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Trial Transcript of Hiram Epperly, accused killer of Samuel Finley, Sonoma County, California, October 1877

[From The Sonoma Democrat, October 27, 1877, pages 5 and 8, published in Santa Rosa, CA]

The People vs. Hi. Epperly

Testimony for Prosecution

Samuel Williams, sworn. I resided in Guerneville in July, 1876; knew the parties to this case; saw them on the evening of the day Finley was killed; just before the row commenced. Mr. Finley was standing on the farthermost porch of Mr. William's saloon, and Mr. Epperly was sitting over on his own porch in a chair. Mr. Finley dared him halfway, and then Mr. Epperly dared him half way; Mr. Epperly got up and took his pistol out of his hind pocket, and put it under his coat, and came half way; and then Mr. Finley told him to come a little further, and then he came up, and drew his pistol at his breast, and Mr. Finley struck down at the pistol with his open hand, then Mr. Epperly fired a shot at him; at the breast, right here (showing); then Mr. Finley followed after him, and followed him on a circle of about fifteen feet, and turned around and fell on his face, with his face down, and Mr. Epperly walked over into his saloon; I was standing about eight feet from Mr. Finley at the time; Mr. Finley, after he fell, was turned over; they sent for the justice of the Peace, and moved him on the porch, and I seen where he was shot; after that they took him down to Mr. Bagley's; he was dead when he was laid on the porch; there were no obstructions between Mr. Finley and me, at the time Epperly raised his pistol at him, could see distinctly the position they were in; at no time, before the pistol was discharged, did Mr. Finley move from his position; he stood still on the edge of the porch, facing Mr. Epperly; Mr. Epperly went into his saloon after Mr. Finley fell, about thirty yards off; the pistol was a five-shooter, I believe; a silver mounted one. I had resided in Guerneville six years before that time; am seventeen years past.

Cross Examination. - Was sworn before here in this court room; in the application of Mr. Epperly for bail; stated there the same as I do here; Finley's invitation to Epperly in cross over was in a manner indicating fight; that is the way I understood it; didn't say on that examination, that Finley said, "Come over, I am ready to settle with you," he didn't say that, that I know of; don't think I swore so before; he said, "Come over," said it in an angry manner; didn't say "Come over, I am ready to settle with you;" am sure of that; the facts were fresher in my mind then than now; would not have said so before if it was not true; Mr. Epperley didn't stop after he started; he walked right up; Finley told him to come a little farther, and then he walked up pretty close to him; Finley invited him half way in a daring manner; Epperley had his hand right down by his side, as he was coming; saw both of his hands; didn't hear anything said between the parties about being armed; didn't hear Epperly ask him if he was armed; Finley didn't say he was fixed, and ready for him; am positive no other conversation was had except what I have narrated; didn't hear Finley call Epperly any names that day; didn't see Finley just before he came out on the porch; didn't hear anything he said; I had just come up on the porch.

E.W. Clark, sworn. - Saw a difficulty between Finley and the defendant in the month of July, 1876, at Guerneville; I was standing on the platform of Mr. Williams' saloon, and Mr. Finley came out of Mr. Williams' saloon, and he called for Mr. Epperly; hollered to Mr. Epperley on the other side, and I spoke to him and says, "He is not over there," and I waited about a few minutes, and pretty soon Mr. Epperly came out of his saloon; then they had a few words; I could not tell what was said; but I know they had a few words back and forth and Mr. Finley stumped him half way, I believe; wanted him to come half way, or meet him half way; and Mr. Epperly got up and come half way, and he spoke to Mr. Finley and told him he was half way, and Mr. Finley wanted him to come up nearer; stumped him nearer; and so Epperly started and walked up to him, and as he came up to him he drew a revolver on him; Mr. Finley was up on the step; I think it was the second step as you go up on the platform; there was either two or three steps if I am not mistaken; as he drew the revolver on him; Mr. Finley struck with both hands; kind of jumped towards him, and struck both ways, side ways, and knocked the revolver down, I suppose - or it looked that way, and then they had a little tussle there and got up pretty near together, and were talking to each other; well, there was but a very few minutes before the revolver went off, and Mr. Finley followed Mr. Epperly after the revolver was discharged; followed him on a circle of about fifteen feet, Mr. Epperly stepping backwards and Mr. Finley followed him up on a circle of about fifteen feet, and then threw up both hands and fell on his face; that is all I remember of it; they were probably two or three feet apart when the pistol was discharged; Finley, I think, lay there till they got the Coroner there, or some officer to come there, and then they took and laid him, I think it was on the platform, and afterwards he was taken to Mr. Bagley's store; he never said a word after he fell; I remained where I was until they brought him on to the platform, and then I went away; It was very near dusk when this occurred; I think Mr. Williams had his saloon lit up.

Cross-Examination. - I was summoned before in this case, in the application to bail; if my memory serves me right, when Epperly got about the middle of the street, he says, "You dirty coward, you have nothing to shoot with; Finley then said, "May be I hain't' may be I hain't;" he might have said that three times; he was a man used to say his words over half a dozen times; I think they both called each other sons of b s; I don't know as one more than the other; they was talking and I could not begin to tell half of what they said; I don't know as Finley exactly pushed the pistol down; I should not wonder if he struck considerably solid; he struck down that way (showing); the pistol then went down towards his side. They were close together when the pistol was discharged; Finley might have struck him during the scrimmage once or twice; could not have struck him a great many times.

Re-Direct Examination. - Finley might have struck Epperly, but I didn't see him do it; he knocked the pistol down - that is, knocked his hand down; he might not have hit him; he hit his arm, probably - I feel pretty positive. He had his hand up this way (showing), and he struck, you might say, right across his hand. He would not be very apt to take it down himself.

Re-Cross Examination. - About fifteen minutes after the shooting I saw a knife lying on the ground by the body of Finley, within about two feet; don't think it was open; could not tell what kind of a knife it was; I was the first who discovered it; I went along and kicked it with my foot; Dr. Wooley, or some one, picked it up; didn't see Finley have that knife in his hand; think I might have seen it if he had had it.

James Deal. sworn, - Was in Reub. Williams' saloon, in Guerneville, the day of the homicide; heard Mr. Finley come out on the porch and holler for Mr. Epperly, that he was then ready to settle the fuss. Mr. Epperly came out of his saloon door, and dared Mr. Finley half-way across the street, and Mr. Finley dared Mr. Epperly half-way across, and Mr. Finley would not go. Mr. Epperly came half-way in the street and told Mr. Finley that he had come his part of the way. Now he wanted him to come his part; Finley told him to come up a little closer to him;

Mr. Epperly went a little closer to him then, and stopped, and told him to come on now; Mr. Finley says: "Come a little closer." Mr. Epperly walked up to him then and stuck his revolver right up to his breast and told him if he had anything to fight with that he was a coward and afraid to use it; Mr. Finley says; "I have not got anything, have I?" Then Mr. Finley struck at Mr. Epperly with his left hand, that way (showing), and struck at him with his right hand, this way, about two licks, and then Mr. Epperly fired, and Mr. Finley kept on after him, striking at him; he struck at him two more licks, I think it was, after he was shot, and they ran on around a little ways, and Mr. Finley fell then, and Mr. Epperly went on over to his saloon. Don't think he struck the pistol when he struck at him; he struck as if he was trying to cut him or something; didn't see him have a knife; I was about five or six feet from them; they were right close together; Epperly left him lying there on the ground till the doctor came; he was just breathing his last when the doctor came.

Cross-Examination. - I found a pocket knife open, lying about six inches or afoot from the side of Finley. The pistol was pointed to Mr. Finley when he struck at Epperly. Epperly held the pistol behind him, under his coat, as became towards Finley, and when he got up in front of Finley he presented it to his breast.

J.L. Hicklin, sworn. - Saw some of the difficulty the day of the homicide; I was close by Finley when it commenced: I passed along where he was standing and heard a conversation commenced between the parties; Mr. Finley was on the platform of Reub. Williams' saloon and Epperly across at his own place; he called for Finley to come over, and they would settle the difficulty; I could not tell exactly what words passed between them; they were rather disputing and Mr. Finley told him to come over there where he was standing; and there was remarks passed between them, and then Mr. Finley told him to come half way; and then probably Mr. Epperly toldhim he was a coward, or something - he was afraid to come or something; I don'trecollect exactly the conversation; there was a kind of a fuss up, and he camehalf way; Finley told him to come half way of the street and he came half way, orsomething near it, and stopped; and he told him to come on, he stopped and told him to meet him, and remarked that Finley was a coward or was afraid to come or something; says he: "Damn you, you have no pistol; if you have you are afraid to use it," and Finley told him to come and see, and he came up right in front; Istepped right behind Finley; I thought I would try to get him into the house; Isaw there was going to be a difficulty, but I didn't make any motion; he cameright up in front of Mr. Finley, where he was standing, and words passed and heremarked to Mr. Finley, "You have no pistol; if you have you are afraid to useit." Finley had his hand in his hip pocket - his overalls I suppose - just so(showing) and he and Mr. Epperly was right in front of me; I was right behindhim, I suppose, and just as quick as he told him he had no pistol and was afraid to use it, I saw Finley pull out his hand, saying; "You see I have nothing," and there was a quick motion and Finley made a quick motion to run his hand in his front pocket, and I jumped into the door; I thought I would get out of range in the house, and as I turned to run into the house I cast my eye down - a quick jump with me of course - I saw Mr. Finley come right so, (showing) with his hand, like he was going to take hold of Mr. Epperly; he just come over with his hand this way, (showing) and in an instant, as I whirled to run around in the back room, I saw the flash of the pistol; I didn't see the shot, but I saw the flash of the pistol.

Cross-Examination. - Thought from the motion Finley made when he went into his pocket there was going to be a difficulty.

Reuben Williams, sworn. - Reside in Guerneville. Mr. Finley was in my saloon three times, I believe, the day of the homicide. The last time was about 25 minutes before the killing; was in the back room playing "Pedro;" Mr. Epperly came into the room where he was playing "Pedro." When he entered the door he says; "Wash. Finley stole my horse and Sam Finley is accessory in it;" that was to the old man. Mr. Finley never said a work; Mr. Epperly walked right up behind him - we were playing a game of "Pedro" - and he says to Mr. Finley: "I want you to stop this game. I want to settle this right here." I stepped up and told Mr. Epperly that his horse was up on the range; Mr. Finley didn't open his mouth. Mr. Epperly insisted it should be stopped, and Mr. Finley told him: "Mr. Epperly, I will talk with you after awhile; I will see you after awhile." About that time I told Mr. Epperly not to bother the game; to go home and fix himself up; there was going to be a little dance over to my place, and he turned round and went out of the door and went off over to his saloon, I suppose; I didn't see where he went to.

Dr. J.A. Wooley, sworn. - Examined the body of Mr. Finley after his death. Found a ball shot, or a hole passing near the breast bone, cutting off the fourth rib, and going through the upper portion of the left side of the heart. The ball didn't go through the body; it went into the large artery leading from the heart into the aorta, descending. Extracted the ball (produced it). It was undoubtedly the cause of death. He could not live at all, any time, after receiving the shot; it would be immediate death.

Testimony for Defense

Dr. J.A. Wooley, sworn. - Had a conversation with the deceased the same day, before the killing. He said he had had some words with Epperly; he said he tried to get a fight out of him, and he said he was too big a coward to fight. He said he called him everything he could lay his tongue to. Communicated this to Mr. Epperly. I told him that in place of being angry with me it was him he was mad at, and it would be just as well for him to keep in his own place; and I believe I gave Finley the same advice. I didn't communicate the exact words of Finley to Epperly; I told him that he was mad at him, and not at me - how that he said he tried to get a fight out of him. Examined the person of Mr. Epperly after the killing; found an appearance where a knife had struck right over his heart; a scratch, and then, as the knife came farther on, it cut clear through to the bone, just in the center of the breast.

Cross-Examination. - Asked Mr. Epperly how he got cut. He said that Finley had cut him. Examined the wound sufficiently to say it must have been done with a knife (Describes how the cut must have been made). Have no reason to determine in my mind who made the cut; have no reason to believe that a certain individual made it; never told anybody that Finley could not have made that; would not, because he could have done so; never told Mr. Bagley, or any one, that I had reason to believe Finley did not make it; this is the first time I ever heard I had made use of any such remarks, I told Epperly that Finley was made at him. He said he was afraid he would come at him. He said he was afraid he would come into the saloon there, and go after him with a knife or a pistol; and he said he had no pistol there, but he had a shot-gun; he showed me the gun; he told me it was loaded. Finley was a man you would

always hear talking. Finley and I never had had a cross word, but I didn't know at what moment we might have.

Thomas Trosper, sworn. - Knew Samuel Finley; also knew the defendant. Was in Guerneville on the 22d of July. Was passing between Mr. Epperly's saloon and Reub Williams' saloon; this was after sundown, getting pretty near dark. Mr. Finley stepped out on the porch of Mr. Williams' saloon and says: "Where is Hi. Epperly, the d m son of a b h." He spoke in a loud tone of voice; should think that Epperly could have heard it; any man could have heard it across the street - probably three times as far. There was a voice behind me, I took it to be Epperly's. I didn't turn or look around to see, but I thought I knew the voice, and he said, "Here he is," of "Here I am," either of those words, I wouldn't be positive which it was. I passed right on to Mr. Williams' house, where a little girl had fallen from a porch and was hurt. My attention was drawn off and I walked right on to the house, I suppose it was twenty or twenty-five steps from the saloon. I stayed there about three minutes and turned right around and walked back. I was going to Mr. Longley's house, down the street from there, and I passed between Mr. Epperly and Mr. Finley. Mr. Epperly was standing on his own saloon porch; Mr. Finley had stepped off of Mr. Williams' porch - and was standing in the street - standing on the ground off of the porch, though close to it. I heard Mr. Finley tell him that he was a d d coward, or something to that effect; that he was a coward, and I think he said a d d coward. I went down to Mr. Longley's house, I suppose fifty yards off, and while I was there - well, just as I got to the place - I heard the circumstance that Mr. Finley was shot, and I turned round and went back; and when I got back Mr. Finley was dead, laying in the street. The doctor had just finished sewing up a cut on Epperly's breast, and I took hold of him and helped to carry him to the house and put him to bed.

H.C. Rainey, sworn. - Was in Guerneville the day Finley was killed. About fifteen minutes before the fight I had a conversation with Finley. We were outside of Williams' saloon; we walked out on the porch together; he spoke something about coming over there and having some trouble with him; he was in a game of "Pedro," he said. After the shooting I went into the saloon immediately for Epperly; saw he was cut with a knife; saw Mr. Simmons cut his shirt off when the doctor came in. I think one cut was three or four inches long, and there was one near the nipple straight in. I was in the saloon all the time after Epperly went in; I don't think I went outside; probably I was not looking at him all the time of course; I went to the door to his wife, who was crying, and told her I didn't think Mr. Epperly was killed, but I thought he was badly hurt. I had been talking to Epperly when I went in, and he said he was badly cut, and I told him he had better lay down and have something done to him (before they cut the shirt off) and some one went for Dr. Wooley. Epperly probably could have made that wound on himself after he went into that saloon without my seeing him. I didn't see him do any thing of the kind.

Cross-Examination. - I just walked up to Finley's body and saw him as he had fallen, and walked right up into Epperly's saloon. I don't remember who were in the saloon. There was quite a little crowd, eight or ten or fifteen. There is one main room - no partition in it. Am certain Epperly was in the room when I went in; he walked behind the bar and started to wait on some customers, and said he: "Boys, I am too sick and badly hurt," and he took a seat and Dr. Wooley came in in a few minutes. I don't think it could have been over two minutes from the time of the shooting till I saw Epperly behind the bar. Epperly was in his shirt sleeves; I don't remember if he had a vest on. Didn't notice that there was a cut or incision in his shirt. Didn't know for sure at that time whether Finley was dead or not. Don't know whether it was said in the hearing of Epperly. From that saloon I went home. Don't think there was any other room connected with the main room except a card room; there is a kind of alley-way between. Don't think Epperly could have had time to have gone into that room between the time of the shooting and the time I entered the saloon. The reason I saw Epperly so plainly, there being such a crowd there, I was looking to see if Epperly was hurt or not. I supposed, you know, that he was hurt, and I went in on purpose to see. I was a friend of Epperly's. The pistol with which the shooting was done belonged to Mr. Manning. Epperly came to me that morning and asked me for Manning's pistol; Manning had left his pistol at my place; he had been doing some work for me, and I told him when I went down to the house I would bring it up and give it to him; and he asked me if I wouldn't go down and get it for him, and I went down to the house and brought it up and gave it to Epperly. That was about noon; he didn't tell me what he wanted with it; I had no idea; I never thought of such a thing.

Benjamin Simmons, sworn. - Was in Guerneville on the 22d July. Heard a conversation between the parties before the affray. Heard Finley dare Mr. Epperly across the street half way. Epperly went half way and Finley asked him to come farther. Epperly told him he didn't see any use in coming farther; he didn't believe he had anything. Mr. Finley said "Come on and see whether I have or not." He called Epperly a dirty coward, and damned him, and then Epperly went over with his pistol in his hand. Finley then knocked the pistol down with his left hand and struck him with his right hand somewhere in the breast. Saw two blows; saw the first one struck, but the other I did not, and then Mr. Epperly tried to get away; Finley still followed and he shot. After the shot Epperly went into his saloon. As soon as the firing was over I went into the saloon. Saw Epperly go into the saloon. Was with him all the time from the time I went into the saloon till I took off his shirt. I walked right in with him. (Witness shows where he found wounds on the person of Finley). Took the shirt off because he asked me to; he said he was hurt.

Cross-Examination. - Am no relation of Epperly. We were intimate and friendly at that time. Went into his saloon right behind him. Was standing at Epperly's yard gate at the time of the shooting, about twenty yards from where it occurred. After the shooting I went towards Epperly and Finley; went up to see if Finley was hurt; just merely took a glance at the body of Finley; didn't notice whether he was still breathing. When I started to leave the body of Finley Epperly was in my view, going into his saloon. Saw Tom Ayres, Mr. Wilson and Mr. Rainey when I went into the saloon; don't remember any others; Epperly went behind the bar; he reached down for a box of cigars; wanted them to treat his friends I suppose; he didn't get the cigars from behind the counter; he went across the street for them somewhere; think Mr. Ayres went across for them. Epperly was still behind the bar when the cigars were brought in. Don't remember any one calling for a drink on that occasion. Remember his making a remark that he was sick. I am a man of family. Don't know that Epperly ever saw my family. I cut his white shirt down the bosom and laid it over his arms. Didn't cut the undershirt - unbuttoned it. Don't know what became of the other garment; his coat was off; don't know who took it off, but I think he did; believe he had his coat off when he did the shooting. His vest was taken off in the saloon; didn't see it taken off; I could not swear I had my eye on him all the time I was there; he could not have gone into the liquor room at my right between the time that he shot the man and the time I saw him in the chair, and cut the shirt off. He could have easily taken his coat off. Cannot tell what kind of a coat he had on; didn't notice whether it was cut. Believe he had his vest on. Could not say if he had suspenders; believe not; know the undershirt was a knit one; could not tell whether it was worsted or woolen. Saw Finley knock Epperly's hand down and strike him with the other hand, and Epperly started to leave and Finley still followed. I don't remember whether Epperly turned clear around or not. Saw Finley, from the yard gate, strike at Epperly. I could not tell whether Finley actually struck him; was not close enough to tell; I am sure Finley struck at him twice; think he struck him, but could not tell, whether with his open hand or with a weapon (witness describes the location of defendant's saloon). Epperly could not have gone into this side door and come out and get behind the door before I got there. I saw him go into his saloon and go behind the bar. There is a window on the other side of the room. A man could not raise that window and go out without a ladder or rope. Didn't, when I looked at the body of Finley, wait to see if he was dying or dead; came back afterwards before he was removed. Went from there home. I don't remember whether, when I went home, I went by Epperly's saloon. I was a friend of both parties. When I first looked at Finley he was lying on his face; the next time he was on his back.

J.W. Wilson, sworn. - Was in Guerneville the day Finley was killed; saw the parties before the shooting; Finley was cursing and swearing and told Epperly that he thought he was a coward and wouldn't fight. "Well," said Epperley, "I will fight you and I will meet you half way." He called Epperly a liar and a son of a b h. He went on cursing and abusing him considerable and told him that he was a damn liar, and that he was a coward, and Epperly told him, "If you think I am a coward I will meet you half way."

Cross-Examination. - I was standing in Epperly's saloon at the time I heard Finley call these names. I was on the inside about that time, near about the door. I and a man named Ayres and Mr. Epperly were all the ones in the house at that time. I didn't go out into the yard until, I think, it was all over. Didn't do anything when I heard Finley make use of such language. Could see Finley from where I stood. There is no opening back of the house only a window. Think I had taken a drink of liquor that evening, or maybe two.

C.S. Colman, sworn. - Had a conversation with Finley about a week before he was killed; it was down at Folk's saloon or at his washroom, in his hotel in Guerneville; said he had come into town from somewhere, and that the first place he went into was Epperly's saloon, and George Lidell asked Finley to take a drink and also some of the boys; that Epperly got behind the bar and said the first man who took a drink without paying for it he would hit with a glass; that he had given away enough whisky and was going to stop it. Then he said that he didn't say any more but walked out into the other room, and the next morning he went in and asked Epperly if he meant him when he spoke that way. He told him he meant him as well as the others. He said the boys had quit giving him money, and he was going to shut down on giving the whisky without money; he could not stand it; he had to pay money for the whisky. Well, he said he was not prepared for any trouble at the time, and the next time he met him between his dwelling and his own saloon; he said before he met him he prepared himself and got a pistol; when he met him he cursed him, he said, everything he could think of, and he said he didn't think Epperly was on the fight, and didn't think he was the man that wanted to try him, or something to that effect; and Epperly told him that he didn't want to have any trouble with him, and he said he cursed him for everything he could think of; he could not get any fight out of him then; and he said he was going to carry a pistol for Epperly as long as he stayed in town, and he said he would use it, too; he said that he was not a man that would carry one and would not use it. That night I slept with Epperly and told him he had better look out for Finley; that he was carrying a pistol for him, and that he was going to carry it as long as he stayed in town.

Cross-Examination. - I think I told Epperly all that Finley had said. I told him he had better look out for him, that he was carrying a pistol for him.

Lambert Reardon, sworn. - On the 22d of July, 1876, was tending bar for Mr. Epperly. Finley came into the saloon and wanted a drink. Epperly had requested me beforehand not to trust him with any more liquor, and I told him I could not charge it but I would give him that drink, and that Mr. Epperly didn't want him to come around the saloon any more. He spoke then about being good friends to me and to my father, and he said that him and Epperly had had some trouble before, and he left me for a little while, and the crowd came in to take a drink and then he came back and he said he expected to have some trouble with Epperly and he said he was fixed for him, and he said that if he said or done anything to him he would fix him. He had with him what I took to be a butcher knife; he showed it to me. Communicated that to Epperly the same evening.

Cross-Examination. - The knife he showed me was what is commonly called a sheath knife. The blade was about four inches long, and was a wooden handled arrangement.

L.M. Ellison, Wm. Brians, F.G. Bloom, John Fowler, John Doherty, Michael Gillian, A.G. Lassen, T.C. Pippen, Jno. M. Courtright, Jno. Walker, and Jno. McGuire testified as to the turbulent character of the deceased, especially when under the influence of liquor.

H.S. Epperly (the Defendant) called by the Defense. - I am the Defendant in this case, Had heard that Finley had made threats against me. My brother-in-law told me a week before this occurrence that Finley had told him he was armed and intended to kill me if I did not keep out of his way, or something to that effect - if I crossed his path, and wanted me to look out for him. Lambert Reardon also communicated it to me. He told me on the fourth of July when I came home from a picnic, that Finley had been there trying to get drinks on time, and got indignant about it and drew his knife, and said he would twist it into me, or something to that effect - that he would get me yet; he would get me out of my den yet, or something to that effect. I had refused him credit. The first I knew Finley was after me that day, the 22d of July, was, he was on the street abasing me while I was shaving Johnny Folks in a portion of my saloon - a barber shop attached to it - and I excused myself; I became nervous from being abused so, and excused myself and started to go in the saloon; and when I came out on to the sidewalk from the barber shop he stopped me, or spoke to me. He was abusing me all the time and dared me over there to fight him. This was about two or three hours prior to the killing. He told me he would get me yet. I declined to stake my life against his; I told him so. He was standing in this attitude (showing). I supposed with his pistol in his hand, and I turned away from him and went into the saloon. As to the last difficulty I think, as well as my memory serves me, I was just coming out of the door when I first heard him; his remark was, "Where is Hi. Epperly, the d d son of a b h?" I think he repeated it; I would not be certain; any way I told him, "I am here, but I am not a son of a b h;" and he dared me to come over there and fight him. I declined and he dared me to meet him half way, and I started, and after I started I have not much recollection of what I was doing until I came up to him. When I came up to him he was standing there with his head down, like this way (showing). I thought then that he had declined further combat, and I told him he was not armed; he said, "Come on, I will show you," or something to that effect. Just about that time he was standing there with his head down, and I turned my pistol down like that (showing). I had my pistol in my hand, and just about the time I was turning to start from him, or back, he grabbed me by this hand with his left hand and struck me twice in the breast with some sharp instrument. I don't know whether I was a knife, or chisel, or what it was. I stepped back he followed me, and I fired. He continued to strike at me. (Exhibits the wound to the Judge).

Cross-Examination. - Dr. Wooley was called to see me after the wound was inflicted and sewed up the wound. Dr. Allen dressed it after I came here while I was in jail, the Sunday night after the difficulty of Saturday night. Dr. Wooley stitched up the wound I had in the middle of the breast and put a sticking plaster across the other. Dr. Allen dressed it two or three times. Don't know where the shirts are that I had on that evening. Sheriff Wright took them in charge, I think; I have never seen them since the next morning. Think I had on a coat that evening. Don't know whether I had on a vest. There is a small cut on the sleeve of the coat; I think none on the breast; never noticed any. I supposed the instrument that wounded me to be a knife; I didn't see it; I saw his hand as he struck at me; it looked as if there was something to it. I don't remember of Finley saying anything to me in the middle of the street only "Come on." It was after I walked up to him when he said, "I will show you." I said, "You are not armed." I didn't think he was, and he grabbed me and said, "I will show you if I am," or something to that effect. Until I got up near to him I thought he was surely armed from the threats I had heard. The reason I went up to him was I thought if I had to put me life against his I had better do it in day light than around the corner somewheres. I would rather have declined the fight.

Testimony in Rebuttal.

J.W. Bayley testified to seeing a knife taken from the clothes of deceased by Mr. Oliver the day deceased was buried, somewhat similar to knife shown the witness; which testimony was subsequently stricken out as too remote, and the careful custody of the clothes not being shown. T.C. Pippin testified substantially to the same effect.

J.C. Taggart testified to seeing a party cross the street from Epperly's saloon, who, from the shape, he took to be Epperly, but could not recognize his countenance at the distance. Saw a man on Williams' porch whom I took to be Finley. He did not leave the porch before the shot was fired.

J.A. Oliver testified as to finding the knife as testified to by J.W. Bagley.

Sheriff Wright produced in Court the white shirt and the undershirt taken from Epperly lying on the bed by his side.

Dr. O.S. Allen testified as to dressing the wounds in jail, and the character of the same. Would not undertake to say anything as to whether if the men were engaged in combat face to face; the adversary of Epperly could have made that wound with a forked bill knife. It was on the front part of his body.

[Testimony closed.]

District Attorney Henley opened the case for the prosecution and was followed by Judge Southard in behalf of the defendant. Hon. Geo. Pearce closed for the People.

Judge Temple's Charge.

After reading to the July points of law submitted by counsel for the prosecution and defense, Judge Temple further instructed the Jury as follows:

Under our system of jurisprudence the duties of the trial are divided between the Court and the Jury. It is the province of the Jury to determine what facts are proven by the evidence, and the Court cannot interfere with their discretion. It is their exclusive province to pass upon the credibility of witnesses and the effect of testimony, and if upon these subjects the Court should charge you, you are not bound by it.

In the same sense it is the province of the Court to declare the law applicable to the case, and the Jury is bound to accept the law as declared; not because the Court is supposed to know best what the law is, but because that duty under the law is assigned to the Judge, and you must follow it although you might know the charge to be erroneous. A verdict contrary to the law declared by the Court is always against law.

In stating the law, however, it is necessary to state certain hypotheses, or assumed stated of facts. The statement of such supposed cases must not be considered an intimation that such facts are proven - whether they are or not it is your province to determine. If proven, you must apply the law as declared by the Court; if not proven the charge on these points will go for nothing.

Some comments have been made in your presence upon the character of the indictment, as though it was an indictment for murder in the second degree. I charge you distinctly that indictment is for murder, and includes murder of the first as well as murder of the second degree. If you find that the facts as shown in the evidence warrant it, it will be your duty to find the defendant guilty of murder in the first degree.

Evidence has been given as to threats made by the deceased against the defendant; also that the reputation of the deceased for peace and quietness was bad. You are not to conclude from this that threats would justify an assault upon another, or of itself afford any justification or excuse. I need not tell you that an assault cannot be justified on the ground that the assaulted party is a bad man; neither will threats, or any other language, justify such assault. Indeed, a previous quarrel, or threats, may under some circumstances afford proof of malice, and show that the homicide which otherwise might be equivocal, is murder.

If a homicide be committed by one in necessary self-defense, or where there is reasonable ground to apprehend a design on the part of an assailant to do some great bodily injury and imminent danger of such design being accomplished, it is justifiable. The bare fact of the commission of such an offense is not sufficient to justify the homicide. The circumstances must be sufficient to excite the fears of a reasonable person, and the part killing must have acted under the influence of such fears alone.

You will see that so far as the defense rests upon this ground the circumstances must be such as to excite the fears of a reasonable man. Whether they would excite such fears in a reasonable man might be affected by a knowledge of threats made and of the reputation in respect to the traits involved of the party making the threats.

The party must also have acted under the influence of these fears alone, and the threats and the reputation may be considered in determining that question also.

It would not matter that the deceased was a dangerous man, or even that Epperly feared him, unless in firing the fatal shot. (if he did fire it) he was actuated by this fear alone. If he was influenced by a desire to revenge previous insults, or to vindicate his courage or manhood, it would not be a defense.

I do not feel like saying, nor do I believe it to be law, that under all circumstances if one really believes that another is seeking his like he is compelled to await attack in his own house, or that if he can make his defense more effectively there he may not go into the street to meet an attack which he deemed inevitable. It is your province to determine whether such was the fact in this case.

If you believe, however, in this case, that the defendant was not acting under the influence of such fears, but simply accepted a challenge to fight, it matters not who commenced the contest; if either kills the other he is guilty of murder, unless the slayer did in good faith really endeavor to decline any further struggle before the homicide was committed.

Murder is the unlawful killing of a human being with malice aforethought. Malice in the legal sense does not mean hatred or ill will, only it is an intent to do an unlawful act without justification or excuse.

Malice is express or implied: express when there is manifested a deliberate intention unlawfully to take life; it is implied when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart.

Murder is of two degrees: murder in the first degree, murder in the second degree. All murder which is committed by mans of poison, lying in wait, or by any other deliberate or premeditated killing and in committing certain felonies, is murder of the first degree; all other kinds of murder are murder of the second degree. If the killing be wilful, deliberate and premeditated, it is murder in the first degree. The killing must be accompanied with a clear intent to take life in order to constitute murder in the first degree. It must be formed upon pre-existing reflection, and not upon a sudden provocation sufficient to preclude the idea of deliberation. There need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by the concurrence of will, deliberation and premeditation on the part of the slayer; and if such be the case the killing in murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing.

If the killing be done in the commission of an unlawful act, the natural consequences of which are dangerous to life, or the circumstances show an abandoned and malignant heart, it is murder in the second degree, unless the circumstances show that there was the specific purpose to take life, when it would be murder in the first degree, or that it was done under great provocation or heat of passion, when it would be manslaughter.

If you find the defendant guilty of murder you must specify by your verdict the degree of crime on which you find him guilty.

Under this indictment if the evidence warrants, you can find the defendant guilty of manslaughter, which is the unlawful killing of a human being without malice. It is voluntary or involuntary: voluntary upon a sudden quarrel or heat of passion; it must be upon a sudden impulse, apparently irresistible and so sudden as to preclude the idea of deliberation, for if there be sufficient time after the provocation to allow the voice of reason and humanity to be heard, the killing will be attributed to malice.

Homicide may also be justifiable: the circumstances which constitute justification have been already sufficiently explained.

If you find the defendant guilty you must, as I have said, state in your verdict of what you find him guilty. If of murder, you must state of what degree you find him guilty, as: We the jury find the defendant guilty of murder in the first degree, or in the second degree, of guilty of manslaughter.

Should you find him not guilty, your verdict will be simply: We the jury find the defendant not guilty. Should you find the defendant guilty of murder in the first degree you may, if you choose, direct by your verdict that he be punished by imprisonment in the State prison for life; should you fail to make such recommendation it will be the duty of the Court to pass judgment of death. Should you find him guilty of any other offense than murder of the first degree, you have nothing to do with the penalty.

The jury deliberated upon the case about 26 hours, during which time the instructions of the Court were twice read for their benefit, and then returned a verdict of acquittal.

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