The daily journal. (Salem, Or.) 1899-1903, 1902-10-15

ley's reputation was good, and witness
was given same cross-examination by
state as scollard received.
John Kennady, John McRea, NJ. Van
wassenhove and Henry Eberhardt tes-
titled further as to good character of
defendant.
Ralph White, who withdrew the
charges from Markley's loaded gun,
was called and identified the two
charges of fine bird shot, which were
introduced in evidence. Witness was
not cross-examined.
The defendant, Markley, was re-
called and counsel endeavored to
show that Marltley was promptly ac-
quilted of stabbing a sailor 20 years
ago. State objected, and the same was
overruled.
Closing Arguments.
This concluded the introduction Of
testimony, and, neither side desiring
to offer any rebuttal, the attorneys be
gan the closing arguments. District
Attorney Hart opened for the state,
and was followed by Carson for the de-
fense.
McNary followed for the state and
Gearin closed for the defense
Closing Arguments.
District Attorney j. N. Hart opened
for the state and was followed by Car.
son for the defense. At o'clock court
adjourned until 9 a. m. Wednesday.
John NJ. Gearin opened for the de-
fense this morning, and made a mas
terful argument for the acquittal of the
accused He argued that the evidence
was insufficient to show either a mo-
tive, or associate Markley with the
crime. Counsel held that from the
testimony of the physicians who made
the autopsy on Fains body, which was
to the effect that the charge of buckshot
ranged downward, and for that reason
il was physical impossibility for
Markley to have shot Fain, because
the point where Fain was presumably |
shot is at an elevation of 1O1a inches
higher than the floor of Markley's |
store. In discussing the dying declar-
ations Of Fain, counsel said that CON
dition of mind Of wounded man was
not such as would permit Of other than |
a visionary statement; that witnesses
repeating the dying declarations of
Fain were not impartial witnesses, but
to Markley; that Faln did
not mention Markley's name until it
was suggested to him by James Smith.
Had not been shown that Fain. was in
condition that he was in the lmme-
Hate presence of death, and for that
reason IL was not admissible. Fain
lied as he lived, and did not believe in
uture rewards and punlshments. Mr..
iearin closed with an eloquent appeal
o the jury, asking a just consideration
" his client, whose reputation had
'ver been good
]. II. McNary, In closing for the pros
'cutlon, said the only point made by
he defense that deserved any consid-
ration was the nature of the wound in
aims body On this point he said that
ullets frequently DETECTED in their
curse McNary further contended that
the time that elapsed from the time
cite anu wife heard the explosion un.
| they saw Fain stagger towards his
ouse, that at the time the shot was
red, he was further down the hill
ian represented by the defense. An,
lher circumstance corroborative of
ne states contention that the fatal
hot was fired from Markley's store As
iat smoke follows the course of a
ullet for a few feet, and when first
ouced In this case the smoke was
Dating eastward from Markley's store
ward the PROSTATE body OF Fain. Nc
ary declared that one fact had been
shown by the prosecution.
nd that was that the fatal shot was
lrely fired from the store Of Mark
~ The statement OF the defendant
mself was not to be accepted by any
'und'minded man. II Fain was shot,
claimed by defense, then he could
lly have been shot from up the hill
Id In the back and not in the left
de- The fatal shot was either fired
ON the back door or the roof OF
arkleys store, The proper founda-
IN had been established by the state
the introduction as testimony of
Q dying statements OF Fain as made
several witnesses. As a motive for
crime, McNary claimed there ex.
ed a malice in the heart OF Markley
d his own actions proved it. II the
end of Fain that Markley claimed :
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