The Lubbock avalanche. (Lubbock, Tex.) 1909-1922, 1912-10-03
to read that testimony and really
| don't suppose that altogether |

paper of the sten0grapnic re-
ports of the testimony, but from
the information of counsel in
discussing the case and telling
the courts what parts they were
introducing | infer what that
testimony is more than from ac-
tual knowledge.
When we come to a case OF
this kind | shall not discuss the
testimony much for the reason
that that would be hardly
proper. considering the fact that
there must be what we we would
call a main trial yet to come,
In this kind of case the burden
of proof is on the state as in
other criminal proceeding. The
defendant is charged by indict-
ment, which was offered in evi.
dence. with the offense of
murder in the first degree and
then that indictment was follow
ed by the testimony of twenty
four witnesses. If the defen-
dant had stopped when the
state rested and offered no evil
dence, what would have been
required by the court? All OF
the indicia of express malice was
proven; particles here and there
out together made what would
be express malice. The law
saws that express malice IS not
to be inferred but must be
proven by the facts and clrcum-
stances of the case and the law
laws down certain general rules
as were read by counsel In sew
eral cases, particularly the Nc
Gov case in the Twenty-fifth
Texas that every practicing at
torney. | expect. in the state is
familiar with. The statute says
that every person that with a
sedate mind and formed design
shall take the life of another
with malice aforethought IS
guilty. OF murder. Now malice
aforethought. as stated, must be
proven and what do they say
takes to prove it? Such indlcia
as living in wait, in disguise,
/ former grudgos, antecedent
menaces, preconcerted schemes
10 take the life of the party or
do him some bodily injury.
/ Now these matters without en-
tering into the details of them,
have been proven, that IS to say
all the earmarks of malice atore'
thought or as we term 1t eX'
press malice. was laid before the
court by the testimony Iher
the defendant took up as a de-
Tense to show that notwlthstand
ing these things existed tina
there was some excuse for u
Now. the statute says that adul
terry with the defendants wif'
is adequate cause for passion
such passion as sudden angry
rage. resentment or terror Of
ANYTHING that so excites th'
mind as TO render It incapaDl'
of cool reflection. The statut'
saws that when killing occur
under circumstances OF ina
kind it is man slaughter and no
murder. but the decisions sa.
that that degree of anger, rage
resentment or sudden resent
ment or terror must be provel
like express malice. IL must b.
proven. The law says we can
not and we know it TO be a FAC
that we cannot look into IN
heart and mind of a man to Sc
what his mind was, but we IN
fer it from acts Of the person o
words spoken before, at Tn
time and Immediately after Tn
killing. There is where we ge
, at what the condition OF tn
mind was at the time, so far a
express malice is concerned
When a person commits a Grim
{ of that kind and seeks to reduc
f: it to manslaughter, ne is re
: ouired both to a jury and tn
same to the court under circum
tances of this kind. to prove tina
/ there was that condition of tn
: mind that rendered it incapabl
2 of cool reflection at the time o
/ the killing. cannot te
2 whether it was or not. We ar
I, - l.f--~.~L,. thof tu,