The Birmingham age-herald., 1909-03-18


 execution and that he was approached by both of them in this manner ana form and had reason to believe that his life was about to be taken or done some great bodily harm; in that event. he would have the right to defend himsef from the threatened attack; and, if the defendants D. B. Cooper and Robin Cooper thus approached him and he fired the first shot or shots under these con ditions and circumstances, and they re- turned the fire, either one or both of them. and took his life and caused his death, in that event, gentlemen, the de- fendants could not avail themselves Of the right of self-defense, unless there was something to show the deceased, either by words or actions that they had abas- doned their purpose, if they ever had any, and did not mean to carry the al- legged threats into execution; but whether there was or was not an overt act on the part of the defendants. D. B. Cooper and Robin Cooper is a matter for you to de- termine in the light of all the proof which the court has permitted the witnesses to state in your hearing for your consldera- tion. In other words, if you believe from the facts that the defendants, D. IS. Cooper and Robin Cooper, approached Senator Carmack on mission or peace and for the purpose of having a conver- sation and other purpose, and there was nothing in their conduct to indicate any other purpose or that there was no overt act or words on their part winch would warrant the conclusion that they intended to attack him, take his life, or do him any great bodily harm-in that event if they were attacked by the de- ceased, they would have right to use such means as were in their power for their own self-defense. as above set out and described. But. If the defense's ac- count of the above stated talk to the de- ceased, and if a difficulty ensued owing to the conversation, and if they intended to take the life of the deceased if he made any resistance-in that event the plea of self-defense would not be avail able and they would be guilty, and you would be warranted in finding them guilty of murder In the first degree, as above set out and described
 Theory of Defense.
 '"The defendants deny this theory, inso- far that it duplicates either of them in any criminal offense; they do not deny that E. W. Carmack, whose name appears in the indictment is dead, nor that he came to lis death in this, Davidson county, on the date set out In the indictment the result of three pls- tol shot wounds inflicted upon him by the defendant, Robin Cooper, but the defend ants, D. B. Cooper and Robin Cooper, ln- sist that the shooting was done in their lawful self-defense, which has been set out and described, and that they had reas- enable grounds to believe that 1t was absolutely necessary for the defendant, Robin Cooper, to fire the shots which re- ( llted in the death of the deceased at the time they were fired to save himself and defendant, D. B. Cooper, either one or both from having their lives taken or be- ing done bodily injury. They insist that the shooting which resulted in the killing grew out and occurred under the follow ing condition and circumstances.
 Judge Hart then recounted in detail the theory of the defense, not emitting the testimony of q single witness
 '.Now gentlemen of the jury, I charge you that in view of all the evidence in the case you are satisfied the killing occurred under these circumstances or have in your mind a reasonable doubt as to whether it occurred under these circumstances or not then the defendants would be entitled to the benefit of that doubt, and your
 verdict should be as to all of these de-
 fendants not guilty
 Reasonable Doubt.
 Remember, gentlemen of the jury, that the above are merely the insistences of the state and of the defendants which they l claim as a reasonable fair deduction from | all the proof as insisted on by both the | state and by the defendants; but remem | Der further that they are merely the in- | Sistences of the state and of the de- | fendants, and that you, as judges of both | the law and the facts, are not bound to- | accept either or any part of them, put 1 may reject any portion all of either | or both of these insistences, and 1t IS | your duty to do so insofar as you believe 1 if you do, that they are not supported py | the proof as deposed to by the witnesses | but if you are satisfied that the state | theory is a fair and reasonable deductloi | from all the evidence when taken as | whole, and that when so taken It estap- | fishes the defendants guilt, beyond 1 reasona ble doubt, as to either one or more ! of them, it would be your duty to so hho' | but if you have a reasonable doupt as to | their guilt that is as to either one or | both of them. or more of them, you should | give them the benefit of the same and l not guilty should be your verdict l "As to the defendant, Sharp, the state | does not insist that the proof is sufficient l to warrant a conviction of him under the l count in the indictment, that is an acces- l sory before the fact. which is charged in l said count.
 .sThe court further charges you that l you may as the proof may warrant under l the rules as heretofore laid down for
 your guidance. find either one or mora :, of the defendants guilty. either ore or