Gloucester County Democrat. (Woodbury, N.J.) 1878-1932, 1904-02-11

OF the revolver by Payne, if there had been
any unlawful c0nduct between these two
men at all, it was not uEea Payne. Then
the theory of the defense & that the produc-
ton Of the revolver was coupled with words
which were only consistent with the idea
that no motion towards him, Payne, must
be made You will remember the language.
/ ana not stating to you that this is to be
taken as the only view of the case. am
merely telling you what the defendant
says He says that when be had been
twice assaulted he drew the revolver for
the purpose of preventing third assault;
that the words that he used were the words
that man would naturally use if be did
not want a man who had assaulted him to
come any nearer to him; aud that they
would not be appropriate to be directed to
q man who was walking away from him.
The further theory of the defense is that
instead Of either walking away from him,
OF remaining perfectly stationary, Minks
attempted to get the revolver, and that the
subsequent shots which followed the first
one were at a very close range $50 close
that the revolver must have been almost
touching the clothing OF Minks. There
fore, in this theory, you will see that the
wounds which were mortal, namely the
two wounds which went into the chest
tbecause the first wound was not at all
mortal, it was in the heshy part OF the
thigh) resulted from and in an alteration
in which Minks, who had been throughout
the aggressor, closed in with Payne, and
the pulling Of the trigger at that time was,
from the standpoint OF the defense, becom-
ing more and more necessary, because, had
Minks gotten possession of the pistol after
things had gone thus far, the danger would
have been entirely turned.
Now, the law applicable to this state of
affairs is, in the first place, that man has
a right (Which the State encourages because
it makes it public policy to defend him-
self when he is wrongfully assaulted. He
has right even to produce firearm for
that purpose He has no right to shoot
he has no right to use that frearm unless
under circumstances which rendering that
act either necessary to protect him from
grievous bodily harm or death, or else
under circumstances where 1t seemed
reasonable to one situated as that man was
to do so. Now, what may seem reasonable
10 us, sitting here quietly, is not the test.
'ihe test is to place yourself in the position
81 the man whom you are Judging, and say
what would seem reasonable 10 him-what
you believe would seem reasonable to him.
That, of course, means that you shall take
all of the circumstances into consideration
and, as / say, the question of reasonable
ness in the case which the defendant puts
forward for your consideration is the
original drawing of the pistol and not an
intention to kill Minks if he should move;
because the theory Of the defense is that
that killing came about in a close contest
which was forced not by Payne but was
forced by Minks.
Now, the question for you is, has the
defendant, by the greater weight OF proof
satisfied yonr minds that that is what hap
pened That is the case which you are to
decide That constitutes the defense. You
are to apply what you believe to be the
facts of the case to the law of self defense as
/ have stated it to you; and if you are
satisfied By the greater weight of proof that
the facts of the case bring Payne's conduct
within the rule of law that | have stated,
so that the production Of the revolver and
the shots that were subsequently fired we're
done by him at time when he was not the
aggressor but had been the subjects of
assaults, and that he had reasonable ground
to believe that he was aboutto be fl ther
assaulted, and that his production u the
pistol was the first step towards sell pro-
lection, then, applying the law to the facts,
you are to determine whether it was jnsti-
fable as the law regards it.
That is the defence and | have only
stated the defence's side. You will
recall the contradictions. You will recall
thu fact that theStaie puts different onstruc-
tions, and that the statements of the wit
ness es are in many points in confict;and that
the witnesses for the State are in conflict
between themselves as to the succession OF
these shots, as to whether the rushing-in of
Minks did not occur after all the shots had
hem fired. Some of the witnesses for the
State say that one shot only had been fired
before they hegan to close in. So you have
got to straighten out these questions Of fact.
Now, the shots themselves are important,
it seems to me, in this consideration and fs,
this re sson-that there is q marked differ
ence between what seems to be the almost
conceded course of the first shot and the
two which followed. The first shot evil
IDENTIFY did not in any wise incapacitate
Minks; after the first shot he was appaT-
entity a strong. able-bodied man, able to
clinch and finally to roll on top OF Payne
when they got towards the middle OF the
street. So it seems to have been the
opinion of the several OF the witnesses, aud
is the fair presumption, that the first shot
was the one that went into the 1eshy par5
Of the leg, and that the other two shots
took place afterwards and were those which
incapacitated Minks. Now, those shots
differed from each other il one Important
particu ar and that is that while the first
shot was SO fred as TO carry the clothing
into the wound, the shots in the breast
were so close as to actually carry the
powder through shirt and embed the
powder grains in the tissues Of the body.
Now, there has been no testimony here in re-
gard to it, 50 you have got 50 rely upon
your own knowledge Of such things, and
you must judge how near frearm must
be when, in addition to the ball penetra-
ting the body, the grains Of powder, un-
find lodgInent, through a gar
ment, in the body OF man. You are to