Page:Federal Reporter, 1st Series, Volume 5.djvu/707

 THE MUSSEL eLOUGH CASE. 695 �colloquy wlth liim ; that when they were dashing up Hart reached down for his gun, and Crow, seeing the movement, told him not to shoot yet, the time had not corne. And he tells you that before the firing commenced Harris stood by him, his horse's head reaching over his wagon wheel ; that he stood faoing him, and entered into conversation with him, with his pistol drawn and cocked, and aimed at him. Wil- bur Doyle's testimony indicates that there was a rush up there by defendant's party, but does not indicate that Crow or Hart rushed down to them. In the testimony of Mr. Pryor he tells you he got there first — I think he said first — and was sitting on his horse by the side of Clark when Hart reached for his gun, and that he also heard the expression ïrom Crow, "The time has not come to shoot yet." His testi- mony, therefore, confirms that of Clark, confirms Wilbur Doyle, and the testimony of the others, that there was a rush up there to Clark, Crow, and Hart, and that there were other pistols drawn. �Now, gentlemen, they — the «defendant's party — were the parties, then, upon ail the testimony, because there is none tô the contrary, that were advancing in a threatening man- ner with arms drawn. There is some loose testimony of Mr. Patterson that while he was on the way up he saw Hart reaching for his gun, but he does not testify that he pre- sented the gun, and the testimony ail indicates that there was no presentation of the gun by him until these parties rushed upon them with drawn weapons. If that be so, if defendants and those with them rushed upon Crow, Hart, and Clark with drawn weapons, in a menacing manner, that of itself was an unlawful act, a threatening act. It was an assault on their part if they did it before any attack or aggressive act on the part of thç other party occurred. �It is not a matter without doubt asto who shot first. Some think one, some the other, Clark thought Harris fired fir^t. He saw him fall. Both the reports were so nearly simulta- neous that the weapons of the approaching parties must have been out before they were on this, ground. Now,. gentlemen, if these parties, rushed up there in a threatening manner. ����