Semi-weekly herald., 1908-05-04

tEeu tHe srueiilHS stopped
Court then adjourned until 9.3
! this morning.
: Upon the convening OF court thi
/ morning the seating capacity was tab
, en- by men and women. surprising
number OF the latter. Interested In th,
Instructions and arguments of coun
sci. Following are the instruction.
delivered by Judge Pike:
INSTRUCTIONS TO TIE JURY
4 The information in this case charg
es that William r. Mason and JOSEPH
vanderweide, the defendants herein
on or about the Sd day OF November
1907. at and within the county OF La
Plata and state OF Colorado. unlawful
iy. wiltully. feloniously and OF thelr
deliberately premeditated malice
aforethought. did kill and murder Jo
seph A Walker, human being in the
peace of the people then and there
being. contrary to the form of the
statute In such case made and pro
yided, and against the peace and dig
nifty of the same people OF the state
| of Colorado.
| Our statute under which this infor-
nation Is drawn provides that all muir
der which shall be perpetrated by
| means OF poison, or lying in wait, tor
ture, or by any kind of wilful,, delib-
crate and premeditated killing; or
| which is committed in the perpetra-
ton or attempt to perpetrate any ar
son. rape, robbery, mayhem or bur
glary; or perpetrated from a deliber-
ate and promeditated design. unlaw
fully and maliclously to effect the
death of any human being other than
him who is killed; or perpetrated by
any act greatly dangerous to the lives
of others and indicating depraved
mind. regardless of human life, shall.
be deemed murder of the first degree,
and all other kinds OF murder shall
be deemed murder in the second de-
gree. The jury before which any per
son indicted for murder shall be tried,
shall, If IL finds such person guilty
thereof, designate by its verdict
whether 1t be murder of the first OF
second degree, and II murder of the
first degree, the jury shall in its YER
dict fix the penalty to be suffered by
the person SO convicted, either at Inn
prisonment for life at hard labor In
the penitentiary or at death Our
statutes further provide that no per
son shall suffer the death penalty who.
at the time of conviction, was under
son suffer the death penalty who shall
have been convicted ON circumstan-
tial evidence alone.
8. Under this information you may
if the evidence warrants 1t. find the
defendants, or either of them. guilty
of murder in the first degree, the
penalty for which may be such as the
jury, under these instructions. may
designate in and by their verdict; or
II the evidence does not warrant you
in finding the defendants guilty of
murder In the first degree you may, If
the evidence warrants II, find them
guilty of murder In the second degree;
or II the evidence does not warrant
verdict in the first or second degree
you may. If the evidence warrants 1t,
find them guilty of voluntary man
slaughter, the penalty for which is
imprisonment In the pehitentiary for
which may extend to term of eigh,
years; or, II the evidence will not
warrant verdict OF either in the first
or second degree. or of voluntary man
slaughter, your verdict will be not
guilty.
4. Murder is the unlawful killing
of human being, with malice afore-
thought, either express or implied.
The unlawful killing may be effected
by any of the various means by which
death may be occasioned.
5. Express malice is that deliber-
ate intention unlawfulTy to take away
the life OF a fellow creature, which Is
manifested by external circumstances
capable OF proof. Malice shall be
implied when no considerable pro.
vocation appears. or when all circum-
stances of the killing show an aban-
doned and malignant heart.
8. The distinguishing feature be-
tween murder and manslaughter Is
the element of malice. Malice afore-
thought is as essential an ingredient
of murder as the act OF killing. NAL
ice. express or implied. must be prov
en-. and in the absence Of malice. such
killing will be manslaughter.
s. You are instructed that when
the killing is done with deadly weap-
ON or a weapon calculated TO produce.
and which does actually produce
death, malice may be legitimately in
ferred in the absence of proof that
The act was done in necessary SELF.
defense. or upon sufficient provocation
| or cause. and the presumption in such
| case will be that the act was volun.
| tary and with malice aforethought.
| 8. The court instructs you that the
! killing being proven. the burden OF
| proving circumstances OF mitigation
or that justify homicide. will devolve