJ AS SOOu do yOu UPON d YER
dict nave the same signed by one of
your mum Der as foreman and return
the same into court.
| At the request of the defendants l
| charge you that even when a crime is
proved beyond reasonable doubt aud
| it is sought to connect the defendants
with the crime, no matter how strong
the evidence may seem to be you must
| scrutinize II most carefully and give
the defendants the benefit of all doubt.
| If there is doubt you must find the
defendants not guilty.
Also, at the request of the defend
| ants l charge you that the presumption
of innocence as guaranteed to the de-
PENDANTS under the law must be met
and overcome by the evidence. If that
presumption is not SO met and over |
come, you must find the defendants not |
guilty.
At the request of the prosecution, |
charge you that you are the sole judges |
in this case of the credibility of the |
witnesses and of the weight to be given
to their testimony. And for that pur-
pose you may consider their bearing
and oemeanor in giving their testimo-
ny, the fairness or unfairness, the pre-
judice, bias, or interest if any, of any
witness who has testified be ore you,
and determine from the whole of the
testimony where the truth in the case
lies.
Also, at the request of the prosecu-
ton, charge lou that if you believe
any witness has knowingly and will
fully testified falsely upon any material
point at issue in this case, you are at I
liberty to disregard all or ally portion
of his testimony, unless the same is
by other competent
TO be true.
INSTRUCTION requested by prosecu
ton. Refused by Judge Parker):
Il the jury believe from the evidence
hat there was q com bination and con-
cert of action between the defendapts,
Oliver NJ. Lee and James r. Gilliland
and one William McNew, for the pur- Z
pose of accom- plishing the death Of
Albert ] Fountain, and to conceal the =
evidences Of such crime or any part of I
t, and that in the effort to accomplish | ]
UGH purpose and to carry out such
'om bination, they, the said defendants,
'r.any of them, murdered the deceased,
Henry Fountain, at the time and place
nentioned in the Indictment in the
fort or attempt to murder the said
Albert j. Fountain, or after the muir
Ter of the said Albert j. Fountain for
he purpose of concealing the murder
# the said Albert J. Fountain, the
declarations of any one Of the said
PARTIES to said combination and con-
u, L
IT with reference to, the common de- L
ign, and before the same had been <
.nded, are admissible in evidence
against the said Oliver M. Lee and
ames Gilliland, the defendants now 3
N trial in this case; and the court iu-
tructs you that the admissions and
of one of the defendants on 6
rial in this case may be considered by
he jury as evidence against the de-
endant making such admission or D
even though there may
lot have been combination or con-
ert of action.
EXCEPTIONS NOTED. /.
A the conclusion of the reading of
he charge, Judge Fall, for the defense,
oted the following exceptions: IA
he court as to murder in the second
egree as contrary to the evidence, as 10
to the defendants, ana as
alculated to confuse the jury. 10
Defendants except to each and all
arts OF the charge of the court as to
1urder in the third degree as contrary 2
o and not warranted by the evidence,
s pref judicial to the defendants, and as
calculated to confuse the jury. is
They except as to the instruction as
0 the statement by either of the de-
endants or William McNew, so far as
UGH instruction applies to q statement
y William McNew: pr
They except as to the refusal of the
ourt to give Instructions numbered l Il
nd 2, as to the corpus deficit, asked +.
Or by the defense and warning the jury |
5 to guarding against the love of mar
elous in witnesses, ETC., as prejudicial
} the defendants and improperly re-
lsed upon the circumstances in this
8So, as shown by the evidence. c.