The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-14

saw him pick up his hat after his atten-
ton was attracted by the first shot. All
showing that he received the blow testI-
fled to-
Then he fired the shots immediately
the first and second in quick succession.
There was no appreciable lapse of time
from the time the blow was stricken.
The man in the office at the Marlborough
House says it was "lke shooting birds
bang, bang. / am not expert in gun play,
but it sounded like shooting birds when
The whole covey flies up" Mr.. Moring
said he heard shot, and almost immedi-
ateIy heard the other. Mr. A. j. Rogers
said he was eight feet from the post Of
flee window, and before he could get to
the window the other shot was fired. Mr..
Denny one of our witnesses says: Il
heard two shots before / turned around.
had my hand upon the door latch on the
street and heard a shot and before l
could turn the second one had been fired.
They all say that the reports were in
quick and immediate succession. What
does it show? That the act was COM
mitted under the instigation and impulse
Of anger, or passion, or fear excited by
the blow by which he was feEed to the
ground. We have two facts incontroverti-
bly, proven-beyond question proven
That the defendant was felled to the
ground by the deceased, and that he fired
both shots Immediately upon his recovery
No witness has come forward to say there
was no fight Some of them have said
they did not see it. That is only negative
and proves nothing. / have never seen
Nnf
one of their witnesses comes forward to
say there was no fight. The first thing
that they saw was after the shot. but
what happened before that they don't
know. The boy Wilson says he was COM
ing up the street and the first thing
that attracted him was seeing Mr.. Hay
wood with his hand out that way What
preceded that he doesn't know. Mr.
Thompkins said he was looking through
the glass door and saw Mr. Haywood raise
his hand. They are not witnesses as to
what occurred before they saw Mr. Hay
wood 1t was a bIow-a blow sufficient
to excite anger or passion or resentment,
or cause q reasonable apprehension of
further injury, that caused the fatal shot,
so far as Jack White is concerned. No
witness has testified contradictory of the
statements Of Simms, Schmitz, Hocutt and
Barnes. They stand with uncontradicted
testimony adduced before your Honors.
They stand corroborated by a long line
Of distinguished people, who come for
ward to testify to their good character.
They are corroborated by four or five wit
.nesses Of equally good character, who say
they saw the spot on Mr. Haywoods face.
They are corroborated. too. by his hat.
They are corroborated by other witnesses
who say he had dust on his clothes af.
ter he got into the office, when he got
his whisk broom and brushed it off.
Now let us not discard creditable testi-
mony; let us not discard eye-witnessing
human testimony; let us accept, if you
pIease-accept two faets-the first, that he
was knocked down, and the second that
he fired Immediately, and that the firing
was caused by the proyocation produced
either by fear or passion, or appre-
hension caused by the blow which felled
him to the sidewalk. Those two facts are
proven.
Under the ruling in the case in the Goth,
Moore's case, we say that there has been
no cooling time. AS matter of law,
your Honors VIII so rule. These being the
facts, what is cooling time under the
authority of that decision is for the court,
and whether there has been cooling time
is a question Of fact.
Now we say here that this blow was
stricken and that because of his being
knocked down that he fired Immediately
afterwards. Your Honors will say as
Il. 10,
ficient time for the passion to cool Cool
ing time is defined to be a period of time
elapsing between the provocation and the
fatal act sufficient for the passion excited
to subside and give place to normal
condition of feeling.
There are a number of cases upon the
question of self-defense. This brief was
prepared under the apprehension that
there would be no oral argument. These
are our authorities. Weasay that we are
entitled to bail that there is no reason
able doubt that defendant acted at the
time under the influence of the immediate
provocation or under apprehension of
further serious bodily injury that we
were entirely without fault on our side.
We therefore sum up by saying to your
I1OuOIS GtlIJ LIC SLOuitbS SDGClllcu OA tIlc
ether side in resistance of our application
for bail are not sufficient to influence your
Honors to refuse it.
In the second place, that your Honors
have the power to grant us bail, and in
exercising that power your legal discre-
ton will be consulted, and that wherever
BIT appears from the evidence either that
the proof is not sufficient or the presump-
ton is not great that the defendant is
guilty, or that there is a reasonable doubt
under the whole evidence, that he is guilty
of the crime charged, or that a jury would
probably do wrong to give verdict Of
guilty, your Honors will, as a matter Of
right, favor the defendant and award the
bail.
The effect upon the jury trial we have
nothing to do with If the effects are
favorable to us. then it is because the evi-
.dence is favorable to us: and if that be
the case, then we have right to the bail
ut is not dangerous for justice to be
done; we have introduced as much evi-
dence as we thought necessary. If you
think we ought to be bailed then it is a
right we have and right that public
Oh -,