The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-12-07

ATTORNEY ENSMINGER
In One of His Oratorical Flights.
club in an attempt to place him under
arrest, and that the defendant inflicted
an injury upon the head of the deceased
which caused his death, then it is for
you to determine whether the defendant
was justified in using his club in the
| manner and in the extent that he did
use it.
If you believe that under the circum
stances he was justified in using his
club, and further believe that the man
ner and force with which it was used
was not calculated to do great bodily
harm upon or to produce the death OF
the deceased, then the defendant
would not be guilty In determining
this question you have a right to take
into consideration the situation of the
parties and the apparent physical con-
dition of the deceased as he appeared
to the defendant at the time of the
transaction.
If you believe from the evidence in
this case that the deceased, George W.
Head, was by his conduct disturbing
religious gathering in this city; that
defendant Hall had notified said de-
ceased to desist from such disturbance.
and he failed or refused to do so, and
that thereupon the defendant attempt
ed to put him under arrest on account
of such distur bance, and that the de-
ceased, George w. Head, resisted ar
rest and assumed threatening atti-
tude towards the defendant rs though
he intended TO inflict bodily injury upon
him, then the defendant would have
the right to repel the attack or appar-
ent attack by force, and would have
the right to use such force as was
reasonably necessary to repel the at
tack and protect himself from injury.
But in so doing the defendant would
only be authorized to use such force as
was reasonably necessary to protect
himself from injury.
Where an officer is attacked and the
manner of the attack is such as not to
off in INN Do17f n of
death or great bodily harm, then such
officer would not be authorized in re-
sisting such attack to inflict great
bodily injury upon the aggreSSor, such
as would be likely to produce death.
ENSMINGER FOR DEFENSE.
Attorney J. S. Ensminger opened the
argument for the defense at 10 o'clock.
There has been conflicting evidence
by the witnesses for the state,' said Mr..
Ensminger. "Some of the witnesses said
that Hall took hold of Head by the
lapel of his coat and others say by the
arm and others say he had no coat on.
Some say that Hall went to Head once,
some say he went to him twice and oth-
ers say three times and some say that
Hall did not go to him at ALL L do not
mean to imply that these witnesses are
prevaricating but it shows how differ
emily people will see the same affair
and which is right
Mr.. EnSminger reviewed the teSti-
mony of Evangelist Osgood who was
conducting the meeting and who went
to Head and asked him to be quiet and
who testified that he saw Hall go to
Head and saw Head strike Hall and
saw Hall try to parry the blow with his
club and strike him and thought Head
about to strike him again.
THAT is what Mr.. Hall testified to
and just in the line of what Mr. Osgood
testified" said Mr.. Ensminger. do you
believe that Hall intended to do Head
great bodily harm. There is not a man
here who can put his hand on his heart
and say before his God that Hall in
tended to administer severe blow. IL
Hall had intended to inf1ict a severe
blow he would have struck differently.
/ do not say that we were justified il
cracking this mans skull but do wish
to show that it was a light blow and
not done in a malicious manner. This
was all extraordinary. The circumstan-
ces are unusual as the physicians all
testify II is extraordinary that when
the blow struck he did not even fall
to his knees. Are we to be cenSurable
for the fact that this mans vitality
was impaired and his powers of resist
ance lessened? Hall believed this man
he can not be held guilty of this
charge. Hall believed he was resisting
him. There were only two men in that
crowd who knew whether there was re-
sistance. Those two were Head and
Hall. Do you believe that without any
provocation that Hall turned round
and struck Head? DO they not say that
Head was in an attitude of defense?
Hall was going to strike him. Would
Hall strike him for nothing? Something
happened there. Was it necessary for
Head to hold up his hands and say
wait? 1 say it is unreasonable. for if |
he had wanted to he would have said
Wait, Hall, 1 don't want to go to
JAIL"
Attorney Ensminger then took up the |
instructions of the court. He passed |
quickly over the charges constituting |
murder in the first or second degree, !
and said: 'I do not think the prosecu- |
ton will insist on murder or that the \
circumsta noes would justify your con-
sideration of what constitutes murder" |
He then discussed the degrees of man |
slaughter. There are laws thrown |
around an officer" said Mr.. Ensminger, !
'and those laws give him authority. |
Mr.. Hall went to Head in the pursu-
ance of duty and not to commit a
crime, so he could not have committed |
manslaughter N the first degree. Hall |
did not go to Head in the heat of pas |
sion, and none testified that Hall was
fC-onfip,7od or Cfxfn Ea