Weekly journal-miner., 1918-07-31
STEPHENS GOES ID HIGH COURT
 FOR BAIL
(Continued from Page Threel

. in the second degree, where he charg- ed the jury as follows:
 "The court instructs the jury that murder of the second degree is the unlawful killing of a human being without malice aforethought, either express or implied, and without de. liberation or reconciliation"
 (Sce page I of certified copy of the courts instructions hereto attached, ard made part of this application0
 That the trial court erred in charg ing the jury with respect to matters of fact and in commenting thereon, in direct violation of Section l2, Arti- clc VI. of the State Constitution of Arizona. (See Erickson vs. State, 127 Pac. 754. Arizona), and gave argu- mentative instructions and instruc- tions on the weight of the evidence, which said instructions were preJudi cial to the rights of the defendant, said instructions complained of being as follows:
 You are instructed that even though you may find from the evi- dence that the defendant, on the day before. and in the forenoon of the day of the homicide, manifested at times nervousness and emotion, yet, if you also find from the evidence that dur ing all this time he attended to busi- ness affairs normally and rationally, and that his conversations were sen sible and his demcanor self possess cd. and that immediately before the homicide he was observed to be calm, and that immediately after the homi- eide he was cool and unconcerned and convcrsed with his friends with out unusual manifestation, that no prc-disposing causes of insanity have been shown, and that no witness, eX- pert or non-expert. has testified di- rcctly to a belief in his insanity, at the time of the homicide. then, 1 charge YOU. that such circumstances should be considered by you in determining whether the defendants plea that at the moment of the homicide he was ovcrpowcred by sudden passion upon merely seeing the deceased, IS reason- able, and whether at the moment of the shooting the defendant was cap able of distinguishing right or wrong"
 (See pages s and 9, certified copy of instructions hereto attached)
 You are instructed that ii you find from the evidence that the de- fcndant had been aware for some time prior to the homicide that his mother intended to separate from Joe Stephens. the father of the defendant, and that the defendant himself had been guilty of conduct toward his mother which might tend to influence her to leave her home, and that on the Sunday night preceding the homicide the defendant had joined with his father in abusing and apply ing vulgar and obscene charges against defendants mother, and you further find from the evidence that the defendant, had met the deceased once or more than once between the time he was informed that his moth CT intended to go away with Miller and the time Of the homicide, then the defendant cannot avail himself ot inc plea that he was aroused to such sudden passion upon seeing the de- ceased at the time of the homicide, that he was irresponsible That IS to say that if you find that the acts and conduct of defendant himself con iributcd to the intention formed by his mother to leave home, if you find that she had formed such intention. then he was in some degree at least, responsible for inc situation. and this weakcns the defendants claim that he shot the deceased in a moment of overwhelming anger, even though VOL may also believe the deceased was also 10 some extent responsible.
 (Sec pages II and l2 certified copy of instructions hereto attachedO
 If you find from the evidence that the defendant and the deceased had met and passed after defendant had learned that his mother intended to leave her husband, and before the time of the final meeting at which the homicide occurred, then l charge you that the opportunity for deliberation and reflection was SO great as to rem der it less probable that the homicide occurred upon a sudden impulse than ,,,op reconciliation"
 lScc pages l2 and l5 certified copy of instructions hereto attached.)
 II. That defendant should be ad- mittcd to bail, pending his appeal to the Supreme court of the State oi Arizona. for the reason that 1t IS absolutely necessary for him to lool, after and take care of two hundred acres of corn, beans and potatoes which he has planted and which arc maturing in Williamson valley, Gava- pai County Arizona. and for the req son that if is impossible for him to procure help to look after said crop IT.. ..Io-- J,forJ1u4 iS s,rautPd hail