Los Angeles herald., 1908-05-30
M'COMAS MUST
FACE NEW TRIAL
n'M DIsAPP0lNTED,' SAYS
PRISONER
FAMOUS CASE WILL BE RESET
MONDAY
Jury Out Nearly Twelve Hours, and
After Countless Ballots Menu
bers Decide They Cans
not Agree
Continued from Page one,


torney Fleming's impassioned attack
upon him as a cowardly, brutal muir
derer-a rich illiterate who has always
had his own way until he fell into the
hands of the law--reviVed in spirits as
the evening wore on and the chances
of an unfavorable verdict seemed to
become more and more remote.
He was reluctant to wend his way to
the county jail, where q supper had
been prepared for him.
Attorneys Anxious
The disagreement of the jury is the
most unfavora BILE thing that McComas
has anticipated during the progress OF
the trial. His friends and counsel were
much alarmed yesterday afternoon,
however, lest the jury under Judge
James charge might fail 10 agree. Inc
prisoner last night did not share this
gloomy outlook, and laughed and joked
to dispel the serious looks on the faces
of his friends and counsel.
The Judges charge, lasting thirty-five
minutes, was concise statement or the
law and gave to the jury the alterna-
tive of rendering any one of four YER
diets.
Altogether the charge, while consist
ing principally of complete explana-
ton of the law, was considered by those
who have followed the trial as favor
able to the defendant
Reads instructions
The instructions follow:
IF you believe from the evidence that
the deceased made any attack upon the
defendant. then I instruct you that the
deceased, being the aggressor. in order
to have placed herself right under the
law, must not only have declined ana
endeavored to avoid further attack,
but must have made known her deelin-
alton to the defendant, clearly and in
such manner that the defendant. as
reasonable man, under all the CIR
cumstances, could not have failed to
realize that the deceased, Mrs. Char
1otte l.. Noyes, was declining furtheT
attack.
1.-THE question for your determination
in his behalf is not whether she actu-
ally did decline further combat or at
tack, and endeavor to escape, but as TO
whether the defendant. as reasonable
man, under his then existing circum-
stances, not only might have known,
but must have known thai she, the de-
ceased, was declining, ceasing and dis
continuing further attack.
And so even IL you should belie-e
beyond a reasonable doubt that she
may have been endeavoring to escape
after the attack. still. IL the condition OF
the defendant at that time, and as a
result of the attack, was such that ne
did not realize that she had discontln-
ued the attack, then the DEFENDANT
might even have pursued the deceased,
and II, as reasonable man. unner MS
then condition, believed 1t necessary
for tho purpose of winning his own
safety.
"Thc question for you to determine is
not alone what the intention of the de-
ceased was, but rather what the de-
, PENDANT as a reasonable man, under
the circumstances of the occasion,
feared her intentions to be, and IL you
entertain a reasonable doubt as TO
whether the defendant, as a reasona-
blye man, realized and appreciated
what the defendants intentions %ere
or on the other hand, If you have rea-
sof1able doubt as to whether the de-
PENDANT feared the deceased was about
to inflict bodily injury upon the DEFEND
ant and did then and there act under
the fears then existin- in his mind and
did then and there STAY the deceased,
you must >acquit him.
Not Sufficient Cause
"a b e fear that mans life is In
danger is not sufficient 10 Justify
homicide, but in order TO justify man
in taking the life of another in self
defense the circumstances must be suf-
ficient to excite the fears Of reason
able man, and the party killing must
have acted under the influence of such
fear alone. The danger must be pres
emit. apparent and imminent, or must
SO appear at the time u the slayer as
a reasonable man, and the killing must
be done under well founded belief
thct it was necessary for the defendant
to kill the deceased at that time TO
save himself from death or great bodily
harm.