that if there was that one issue Court, ur thai inrv. thev would find that he was insane. They must prove it by a preponderance of evidence; that is, there must be more evidence, either mors in amount or better, degree, so much so that the jury is better convinced ot the contrary. A ; de fendant takes the-affirmative of that issue. Now, it was upon that question, upon which oar statute speaks with no uncertain ound, that Mr. I ox for a day ad authorities to the Court. Thenduring the progress of this whole trial, there has been interpered -Stong throughout the whole of it a mass -of criticism upon the po-ntien of the prosecution; inquiries whether WE DESIRE THE BLOOD Of the defendant, statements made early in the case that the prosecution was a jersecution; statements made concerning District Attorney Hall's utterances te the jury notable among those was one that aa fnlLof hvnocraev. full of false logic. full of false reasoning. I desire to direct vour-wttention to that. It was stated by "Mr. Fox that he ught to have moved or that heJhad thought moving the Court to advise you, gentlemen, to acquit this fendant upon the people's testimony. Why? -Why, heaut that Mr. Hall had not read the law to the jury; he had not stated the law upon which it was claimed that this manoughtjo be convicted. .Mr. Pox opened his remarks to you, an 1 they were very beautifully opened too, by a statement that the lapse of years that had .gone by was such that he was not bright in the practice of criminal law, and a good many things would- have to be excuseden the ground of his ignorance. I am willing to say that Mr. Fox knew no better; the fact is, as I have trie to say m you, in my lame and impotent way a number of times, the law comes to you from . the Courts it is not the province of the District Attorney to state the law. The thought of asking the Court to acquit because Mr. Hall did not state the law! The Court will state it when it comes to tha that murder is. - - THE UNLAWFUL KILLING Of a human being with malice afore-th vught. The Court wfl state to you what circumstances, reuder a homicide justifiable. The Court will state to you under what circumstances a defendant mav Le acquitted in case.be pleads insanity and proves it to the satisfaction of the jury. It n,.j Dart of the duty, of Mr Hall. to have-sfcated to .-you the law. Mr. Fox knew, jwhen he told you that he had thought of applying to the-Court to discharge because the law was not stated, he knew that it was nt the duty of the District Attorney to. state the law, but tht if he Lad stated thejlaw to you or had at- i . , e i i . . templed to ceau irom a law wras u you, he would have been promptly met with an skKTOtf.tin nnil an exeention. j THAT ONB THINft Of itself ought to give color in your mind to the methods of this defense; to the man-msr of th r'efense.showing that they are not sincere; that they are not honest in their endeavors; that-Hhe whole endeavor has been to iiDiote upon you with this kind of double-enrted defense of justifiable homicide and lunacy. And I come now to that. I have briefly referred to that once in the argument I have attempted to make to yo, this question of inconsistent defense. I hope, gentlemen, and I believe, that you understand that, -understand it in its full scope and entirety. - There is involved in the argument of Mr. Fax and in the theory of this defense the position that a man may commit a justifiable homicide in defense of life, liberty or property and the like, and at the same . ' I TIME EH A' MANIAC. Whit a wondarful conratAn atinn. what , v a wonderful coincidence it is. That a man whose reason has been dethroned, a mau no longer responsible for any of hU acts, a man who stands before the law as a Creature entitled to all the charity, all the protection whieh the law throws around the unfortunate, that "a man under such circumstances, having no more comprehension than a ehild, and not even so much, should be capable arid competent to perform an act which God himself had dictated! The thejy of this defense is, that on the 24th day of May, 1SS5, the defendant here was insane. We have h&d no light thrown upon the peculiar form of his malady, nor the ream f. r his recovery, but they say he was insane, he was thrown into a frenzy; that he received information upon the 24th of May which toppled reason from its throne,: and the earth, tbe gftobr, no longer was large enough to be inhabited by himself aud his victim. At the . same tjrae, in the-same breath, many, many times during this' pretended argumeut, during the same-sentence and in the same se-fiuence. after having charged to you and borne down heavily upon the fact that tbe . defendant wan insane s WHEN HK STmCKrTHE FATAL BLOW, And was not responsible for any of his acts, upon the theory, if not rational, and carried to a just concIuijn, that he now regretted the act 'he bad uerformed be cause couiuutted-""in a frenzy of insanity, and not in his right mind I say in the same sequenae and, in the name sentence thay say that tbe laws of (iod and man justified him in tbe set. Which will you have, gentlemen? Justification or insanity ot both? You have both to choose from. They are inconsistent one with the other; absolutely , inconsistent. They do: not follow, one pon the other, or one after the other. They are simply thrown.toyou, gentlemen, as sops; they are thrown to you as traps upon .the theory that some man anions you will be willing to f nd the defendant not guilty upon bis general prejudice or his general ideas upon THE SI BJECTJDF UdI LTERT, And killing men for such acts, and that some man might not be willing to accept the theory of justifiable homicide. Another man among you mahtnot be willing ' te take the theory of justifiable bomicice but would accept- that oj insanity.- and we would have the queer an! anomalous condition of affairs-that tbe jury might be divided squarely in the middle, one half of you believing that the defendant was in-santjj absolutely a raving maniac at the time, and therefore excusable under the law, and the other half might believe that he was not insane at all; that he was in full possession of all his- faculties; full of blood, full of murder, full of revenge and malicious feelingf and, son these peculiar ideas of Mr. Fox, he was justified - under the law of nature in seeking the seducer of his wife and slaying him on his own ate p as he came home from jchurch. That is the idea. Those positions are utterly in-. consistent and they are utterly absurd when put in opposition. ; MCCH STRESS WAS LAID Upon another fact, I; presume that I would have been the victim of all this rhetoric had I preceded; Mr. Fox and his learned brother, whom he is so proud to have had; but fortunately for myself, I ( did not; my brother Hall preceded him, and fell in for a large share of abuse. I began to conceive the idea that you would not only be asked to convict this defendant and to hold, as Mr, For said, with all his numerous following of friends, that he was innocent, but that the black cap might be put on and Mr. Hall arraigned before the tribunal of this queer kind of theirs, under this law of nature, and f . . . CLtTBBED TO DEATH, Because he had dared to "prosecute this Innocent man f of the crime. It was said Mr. Hall had stated in tbe hearing of the jury that the defendant had not proved his innocence, and that was considered to be a vast outrage upon the idea of justice. It was thought that his course was prompted by the haste for blood, and that he was seeking, to- postpone the hangman 'a office against this defendant. But be was ' just Tight; --entirely rfchtj The law dues , presume every man innocent until be is proven guilty, but there are exceptional circumstances, and this is one of those cases. Where the act is proven, unless the testimony which shows the act shows circumstances ef mitigation or strong provocation, whioh would justify a man. inch as ' immediate provocation .or- the like. ar defense ot per a, or property, or habita- tion, then, wlen the killing is proven, the law implies malice; the law presumes malice from the act of the killingT lou do not have to prove malice. I ir you pawn ,' A man has hid and crept through a hedge- w, with a bianderbus loaded to the muz- and shot k tnn whi his gma by d rifled his po :kets of valuables, the law don't require you to prove any malice on the part of hat murderer, because thu law implies il from his act, and when yoe have proven that fact, when you havr proved he la in await a kind ot murdee most abhorred by the law when you have proved the murderer laid in wait, and took the life If his innocent and unconscious victim! then the people may safely rest and it devolves upon the defendant to prove circumstances of excuse, justification or mitigation.: This was that case. We proved a lyirig-in-wait. WE PROVED That the defendant had followed round for hours seeking this victim. We proved that he hd flhese loaded .revolvers in his pocket. We proved he absolutely went to the man's ho so and when he came home at night from the church door that he shot himi in the brpth ir Ha ought to hav back. That was what my meant by saving that he proven his innocence ana ne ha.t not rr ven it. Uouasei upon me other side trips which in this cas-i. traps laii fallen, that new it. It was one of th we have been obliged to meet There have been so many ir us, into whioh we have e scarcely now know where we stand, an we are proud td know, snl while wel flounder in thia glad to knoV alonirh of trios, while we creep out of theie "fJx"-Sraps that have been set for us, the, fame an the glory will -redound on our learned the trap. brother of being a setter of I I1AVK TO SAY TO YOl' Gentlemen u the jury, now, concerning the opening tatemen'. made by Mr. h ox and ft opening statement in a case is a part-of, tha lc:se a few manv. becaie I do not words, and not intend, if I can avoid it, to allow the course ;f the defent-e in going all i round Uobin Hood s barn ami talking aboii t the girl who shot the man in Washington and the like, rnd not dealing with the fad -t I propose, by and bye, to get to the fi ;t.-, and to deal with them and If ave the nir ttcr there. The opening statement of t hi c vse was devoted largely to matters whi( h I havealreaJy referred to. You will r 'member it, gentlemen. The salient features of it were this application of th- law uature as applied to adimery and this con titntional law of self-defame. which is a aham, and the sanctity of the marrtage-beJ i i s 1AI.L HAVE NO WORD , st the protection of the sanc- 1 o ssy again tity of the Inarri ige-bed. It should be sacred. Thf family is the unit of society in our social system, but I do say that there was a otal and entire misapplication mado ot an tection of t doctrine relating to the pro- e marriage-ben, when it was claimed tl 4t a man, to protect liis mar- riafre-bed, h as a right to arm himself with bludgeon or gun and ro out and shoot a has committed adultery with man when that man's v ife, or, under stronger circum- stances, whan it has or ly bean said that he committed .1.. It-am t.-i.K mnnd ... , f Then the nekt point about it was the Swift justice of mkniacs, and anomaly in all hu- 'IU1.CI J T. 1 1,11 . 1IU, UJCU B "41,, man matters of which 1 have already spoken; and about this sudden impulse Now I desa-e to speak b moment about that. 1 ami arguing this case in a iin cursive way ; It is already apparent to you that the Ire has been no preparation of he argumen It as to its formal substance, rther t'tan is mav have impressed itself on me as we pr pceeded, It HAS BEEN CLUMED B? the learned gentleman' who conducted this defensa that this killing was done nuder a sudflen impulse. I shall have to deal with thjat by and bye, but I will just say while pds-icir about this opening state merit of Mr J" ox, that if this was an impulse, when i the man had been meditating? upon ths mi tter for six or seven weeks, as they say, v. here he had sought information, as they say. from every available poinr. wherr, from -time to time, marked like.blood si ots on this bltxxly record, he waa'heard t utter threats against the de ceased ar.d ekpres a determination to take his life, if it be impulsia when he went de liberately add shaved himself and changed his hat so a-i to i DIsilrlSE HIS-APPEAUANCE From his victim, walked to Oakland, stood- on the corner of the street and watched for the man went to the church at noon day I aup;1.8e" intending, and we have a risht to infer intending? to murder him there in God"s holy sanctuary if the oppor tunity serve! his purpose if that kind of thing be an mpulse, which led him after-wardeto rel use to go to the service of his fellow-members of the Grand Army anU lie in wait louad the corner, watching the residence of his victim, and then when he came in froup the churc-h.door to shoot him ii ths back and to slay and murder and as- sissinate hiln there and then I say, gentlemen, if that jwas an impnlsf, why then the tortuouf w:nding trail of the snail would be bvjt the fitful and brilliant impulse of that creature. THERE 13 IMPULSE IJfiTHE MATTER. They were lid to that by a misapprehension. Theyjdenred to impress upon this jury this law of irresistible impulse; a law unknown to the judiqial system of this State, fThese cases, which the gentlemen have Jcited, may have been of an irresistible irnpnlse. Thy called this an impulse, because they desired and intended t j argue to tjhis jijry that there was a law recognizing kn irresistible impulse in a sane mind, but unfortunately for the theory of their case, as I have already stated. nd will hereafttjr show you more fully, there is no such law in this State. ISA)MISfUBLE EVIOESCE. The wholi of that opening statement, gentlemen cjf the jury, was based upon matters whih largely were inadmissible. to wit: the fact of adultery, and as to that portion of itj which was admissible-upon matters npop which the proof has failed ignally, thej same tactics have been kept up. - It was stated by the Court shortly after the opening btatement was made, that there should be no evidence in this case of any fact or act of adultery! Counsel broadly I argued in his opening,, he argued it in iis closing, he argued it up-n his objections to the Court, in total and entire disr gard to the statements of the Court. Thqre was nothing more left in tbe statement other than tha avowed determination I of this defense t ride over ne law and lover the Court, and entrap counsel for tie prosecution and entrap the jury; there Was nothing more left in the opening statement excepthe opportunity, freely sought, to abuse and vilify the man who is dead.) It was done deliberately. It was well planned, if anythine can be said to be well planned which is desnerately done under puch circumstances. -It must have been known to the learned gentlemen, when I they prepared the opening statement, is which they charged to yon that Dr. Butk was a man of fair exterior, j IrOLLO-LIKK FORM, Well calculated to deceive and ensnare the gentler sex; that he was an adulterer; that ce was a snan who went into men's houses and debauched their wives; that he had carnal (connection with tbe wife of this defendant at a time when his own wife lay dyiK, and again before the worms bad 'eaten her. it must have been well- known to these unscrupulous men that tha law of this land permitted no such proof; it mcst have been' well-known to ti sna that there was no proof other than the vaporing of this deluded or wicked woman. j. There are! words of deeper sorrow than the wail above the dead. It is worse for Dr. Buck, who lies to-day under his green mound in th cemetery, it is- worse for him that thee (utterances should have been made in ths ears of this waiting people, than the faci that ha received the bullets of the assassin ia his back as he came home from wo-shipping hU God. ATheref are. crimes, gentlemen, of the Jury, that are coo aamnaDie to De con templated, with ease or calmness, l am not able to dinarentiate, and my Dretnren with me. are not able to distinguish the degree of turpitude which exists between the act of tbe. assassin who aimed tne pistol bullet $ INTHE BACK Of HIS VICTIM, Which took his life, and that which prompts him and his associates; in the defense . to say upon the trial that the pan was an adulterer; that he had sought men's wives and families; that he was a gross debaucher of women; that ne was a man whose exterior was fair, and whose inner self was false and foul; that he had had connection with the woman when his wifsj had lain dying, and before l In worms had eaten her, and all that kind of matter, whioh is calculated to damuify and vilify and ruin the memory of the man who can't speak for himself, and it will have no honest or legitimate purpose because, as I said, they must have known when they made the statements that the law stood stern before them as a warder and a guard for the honor of the man who was dead, to cay they should uot prove these things. : Thick God, gentlemen, the law is strong enough, thnt although ths-y may suggest in your haaring, although they wail i'. out in the hearing of this waiti and expectant multitude, that Dr. Buck was a habitual adulterer, the law is strong enough by its minister to correct the false impression that might be made. Frond the bench you will be told, as I have no doubt, that these things shall all be diirej?ar1ed. If they shall be disregarded, if they shall not be considered by you in makiog.up your verdict, why should they have been referred to? W hy should the now lies prone, who now lies Iriok'ng with GLAZED EYEBALLS Up to his God without a moue or means f expression in human tribunals, why should he be abua?d and viiliried and hounded long after he is festering io bis rave, simp'v to save tha carcass of his unirferer, when the law s;tys that the same kind of matter that is being urged is no de-fene to tha crime. The openin ' statement of the defense. gentlemen of the jury, so far as it re ferred to matters proper to V e heard and determined by a jurw signally failed in its facts. It was stated that it would be proven -that this defendant was insane at the time ot the hring ot the lata! shot or shots, but there has been ne evidence to warrant it. If this defendant w. not in san then, and has providentially recov ered ne use ot nis ta.-uiti-s, x win under take to say that there is not aiy man on this j'iry,or off of it, for whom ray breth rrn on the other side cannot prove insanity in case thy shall incur any great loss or depression, financially r in their domsti- reiationa, sucn as me loss ot a child or grief ov4r the departure of a friend, or the like. There Is nothing, absolutely nothing in all the facts of the case and the evidence given by this defense before you ti show any insanity at all. It show ressenin it shows deliberation; it shows a revenge ful and malevolent and malicious heart; it shows anptter disregard of all the proprii ties; it shows accomplishment ia THE ACT OP MUKDKR; T. , : ' . ... it snows not only revenge and inalics agaiust his victim, but an entire and total disregard of the rights and feelings of his fellow-men; it shows that he wyuld rather choose a Sunday, when he might! not only take the life of his'victim, but outrage the decency of every family, and child and woman and grown-up man in this whole city; it shows that he was willing to shock the social fabric to its very center; it shows that ha was willing to make a by-word and a mocnery ana a laugn oi justice; it shows that he was willing to commit an act in this fair city of ours that would prevent our taking the newspaiers home to our little daughters to read; it shows that he was willing to commit an act which would make our children wonder when we sent1 them to' a Sun day school or to the ministrations the holy gospel, to know that the la w of the land would permit A r.KD-HANDKI), DRIPPIHG Ml'UPEREK To walk the streets unaporehended. Bu it snows no insanity, it snows no un soundness of mind. It shows a birbarity a cold, . bloodthirsty barbarity unequaled in tne annals oi ,a:i tns cases callsd by my triend the domestic cases, where th common law ham arrogated to itself th right to say that these red-handed mur derera phonl 1 go free. ' Taer-e is a very singular item, which may refer to as I piss along, in thehe com ments. it was ciaianei in the opening statement by Mr. J ox that this defendan became insane on the 24'.h of May, 1885 Kvery witness, with perhaps one or rwo exceptions, notably Mrs. Prindle hsrsulf, called for the purpose of substantiating that theory before you, that he was in snne, was examined as to a time and as to times, places and circumstances before the 15th day of May, 1835. Tbe opening Statement was that she confessed te him the CROWNING INPAMT Of her career on the. 24th of May, 1885, t wit, that an abortion had been performed upon her in Alameda by Dr. Back, and that the child thus aborted had -been be gotten by the1 defendant himself. Th theory, of the opening was that he had been patiently and quietly and thoroughly investigating all these matters up to the 24th of May, 1885, with a calm, clear, sane, searching, inquisitive, acnuisitiv kind of mind; that he bad gone to the doctor's: that he had sought every infer mation that was attainable; acting with cool determination, calm iu:igment, rest ing sometimes on the theory that his wife was insane, sometimes believing that she was not and seeking information; but all the ' time cold, calm, calculating.de .IrTerative, sane in bis mind, up to th 24th day of May. What becomes of ths W arrens, what becomes of Mr. Menitt what becomes of the lady to whom he re fused to nod upon the public highway, in the lacs ot that tact? Xbe statement that he was sane then whn .Mrs Jones met him upon the highway, ac cording to tneir statement; HK WAS A RANK MAN; His mind, perhaos, was full of some pulley or cogwheel, or the like in the make-up o the machinery of the fuse factory where be carried on operations during all of thi time, and wonderful and singular to relate, this maniac in the wildering maze of the machinery in the fuse works should have gone on and been enabled to fulfill all the truts imposed upon him. Every witness ot them testifies to a day before the tim when they say he became insane. This is a curious kind of a defense, and 1 dont know, gentlemen of the jury, that it would be permissible in me te speak of the kinds ot defense in tbe other cases re ferred to, but several of the gentlemen be fore me referred by name to othrr case" before of this kind, and stated the facts of those cases, but this is a curious kind of defense. The defense made in this class of eases ordinarily consists of a theory tnat tne defendant was justinaoie and a DEPENSB OV IM9ANITT. The process by which it ordinarily goes on is, that counsel astute and learned go to the Court with the theory with the defense that tbe defendant was insane at the time of the commission of the act charged ia the indictment or information. They go to the jury covertly with insinuation and inference and implication, inciting passion, appealing to the baser passions of men, exciting their feelings upon the subject of justifiable homicide, i But, so far as my observation and narrow reading has gone, this is the first case in which it has boldly been announced to the jury, with an audacity which certainly ought to be com-mended, if in a better cause, that there was a defense of justifiable homicide. And aside from being a peculiar and anomalous kind of defense, one which appeals only to the prejudices of a jury, one which appeals only to their feelings and to their sentiments and asks them to disregard the law, aside from being a curious and anomalous kind of defease, , ":. Tf IS A OOWABDLT OM. Cmnsel has referred to a fenmber of cases where men have committed the crime of killing the seducers or the alleged seducers of their wives or daughters,- and havs been acquitted on the ground of irresistible impulse. Does anybody believe that they were insane? I say it lis cowardly in this; the man who goes and ianns himself upon a pretext, be works i his passions np, be inflames bis own imagination, he fills his hart with all the baser passions of human kind, murderous pasxions, revenge and malice; he takes the life of his fellow-man and vaunts himself in ithe act that he has avenged his marriage bed; he plumes himself before his associates, as did this defendant, that he bad protected the honor of his marriage bed; that he had killed a man who was a scoundrel; that he was justified in taking the; life of a man under such circomstances, i; vaunting himself, bragging before thai; kind of men who believe io that false hiiner.' When breught before the law, when the law that reared him, tbe law under which he was begotten and born, brings bi.n to account and says. "I demand of thee thy fellow; where is ne, then . the coward and 1 spealc in a general sense of these defenses, then the coward says, " Why, I didn't mean to kill im; I was insane; I was crazy, thus GIVING fjHE LlE By direct and stern implication to all the vauntings that had gone before; thu3 placing himself on record! as not being a de fender of the marriage-bed, but a man who, under an unfortunate malady, had llled A in in, as muchj excusable as if he ad killed him by an accident; and he goe for a curt and a jhry upon that pica. and potures before a 'jury upon that pba and insists upon an acquital upon the plea, that h wits insane at) ithe time, and when e shall be acquitted i;by a tender-hearted ury'or a prejudiced Sury; or a lury who are not law-abiding men, tfjen he goes forth nd the cowardice departs from h s nature again, and tha braggart Teas-terts itself, and once more, for thret of his day, he is the man to be looked np to by men a hey pai-s by iw the man who hail aveng-d is ruarriage-bed. 1 Ihuva yet to heir there may have been (jome of them, but I it thes t'p'it e have yet to hear of men having been committed to thea-vlum They jj AVENUE TH F.I R f ARRIAGE-BEIiS, As they say, and murder soinehoJy and get acq ntted on tne ground that thv were nsane, or Have an irresistible impulse, 'nut hey are not sent t tliss asylums; th? fact is that they are not iiis-ane and everybody knows it. i Xow the law I hajife spoken r.f that a ittle before, and will aain the hw of murder and the law Imf insanity i very lUin and clear. Therjc is no need of going to any works, of reference for the aw of murder. There . is njj need that any district attorney should rtad it ko a c uit an I urv; every court aiivi jury in tb laud knows if; every citizen knews i': thut a man who unlawfully kills another, with malice aforethought, is guilty of mtjrder. There ii no law that justifies the t.tk" g oi human life for revenge or malice. 1 rifr- is no law that justifies the taking ' f human ife for the commission' of adultery. 1 i.ere s no law that jus:ifi4 the taking -.r human ue bscause somebody says that the inn has committed adulttly. I doubt xi -t, and so do you, gentlemen, -that many, many in nocent men have hepa houode 1 to their dth r'd defamed sjftr 'hey wrs pd.d upon this plea. Jt is -easy for s nir one to say that adultery has been committed. when, in fact, it has not. THE LAW OF INSANITY Is equally clear. When a man defends himself ou the grounj that he was insane at the time of the ctimmisaion of thu act he must prove that insanity to you ia such a way that if the one'.singln issue whs insanity or sanity, you jwould be b'.und to nnatnat ne was insane, so that when you consider this ca.-e u, on that aspect von must keep that in Mp'jr minus all the no njjntimfnt about this. time. There is Sitting upon a jury an i deliberating upo-j these matters, ymi mAjat exclude a v uues- tinn of mental consideration: voii mut keep in your mind this fait. This n.fend- ntsays he ww insane; we must c"H-ior this in the same way that we would if the single issue befora us jWere, was he ssne or was he insane. In ther words, as if it were a civil case; a if-it were an H'o um- tion of insanity; gs ir he was bf fi re the Commissioners of Lu-iayL Do v u imag ine, any ot you, that jit this defeii iant on the 2itu of May had been taken before any three doctors of jthis city, as i ths law in such cases, arud the question" had been whether he shriUd be committed to an insine asylum, diyoa suppose for one moment that he would have been commit ted? Do you suppose for one moment, if this were a civil cae land the question of the sanity or insanity :of this defendant on the U4th of May was submitted to the jury, and they were to determine that fact alone. do you suppose for a ni' ment "any jury in the lane would fand he was insane or aff ected by insanity? j EXPOUNDING! THI ..LAW. The law pf insanityl goes farther ? Even an insane man can oi mmitt crime under our system. A man!, to excuse himself under the ground of insanity, must show that his mind was diseased; that he was affectfd by insanity; that is to say,; that there was not any regular rotation in his thoughts; that he did not reason rationally ; that he was not a reasoning, reasonable being; and he roust go farther, because. even though be be insane and be irrational in his conversation land language, in case he refuses even to nod to his neighbors as he goes by or the Ilk, yet, if in the act itself, he was capable' of appreciating th nature and the quality of the act which ha was about to perform. In other word, if he knew theiirTsrertre between right and wrong in that act which he was ab ut to perform, and did perform, yst he is respon stole. 1 et, there are oiajiy cases, as was stated by Dr. Buck jupon ths stand, there are many cases where insane men commit rrimes under such circumstances as that they would be amenable to the law for the commission of the crime. . A man rosy be a hedlamite; he may be as mad as a March hare, yet if, when he draws his pistol en his neighbor because of a real or supposi tious wrong, he has reasoning acuities suf ficient to know that the act is wrong, if he has suthcient reasoning power to know ths nature and quality ofjtbe act he was about to perform, y THE TAKING ipF THE LIFE - Of his neighbor by powder and ball, that man is responsible, because tbe law is very tender cf human' life. Notwithstanding anything to the contrary that mav have been said by Mr. Foxsas to the real or suppositious circumstances under which a man is justifled in taking life for grievances against himself, the law is so humane, the1 law is so tender, tbe law is so careful of human life that every circumstance under which life may be justifiably taken rs laid down in tbe books. There is no such thing as that there is .a common law or that there are circumstances not laid down in tbe books under which men may take human life. Now, that is the law of murder a ad it is the law of insanity. I There is added this also to the law of murder; that MALICE IS irXBSCMZD; That a man who commits murder by lying in wait or by poison, or tbe like, is guilty of murder in the first degree. Where a man commits an unlawful act; where he commits a killing and ahe circumstances are proven, and mitigating circumstances or circumstances of iustifaoation do not appear of the evidence ptima facie, then malice is presumed. It is presumed to have been done maliciously. This very irresistible impulse that they talk about here as justifying murder under well considered judicial systems is held to be the malice of the law. The law says that a man has no right toilet his impulse get away from him; he is a dangerous man to the community if his impulses are stronger than his will as long its his mind is sane. Now, proceeding further, gentlemen, and as logically as I may npen this subject of insanity as a defense to crime, I desire to present to you some considerations cpoo that subject, which I think are fall of meaning. . It appears to be the contention on the part of the defense in this ease that if they hav .- --. "r'-'" - - SHOWS AK IXCTTTXS CACBX Tor insanity, they have performed their whole duty jto this jury, in other words, that if they,; show that the man bad received a blow upon hie head, or had sustained some great domestic affliction, or bis wife had been seduced, or Ms daughter had beendebaucheld, and the like, and be goes and kills the man, that that is all that they need to prove to you. Now, there could be no greater fallacy than that. The very books which our Learned brethren have read before yon sd copiously, will illustrate the idea which I m now assuming to inculcate, that it does not follow that because a case of insanity, or that which might be a case of insanity, has been proven that the man in fact became insane. Now, assume for a moment, thai; they have proven, and I say assume this jmerely by way of argument, assume that they have proven that this man had been informed that his wife bad committed adultery; that is as far as tbe law will go; -that is as far as the instructions of the Court will permit you to go in. ascertaining the condition of his mind; assume, l.say, be had been informed that his wife had committed adultery with Dr. Buck. Tha8 would be laid down among writers on insanity as what might be an exciting causa for insanity. Some of the authorities g) s tar as to bold that it is KOtj COMPETENT AT ALL To prove arii exciting cause for insanity, unless some actual insanity is shown. All the cases .hold that with the exciting cause you must shqtv insanity; that it is not sufficient simply to prove that a man had a' blow on the liead, as I say, or had sustained a domestic affliction, and therefore to argue that: Jie was insane. How many insane men are there? What is the prop.frsion of insanity to sauity? The normal condition of mankind is vanity:" Take the pouiation of this State and I understand tie I havs rather a large percentage of insane here take the popula tion of this Hjtate, and compare the insane i with the sane1, and the proportion wouleT be very sraalfj Take the world over, men are receiving;!- j j KXClTlifi; CACSI FOR INS AN ITT Every day ef their lives, and yst how rare-: ly does it oedfarj how rarely does it follow, j insanity! ' The causes of Insanity are di- vided into physical and moral causes of in-: sanity. The physical causes of ,insar;iy; embrace quite j a large catalogue. The moral causes oi insanity embrace quite a large number of causes that may produce nsanity. ilie physical causes of insanity. as yeur owniobervation 'and reading will convince ycui, produce the largest amount of insanity in the c untrv. In other wir:is, the msaiWitvi in 'the bsvlums shall be traced to their causes, very much the larger nusmher of ise will be- found to have fol- owed from physical causes, as jAI.tlpHOLlSM, BELF-ABUSE And the like, and heredity. The large proportion .-jpome frem physical cauaes. Then, if we jthall take the moral causes of nsanity, thin emotional insanity Which we may assume Jjs the one thy try to claim for this defendant, though they have not stated what it was, emotional j insanity would be bat a small per cent, of ths ral causes; for insanity, If ws shall take away, if we ahi:l disticguih amorg the insane all whoihave becomes insane by reason of. physical pauses, such as sslf-abuse or alcoholism or heredity er the like, er INifrRIRS TO THE HEAD Or injuries 6$ the body, if we divide them off we find tjiat they take the largest num ber. Then ;if we shall bake all those who hare gone insane from lnoral causes, and take away foom them and distinguish from them those who have gone crazy or insane from domestic causes, grief, or the seduc tion of wives; or the like,; we find that thi proportion is infinitesimal, almost, and so it illustrates;! my argumept that it is not sufficient top provs befire -a jury simply that one of sj hundred canses may exist tor insanity, without showing thattaeinsanity actually followed the cause. I A WEART WORLD. j If we shoujjd ' argue that because a man had a cause ifor insanity! therefore he was insane, the werld would b: full of insanity. This is a iweary, wear4 world.! It has seemed to yia and me, garttlemenj I doubt not, on many, many sad fclaclt days of our lives that thtf world was lull ef woe; that the balsnce ij'as against (happiness in this condition of Jilife. and in (favor of i misery. V ho amongius all leads a.happy life ? Who among us all; has not bad some exciting cause which imight be catalogued under the numerous c wises which may be considered excutpg caujsesi .of issaiiity ? Why, the exciting cause in this cae was grief, I suppose, and wounded Ihoior. Does every man who b as grief became insane? .Take instances. $ly learned brethren were fond of citing froth Socrates. ,1 will commence at Christ, the Lord of all, Dir MAN INDUIR MORS Grief than She? Man, they say, drove this man insiane. He is well enough now, but he was driven insane by grief, Take the Lord of 'all, whan 'he prayed in the garden and iweat blood,! and said: "Oh, that this cuj might pas from roe." Take hint when he was nailed hpon the; tree in supreme ftgjasy; when with the capacity for pain of s man and the will power of a God. he saidi.; "My God ! My God ! Why hst Thou forsaken me II Was he insane! No. Take fjJob. The Almighty j Pow turned the Qrils of the Devil on Job; he took from him his bouse and bis lands and his children. Talk about debauching a man s wiifl yob lost .-!1. 1 ne messengers came ta him and srtid, "Their flocks ai d herds aris destroyed; tiheir buildings ate burned; .;; j THTfjSERTANTS AE SLAIN Thy children are dead." jl don't pretend to be a Bible scholar, not; to quote it ac curatejy, bujt that is the sense everything was taken away, and then . God said that Satan might 1 lay his hand on Job, and he was amities with sore boils, until he rolled and writhed in thelashes, and said. "Let the day perish wherein I was born, and the nicht wherein it -was said that man-ohiid was conceived' but did be go crazy ?,No ij Did this man ever grieve like that? Takel Othello. I jshall not quote from ShakesHieare. I woiildn't remember the passage ;jf I tried ti, land my address has not bee n; prepared in) any such sense that there has been any dramming or committing any (piece to be recited to ia jury; but you remember the ( circumstance of Othello, where he became csuvinced of THB DISHONESTY HIS WIFE, Where he became convinced that she had been unfaithful, that she bad made hertelf a willing victim to the wiles of his j friend he killed his wife; he, at the threshold of all the glorias of life and the big" wars that make ambi tion, said : "Fare well.a long farewell to all tbe things that, have heretofore made life happy or enjoyable;" and come to a close by saying that. Othello's occupation was gone. jS-j very long grief it was, hie grief had cote to the degree at the in formation that he immediately smote and killeel the wife of his bosom, and subsequently ascertained that she was guiltless in the matter, and he did . not go insane. The great dramatist, and great master and portray er of man's passions never intended to portray that man, or Hamlet either, as having gone ie&ane, or reason having departed from its throne. Did this man hate grief like that ? My learned brother says adultery- is rare. Unfortunately, it isi not so rarej as it might be j , ! ! Et EXGLAD '- : The very cokntry he cites cases from, the courts are f uill of cases of j erim coo. The courts are fvjTJ of cases where the edncer has been sited with the! victim as a corespondent in a action for dsmagee. Do those men ge rasaae ? No. Take Judas Iscariot, the man who betrayed hie Lord and Master and: became; ee humiliated, so covered with ; mortification, was covered with shame nd. grief and wee in that because for mOney, thirty pieces of silver, he had betrayed the Master of the! world, that be went and hanged himrelf upon a tree, and yet nobody say be was insane. They j say this man who I now sits before you, i gazinir i into your eye, asking you to believe that, he was ' then an insane is man, . bat aow sane, that he went . Insane through grief, that iBDa WENT XSSAVS p"' Tromr wounded i honor, and' yet ' X could take your time from now till setting sun, and as many days and nights as the whel? space of your life would be, day by day and day by day in employing numerous unfortunate instances where men have been loaded and oppressed with the weight of woe, except in rare instances wbere the man's souses succumbed to tbe blow. Talk : about a man being insane imply because he has an exciting cause. It is, to use a vulgarism, just rot If grief shouli drive men insane, what would we do, what would become of the world? It would be one insane asylum. Take disappointed ambition. Take Napoleon chained upon the island, the man who had been master of the civilized world, tbe man whose ambition went beyond anything that could be grasped, chained to a rock, bis heart J EATING OCT HIS LIFE, Djid be go insane? No. You could take a thousand such instances. By some sudden blow orbiy a misfortune men some-tunes gst ia sane. Yts, one in a great uiauy thousand. One in a thousand, perhaps, or one in ten thousand, maybe,, get insane, but the rule is the other way. An exciting; cause raises no presumption that the man who suffered the blow has succumbed to it. If we shall say that grief Would make men insane, as I have said, the world would ba full of insane. "JThere is a reaper whose name is Death, iAud with his fickle keen He robs the Ijearded -grain of the breath l And the flowers that grow between." ' i If men shall grow insane from grief, every green mounted grave that 1 I WjATSIDI WANDERER Meet?, woulijl tell the story of the insanity of the mourners who po- about the streets, because man! goeth to his long home. Is there any gulf greater than that of the loss of children?! Is it a greater grief for a rban to be told that bis wife had been debauched than it is to be told that his wifs is dead? I'tmsibly so; 'but you take the case of families where thero have been young and llovely children growing up around, the father coming home from his dpily work and meeting them, begotten by him of a fond and loving mother and wife There are thousands of such cases, where, by one fell blow, this reaper has entered the household, and has taken away every on save one, and there has bejpn left but one survivor. Do they go insane? IK GRIEF WOULD SEND ONE lINSANR, jould that not? I" have known such cpsos. You have known euch cases, where nien have lopt ail their children bydiph-j tfieria, or some fell misfortune by disease, by shipwreck, by storm, Ly railr tad accident. Men have lost not only their fortunes, but their wies, and the chubby- cheeked children that have clung around their knees; but they dirJn't go insane. That reason; that is implanted in man's head and heart i stranger than the average blow of misfortune. It is only a weak-minded man, such as this mau has not been shown to be, and such as he is not, if hs appearance justified us in the concln- aioa that they succumb to the blow Therefore. I, say to you, gentlemen, in all seriousness and soberness, and I AM MINDFUL And admonished of every word I say, that may repeat to you that I have no right te say anything to you by trap or tricks f voics or worde, I have no right to im- press upon your mind any opinion that is not justified! by a conclusion of the facts. I say to you then, gentlemen, in ail sober ness and seriousness, there is no art, trick r trap, but it does not follow log ically it does not follow naturally, it dees not , follow reasonably, 1 it does not follow at all, that because an exciting cause of insanity has been shown, that the man in lusane. Aow, gentlemen ef the jnryvnpon that question whether there did follow any insane delusion, or a condition of intellect in this defendant from the information which was CONVEYED TO HIM BT HIS WIFE, I .will go with you over the facts. I have no right to generalize. It is your duty and roiee to consider the facts in the matter upon the version given by this de fendant. Among thoae I will eliminate, so far as possible everything proven by the people, everything brought out upon cross- examination. 1 will, with as absolute fair ness as I am capable-of, deal with the defendant upon the basis of his own version and then we will see whether there is any evidence, whether thre is a word, or a syllable or an set wbi-h will justify this jury in saying that this man was iusanr. You know, gentlemen, that he was net. 1 am giving this time now to a defense which I consider , TO BB FARCIAL, But I am admonished by the long line of cases which this gentleman has cited, some four or five or six, that juries before now have disregarded ths law and have refused to take the law from courts and have taken it from counsel; therefore, I am obliged thus, pnrpesely and elaborately for myself, to outline them and wade through this mass of evideDoe, to see whether or cot there is, ia all seriousnesa, one single word or act er circumstance upon which the defense can hang the theory that this man was insane. Now, their theory, gentlemen of the jury I can recite it, I think, without reference to any book their theory is that ON EASTER SUNDAY, Which was on the 5th day of April, 1885, the defendant's wife, who bad been, ailing for a number of years, told him that she for five years at least at that time that she for five years had been criminally intimate with Dr Buck. The evidence given upon that ssbject by the witness, who details it, Mrs. Prindle, is that that sort of thing went on for six or seven weeks a most unaccountable and unnatural condition uf affairs, very improbable in its nature, and I forbear criticism, fori am dealing with their own facts. She told him a part ou that occasion, and on tha next day perhaps she teld him some more, and a day or two afterwards some more, and one oav intervened and in a night no me more, and dribbled along AT IRREGULAR INTERVALS i In that way the story of her own infamy and wrong, and by-and-bye she said that she would not tell him any more for two weeks, aad she didn't tell him any more for two weeks, and sometimes hs would say: "New, mamma, yon must tell me some more." ribs would say: "No, I won't tell yen any more because yom will kill me," and then perhaps in the same conversation, but if not in the next he wonld say: "Now, don't you tell me aay more, it yon tell me any more 1 will kill you," sad then she insisted on telling him, rarely both of tbe same mi ad. Un one occasion be wonld say, "If you don't tell me some more I will kill you." and on the next day, perhaps he would say, IF TOO DO TELL Me more I will kill you," and so it went oa I suppose, according to the law of nature, because I am not familiar with the law of nature from the standpoint of this defense, it went on that way for seme six er seven weeks until finally on the 24th of Mar. 1SS5. she told him that Dr. Buck had produced -,ao abortion upon her ia Alameda some lour or five years before. ane that tbat ebild thus aborted bad been begotten by thie defendant. Upon that statement daring the time that she was making these disclosures to him, be weot and took advice. He fonad that she had informed Dr. Wythe and he went aad saw Dr. Wyths about it and made threats to him, went te Dr. Pinkerton and told Dr. trUnkertoa that ' HE WOULD SOLI. HTM, j Made various threats, made threats to the Warrens, and during that time os one oc casioa ho met a Mrs. Jones on the -road going between Oakland and Mejroae, and didn't bow to her, and on another occasion be met this ancient soldier. .- who I also suppose is affected by insanity, because be , r . , . . . is oeai. Air. jranowitoo a very e-ooj old gentleman, by tbe way he met him and Knowitoa introduced him to a mas who had been a soldier, and K.nowlto tatre-. dooed him to the defendant ae an ex-rebel so.dier, and lh?n a man who w-e infro-dacedwhose name unfortnnat. Iy has been lost to the history of this case said no, he had not been a reel soldier, he was A CNIOK SOLDIER, And then with a good deal of right-oua indignation the defendant rather chiled him, and said something in substance and effect, that it was an unmanly thing for a man to be ashamed of his1 colors, and why didn't he come out end say what service he had beenemplo ed in, and that he had no riaret to say be had been a Rebel soldier when he was a Union soldier; he onht not to.be ashamed of it. That is all there was of that. THEN, ON ANOTHER OCCASION, During the time that be was making threats right along, running along counter with the time that he was telling Pinker-ton and the Warrens and the othm that he would settle with Buck, that he would kill Buck, and that a man who did that kind of thing forfeited his life.' and that a man was justified in taking the life of a man that did that kind of thing, along with that sort of talk, he went to the shop of Northey &; Vagnar to see about paying f ra wagon that had been bought or mended for him. and in the conversation, evidently having in mmd his future . intention, he said that if he lived he would pay for the wagon, and if he didn't, why, the man would have to look out for his pay the best way he could. Then HI WENT OVER TO ALAMEDA During tbat time,: and was paying up Lis dues at a Grand Army ;Lodge, .and he paid up his dues in advance and said something as to whether he might be alive or not. It was the 1st of June when the dues might fall due, and during that time, while the threats were heing male and while his wife was.teiling him these things, he spoke to another friend of bis named YTarreu you will remember Mr. Warren - .. L 1 ) L . . 1 . , ma hue Kciuiciimu woo wv op in Lue 6tana who aaid that he justified the kiilhjg, under tbe circumstances, and would justify torture, in addition to the fact r.f taking his life. He may have imbibed some of his peculiar ideas from Warren, or he may, as I said hef ore, have fir.wn his conclusion from the incendiary remark, that ADULTERT JUSTIFIED Murder. He told Warren he wa g -ing to settle with him; that be appeared to Mr. Warren to be in a ;rathr excited and angry condition; in fact, to both the Warrens he appeared to he jexcited and angry, and to Mrs. Martin he appeared exc.ted and angry. He didn't ; faint, as w;s said by Mr. Whitmore; he di-in't faiat two or -three times. The', wife .said that on one occasion, when ehe w as making some of these disclosures, he fell don on the floor, and got up and walked ui the floor, and ho chewed a tr-eth pick upon i.e occasion when she was making some of these diabolical disclosures. Now, gentlemen, that is about all. If I have left out any of it, it is your " daty to remember it. I have trie i to be fair and faithful and honet. I will It ek ever the lit of witnesses to see if 1 MAT HAVE LEFT OUT Any of them. Yes; there are some. There was a Mr. Germany, or some sue ameas that; a gentleman ! who had some connection with the fuse works, wh said that he didn't attend to his business as well as ue had before, and was rather neglectful, and Mr. Merritt, the nearest and warmest friend of his, I presume, on the coast; the man who had known him the longest, and was presumed te know bis condition, sai i that he acted excitably and angrily, and was profane, very profane, and that before he had npt been very profane, but had te some degree been;, profane, and had increased in his profanity, and that he was inclined to be morose; in otter words, he was angry, and he noticed TESTIMONY OF MRS. PRINDLE. "Doctor Wythe said, what has been done? You must tell. me. I shan't know how to treat yon. My husband says, ia that why you told me? I says that is why I started' in to tell what I knew had been done. 1 thought by Dr. wytnes looks tnat 1 had tumor. Dr. Wythe asked me;:I said what had been done, and I told him about it; that Dr. Buck had caused me to have those four miscarriages. t'apa says, lid you tell Dr. ythe that ? If you have told him and not me, don't tell me any more." Now the salient point, of this is: "I told him about it, that Dr. Buck had caused me to have four miscarriages." Now turn to page 258 to complete it: MRS. PKINDLe's TESTIMONY. "He says, Mamma, you need not be afraid; he said, Dr. Buck would not dare to show his head : to yo.j, but I says he will, and I shall .keep my door locked all day. Papa asked me wliat I wauted to tell him. I tqld him I thought by what Dr. Wythe said that I had a tumor, and I wanted to tell him what Dr. Buck had d"one to causa it. He said, what is that ? I then . t Id him that Doctor I told him that I had four miscarriages unbeknown to him, and that three of them were not his." Page 256 she says: "I told him that Dr. Buck had caused me to have four mis carriages, lwo pages further on, she . . . r i.i i - , . . says- a faoiu mm i nact iour miscar riages, evidently , referring to the same she had just said, I told him that Dr. Buck had caused me to have four mis carriages. THEN SHE SAYS: T ill W. ll (, f- I ha.l t J-... ... X , 1.7 ft rrr unbeknown to him, and three of them were not his. Whose was the other one? ; His, of course. This was not on the 24th of May. This was l-ng before the 24th of May. According to her testimony this occurred long before the 4ta of May according to the testi mony here, she told him that long before the 24th of May, and again in the presence of Dr. Pinkerton, she referred again to the same matter. I will find that, because I desire there shall be no uncertainty about it. You, gentlemen" of the jury, will remember that Dr. Pinkerton testified that he had a con versation with these parties at the time he made an examination- of Mrs. Prindle on the 2Jth of April, 1SS5. I shall now read to yon a portion cf the testimony of Dr. Pinkerton, as to what occurred in THAT CONVEBS.iTIOX On the 29th day of April, ISSo. This killing, was on the 24th day of May, 1SS5. "When she was telling you, Doctor, in the presence of the prisoner, about these abortions, which yon aay she first spoke of as having been six, and then five or six, did she' say anything upon the subject as to who was the father of these children that had been begotten? A. She did. Q. What did she say on that subject?" Now, you gentlemen will remember that Dr. Pinkerton testified that this defendant was there present, and this question here says, "When she was telling yon these matters in the presence of the prisoner, what did she aay, on that subject? A. She said the first one was Mr. Prindles, the first one of the abortions, and the other four, four or five, were Dr. Buck's.; Q, Was that in this conversation that took place on the 27th? A. It was either on the 27th or 29th. -: . TOC WILL K EM EMBER He testified it was either on the 27th or 29th, and on both those occasions, tbe two conversations with her, this was either- on the 27th or 29th day of April. " Q. Was that in this conversation that took place on the 27 th, on the day of the examination? . A. It jwas, air. 2. The time the defendant came there with her to have her examined? A. Yes sir. Q. Yon aay that he told yon there tbat he waa going to kill Dr. Buck? A. Yes sir; that was in my house." Then he went on to say that the, statement that 1 - " M ' , Continued on Fourth Pag e-1 - .