Page:Federal Reporter, 1st Series, Volume 3.djvu/137

 180 TBDEBAIi BSFOBTBa, �tho solution of another inquiry, and that îs, where was Tonea when he reoeived the -wound of whioh he died ? If, as olaimed by the proseoution, he waa in the cotton field, having desisted from his attack npon the revenue posse, was fleeing from the revenue posse, and they, when ail danger to them had passed, fired upon him, and shot him in the baok and killed him, the acoused should, in my judgment, he required to appear at the next. term of this court to await the action of the grand jury. If, on the other hand, he reoeived the fatal shot while in the ambush from -which he had fired upon the revenue officers, and at or immediately after the time of the discharge by him- self and his comrades of their weapons at the revenue ofi&cers, it is perfectly dear that there is no ground whatever for the charge of the murder to stand on. The evidence, in my judg- ment, establishes conclusively the latter hypothesis. �The testimony of Suttles, one of the witnesses for the pros- ecution, and of Eobert Bolton, one of the defendants, tends to show that Jones reoeived his wound at least as early as tha time when he crossed the fence. Suttles says that Jones, from the time he crossed the fence, ran in a kind of a trot, and again, after he got up after his first fall, whioh was near the fence, he ran slowly and in a bent position. Bolton tes- tifies that he saw Jones when he was within a few steps of the place where he had olimbed the fence, and he appeared to be hurt and weak. But the conclusive evidence on this point is the foUowing : The testimony for the proseoution shows that after his death the clothing of Jones was removed from his person and his hody carefuUy examined. He was found to be hurt in 'but one place, and that was the wound from the bail which passed through his body, Besides this not a Bcratch could be found upon his person. At the place where Jones climbed the fence there was fresh blood on the top and second rails, and blood on the leaves and grass, both outside and inside the fence. The fact that the blood was there, and that the place where it was found was where Jones olimbed tha fence, is as clearly cstablished as any fact in the case. �The conclusion is, therefore, inevitable that Jones reoeived Wsonly wound, the one of whioh he died, outside the fence oî ����