Atlanta semi-weekly journal. (Atlanta, Ga.) 1898-1920, 1909-03-19

ing ones person exist and continue so
long as the proof shows you that this dan
ger is present and imminent, and no long
er, or honestly believed to be so, on
reasonable grounds. 1t is hardly neces-
sary to say that the real or apparent ne
cessity brought about by the design, fault
or contrivance of the defendants is no ex-
cuse, but II the fear of a less injury than
death, or great bodily harm, be Indicated
by the proof, then the grade of the Of
Tense would be lessened, though 1t would
be Intellectual as self defense"
Punishment for Murder
Judge Hart next explained the punish
ment for the different grades of murder.
For first degree murder the penalty is
death, but If there be mitigating circum-
stances, a recommendation to his effect
may accompany the verdict. The court
may or may not reduce the penalty from
death to life Imprisonment. The penalty
for second degree murder is from ten to
twenty years, of voluntary manslaughter
two to ten years, of involuntary man
slaughter one to five years.
He explained that the jury was the sole
judge of the law and the facts and must
apply the law to the facts, that it was
the judge of the credibility of witnesses
and that previous good character was
witness for the defendants and previous
bad character affected their credibility as
witnesses.
This rounded out the statutory charges.
! which the law provides in all murder
cases and brought the court down to his
instructions as to the theories advanced
during the arguments by counsel on both
| sides.
Weighing the Testimony
'It is a rule of Prescriptions that or
dinarily a witness who testifies to an
a f7TTaatfWa fC tn ha m WI
testifies to a negative. because he who
| testifies to a negative may have forgot
| ten. 1t is possible to forget a thing
| that did happen. 1t is not possible to
remember a thing that never existed.
Where the witnesses are equally credl-
BILE, positive should be given greater
weight than negative testimony.
Now gentleme Of the jury, the above
| is a representation or reproduction of the
| law applicable to the case on trial. The
court has first explained to you the diff
ferent grades OF homicide embraced in
the indictment, and has also explained to
you the several elements which enter In
| to and go to make up each of these diff
| ferent grades, and has explained to you
the meaning Of each Of the several words
used in the indictment which constitute
the evidence Of the several offenses as
| laid down by our supreme court, and
has further instructed you as 10 the
rules by which you should construe the
| evidence and the weight to be given to
the testimony of each and every wit
ness And the court further instructs
you that you are the judges of the law
and of the facts, and also it is for you
to determine what weight should be given
to any and all parts Of the evidence"
Result of Conspiracy?
Judge Hart instructed the jury as to
the several contentious of the state. He
showed first that Carmack's death, 1t
was claimed, was the result of con-
spiracy entered into by the three defend
| ants and he defined a conspiracy.
Judge Hart next described the theory
of the state and the causes of the muir
der. commencing with the joint debates
and running on down to the editorials
| and I'D to the hour of the killing. Every
bit of the states evidence was incor-
porated.
He pointed out the claim of the state
that Robin Cooper did the killing and
that his fah II, D. B. Cooper, aided and
abetted the crime as the result OF q
previous plan and with special malice.
The Judge further shows the claim
of the state that John Sharp was present
/ at the tragedy for the purpose Of taking
part in the killing, If necessary, or as
witness in behalf Of the defendants.
| He then refers to the alleged threats
of the Coopers, and showed that If Car
mack fired first to defend himself and
that the Coopers took his life, they could
not avail themselves Of the rights Of de-
| Tense.
As To Share
He declared that If 1t was shown that
| the defendants went to meet Carmack
in the street on a mission of peace and
Carmack attacked them, they had. right
! to defend themselves.
Judge Hart next recounted in every
detail the theory of the defense, not omit
ting the testimony of single witness.
He points out that the state does not n
sist that the proof is sufficient to war
rant a conviction of Sharp under the Sc
ond count in the indictment that is, an
accessory before the fact, which is charg-
ed in the count.
Judge Hart, in conclusion, charged
that If the jury convicted any of the de-
PENDANTS the degree of felonious homicide
should be stated.