El Paso daily herald. (El Paso, Tex.) 1881-1901, 1900-11-24

| self. He argued that II Hill mad I'M
mediately shot and killed Pitt he would
have been justified. but the justifica-
ton of defendant depended on the con-
clusion reached by defendants mind
and his intention and that was a ques-
ton for the jury to decide. The speak
er claimed that the court should
charge manslaughter in the case.
Judge Walthan asked counsel a ques-
ton: he wanted to know. the defend
ant being in no danger when Hill
ran from him. but might be in dan
ger at a future moment when Hill had
secured a gun. what. claim he had to
self defense?
Senator Gage said he thought that
was a question for the jury to decide
(The cases cited by the lawyers were
similar only in that the defendant pur-
sued deceased while fearful that de-
ceased would seek shelter and continue
an attack already in progress. Hill had
no arms.l
Judge Cunningham than took the
| floor again and said:
I'VE think We are entitled to
charge OF manslaughter on account OF
terror and we will ask the court to
tell the jury that if the sight of Burch-
field aud Hill terrorized the defendant
he was then guilty only of man
slaughte-.
Judge Hammer asked permission to
argue on the points of law before the
Jury was brought back and he Was
permitted To do so. He first took up
the terror theory and said the high
er courts had denounced it.
The law, he said, would never toll
crate or recognize doctrine that per-
mitted a man to plan an assassination
and then escape punishment for the
crime on the grounds of terror.
1t would" he said. ''be legalizing an
assassination"
THE defendant testified that he shot
Hill before Hill had done anything but
make a gesture. then how can he talk
about being actuated by terror or fear
of danger"
Judge Cunningham replied briefly,
citing the facts of the case to sub
stantiate the terror" theory and say
ing that if the defendant was terror
lied then he was guilty of manslaught-
er and not murder and asking the
court to so charge.
The twelve jurors were brought back
and Judge Cunningham begun his ad-
dress to them. He first took up 'mur
der in the first degree" and defined it.
saying that to be guilty OF it defend
ant must have formed a cool and de-
liberate design to kill and then to have
carried out such intention. He re-
nesses To prove that defendant was
excited and enraged when he entered
the door. He said Burchfield himself
had testified that defendants mouth
and eyes were wide open when he ap-
peared in the postoffice with his gun.
Murder in the second degree was TAX
en- up and defined and finally came
manslaughter. Counsel said he did not
know whether the court was going to
charge on that or not, although he
had been asked to do so.
We take the position" he said. |
that if this unfortunate man is guilty |
of breaking the laws of his country. /
he can be guilty of nothing worse than |
manslaughter.
We hold that he was actuated by
fear and terror
Judge Cunningham made strong
fs.,-
on account of his wife. seven little
children and aged mother.
During the progress of the ar
gumeut the court called on the sher-
in three times to preserve order in
the court room and admonished him
that he must keep order. The hum .
Of voices then ceased |,
The speaker explained the theory of
defense. which is that the first bullet
fired at Hill went through his mouth
and Jaw and split. making two inden-
tations on the wall. Defense claimed ;
that only two shots were fired in the ,
store and that one of these bullets
split in two. |,
The attorney for defense finally be- :
gun TO warm up and raising his voice {:
attributed the whole trouble to Burch- 4
field. saying: |,
That woman over yonder would still
have her husband. that boy his father.
and that defendant wouldn't be here
4 it hadn't been for the maiignity
'f old man Burchield, that expert