conduct. He didn't only do thai, show mg .v mi.ncr r ktion. but nuiQiiwwjv! """" -'n - he thei saw Dr. Pinkerton, had his wife examined, found thst his wife was not iu such a condition hat each a matter certainly would have been probable and that certainly nhi uld have impressed his mini He then went back the next day, which was on the 30th day of April, to Dr. Pinkerton's house. He was in no frenzy. Gentlemen, when Dr. Pinkerton came down in! the morning to his library, he found the defendant stepping around and examining books and pictu-es, as auy ordinary caller would. Then he made threats to Dr. Wyth. mads hi statement over again to Dr. Pinkerton, - j ASKED DR. " PINKERTON What he thought about it. ' Evidently the facl that his1 wife had male thesjL disci .-urea to thee people, and that his honm wi woundel, was working upon him, not working to dethrone Iim reason, bat working to inflame his . bassr passion. Dr. 'inkerti n (?.ve him jmt the riht and proper advice.. Thin man has acted rashly ant not wisely. He has acted upon baser 1 l-i km u,.l,I in thx f:lO.S of better lights. Dr. Wythe remonstrated with him imme liafe'.y after Dr. Wythe, telling him that his wile was not in the c ondition that her stories ouu'ht to b be-livl T . Pinkertou told him the law is a lnniiatn to retlres-t anv injury of that V kind. Dr. Pinkrt .n,said thi he talked with hiirj. for an hour: that fie man was excited and angry. Dr. Pinkirton didn't ay that THE MAS WAS INSANE. He said he was excited and crazy, and . thU he talked with him an hour, an 1 told him that the law was sufficient to adequately redress any wroni; of that kind, and do nothing rashly. 1 1 go and consult his friends. .Apparently, the d f endar.t was clmd and co -led by this advice of Dr. Piuk rton. At ll events, gentlemen, the repeated interviews between hiuss-lt - and Dr. Pinkerton. in which he expressed a de.-ire to do injury to Dr. Buck, in which he was warned -by the Doctor, as was his duty, all Arw that this man was jcooly and clm!,y delibera-iiiiij on the subject. Ho not :i!y advis-nl with thoe people, b it he w.mt and s .lights Dr. ' Brown. Dr. l'. owu wa on the- witnt-ss - stand and rest itied that h-; came to him ana asKeU ruin w.oat rie moment wuau HIS- OPINION JWas about Dr. Buck. Dr. Brown told him that he coutddered him to bs a gentle man evidently aftvmptin;; to form his opinion, and he was screwing his courage V.. ... : o. . . .1.1,'K - ..olrltj- KJ H1C SM I'-lilII. '-II1I, ucinnifliLi;, vi......j., - and with txan.ination going to these ditfer-. ent ien; went to Wythe, went to I'ioker-ton, went to Brwn; from every oue of these men he rectived information that " jught to havfl deterred him 'from the act mhi. li ha flnnllv r. .n ti i 1 1 h i L But he raid no attention to what tb-se gentlemen teld him at all. He allowed his owij j.issir.is to work on. He didn't take th advice of Dr. Wythe; and finally concluded that Dr. Wythe's ttatemeiit as to the condition of his wife's mind was INCOKRKt'T. He didn't take the adv ice of Dr. Pinkerton; he didn't bring any action at law. God knows we wish he had, and then there would have been another voice to speak upon the stand which is now silent. He didn't take Dr. Pinkerton's advice. He. didn't join in the opinion which Dr. Brown gave him when he sought it concerning the character of Dr. Buck. He took none of those, but formed his own views and own opinions "Without regard to the expostulations or advice of these other men upon whom he ouirht to' have leaned. Another thing, gentlemen, to which I have briefly rtderred already: Daring all this time ttii i gentleman was attending to hia business. it is TRCC He was negligently attending to his business. He could not have been thoroughly ,and fully attending t his business when, l. . ...(.. ....in . . . I n 1 qmrtmr th.dfl 1 1 f 1 1 .J "no Hi uiv. ... ji.i w..vun. - - .wcn Via uio. i i, ! 1." I . I f iK?a V ft m 1 n fc I 1 T1 that was talked so much about, when he was seeing Dr. Pinkerton .or seeing Dr. Wythe or seeing Dr. Bruwb, or going back and forth in his buggy from Dr.. Wythe's house, he could not have heen attending to his business with the regularity that perhaps he on'ht to have attended to it, but the fact is that that business with a41 its cares and all its burdens still remained for him, an l there is no word ot evidence here to show that by reason of mere neglect of his or INATTENTION, OF HIS ' Any loss was experiended in the business, s i we have a. right to presume and assume 'that the business went right cm up to the S4thday ef May. lie saw Dr. Pinkerton freo.uently, who on the 30th of April had advised him, who had told him that be ought to allow the law, to take its course, that he ought to be advised and counseled by his friends. He saw Dr. Pinkerton frequently, even up to as late asthe22dof May, iS5,'and tbN tragedy occurred on the following Sunday, which waa the 24th. Duriug all this time, and I pause here to -say before commencing that branch of the discussion, that in all the books and in all human observation, if it ahall be FOLLOWED BY A CRIME That they have always b-en held and con idered by courts and juries as evidence of deliberation, not conclusive evidence, but proper and legitimate evidence within the cope of a just and inquiring jury tint they have a right to consider, i" or in-slance if a man com n, its a crime and kills another man. and he defends npon the ground that it was in the heat of pission, su l len an llirredstible impulse, or the like the jury are eutitled to, know wheth er or not it was in a kuuden neat t pas sion or midden quarrel which miaht re duce the offense to that of manslaughter or A LI33KR GRAPE OF MURDER, They have a riht to determine and find the fact whether before that time the ac cosed had made any threats again.t the deceased, because we argue in a human kind of a way, that if a man has made threats attains t another1, saying, "I wilt kill him." or "1 will take his life." or "I will settle with hint." I would be justified in taking his life, we have a right to conclude be was harbording lamce or revenge, an l that would exclude the idea that it was upon a SUDDEN HEAT OF PASSION Or sudden quarrel. Now, following cut that idea, we find that this m?n, now sa'd to be insane, on the 24th day of May, that the defendant, repeatedly, at frequently recurring periods during this time, made threats against Dr. Buck. He made threats9 to his wife. I have the citation ' frem the transcript here, but I presume it is unnecessary to waste further time ef you, of the Court or of myself, to read over these things. Vu know that it is so. On two or three different occasions he made threats to his wife. On one occasion, he got a knife and said that he would ...... KILL DR. BUCK And kill her too. He mi 'e threats to D. Wythe. He made statements to both the witnesses Warren about settling with Dr Back, ne made threats to Dr. Pinkerton. Here are one. two. three, four, fiv differ- ent persons in this short interval of time which they say was front six to seven weeks, bat this "man had made threats stating his intention to do bodily harm to Dr. Back, or words strongly ana directly implying that he intended to do bodily harm to Dr. Buck, or take his life, whether those things would appear to be direct that this defendant was not insane r. at this time inferentially. They have said ,. NOT INS AN X Until the 24th of May, then, gentlemen of the jory, if he was not insane until the 24th of May, daring all this time down to, say, the 221 ot May,f a sane and raiionaL reasonmK creature, be waa mtrlnr threats asrainst Dr. Back end say- ' ing that he intended to take his life, or words equivalent to that statement, a one occasion swearisg ai Dim, on tome evua- s!ena saying that if these things were so he was justified in taking his life; on another occaiJn saying that tie ;wou.d settle with him, Ion another ! occasion ; get' ing a knife and saying he would kill him luring all that time, according to the thiory that was forme.l by this de-fens ion the evidence given to Mr. lux and his aspoc'ate before the trial, duncg all that tii ne when the-e TH LT CHANGE IN HIS APPEARANCE, And a ;ar driver in Brooklyn noticed him on the day of the unfjitnnate killing; 'saw h'.m on "the street, and he was, walking along vith his head down, going toward OaklardV I should think he would have had hi; head down, because he was going to kid v man, and evidently intended to do it right there and then. Probably he had his pis ;ols in his, pockets at that time, walkin;with his head down tht way, He wai thinking, stiudyinsr about something a he was walking. He said that he was wa kin, and that, therefore, he had not ridden n the car. Duriug all tht tarn he atte ided to his business. Xo one was t!k-n i . hi i,la.ce . He Went to his busi ness, apparently, as regulaily as he had bt foie. lla drew tds pay as he had before TIHJ JHCHlXKHT, Mr. Mt tr'tt said, was in his charge; he male all d repaired the machinery. o th it out of his charge. We are e too . lefd with any inference or implication that thi mil' stopped. He drove his horse . , 1 c 1 to aud that, I ro to tee worus as oeiore, uu hink, is about all of the testimony uputi the subject : givenrtous by bearing the del lse. 1 have a list ot the witnesses Ilex- o'"ne it to see if I have left and 1 any of referre he.Ti tut. Mrs. Prindle; I have to her testimony. 1 think, tairly. Mrs. J i w3 the li'iy who testihea tie didu t dod to her, and. by the way,, she didn't es.ify that he saw. her. Doctor Piirkerq. n was calleii, and he was noi asked ty tlie detense to say anyinmg about tli s man s ar)i)earanc, or ins sanny. He saw him; too, "frequently, and as late as the a. THIS HOMICIDE i Was colnmitted on the 21th.' Mr. L j - many as the party to whom I have 'ready! eferred, who was in the employ of the use Company there at the work.-. Robert I have Chster was the cr driver to whom referred. James Cook w- - the Ma-shaJ of the town! of Alameda, with whim She conversation was hld cisicrn- in the lues for .the (Jrand Army. -M. . Martin I bave a'ready referr I to. iShe w.- - ev dently an intimate friend of the family, and1 ha 1 two conversatii ns lTWitn eiidin1' over two weeks. J. 1. him, e Merrittl was his employer. Mrs. Harden- beru teiiiied thaton the oth day of April he d.du c est Ins dinner. hut that he ('.Id Now,) gentlemen, ?itber Mr. Whit-Pting of the ub-f, nas referred in on the 21th of May. wonder that j n Mr. Fox, ii tiS is it an more n ject of this mail's inar'.t any w5 to the evidence ? I have jriven you the haames of the witnesses who were called r the defpne, land IN A L.KJ? PART, I may gay as to nearly all of them. You have heard the names the .first time in this argumei t. There was no. statement made by Mr. -'ox as to what his witnesses had testified to other than I a kind of general interspinal of remarks as to what Mrs. Prindle feaiJ.- There was no reference, not even the brietest, to ;some oi vnese wis- nesses. Iposibly in the case of some there may bavje been a brief reference, but what I mean to say is that in the' general scope of argument, in the general proposition and puriort of it a'l, it ' was general, it was sen ralization. There ,w more said about the Wtimao Harris, wno Miol a man in Washirgt.on and yfou may remember that Mr Fox dramatically leaned back AND NEARLY IFELL OVER The tabl e when he wa4 telling you about it aud ill uttrating the p isition of that man when he sent the was killed, ' Wnen lion, ne. says pullet through his heart. There was more sai 1 about this woman anil about Dan Sickles who, I s b, headed a proces- sion in Mew York the bther day, strangely recoveree from his majlady of Hoiiij years airo, Trlere was more aid ab.iut them and Mclarl&nd and atynut the- .Muyhridge case thai there was ab'Ut any witness. who testified for the defense or prosecution, excait 1r. Wvthe. and in reaard to l)r Wythe, he seemed to nave animosity. It was a tr.Jwl thio- to talk about the pets of soldiers, Ithe deajly weauons. There wsa anlmositiy on the psri.of !the counsel for defense towards the cajte of the prosecution Dr. Wylhe .is a ministerof the Rospel, Did yoii see aoythirig in his testimony calbuif fer these. remark.? Did you se any reasl.n why he sbiii.ld be abused? He belongs T THE NOBLE aRllY OF MEN Who bear the cross It ill becomes any or layman, for the manwhjethsr lawyer! wrong o .;ood purposes of ari argument, to turn his argument. whether to make it read well in priat, or whether to impress a jury, l sy it in Decomes any man to pneer at the ddctor and to say that a man should not believ e but that he is a bad man and noint td that other circiumstar.ee that he is a minister of the gospel, apparently by inference and implication, that because he is a minister of thegoppel he must be a Calse-hearted man. Was there anythiog in the testimony of Dr Wythe calling for th WAS THERE ANY REASON Why hi should be charged here as the mainsprmg of this prosecution? Wri there ny reasonable implication that because he was p frien.1, and was proud and glad to say that be was a friend of this man ho Wis murdered and who is dead, even in the race ot trie animadversions oi tnat same gentleman, was there any cause to s y that because he was a witness ne was not to be bel eved ? The inference was direct aud rlaii that he was Smirched before you and you were not to believe his testimony. Xo reas n at all. But that was rather a diversion from the line of argument that I ought to imrsue. I was paying that there was ' i ' NO REFERENCE la the argument to you, gentlemen, and to the f f cts iu this case, and that he didn't refer to them so frequently aa to these cases of domestic homicide where the maul had been acquitted, and that he didn't ge to them so frequently as to Dr. Wythe. LXow, I Lave gone through that, I don't propose to repeat to you, and thus worry ypu. I said all there was of it. This man was informed that his wife had been debauched. He ! was told that his wife harl been aborted five years before. He had neen making preparations, accord ing to their own.Btory, for six or seven weeks before this murder, that is to say, he had been preparing his mind by slow gradations. There was KO INSANITY. a There ras deliberation ; there was pas-sien; thei a was examination; there was the getting A these pistols. Sly learned brethren, ou the other hand, say that be might hi ve had them tor a long time, because pis ;ols are "soldier's pets," but the evidence ihows that he' told Dennis Holland in the i olice office, the night of that crime, .hat' the pistols were new. I have i a d, gentlemen of the jury, the witness, Dennis Holland, testified upon page (367 af the Reporters' transcript: "Ha iaid te 1 ought the pistols in San. Francesco; askec them if they were new. He naid tbey wer ', with the, exception of his using them on rial. r . HI HAD TAKKN THEM Oat in t le hills and tried them, to see if they won id work welL The direct inference, anc understanding, and implication, from the rise of the word "new" in that connectidn where a man says "pistols were new," that he used them once to. try thm, and had taken them out in the country and had tried, them, leads to the conclusion that the pistols were in fact new, and that they were recently bought, and the inference, from all Ithii testimory taken together, 1 diverted jto say, the d'rect inference from : all this testimony, taken together, is that that man had gone to baa rrancit-co re cently before this killing, and bad bought - ' : ! these pistol, and they .were new, as he told this witness, DKNKI3 HOLLAND And he ha i ued the n but once when be went out to try them. Now I have s Vwn you, gentlemen of the jury, I think, that taking that testimony in favor of the defendant as 1 have tried to show it to yon, folly, fairly and frankly, stating what it was, that there i3 not a single word in all of the evidence, collected to impress tijwn th-mind of the jury that tpe man wus at ail afiVcted by insanity. Now we come to the application: Suppose this should be a civil case, suppose this man was beinu examined and a jury impaneled to try the man upon his sanity, as could be done in a criminal iase, juries can ba imufcueled, if ther? is reason to suppose that the min, when he goes to his trial, is insane, a jury may be impaneled to try the man as to his sanity.. Suppose THIS jt'RY 11AI BEKN Impaneled to try the case of his sanity. It appears that he had trouble. No one attempts to deny and no one can pretend to deny tha1, that mau had trouble. It was calculated to stir a man'. to tha depths to be informed whether She circumstunccH were prohahle or improbable, whether he hai full rerson to beiwve wha" was told him or half reason tit believe. Kven though he fully disbelieves, the disbelief wouid raise a condition of mind in him, relative to the coudition of his wife's mind that would tend to trouble him verj very much indeed. But is there not one word in all that evidence to show that this troubled man ever lost the control of his faculties? I will go further, because the low goes further. Assume that he had lost the use of his faculties, so that Ids MIND WAS AFFECTED By insanity, is there a word, a syllable, an act, a fact in the whole face of that testimony which has now been recited before yon, since it came from the mouths of witnesses in its entirety to show that this man failed to appreciate the nature and quality of the -act he was committing when he tired at Dr." Buck. He miy have been insane. I e'eoy he was insane. We have a right to deny that, and deny as a fact, that the man was in- ane r r affected by insanity, and f ssume, f r the purpose of argument, that he was a'Fectid by instiity, yet the law of this State is, that if he knew what he was about, if he knew the quality of the act he was erformin , if he ku?w it was wror.:. he is f till liable under the law and he ou.'ht to be. 1 NOW, TAKE IT ALTOGETHER, Tike Merritt, and, Carmany, and Mrs. Maitin, and the b y at the Fuse Works, and the car-driver, and the whole of them, altogether the lady's testimony, Mr. Prindle take it all, bunch it together, consider it . parately, conridjr it in the afcjjreKate, consider his appearance loli at him and consider how his mini mihr, be affected by such a circumstance, and then say, upon this farcical lie eu"e, you would be able to say that the man wa iutane, or affected by iusanuy. or was unable to appreciate the nature of thri act he W3s about performing. There is "no inan of us here, whether he be upon the jory or outride, thtre is no man, in fny judgment, who, in a right, well-balanced mind, could say or Wuul.i say that this man was affected by insanity, or failed to appreciate the K ATI" EE AND iJUALITi" Of his act; that this man, taken by ti e testimony of the defense, the; testimi ny in fact, is altogether different. The testimony, taken generally, shows that about iive years ago this lady whp was then about 3o years of aire, was KfHicte.i with what ho t-tnted in her t t-timony to be female complaints, or a -female comprint. That Dr. Buck was called "in to attend her Dr. Buck then and thereny became hr-r family physician, and continued to attend her up to lr t .1 anuarv, lSoo. During a'l that time, up to the time when that same Dr. Buck voluntarily retdned his charge so far as we know there had been no word, or breath or charge against him Dr. Buck was not discharged, so far a- any evi lence in this case r-hows. They say they took on another doctor. They took Dr. Wythe. Dr. Wythe was RETAINED BY DR. I:iVK. Now. that is the testimony. Thev say that when Dr. Buck ceased to attend the case, they took hia friend. This woman, Mrs. Prindle, told her husband that she had suffered four miscarriages during this time. Now, gentlemen, that woman was 3 years old at the time when Dr. Buck commenced) his ministrations. Acc irding to the account which she has triven lure. she had borne no chiHren, for six years or six years and a halt at the time when Dr. Buck commenced to attend her. Iam now, gentlemen, commencing to deal with the probability of the story told by the defendant s wife to him, as tc whether or not he bad a right, to believe it, and run ning an n,r wicn a t tneorv, l tin giving you wnat we conceive to be the facts ut the matter. She had lorne no children then for' six years and a half. She con tinued to be affected with female com plaints. Dr. Buck continued to treat her for female complaints. ' SHE' EVIDENTLY Was one ef these, poor creatures among women who are affected with female and uterine disorders for a great many years who, by. reason of improper treatment or some accident or injury to their health, suffer through all the y. a-s of their life as invalids. Sbe evidently was one of that kind. She told him that Dr. Buck had pertormea tour abortions on ber. Is it likely, gentlemen, that a woman 35 vears of age, the peod of fruitfulness expiring, l Delieve, in this climate, at about 40. A Juror (interrupting).-Fifty years. Mr. Moure (eontinuins). I will take my menu s, ine jurors, opinion, that the agi of fecundity extends to ;"i0 vears. I do uu- d-rstand, aj a matter of ,fac, that at a"bout 30 years of aire, the probability of bearing children decreases every year that sroe ver a woman's head. 1 say is it likely tnat a woman wno HAD NOT BORNE Any children for ' six years . a half- wonld have conceived four times in the succeeding five years? It id not likely There is other evidence of strong improba bility in the story told to the defendant. It is claimed by bim that he became Hi- sane because bis wife told bim on the 24th of May, 1885, that one of those abortions wa of his seed. The fact is, she didn't tell him cn the 24th day of May, but had toia nim long Detore. Pow, this is a very important matter, gentlemen, because the opening statement for the defense, and the whole theory of this defense has been based upon the proposition that he became in sane on the 24th day of May. 1885. bv rea son of the fact that he bad ' then been for the first time informed that his own seed had been disIaced. Here is where she stated it herself, on page 256 of the re porter's transcript reading from the THREATS WERE BEING MADR This man was a sane man, and we think according to the nhowing male that every presumption is that he continued to be sane man because this jury must be now convinced that the ford disclosures said to, have been made on the 24th i f May to this' defendant destroyed his reason, was cot made in tact at tnat time or at least coold not have produced that effect at the time. bcausee it had leng before been made. We come now, gentlemen of the lurv. iu rather an illogical way perhaps, bat the way that seems best to hasten the case to a conclusion, down to the very day itself. On the 24th day of May this defendant. we presume, arose at the naal hour, he breakfasted at his boarding place; he had SOME CONVERSATION . With his wifev he went out, as she says. and came back. Sometime in the day he went up to East Oakland and was shaved there. He then we have a right to infer by the testimony of the car driver came down to Oakland. He must have came down- to Oakland along about eleven o clock; somewhere along there; 11:50 or somewhere alotg there between eleven and twelve o'clock. The ear driver aays be qame down there about eleven e'tket tl think he said 11:50 or 12:50, he thought, but it was not earlier.- It miy even have been as late as 1 or 150, so it must bave been about eleven o'clock, because about twelv o'clock he wasseeo by Mr. Thoma and Mr.' Smith standing near the church where the man who is now dead was in the habit of W0RSH1PPJXS -HIS GOD. It was Sunday you will remember. When these gentleman came up he inquired if. Dr. Buck was in the church. He was informed that he was not, ai I remember the evidence. I , am not absolutely sure whether they-tjrild him he was hot, 05 thej said he had no been the-e cr the like 1 ' Mr. Fox (interrupting) Had been th-re, but had tur.e. I; Mr. Moore (i-ontinu'ng) At all event; he received iufi.r uatiou there hich le i hi-ti to believe), that Dr. Buck waa no longer in the church "if hn had hewn. Judging from all that teok place subsequently, I think the ju:y will be JUSTIFIED IN BEHEVING That if Dr. Biuk had been in the church ei Tint time, When he came out, he would have bien slain ri'ht there in front of the church door. However, he was not there. Tnat added crowning disgrace to the city has been spared. Then he evidently went h"m; he evidently went back t- Est Oakland. We have offered you no further t.uoe of him in Oakland before the noon hour; but we find at three o'clock he wa at home. He sat doa at the dinner talde with this wife and ate his dinner. We don't know whether he ate heartily or sparingly. We do k now that he ate his dinner, because Mrs Hardeii'ergh, a very observing woman, tht remembers on ONE FORMER OCCASION " lie didn't eat at all, an 1 says upon the stand that ifjhe had not eaten on this occasion she doubtless woiild have remembered it. Then we have a right so aesume that he went back to Oakland after having jone ami got shaved. After coming down, and looking about the church f v Dr. Buck, sfter having made all these diie aud dread, ful threats against him, alter these endeavors had been maie tJ restrain his bad psssious by thece dociorc, after he had had time to 'think over all! the subject matter, l ink at it co.jlly, calmty, weigh and reflect he conseq iences to him and to humanity if he 'should embrue bis hands - in the blood of his fellow rrian. he quietly and deliberately wtnt again and sat down with this vann wifr? at (General Hardenberg's table and ate his dinner. We don't know wli-ie HE WENT AFTER HIS DINNER, But we koow that aborft six o'clock, one -witn s for the defense, I think his name wasJW. (.-hester, a car-jdriver,saw him along about Twelfth and Oak, which would be as .you, gentlen en, doubtless understand, all of you who live here in this city, but you mostly do tha fir.t street this side of the o;j of his hill, coming from Est Oak- j and this way, after you cross the bridge;1 coming this way saw him walking a1ong he street, his head duwn, appaiently in a study; he didn't i recognize tli car-driver; he ilidn't say anything to Lim, and he had been in the habit frequently of riding with him, so frequently indeed, that the car-driver didn't remember ever to have seen him-, walking an the road before. 'He was coming in this direction, you are doubtless satisfied in your minds now. and after that Sundav dinner he put his PISTOLS IN HIS POCKKT3, Perhaps one upon either side, and with his slouch baV which was entirely different from what he had been iu the habit of wearing, according to th 'testimony of Mr. Knowlton. You 'dntbtles? are per fectly and entirely satisfied that he was cotiiing down tu renew the -search that be had made in th m ruin-' for Dr. Buck. nrin; all this tnu:. uenUeiiitn. that I have ben endeavoring to portray to you. n this nsnday there had been no evi dences of unsound mind. There have been no evidences of irr'8:stible impulse: there have been no evidences that bis mind was affected with insanity. If there had been any unusual conversation at the tahl"e, any liosyncranes "insnnested by this defend ant, and EVIDENCE OF INSANITY, Or insane conversation, we doubtless would have been informed of it. After he bad eaten hn dinner he went acrots the street. to the barn, before starting and, I have referred to that in its regular order, before starting to Oakland, after having taken his dinner, he went across the street to the barn where his horse was kept, and there he met young Burton, a very intelligent yotinir man, a student in our schools, a iiimu, 1 should suppose, somewhere from 111 to 20 years of' ane; he engaged in a conversation with him. It was a barn, and there were horses and chickens about, a'ld he ngagejl in a general kind of desultory talk about horses aiid chickens and the like; no evidence apnarently of insanity. no unusual appearance manifest, nothing to indicate, so far as we are informed, that any demon of insanity had worked in his brain and in bis brain and in his mind, and reason TOPPLED FROM , ITS THRONE, Apparently the same kind of man that he had been thereto before. We find, I say. by the testimony of Chester, that he-then at 6 o'chck, was walking down toward Oakland. He doubtltsi was, because there is no evidence that be ever went back, and we have a right to assume that he did the slouch hat, the-overcoat, the changed appearance of his face, the whole murderous. deadly deliberation, complete. There is no absolute variety in the proposition that the man seen by the McFarlane?, along Detween o u ciock ana sundown, because. t course, they took no note of the time. That was testifieel to by them, between 3 o clock and sundown. There is NOT ABSOLUTE VERITY In any presumption that might lie made that that man was this defendant. Of course it was evidence bearing 'upon that question. I think you, will be justified in assuming that probability, at least, he was tbe man seen tbere by those parties at that time.- If be was the man. then he was standing in a positi6n on the look-out. He had failed to find his man at the church. He had disguised himself so that in the gleaming tbe victim might not recognize mm in time to escape it be should wish to do so. He was standing where there weuld be no possible escape any more. He said himself, to the officers, after being ar rested, tnat be bad been lookin? for the man. He indeed if he was the man who stood there, and doubtless he was, because one ot tbe ladies identified him as the man who stood there, and sbe said she nassed within a few feet of him,' in going to mail a letter, it ne, in tact, ' WAS . TTLK MAS, Then, after all his search, after all his deliberation, after all his talks with his wife, after all his talks with Dr. Wythe and Dr. Pinkerton, and the conversation with Dr, Brown, after all his preparation. after disguising himself, after arming him self, all in a cool, calm, deliberate, mur derous way. the fatal hour had come. If Dr. Buck had escaped , him upon going borne from the sanctuary before he had expocted, that Buck would leave the ser-v:cj of his God. there could, be no further e cape, because the door of the man's house was in view of the assassin. If Dr. Back was out of hrs house he could not get back without being seen, and he did not Along about the bour of 9 o'clock. wben yon have a right to presume that these vigils had grown long and weary to the defendant, wben yon have a right to presume and assume that deliberation, saas CALM JUDGMENT Should have asserted itself over mad pas sion. Along about 9 o'clock in the even ing. Dr. Buck, after having again attended divine service with a female member of his family, approached his home. It was mveiy moonngni mgat; ai1 nature was hashed and still. It was the time, oi all dayi and nights in the week wben the city I is most quiet and still; the noise cf traffic was hushed; the deep, tranquil hash of 1 nature, coming unmaired and unlettered by the:! noises of Imen. at a time when I have once before isaid to you, aud I don't care te repeat, wben this D : Uuclc had a right to presume,: if at any time, that Le WM I I ; ! . ! ' v I SIAFE FRO MOLEST Ail ION. Unsuspecting, appafentl y j unconscious he, wafked to. ids j doom. As he walked into Jiis gitewiy, going! through, as shown -by the diagram herfe, the lr.dy was unoa hia ri'fcht side, which would be on the side next to the jury on the diagram, j The defendant -was lying in wait, that kisid. of murdei", gentlemen, which the law cJ'Msi ties withi p iion, as tha worst kind murder, th defendant ' occupying lor th time the iipsition a 1 1 the role of an assas ti, stco.l biy th it post. Which was on one jfcoruer of the premises. 1 We don't know heftier Dr. -Buck saw him or not as he walked in. No one. will ever know. Xo hdbian being jti'Av herej :upoi erh ever wjl know whather he did or not. At f 11 eveii(Ls; if ha didj hi gave no 'is''- He walkedjjBtiirdily an, i probably his tnimhis bein iiji matters tht had been b;fore bim during the evening, jcontempl.jtUng 111.1-.'.: rs that wdVeias far reseoved fioni ; I 1 mi.'kderand ars4n And rabitie and thei like as hescven is from earth. Ille said noSoin;; to impanion, the sist isttir i) onjtji hf his wife. He sai I nothing to her e subj.-tjt Ha trave no sign whatever that Le hai .1 not: ;-jJ ;tb a;pear-iniiiri there. In all ance il a.liM man s human ikV'lih.nd h4 .would not have rec- . : . 1. l: c 1 1 , .1 gmzedil him it h had. Evidently tl e purpose! of the dc endaut in; disguising liimtli,,iri wearing a slouch hut instead of a round'fcnpped, harp! hat, in cutting off all his beat i. and then IJkN'GING HIS APPEARANCE. Evidently! Ms purpbse wis tlnat the de ceased elkoiild not ra;:-ogn;zj hiiri in time to scare liisio'ntJaugbtL'if he did see him. It is more lihau likely that he oil not, becnse he prolaMy would j have said ; something about llj, n j we 4ave a' rigijf. to -assume the'doctjtiiie of probability in j this inatt-r, where tijiere is no direct evidnej. If, he did see him, he said jnothing abiiut it. and if ho. tijid' seen hirn, in aM human livelihood "th purpose .oil the defendant 'would have befu uccampiliatisd-. and Ijas would not have redi'gnize t hiinj .Nothing -ro.-,e up to ri.vent.prsi hand ijf (rod was Intervened stop the blow, r According to the de fence heer (rod wai arriiguidd upon the ther jdilei of thati'iuarrel. !l Dr. Buck walked Stepidily and .turdiiy aitonir towards lis house..! Tha defendant wii-ked uu be hind hiiih.iinrtially iiehin.l him. and t:ir- I'v uiilttiifv.-jrds hhi left side: and said is TH IS JDR. liL'C K? : And mi Mediately ! as the ,-as edj i dictor turned his hea ;llie pre- sumption - si appear IS, of geiitlemen,- frem the tle garment . itself -y- 4 the co.it4-I say ! the .probability is thathe .dj.it Dr. Buok in the backr The t vidence (Mows that jie shot him more than pee wheii Jie was dorw , and substantially lid, and 1 (letiire witout makini; any sl.o t ulid Eoiyi ti, or tsryimr to j inspire you with any ji-ejudice riot ju8tlyand fai'Ly belongia ! tH the casje, and with the sole purp we If lillustrat ing to you the course of these eliidtsiand the probability as to whan and in xirhat position and condition of ffairs ttiicy were flreil. I desire! carefully. excluding any pcssibility of your beiug affected by the i ' I ! I r ' ! SIGHTlor BLOOD, j I desire to exhibit! to you the coat worn by the octej and jwhich i now in evi- lence, tcjf sbow: whejre the "ehots-were re ceived. ifTnre, gentlemen, you will see is one bullet' hole and dhere is-the other, one ust lehihd the shorjder blaie, the other in th ' bk part offthe arm,;, that being one in. vilb shots I hive a right to assume, as descr:lea by the doctor, that passed Into his bodyJ Now, thej t; . ATKEARAXCE OF THAT COAT Justi5eahe conclusSon, gentlemen, that that pistill wai heid 4ery near to" it. There are evidi'iifes therej which i indicate, I thought ' juight' to indicate "fairly to the minds of Ifthe jury, tliUt the piaiol was held in close v"o:mity; Closer than1 it would have bee iif the deceased hadl been lying on the grimpd; closer than iti would have been if lljje pilots had Ibeen fired by the defendant ijit- the- persinn cf Dr.i Buck after his body lay-prone upon the ground, for it would nop be haturalj and it would hot be p'obableJltHat he woiild have stooped down i 1 BEFORE Tjll-B SHOT And ther if ore I think the argument is a fair one, jf it is not a fair oue'gen&leme'n, exclude ii, because I wouldn't hive a hair f this maris bead" touched by : any-unfair argumantj oir by- any! unjust vr im.ri.er conclusion, j 1 think too much of myself, I think too jinuch of. tbe dignity of the. law. 1 think tijio much oft the uprightness and majesty 1 I juries tojurge before them a conclusion that is manifestly unfair and unjust, ttt ought to y em to you from our standpoint that tbefe shots ; ;wre fired when thejj nian stood up. If they were tired whea ithe maoa itood up'then those shots welfe fired by: ithe assassin; into the back ot ibis victim.! I hose were shots iwhich our'! brother "iupon the; other side ?said Crodi; directed. FYou will remember his argument in that regard that when' i j THIS MANIAC 1 ! Fired thefeejshoU at )r. Back that God directed tlie blow. We bavela right to assume thjferi by tht argument! Staking this mode ot rbahoning, wjth this bnllet hole, by showing (the entrance of the dsadly rr 1 sues in the back of his victim we have a ribt thei to assume, if ' there is any thing in that argument, if it is probable or true in theory that! AlmicbltY 1 tiod de scended frotu -the heavens and stood be hind an assasrii or J hovered with ovjr- spreadingirwing ubove his head while he gave deadly hots into the back of the 1111- 1 - i -r t ,i 1 . 1 wirue'i vicciuj. j. tit mi t care wneiner ur. Buck wasi armed or not perhaps I ouht to withdraw that expression. ; because I don't know that there is 'liNY EVIDENCE BEARING i On the siibject wh'ethier he was! lor not, but at all events whether jha was armrd or not there.isn evidence; rthere is no pretence that he ever attempted to draw & weapon; that he kad an opportunity to draw a weapon; that he haji an opportunity to draw a hand in his defense, because the testimony of this lady, who stood by, and who has had the commiseration and syrt. pathy of ithe gentlerrnen on the ether side Her testimony is that tbese shots were fired immediately; that is to say, that one shot was fred with tie words, and it was bred momentarily; -then another; then a pause; thin I believe another or two, and then three; more in rapid succession. IF pD STOOD dVER THAT MAN At that tume under any provocation which He might!! have hadj if He inspired the deadly . rialice and! malevolance that nerved hip arm to do the cowardly thing of shooting I hia neighbor in I the back, then I say Jfe is not the God of my father, tcre deed had been accomplished. Dr. But "tell roronei nroon tha earth &ni Janguishirigidied. Tie man that looked for him tsen tnerealter rising should look for him in' vain. If , there be sting in death it was accomplished. The1 victory of tbe grun; monarck was heralded by the clods j that fell upon his coffin. The man was dead, W have now gone through thei tragedy. The revenge of the defendants; was accomplished, j; his malice was glutted! j "I! i ;HJ8 WOCNEfclD HONOR Had received balm, pid he t&en become insane? 14 knows he ought to Lave 'done so. It oufebt not fo 'have been any dis closures en the 24th kf May that made him insane, bat when he saw rising on the grass in rcont ot his own door this victim of bis deadly malice; when he i felt - in his other pocket the loaded pLrtol laud had in bis hand the discharged one: when he saw this woman running shrieking ;nd crying away, bee nee her brother-in-law was dead; when he f saw multitudes and crowds i f people gathering together there and looking npon him with Lowering brown and anxious faces because 1 he had been guilty t j 1 j 1. . u ws ninnini m uwu, mu uaiA i -plSTUBMD fEI FXACI " V Of our fair j city and commonwealth, and brought gloom and disgrace upon him. upon us all, wben he contemplated all these jthings and saw the blood welling rom the woum!, then is the time, if ever lesson should have left its throne, but it lidn't. He wan of stern calibr. He w f that old-soldier metal so proudlv described by his learned counsel, was of tht m-tei fd that don't go insane. Did he show any evidence of insanity upon the accomplishment of his crime? None. -Did h how that he didn't appreciate the nature tnd quality of the act, and that is the tent n this State. We are not guided by the iiw of ny o'her foreign country. The U-st inj this State, as I have tried to tell ou, is (was he capable of knowing the difference, between j RIGHT AND WRONO In the act that he was committing? If he a an insane man he would not have supposed there was any probability of -bii-inner arrested. If he h l been a s i"e man '.ie woiild have upp std th t he w .s car ' v i it if otit tne reiribiuiori of -if Almighty. He may bav been leii to helieVe by heate-i a ldte lies before now, that lie was a bolt -eut ffom the hn I of Ood, a kind tt iii;litiiia-bidt, a thund- r-bolt, to c.irtyc.u-tiod's retributive views. If he h 1 i be n in inVne m 11, and worked up by that Kin I of ad ire scs of thos y() t have heard or the jl.ist three or four days, that would have Iipen l.is idea, tint he would ha. held himself only areo mtr,b!e to t; d ar ' nt to knan; but when the man carn up and stojipid him he sai 1, !). your duty," and thejy arrested him and put mfiriacJen upen him. He made no resistance wiiat-ever. He said, "Do y ur duty." He then "aid ti.at be h id j K'LLED A SCOUNDREL. : When hie ardved at the City Hall le made use of ijke expressions. He said he was ho cranjk; h di lu't want to be t ut di-w as a crajik. The gentleman upon the ot-ier A le says thati would be an evidence of insanity! Coun-el says, Jn hts argument, that tfepause he didn't run awav, he must have ben insane, and then he cited : b-cue of fid man Hutl-y, an l a: p .rent'v known to one of you 1 gentlemen of th jury, w 1 way, a In was .inrane,! and who did run id they didn't rind him f r a lumi iu-'h he was within forty rods of i. Thev both say that the fict defendant was brou'-'ht to the time, tii h'is hou-i mat the City 1'iijs ii then, mid sai l that he dnlr want ti ij be conoid' evidsncelof inanitv : r-?J a c: auk, was an ; that an in; ih nun be considered fane. other proposition is dways (desires to t Irinted! Bit th '1'ia.iy rtxten-iv.', that sine men wish to he coiiMid-rel sane. It was a natural, ne, intjillbri-iit e.vpressi-m, u-ed by the deftrodadt .it tht tiin-, bef. rj the J COWARDLY. IMPCL.SE Had been acquired that there should he a defense made on the plea of in,-3nily. He knewj in h;s own mind th .t murders -f this kind had ben before committ-d. and the gl-a of insanity had been allowed. He kiew that that id-;a wc.uld Htink in the nofctrlls of the . penple, therefore, as a sane mr at the time, he didn't want to he c msiffered , as one of that armv of cranks. lie didn't want to be cousideied any tiuitjeau; he didn't want to be con sidered any McFarland or Cole or the like. He said '"I don't want to be con sidered crank, and I don't wmt to be set down; as a crank." From that time to this, gentlemen, as he sits here before you, there is nothing in his appearance to warrant jany conclusion of insanity or of uisound mind. I now proceei, gentlemen, to consider the ( MODK ADOPTED " By this defence; for tbe purpose of arguios; perhaps .o you, the insanity of this defendant; because, as his Honor has many times ruled in the case, and ruled during the i r jrress of jniy own attempted argument, the issue her before you is he insane ? 1 here i 110 such thing as juntitible homicide, as applied tjo facta like these. Now, consider the mod4 of the proof. C u id criticiz-d expert testimony, and set med to consider that it is; usually t;iven in favor of the alir: that hM ca!le 1 it. Such critici.-m is in ,iue t.ii ju-t; such criticism has ben made by Oyurts before ni.w, on expert evidence, uit to particularly, I believe, on uestiona of insanitj' as upon Question or hnndwritingand the like. But if he didn't chiOose tot ask any medical mm their opir.-the insanity of this man. based ions upoi; upon tha hyjitheticil question, examining tin expett uiM-n these subject matters taking j ALL THE EVIDENCE Bearing upon the subject, and then placing it bef jre a medical man in a hypothetical question, and ask hiiu the ques-.ion upon thaf whether, in his judgment, the man wasi sane or insane. That kind of evidence is competent, and' could be resorted toj and we have a right to assume, when it Was not resorted to, that no uch evidence was attainable. There was a show. jThis man bad friends it was claimed by Mr. Fox, in his address to the jury, and be had friends who believed in bis innocence; he had close friends; . be had a friend there who stuck to him closer than a brother. You could not have failed to see that J. B. Merritt, he, in whose house, under whose roof, and in whose cae the wife now is, has sat with this prisoner, and come in with im and gone out with him, during the whole progress bf this ttisl. He was so warmly a frisnd that he did not even stop tbe j PAY OF THE. ACCUSED, I And let it go on while he was iu the j lii instead of attending to performing the functionsjof his office there. The law of tibhj Statej allows that intimate friends of il defendant, of a person charged with ctdme, may be examined and asked to give their opinions c ncerning the npent d gan-ity of tlH person charged, elating the reasons for their opinions. Keasons have been attempted to be stated here, by iutimate frieuds; evidence has been given, upon which such a question might be possibly asked, but they have tailed to ask Merriu, or the Warrens, or any single one of any of the wiljoesstB, apparntly friends of the defendaut, that question so all-important. If that man is insane, to bis friends about hirn there will be that in bis conduct upod which they arc b und to form an opinion on his mental sanity. The opinion aa man's intimate friend On that subject, with bis reasons given, is competent evidence. They could have asked these gentlemen who are intimate friends of this defendant; they might have brought them in to the number of a thousand if he bad so many and asked them. Are you an intimate friend or acquaint ance ot the accused 7 i Jfes. "What has been his mental sanity, and etatejyour reasons ?" ' The question would have been proper. The answer would have been proper. It could not have been objected to, and jhey could have produced before this jury, if such evidence existed, a volume of evidence of that kind, and mi?ht have deserved at your hands great atten tion in determining the matter of fact. There is another peculiarity under the law of this State. A man is not excusable or justifiable for what would otherwise be a crime unless he is insane, affected with insanity, A DISEASED MIND I have said to you before there is no such thing with us as impulse. There ie no such thing as irresistible impulse in a sane mind. A man most control his im poises. If he fails to control them, if he lets them drag him down, and strikes the blow and says -'I ' could not help it, as long as he is sane he is not justifiable, and most be punished because be did not con trol them, lhe mind must be 'absolutely affected with insanity. Tbere must be a diseased condition. Now. sirs, attain af ter all. von mast i a lire this defendant by that law. If you find that he was insane when he committed this crime y u must una that he acted under ;A3C IRRESISTIBLE IMPULSE. You must find that he acted utdt r the impulse of a diseased mind. If yon find that he acted under a diseased mini. I ask you sir how frequently do men aetnslly recov er from a diseased mind? This man is ap parently a sane man now. Ha acted sane !y when he was actually in thej til a'tsr c mmittintt.this dreadful rrim-. He aor-f with sanity, with delib- ration, auted rationady. He appears to be sine man now. Men do recover, mark you. from this irresistible impulse bui-ines-, the Oole-Hiscock business, tlie McFar'.and cse, they recovered Mrs because it ce?er -xisted. -There was no men-al insanity. It was only thi irretdtihie impulse. I, now, gentlemen, of the jury, in APPROACHING A CONCLUSION. : Which I hope and intend shall be reached by the noon adjournment of the Court, will direct my attention somewhat brieily-to some remarks made by Mr. Fox upon his closing argument to the jury, to which I have not already referred. Oae was, aud a very just one, that every mau has a right to lie tried by a jury. "That is true. He congratulated himself and prided himself, felicitated the defendant and us all that the defendant was ent' tied to a fair and impartial trial before a jury of his peers. He is having it, gentlemen. He is having a fair, siure trial npon tbe facts; but if we shall say, with Mr. Fox, tint every mauls entitled ton trial by jury, that 110 foul accu.itio:i con le made against liim with'mt his riht to traverse that by a jury, we o;:bt to call "Xathan - Buck .Natharr4 Buck, come into Court," but there would, be no answer. This man. . deliberetv.ly. formed himself into a Court. His counsel says he ought to have a fair jury trial. Why di lu't he think of ir. u this lan.l of law. and liberty, that the man was entitled to a trill upon any accusation made against hirn? He became a Court; he found tha facts; he became a jury; tbere sat in his breast malevolence and milice and revenge and so-ca'Ie-1 wounded honor. : All these ftul elements of the human mind, sitting as jurors upon a man's life, and when these baser elements of his nature had determined themselves, against his victim he deliberately liecame the executioner and carried out the foul verdict. Soithat we join with theleai-ned gentlemen In saying that every man 13 eriti; lel to a jury, ami tnat one man now sleeps lieneath the green soil, joined to an innumerable host of others that have qoue before him who never had a rirv trial. The proposition waa stated by Mr. Fox that the defendant did give "Dr. Lluek notice, and the inference was left that be designed in telling Ir. Wvthe about 'these matters ; that Dr. Wythe should carry the information to Dr. Back. Tlu-t - ; INFERENCE IS ABSOLUTELY UNFOUNDED. There is a vacancy there that will "Lave to 1ms tilled by imagination to believe auy j such thing to be true. There is nr evi- i deiice that ought justly to lead the jury ! to believe that Mr. Prindle intended that Wythe should convey the information. There is not much ou the i tacr .side; there is very little indeed to convince the mind of a jury that he in-tendeditshouldnotbecoiiveyed; but there is a little. When the defendant asks Dr. Wythe, ' Did you tell Dr. Buck,; Ifr. Wythe says, " Yes it was my duty to tell him," and that would rather appear I don't urge it with any great ' strength it would rather appear as if the defendant had not desired that Dr. Wythe should tell Dr. Buck, because Dr. Wythe found it necessary to say to him, ' I told him because 1 found it to be :tiy duty to tell him," not " I tohb him because you wanted me to tell liim," but, "I told him because it was my duty." It was stated by the learned gentlemen whcitlosed for the defense that Dr. Buck took no steps to prove his innocence. What steps were there, Gentlemen, that he ought to : have taken to provejiis innocence? I He h:ul gone a3 far as & man ought, if we are to believe the testimony which Mr. Prindle evidently believed. Dr.! Wythe told the defendant that Dr. Buck was for goiu up to see them about it and that )r. Buck said it was blackmail and that V1 Hack was dumbfounded with astonishment at the charge and was for going up to see them, and Dr. Wythe told hun . not to go; that the man in his frame of mind would shoot him; THE MAN WAS ANGRY WITH HIM; Would shoot him down; words to that effect. What was there for him to have done? As an upright man, if indeed he was an upright man, as an upright, honorable, just-minded citizen, he was not called upon to do anything. Suppose a man should make a scandalous charge like that against one of yon, if I am-permitted to use the same kind of argument that Mr. Fox did. Wcu'd you run- all over the town to tell about it? ' If somebody owed you a bill and was making some grave charge against yon of that kind and you had already wanted to go and see him and had be-in told you had better not, would you !go and put it in tha newspapers? (Would you spread a sore, dirty scandal like that? Or would you scorn it, as a man ought to do? Who among you would do more than Dr. Buck w anted to do ia that case, and from which he was dissuaded by his friend, Dr. Wythe?" Xo man in his just senses, no man of j ;at perceptions aud of upright conduct, would have done any more. But it is said that he did other, that he arranged his affairs so as to liee, and then made a will and left his father out. You have no means of knowing, gentlemen of the jury, and I certainly shall volunteer no information as to the condition of the affiirs of his f ither, whether he was a wealthy man or poor man. You have no right to speculate' upon that at all. There is no significance in the fact that he left his father out of his will w hen he made it, becausi; y u are not supplied with any information that bis father was in any need. There is other information, thouli, bef'-ra this jury as showing why he luight reasoha-. bly have left - his father out of the vi ill because the w.dl, drawn a day or two be. fore I don't know just how long before, almost immediately before 'If Mr. Chickerino. The night before. Mr. Moore. The night before, con tains this clause this will is in evidence and I have a right to read to you any portion 01 it, or the wbole, as I choose- " Awelfthly, 1 give and bequeath to MRS. NELLIE BA.SHFORD SHTa, MY AFFI ANCED," And the words, "my affianced" are un derscored " 1 give and bequeath to Mm. elite IJashford anuth, my amancM, all the rest, residue and remainder of my real estate, also personal estate, goods and chattels of whatsoever kind or na ture." These . were his devises which commsnced, " In the name of God." He directs that his body be decently disposed of by burial or cremation: he gives and. devises to his adopted daughter, Nellie Buck Spear, " one undivided half of the twenty acre fruit ranch on which she and her husband are now. living, and situated in the town of Los Gatos, county of Santa Clara, and State of California, together with all the buildings and household furniture "and famaia implements belonging to the entire ranch. Also two building lota situated in the town of Antiocb, Contra Costa County, California, as per deed. - . "Fourthly, I give and devise to my adopted daughter Bertha French Buck, one undivided fourth of said ranch, before described. Also an undivided half of my interest in the Lima Consolidated Mine, situate in Tombstone, - Cochise County, Arizona Territory. - Fifthlj', I give and devise to my adopted son, Herbert French Back, one " Continued on Eighth Fage-J
