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

first degree to murder in the secOD
degree, the killing must be done on tn
instant the provocation is given, befo
the blood has had time to cool an
reason to resume its sway, and befor
the mind has had time to co slider tn
character and gravity of the act abou
to be done.
Q4). Bearing in mind these explsna
| tions, If you do not believe or if 20,
entertain reasonable doubt as t,
whether Henry Fountain was killed IL
some manner with design to effec
his death, still if you believe from the
evidence and beyond reasonable
them, with malice aforethought at the
time and place aforesaid, did unlaw
fully kill, or participate in the killing
OF Henry Fountain, while they were
engaged in q misdemesnor, or in the
heat OF passion without design to effect
death, but in a cruel and unusual man.
ner, or by means of dangerous
weapon, unless such killing was COM
mitted under suoh circumstances as to
constitute eacusable or justifiab BILE
homicide, or so killed him unnecessari-
ly, either while resisting an attempt
on the part Of Henry Fountain to com
NIT any offense against the person or
property of the defendants, or after
such an attempt had failed, and that
such killing was without excuse or JUS
LITIGATION, then you should find the de-
PENDANTS, or such one of them as par
ticipated in the killing, guilty of MUIR
der in the second degree in manner
and form as charged in the Indictment.
Q5) If you do not believe, or if you
entertain reasonable doubt as to
whether the defendants committed the
crime charged in the Indictment un6 er
1no nj
in either the first or second de-
gree, as already defined and explained
to you, still if you believe from the evil
dence and beyond reasonable doubt
that at the time and place afOre-
said Henry Fountain was
and maliciously killed
by the act, procurement or culpabe
negligence of the Defendants, or either
Of them, and that such killing was
without excuse or justification, then
you will find the defendants, or such
Killing, guilty of murder in the third
legres in manner and form as charged
n the Indictment.
Q6) Culpsble negligence is the most
extreme degree of negligence or want
II care and prudence, and is such q
ack of care and prudence as indicates
! reckless disregard of human life.
Old The prosecution in this case re-
les entirely upon circumstantial evil |
ence to convict the defendants. By |
ircumstantial evidence is meant the |
roof of such facts and circumstances
Onnected with or concerning the COM
Mission of the crime charged as tend |
D show the guilt or innocence of the
arties charged. And if these facts
nd circumstances are sufficient to sat-
'fy the jury of the guilt of the defend
It's or either of them beyond reason
bic doubt, then such evide nee is sufi-
lent to authorize the jury in fuding a
erdict of guilty against them, or Ell
ler of them as to the guilt of whom
on have no reasonable doubt: but you
re instructed that before you will be
uthorized to find verdict of guilty
yainst the defendants or either of
lem in this case, the facts and circum-
'ances shown by the evidence must be
compatible upon any reasonable
ypOthes with tie innocence of the I
sfendanrs and incapable of explana-l
on upon any reasonable hypotbe sis .
her than that of the guiltof the de- {
ndants. +
QS) Before you will be authorized
} convict the defendants or either of ,
lem it will be necessary for YOU to be- 3
eve from the evidence, which must
strong and cogent, beyond a reason {
Die doubt that Henry Foun tain is dead t
Id was murdered in manner and form r
charged in the Indictment and at
lie time and place aforesaid by the de- I
ndants or either of them, and under
ch circumstances as to constitute {
urder either in the first. second or :
ird degree as already explained to 6
~. And If you have any reasonable {
~ bt as to whether Henry Fountain is
lad, it will be your duty to acquit the {
,fendants.
(l9) defense interposed by the de !
ndants in this case is what is known !
law as an allbi; that lie, that the de. I
ndants were at another place at the
me of the commission of the crime $
larged, and the court instructs I
70 jury that such defense is as prop e
and legitimate, If proved, as any
her, and all the evidence bearing
nsidered by the jury. And if, in +
ew OF all the evidence, the jury have r
~ reasonable doubt as to whether
10 defendants were in some other =
ace when the crime WAS committed, 4
it was committed, they should give r
e defendants the benefit Of that r
'ubs and find them not guilty, or
oh one of them as to whom they en- r
rtain such doubt. r
(2O) The defense OF ali bl to be en- I
lied to consideration must be such a
to establish reasonable doubt in q
q minds of the jury as to whether
the very time of the commission of +
9 crime charged, if it was commit f
d, the accused were at another place :
far away or under such circum- +
snces that they could not with any or
nary exertion have been at the place q
lere the crime was committed so as a
have participated in the commission f
ereof.
(2D You are instructed that if any
atement of any relevant fact in this +,
Sc is shown by the evidence to have +,
en- made bv either of the defendants a