The Territory
vs.
S.P White }
Charge = murder in second degree.
The prisoner is charged in the
indictment with the offence
of murder in the seond degree,
committed by killing one light
Amos Light Beardon in Lincoln
County in this territory.
That the deceased person named
in the indictment was killed
shot by murdered by a bullet
fired from a pistol in the hands
of the defendant and that he died
from said wound a couple of days
thereafter, is not disputed by the
defense.
The defense maintains the position
that the fatal shot was fired by
the prisoner in the necessary
defense of his person. The law
secures to all the right to use
deadly weapons to save himself
themselves
from death or great bodily harm.
It is not every apprehended danger
however that will justify a
killing in self defense. It must
be a serious danger to the life
and one likely in the apprehension
of a reasonable man, from theto
result in loss of life or great bodily
injury. The danger must appear to be
imminent and immediate,
not a contingent danger. or one
that but it need not be real,
if the facts and circumstances
were such as to indulge a reasonable
man to believe that it
actually existed.
A person, in no way in the wrong, need not go out of his way to avoid danger, and being in a position where he has the right to be, may stand on his rights and repel unlawful assault with such force as may be necessary. even to the taking of human life, if it be necessary, to use so much force to save his own life or to save his person form great bodily harm.
A person, who, by his own aggressions,
brings on a difficulty
does not stand in the same
position. If he can he must
avoid a conflict, and if he
finds himself in danger and can
avoid it either by retreating or
by calling for assistance, or by
yielding to a just demand upon
the part of the person or persons
attacking him, and instead of
avoiding the danger repels it by
taking life, he is not justified,
on the grounds of self defense
But if a person in the wrong as I
have stated, has avoided a
conflict by using means in his
power and still he finds himself
in danger of his life or of great bodily harm,
and he can do nothing other
or further to save himself, then
he may use it to his right of
self defense, but with this
qualification, that he must
not have put himself in the
wrong, for the purpose of causing
a difficulty and giving himself
the opportunity, to take the life,
of his assailant after declining
as far as he could, to take life.
The law permits the taking
of human life only on the
ground of necessity and it
does not permit of
a person to
unlawfully
designed create the necessity
and then to have the benefit
of it as self defense.
I think I may tell you
that the act of the defendant
in taking the revolver from
the young man
and keeping it
Frank Beardon,
under the circumstances shown by the testimony on both sides
was and keeping it was an unlawful
act and an act of offensive
and provocation as to said Frank Beardon
and his older brother, the
deceased, which could prevent
him from having the right to
kill either of them in an affair[?]
arising out of such unlawful
act, until he had retreated as
far as he could or retreated to
every other expedient to avoid
the killing
If the defendant could have Dufuly retreated from the house by the back door, after the assault upon him, if there was any such assault before the killing, he should have done so.
If he could have, called by-standers
to his assistance and saved
himself, he should have done so.
If he could have yielded to
the just and rightful and
demanding the deceased to whom
the property of the younger brother
of the deceased, and thus have
avoided the necessity for a
killing, he should have done
so.
If he determined that he could keep the revolver[?] of Frank Beardon and that under the circumstances he would obtain it, and that he would want to any force, even to the taking of life, to maintain his possession of it, and that it was with this preconceived 2 determination that he took the life of the deceased then there is no element of self defense in this case no matter how just his actual danger may have been.
But upon the other hand, although
if he had no such preconceived
design, and there was an attack
upon him before the shooting,
which was so fierce and
impetuous that he could not avoid
it or retreat from it, and in
repelling such attack it was necessary
to take life, to save his
own life, or to save himself
from great bodily harm, then
the element of his injustice[?] wrong
could be eliminated and you
would be justified in finding him
not guilty that he acted in self
defense,
If the Territory, has made it a case of unlawful killing, then the duty of establishing that such killing was in self defense, devolves[?] upon the defendant.
If you find that the defendant
was being
There is some conflict between
the evidence further precautions
and that in the defense as to
whether there was such a state
or facts at the time the fatal
shot was fired as would justify
the defendant in firing it in
self defense. You must
weigh the evidence for the
purpose of determining which
state of facts is established
as in other cases you may look at the
witnesses, look at their situation
as enabling them to
see see and hear the facts,
look at their manner in testifying upon the witness
stand consider their relation[?]
to this case and the interest
or want of interest that they
may have in result[?]
and consider
whether they have told
a consistent and probable
story. There and other considerations facts
are in all cases proper
and relevant considerations
to be [?]
upon and weighed by
juries, to determine what
the facts are that are established
I have charged you that the
duty of establishing self
defense was upon the Defendant.
He need not establish this
defense however as seemingly as
he would be required to establish
a fact necessary for him to
establish in a civil case.
In the latter case he would be required to establish the fact by a preponderance of evidence. In this case it is only necesarry from him to break down the case of the Territory to such an extent as to raise a reasonable doubt as to whether The killing was unlawful or justifiable.
I have already charged you that, the danger that will justify a killing in seld defense need not be real, if it be such as would appear to be real, to a reasonable man.
Upon the other hand, although
the circumstances were such
that the danger was in your
opinion[?]
real, yet if the defendant
did not know it, and
resorted to a killing with a deadly
weapon without knowing or
believing it was real, the killing
could not be in self defense,
The defendant killed Amos
Light Beardon, there is no testimony
to show that. Amos Light Beardon
was himself assaulting the defendant
in a manner that would endanger
life or limb. If the defendant
therefore at the time the fatal
shot was fired supposed he had
only to deal with an assault
by the deceased, and knew
nothing of an assault or a
meditated assault by the
other brothers in aid of the
assault by the deceased,
then the act of killing was not
in self defense.
If however you believe that
the deceased was being assaulted
by all three of the Beardon
brothers at the same time,
and that the defendant had
declined the affront[?] as fsr as
he could, or that the attack
3
upon him was no fierce that
he could not decline or retreat
from it, and you find that
the attack was of such a character
as to lead a reasonable
man in the same situation
to believe that he was in danger
of great bodily harm, Then
the defendant was justified
in killing any of said brothers
in self defense, But this
instruction is limited by what
I have heretofore said to you,
namely if the defendant
determined to keep the piece[?]
taken by him from Frank
Beardon at all [?]
That the prisoner must not
have created the necessity
for the purpose of enabling
him to take life.
For the purpose of determining
whether or not the prisoner
acted in self defence, it
is [?] what injuries
were inflicted upon him
by the deceased or his brothers
upon the firing of the fatal
shot if such injuries were
in retaliation for the firing
firing of the shot. But you
may consider such acts of
the deceased and his brothers
for the purpose of determining
the danger in which the
prisoner stood, if you believe they were
the carrying out
of hostile
demonstrations made by said persons
against the deceased before
the firing of the shot and to which
demonstrations would reasonably lead
the prisoner to
believe that, he would receive
such injuries[?]
injuries of the
character that he did receive.
If you find that the defendant
acted in self defense
Then that is the end of this
case and you should return
a verdict of not guilty.
If you find that he did
not act in self defense,
Then the only other thing
for you to is to determine
whether the defendant is
guilty of the full offense
as charged in the indictment
or whether he is
guilty only of manslaughter
because of if the act killing
was unlawful and voluntary
Then the and the defense interposed
have by the prisoner
presupposes that the killing
was voluntary, Then the
prisoner is guilty of either
of murder in the second degree or of manslaughter. The statutes defining these offenses are as follows: (Here read statute)
In order to find that the killing
in this case reaches the grade
of murder in the first
degree, you must find that
the killing was done
purposely, that is intentionally and
that it was done maliciously.
In order to determine whether
the act was done purposely and
intentionally, you may look
at the facts of the case
in evidence to determine
that fact. If the killing was
one with a deadly weapon,
you would be justified in
finding from that that the
act was same killing was
done purposely. Not withstanding
the use of a deadly weapon
in this case, if from the other
circumstances of the case,
you believe there was not an
actual intention to take life.
The prisoner cannot be convicted
of the higher offense
charged in the indictment.
The killing must have been
done maliciously. Malice
is of two kinds, express or
implied. Express malice
may be shown by evidence
of hatred, ill-will and the
like. Implied malice is an
evil design in general accompanied
with an unlawful act.
To have the killing is was done
under circumstances which
show that it is was reluctantly done
and that there are no circumstances
such as will excuse
or justify the act, the law implies
malice. Either kind of malice
is sufficient to justify the
law in this case.
If Therefore you find that the
killing in this case was
unlawful - That is, not done
in self-defense - and that
it was done purposely and
maliciously, then the defendant
is guilty of murder as
charged in the indictment.
If it was done unlawfully
and [?] but without
the actual intention to take
life and purposely without
malice then it is manslaughter.
If the defendant was being
assaulted at the time of the
4
Killing by the deceased or by others
acting in concert with the deceased.
Then although such
assault might not be sufficient
to justify the killing
of the deceased, yet it may
extenuate the killing and reduce
the grade of crime from murder
to manslaughter, if the such assault
induced such a degree
of passion in the defendant
as to stand his [?]
render
him incapable of cool reflection
When a killing is done under
such circumstances, the law in
it tenderness presumes that
the killing was done in the
heat of mind blood, and without
malice.
The prisoner has introduced
evidence tending to show that
he has hitherto borne a good
character for peace and quiet[?].
The prisoner is entitled to have
this fact taken into consideration
by you, in connection with
the other facts of the case, both
to determine his guilt or innocence
and in to determine whatever
the grade of offense, If the defendant
be guilty, was of the higher or
the lower grade. Good character
may be even taken into consider
to generate a doubt of the
defendants guilt, if you feel
upon all the facs that it
should have such effect.
If upon the whole case you have a reasonable doubt of the guilt of the defendant you will give him the benefit of the doubt and acquit him, or if you have a reasonable doubt as to whether he is fully guilty or the higher or lower grade of offense you will give him the benefit of the doubt and find guilty only of the lower offense.
If you find the defendant guilty of the higher offense the form of your verdict will be as follows:
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