El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-11-27

in the first degree. The proposition
of the state is this: That the mind
must be cool and deliberate and must
form the design to kill. IF the jury
believe that there was formed design
to kill at the time the shot was fired
| then there was expressed malice. A
quarter of second is sufficient as q
year would be for forming the design.
II man shoots another down without
apparent cause then the murder is sup
posed to have been premeditated.
books and said that proof had to be
brought to prove animOsity, and the
inward intention and the acts of defen-
dant before, during and after the kill
ing could be.taken es proof OF premedi-
tstion or not Of premeditatiO1. which
fact was left to the jury to decide. Ami
mostly, he said, might rankle in the
bosom of q man for years and be known
to no one and at last find vent in muir
Jury could determine whether or not
there was malice only by the acts of
| the murderer at the time Of or after
the killing.
| Referring to the case on trial the
attorney said that IL Hernandez was q
| friend of defendant then the jury M st
determine whether or not Garcia s
|
| by fear, anger or resentment and in
that event the defendant might be
guilty of manslaughter, but the jury
must determine that his reason was
dethroned at the time of the kill
ing.
| Under the law" he continued, "de-
| feudant would be justiiable in taking
the life of Ed. O'Connor if O'Connor
was about to murder Hernandez. Any
| ha in inta
| to prevent murder.
! '.The defendant may claim that be
| feared that Hernandez was about to
be murdered, but there is no evidence
here to show that O'Connor intended
TO molest Hernandez further after
knocking him down, and he could not
have killed the Mexican with bis
| fist.
| witnesses have testified that the
Mexican forced the quarrel upon
O'Connor by refusing to move when
requested to do so and raising his hand
to strike after being pushed away
from the banjo picking machine. II
O'Connor was about to kill Herman
dez; his crime would noS have amount
ed to murder, but there is no evidence
to show that hernandez was in any
danger of losing his life. O'Connor
simply resented with his fist an assault
by the Mexican.
'If mortal blow had been struck
aud in Garcia's opinion Hernandez lay
upon the floor a dead man, then Gar
cia's right to Interfere b sd ceased, for
it is the province of courts and juries to
punish murderers and not the province
of bystanders.'
ADDRESSING THE JURY.
Judge Falvey then read the legal
definition of manslaughter and com
mented on it. Turning to the jury he
made an address to them saying: s'If
you believe that this is the man who
killed Ed O'Counor, he should be hung.
If you do not then he should go scot
free. Those are the two issues, which
| desire to present TO you. 1t is for
you to. say whether the defendant shall
go to the penitentiary for life or pay
the penalty with his own life. An eye
for an eye, and tooth for q tooth.
That is the Intention of the law
Judge Falvey then reviewed the evil
dence and commented on it. If Garcia
had right to kill o 'Connor for knock
ing Hernandez down then some by
stander who saw Fitzsimmons knock
Maher down would have the same
right to whip out his pistol and kill
Fitzsimmons. He would have more
right.
'If the natural consequence of shoot
kill him then the presumption is that
1t was the defendants intention to
kill. The defendant saw the men
scuffiing. He was standing in the
crowd. He drew his pistol de-
liberately and advanced several
steps. He did not point
the weapon at the mans legs or arms
or body. but at the head. Was
that intention to kill? Whist did he
do then when he saw the poor fellow
fall to the floor with his blood and
brains oozing out. Did he throw up
his hands and say My God, what have
done" No. he stood there for
a brief moment to see the effect of his
bullet. Coolly and deliberately! Then he
went out and as he turned to flee afteI |
fully realizing the effect of his deliber- |
ate act said: you! and fled.
''Tbis man could not have drawn the |
deduction that Hernandez was about |
to be murdered. O'Connor used no |
weapon, only his fist: he did not stamp
upon Hernandez after he fell and there |
was no excuse for Garcia to believe
that Hernandez was in danger of los
ing his life. Even if it had appeared
to t, Garcia that Hernandez had been
killed by O'Connor then he could not
at that time have killed O'Connor, for
the time for him to act was when the
murder was being committed for the
purpose of preventing murder"
Manslaughter was then taken up by
the attorney. He said that the defend
ant had shown himself to be possessed
of an iron nerve. While on trial for his
life he had failed to show the slightest
agitation.
Would q man whose reason was over
thrown have acted thus at the time of
the killing and shown the GOODNESS that
this man has.
"What was this msn 'bagging around
the town with the pistol for anyhow?
Gentlemen. this is a potent issue in this