Year: 1871

lI uluSG Ut udllCo uellD6rdto ana malignant, or cold blooded and reck- less to deadly degree. Was such the motive of the present case? Was this the mental or moral condition which led the perpetrators to do the act de- scribed ill the indictment and proved ln the testimony laid before you in the present case?

 The rational or human being killed, must be one fully born at the time of the killing. To kill an unborn or partially born child is not murder. The human being killed must be born and alive. The person killed must be " in the peace of the commonwealth" " One killed in actual battle in public or lawful war, is not murdered, nor is he who does 1t a murderer. To kill g. public enemy, when non-combatant, or when doing or threatening no act of war, when virtually at peace in or out of the country of the perpetrator, might be murder.

 To kill one engaged in actual un- lawful hostilities, or in undoubted prep aration with others for active hostili- | ties, would not be murder. In a coun- try like this, the resident is not bound to wait until the assassin, savage or civilized, is by his hearth, or at his bedside, or at his door, or until the knife of the assassin is at his throat If he has undoubted evidence that others are preparing, alone or in con- bination, to destroy him and his prop erty, he may anticipate his foe and quell or destroy him to secure his own personal safety. In country like this, with few people, with none or very little police, filled with murder ous savages far more numerous than the orderly and peaceful, that I charge you is the law. Any other rule of hu- man life and action would place the quiet citizen in the power of his deadly and lawless enemy.

 The law which constitutes our code, criminal as well as civil, has grown up in quiet, populous and strongly po- liced communities very different from this. It is the same in principle here as there. Here, however, IS cases such as this, the administration of law re- ouires peculiar care and caution to avoid judicial murder. The circum- stances which constitute and control human motives here, are far graver than those of old, quiet communities with law supported by numerous popu- lation and adequate police. There the safety of the man is secured by others charged with the personal security of all the citizens. Here, amid innumer-. able perils, the citizen must take care of himself. Under heaven he has no ono else to look tn In Arizona arms a- necessary n travel and even III t. plated home or camp, as food or c ng. The f4Iuer and herder them at the blow and with she I 5r the flock. By day they are on . rson; by night, at the hand of [ saper.

 thus schooied, possess charac- ters ana convictions Of right ana wrong very different from those of old and quiet communities. It is the bold, rastless and adventurous who come here. No others cut loose from the place where they were cradled and all the amenities of home. Subject such per1ns to the trials above detailed, and you have exactly the characters longing to one class of these de- 1ants, painfully alert, fearful with

 ars of brave men, and there Is l..-i 1g more painful, suspicious and ready to meet deadly conflict for self or for comrade. It was to trace, if possi ole, the motives of the defendants, to the acts for which they stand in q ted, that ! permitted the very con- sl rable range the testimony of this c e has taken.

 ever there was a case ln which w of life-Thou shalt not kill s1. lnced in the oldest and most re- of all known codes, and repeated in every one promulgated since, should be most cautiously applied, it is the present one in which the defendants have been schooled to agonizing appre- hension, where the blood red line of ia tcoubled frontier" is exr-c1-d into a vast domain of blood, where tue very roads are traced oy the gore and he graves of fallen wayfarers. where every copse may shelter its sl1ull1ing muuderers, where the very ..y..loSphere is heavy with death, and where brave and honest men are con- pelled by stealthy night travel to avoid