The herald and news. [volume] (Newberry S.C.) 1903-1937, 1909-03-19

they may be, will not Of themselves
excuse the Staying.
'To constitute this defence, the be-
Lief or apprehension Of danger must
be founded on sufficient circumstances
to authorize the opinion that the
deadly purpose then existed, and the
fear that it will at that time be eS-
cused The animosity Of the deceased
against the defendants as indicated
by words or actions then and before is
proper matter for the consideration
Of the jury on the question Of reason
able apprehension, but if the killing is
not done under the fear it is calculat-
ed to inspire or the fear is feigned
and pretended, the defence will not
be available@ \ \
"It is hardly necessary to say that
the real or apparent necessity brought
about by the design, fault Or contri-
vance of the defendants is no excuse,
but if the fear Of less injury than
death or great bodily harm be indicat-
ed by the proof, then the grade of the
offence would be lessened, though it
would be Intellectual as self-defence.
Judge Hart said that ordinarily a
witness who testifies to an affirmative
is to be preferred to one who testifies
to negative.
Definition of Conspiracy.
Defining conspiracy the court said:
"It is not necessary, in order that
they become co-conspirators, that they
should talk the matter over and agree
as to what portion each one should
perform. It is sufficient if there is a
tacit understanding between them.
s'The State insists that John D.
Sharp was nearby, if necessary, to
participate in any way that might be
necessary in the killing. or was there
for the purpose Of making himself a
witness. If you believe this to be
true, it would be your duty to convict
all of the defendants Of murder in the
first degree.
cor, if you believe that D. B. Coop
er had threatened the life of Carmack,
that he said he was going to kill him,
or one or the other of them must die,
or that the town would not be big
enough to hold them both, and that he
had written note for the purpose Of
sending to Senator Carmack stating
In substance what had already been
sent in a message by Mr.. Craig to the
deceased, and that he did not send the
note at the solicitation Of the friends,
but on. seeing Senator Carmack his
intention to take, himself, Carmack s
life was revived, if he ever had it, and
that h" formed at that time a fixed
purpose to carry that intent into ex-
ecution, and crossed the street for that
purpose, either to open fight direct
~ on their getting together or having
conversation with him intending
thereby to bring on a fight, and if
getting together or having conversa-
ton with him intended thereby to
bring on fight. and if the said E. W.
Carmack resisted, to take his life, and
that Robin Cooper was present intend
ing to assist his father in any and all
extremes and under any and all cir
cumstanoes, it would be for you to de-
termine whether or not the approach
ing of Col. Cooper and the language
used by him as he approached, If any
was used, was such an overt act as
would reasonably cause the deceased
to believe that he, the defendant, u.
B. Cooper, was about to carry his al
legged threat into execution and that
he was approached by both of them
in this manner and form and had rea-
,, son to believe that his life was about
to be taken or done some great bodily
harm; in that even he would have the
right to defend himself from the
threatened attack; and if the defen-
dants, D. B. Cooper and Robin Coop
er. thus approached him and he fired
the first shot or shots under these
conditions and circumstances and they
returned fire, in that event, gentle
men. the defendants could not avail
themselves Of the right of self-defence
unless there was something to show
the deceased, either by words or ac-
tions, that they had abandoned their
purpose, if they ever had any, and did
not mean to carry the alleged threats
into execution; but whether there was
or. was there not al overt act on the
! .,,t of the defendants. D. 3. Cooper