Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-12-10


lock the door of the store to keep him
out.
The contention of the respondent is that
his mind at that time was so overcome
with fear and from the continual har-
RAISING of the deceased, his mind was SO
overcome and crowded with fear that he
could not form the express malice neces-
sary to constitute the crime of murder.
If the harrassing on the part of the de-
ceased towards the respondent was con-
tinual and one train of continuous
events, and il the mind of the respondent
was overcome with fear at this train of
events, and while his mind was in that
be guilty of murder.
Commonwealth VS.. Crowley, 165 Mass,
569
commonw wealth vs.. Woodward, 1o2
Mass, 155.
Commonwealth Terciniski. 1ss Mass,
257.
There was evidence to show the
quarreIing disposition of the deceased,
and of the various threats that ne had
made towards the respondent, and
these being unrefuted it is inconceiv-
able how the jury returned the verdict
that they did, and if the evidence was
sufficient TO show statements made by
the deceased in reference to his feel
ing and actions towards the respond
emit and certain other events which
arose between the deceased and the
respondent, the jury could not bring
in tn verdict that they did, and the
same be allowed to stand.
Commonwealth VS.. Fenno, 1874 Mass,
PIT.
On this proposition we submit that
the verdict rendered by tie jury is
against the weight of evidence and
should not be allowed to stand.
AS to the second proposition-"Be-
cause the verdict is against the charge
of the presiding Justice
We respectfully submit the charge
Of the presiding justice to this couit
for consideration. Taking that. in con-
nection with the evidence as present.
ed, We submit that the finding of the
jury was against the charge of the
presiding justice, and the law therein
contained
AS to the third proposition, Because
justice demands that a new trial be
granted
Under this contention we contend
that the entire case is open for re-
view by the law court. We recognize
that in the case of State VS.. Albanes.
109 Maine, 1879, the court stated that
"the single question that is open on the
appeal is whether in view Of the tes-
timony the jury were warranted in
believing beyond a reasonable doubt,
and therefore in finding that the de-
PENDANT was guilty of the crime charg
ed against him."
But we submit that in the indictment
for murder the defendant should have
the benefit of the entire facts of the
case, and also OF the statement from
the exclusion Of all the evidence that
the respondent. did have a eull and i'm
partial trial
State vs. Albanes. Cited Supra, and
therefore we submit that from the ev-
idence which should properly be al
lowed, the jury could not be warrant
ed in finding from all the facts that
the respondent was guilty of the crime
charged in the indictment.
We respectfully submit this case to
the determination of the law court
and pray that the respondents motion
be sustained
County Attorney Bates
Hon. Samuel L. Bates, county attor-
ney Of Cumberland county, argued
against a new trial for Mulkern, argu-
ing as follows:
"The State will answer the conten-
tons of the respondent in tie same
order in which they are advanced in
his brief.
His first contention is that, the
verdict was against the evidence
"On this point the evidence is that
two police officers met the respondent
early in the evening, that the respond
ent was in sullen mood and COM
planned that the deceased had chased
him with a brick. He said that he
wanted protection, but he refused to
swear out a complaint against the de-
ceased or to appear against him in
court the next morning, but said, I
will go and get revolver and shoot
the s. Of a b. The officers. think
ing that this was mere idle talk,
warned him, and he left them. The
evidence shows that he then went
home, changed his clothes, got a revolt
yer and went to the stable Of The de-
ceased, sought him out and shot him
where he was at work, attending to
his own business on his own prem
ises. The officers appeared few min :
utes later and the respondent said,