Year: 1876

pJ6ltlOn IN which tn0 deceased was found
! and the location and direction of the gun


shot wounds upon his body, the proof
evident that deceased was shot while si1
the gallery and on the right side OF d.
ceased.


Considering that the accused was th
only person besides the deceased on tn
gallery at the time of the shooting-th
quarreliug between the psrties-the opprC
bi0us epithets of the deceased toward tn


accused, and the immediate fight Of tn
accused without . word of exclamation o
explanation, it seems to me that the pre-
sumption is not only great, but concluslve
that the accused was that person standing
on tho gallery who fred the fatal shot
which killed the deceased.


Taking it, then, as established that tn,
accused killed the deceased, the first in
quiry is, was 1t in self defense7 For tn.


killing to have been in self defense, there


must have been an attack on the part O.


the deceased. There is nothing in the evi


dence limiting at an attack on the accused


1t is true there were hard words, provoking


words, but no'words will justify an assault


even much less q killing. (Wharton, page


547.


There is no evidence of any menaces OF


threats, nor Of any attempts whatever to


carry any menaces into execution.


Besides, the fact that the deceased was
sitting in his chair and received his wounds
in the side, with NO weapon appearing
around or about him, fUrbids the presump
ti0n even that he was doing anything to


warrant the accused in shooting in self de-
tense.


The remaining inquiry is whether the
shooting of tho deceased by the accused
was under such pr0vOcation az will in law
ro1uno <hn nffanso of hi1l;no fro,,n vnur1av -
manslaughter.


No prOvocation whatever can render
homicide justi6able, or even excusable.
The least it can amount to is manslaughter.


If man kill another suddenly, without
any or without considerable pr0v0catiOn,
the law implies malice, and the homicide is
murder; but if the prov0cation were great,
and such as must have greatly provoked
him, the killing is manslaughter only.
Words of reproach, how grievOus soever,
are not prOvOcation sufficient to free the
are indecent, provoking actions, or gestures,
expression OF contempt or repr0ach without
an assault upon the person.


To determine, however, whether the kill
ing upon provocation amounts to murder or
granddaughter, the instrument wherewith
the homicide was effected mast also be
taken into consideration, for if it were
effected with . deadly weapon the provoca-
tiOn must be great indeed to lower the grade
of the crime from murder. Wharton Grim.
Law; title Homicide, page 436


mo breach of q mans word or promise,
no trespaes, either to lands or goods, no
affront by bare words or gestures, however
false or malicious, and aggravated with the
most provoking circumstances, will freq
the party killing from the guilt of murder.
And it is conceived that this rule will gov
ern every case where the party killing upon
such prOvocation makes use of q deadly
weapon OF otherwise inanifests an intention
to kill or to do some great bodily HARM"
Russell on Crimes, page 5l3, vol. 1.


"WOrds of reprOsch, how griev0us So
ever, are not provocation sufficient to free
the party killing from the guilt of murder;
or gestures without an assault upon the
person: nor is any trespass against lands
or goods. This rule governs every case
when the party killing upon such prov0ca-
ton made use Of q deadly weapon or other.
wise manifested an intention to kill or do
some great bodily HARM" East's Pleas Of
Crown, vol. l, page s33.


These extracts from distinguished authors
show clearly what the law is in relation to
the efficiency Of the rrovocation necss:
sary to reduce the offense in an unlawful
killing from murder to granddaughter.


1t seems that no words in any case can
constitute sufficient provocatiOn when q
deadly weapon is used. In the case under
the evidence shows only pro-
voking words. Granted that they were of the
most provoking, irritating and opprobrious
kind imaginable, the words best calculated
in our community to provoke violence alike
from the high spirited and the tame spirited,
alike from the gentleman and the rough:
yet the law determines the responsibility
Of those who act under such provocation,
and have no power, if l have the diepcsi
ton, to alter it. s-


The only provocation in the case under
go far as the evidence shows,
being in words, and the accused having
used no deadly weapon. l am forced to
the conclusion that under the case the
proof is evident and the presumption is
great that the accused is guilty of murder
and is not entitled under the constitution
10 the right of being bai!ed.


The discretion resting in the court to ad-
nit to bail, even in capital cases, ought not
10 be exercised save where hindrance in
giving speedy trial, or other grave reason
1ot appearing in this case as yet, exists. :


Let the rule be dismissed. w.