Page:Federal Reporter, 1st Series, Volume 3.djvu/136

 J5TATE V, POET. 129 �he one of the defendants, testiôes to firing By the revenue party at Jones after he crossed the fence. �Ail the faeta above stated, with the exception of those that relate to the firing upon Jones while he was crossing the field, are sworn to substantially by nine of the defendants. When- ever there is aay contradiction of their evidence to these facts, it rests solely on the testimony of Jesse Koss, who is now in cuetody, charged with conspiracy with Jones, Eatteree, and others, to resist the revenue officera on the occasion when the homicide occurred. �The material point on which Eoss differs from the other witnesses is whether Jones and his party, or the revenue posse, fired first. Eoss swears that on both occasions the revenue men ûred first. But, according to his own state- ment, he was not in a position to observe accurately which party fired first, for on both occasions he was in the rear of the revenue party, which was scattered somewhat along the road, and the fire upon them came from the front. , Besides, the probabilities of the case are against the truth of Eoss' statement on this point. I assume, therefore, and it was not seriously disputed by the prosecution, that the testimony of the nine witnesses, who are scarcely more interested in this inquiry than Eoss, establishes the fact that Jones and his oomrades, on both occasions, fired first. �The charge against the defendants is murder. They do not deny the homicide, but aver that it was committed in self-def ence ; that it was, therefore, justifiable, and no crime. The duty of the court, upon this inquiry, is regulated by sec- tion 4738 of the Code of Georgia, as foUows: "The duty of the court of inquiry is simply to determine whether there is Bufficient reason to suspect the guilt of the accused; to re- quire him to appear and answer before the court competent to try him, and, whenever such probable cause exists, it is the duty of the court to commit." �The question for decision, then, is whether, upon the facts of the case, there is sufScient reason to suspect the guilt of the accused. Does probable cause for the charge against them exist? In my judgment the answer will depend upon �v.8,no.3— 9 ����