The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1903-10-20

! done un1eF circumstances Wnicn art
sufficient to rebut the presumption OF
malice or to excuse the homicide alto
| gether. What is sufficient to rebut the
| presumption Of malice is purely a ques
ton OF law for.the court. Whether the
facts relied upon to rebut the presumption
Of malice are true or not IS for You &c
decide.
The burden is upon the defendant &c
satisfy you Of the truth of the facts re-
lied on to rebut the presumption Of nal
ice. If you are satisfied from the evi
dence that Ludlow Skinner struck The
defendant on the side OF his face, as
| testified TO by several Of the witnesses
then the court charges you that that
was sufficient legal proyocation to reLut
the presumption of malice raised by tht
| killing. and you cannot lawfully find the
defendant guilty of murder IN the second
degree.
IF you find from the testimony oil
Sauls that Skinner ard Haywood w7re
quietly talking together, and without any
blow being stricken, Skinner walked away
from defendant, and thereupon Haywood
shot Skinner, then it would be your duty
to find the defendant guilty of murder
in the second degree If under this charge
you acquit the defendant of the charge OF
murder in the second degree, then it will
be your duty to proceed to inquire whetA-
er or not the defendant was guilty OF
manslaughter. It is admitted that Lud
low Skinner, at the time he was shot had
in his left hip pocket a Smith & Wesson
pistol. with five chambers loaded, and
that he was left-handed. If you are sat
isfed from the evidence that Ludlow
Skinner struck defendant in the face as
testified to by some of the witnesses, and
then stepped, jumped, walked or ran eight,
ten or twelve feet way from Haywood,
and then stopped and with his left side
towards Haywood, put his left hand to
his hip pocket in the attitude of drawing
or trying to draw his pistol. and that de-
PENDANT had reasonable ground to fear,
and did fear, that he was about to be
shot by Skinner, then the law says he
was excusable and you should find the de-
PENDANT not guilty. 1t makes no difference
in law that Skinner was retreatlng at the
time the shot was fired, provided you find
that 10 still was trying to draw his
pistol or had his hand in such a position
as to give the defendant reasonable
ground to believe he was trying to draw
it and defendant did thus believe, for such
conduct did not indicate an abandonment
of the fight, but rather a purpose TO
draw his pistol and return to the fight.
which required but a moment, and the
law did not require defendant to wait
until the danger, if any existed, vas
greatly increased.
where the facts are not disputed,
what is sufficient cooling time is a ques-
ton for the court, and the court charges
you that if you believe the evidence, the
time between the first and second shots
was lot sufficient cooling time for a
mind acting under the fear of death or
great bodily harm to free itself from
such apprehension and influence, ana
hence it makes no difference In law which
shot killed Skinner, provided you are
satisfied that when the first shot was fired
defendant believed and had reasonable
ground to believe that he was in danger
of being shot by Skinner.
while every one must Of necessity act
upon his own judgment as to whether or
not he has reasonable ground to appre-
bend that he is in danger of death or Of
great bodily harm, his judgment IS subject
to review by the jury-that is, the law
makes it your duty to pass upon the rca-
Of the grounds Of his fear.
The law will not permit a coward to
imagine he is in danger and act upon
such fear. The circumstances indicating
danger must be such that a man of or
binary frmness will nave reasonable
ground to fear that he is in danger of
death or some great bodily harm.
ct is the duty of the jury to reconcile
conflicting testimony, if possible-especially
where such testimony comes from wit
nesses, all of whom the jury may believe
to be equally crcdible; and in reconciling
testimony the jury will bear in mind
that it is a rule. or maxim Of
law, that affirmative or positive testimony
is entitled to more weight than negative
testimony. But if you cannot reconcile
the conflicting evidence, it then becomes
your duty to say which is true and which
is not true. In applying the aforesaid
rule or maxim of the law to the testi-
mony in the case now on trial, the jury
is instructed that when witnesses of equal
credibility have testified to a particular
fact, some that they heard or saw a thing,
and others, who were present, that hey
did not hear or see such a thing, the tes-
timony Of the witnesses who said that
they did hear or see such think is positive
evidence and is entitled to more weight
than the testimony of the witnesses who
said that they did not hear or see such
thing.
THE testimony of credible witnesses
w ~ CoCi1y thuC tICy NSIC hCoI SiooSd
to see and did see the deceased place
hand on his hip, or to his hip pocket,
is entitled to more weight than the testi-
Of those witnesses, equally credible,
who testified that they were near enough
to see, but did not see any such action
the part Of the deceased. This is so
because Skinner may have had his hand
at his hip pocket and yet the witnesses
may be telling the truth when they say
they did not see it, but if he did not have
his hand there those witnesses who said
he did told deliberate falsehoods.
IF you believe that Haywood killed
Skinner because he was stricken the blow
and not because he apprehended he was
in danger of death or great bodily harm,
then your verdict should be manslaughter.
There is no evidence from which you
can find that the defendant did or said
anything to justify Ludlow Skinner in
inficting the blow. if you find he did in
fiict it.
Now, gentlemen. it is my duty to refer
TO some Of the testimony that is material
To tho n 60 and m onnl1 Tho low, 70