The McGuire Trial

1. The defendant is on trial, charged with the murder of J. A. Power in Burnet County and State of Texas on or about the 12th day of March, A. D., 1899.

2. To this charge the defendant has pleaded not guilty.

3. Murder is thus defined; "Every person of sound memory and discretion, who shall unlawfully kill any reasonable creature in being, within this State, with malice, aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other spectres of homicide by absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the offense.

4. All murder committed with express malice is murder in the first degree. And all murder not of the first degree is murder of the second degree.

5. Malice means that state of a wicked and depraved mind, regardless of social duty and fatally bent on mischief.

6. The important inquire in determining the existence of express malice is, do the external circumstances, the act and the conduct of the accused at the time, before and subsequent to the killing, if such there be, indicate a cool and deliberate mind and formed design to kill? If so, there is express malice.

7. There is no certain or definite space of time necessary to intervene between the formed design to kill, and the fatal blow. A single moment of time may be sufficient. All that is required is that the mind be cool and deliberate in forming its purpose and that the design to kill is formed.

8. In order to warrant a ver- [text missing] evidence must show beyond a reasonable doubt that the defendant did unlawfully kill the deceased, and that each killing was done upon express malice.

9. In this case, the State relies for a conviction upon circumstantial evidence alone. And in such cases, each fact, necessary to the conclusion sought to be established, must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is the necessary facts to the conclusion) must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together must be of a conclusive nature leading, on the whole, to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged. But in such cases it is not sufficient that the circumstances coincide with, account for and therefore render probable, the guilt of the defendant, they must exclude, to a moral certainty, every other reasonable hypothesis.

10. Evidence has been introduced by State tending to show by evidence of Dayton Moses, J. H. Power, John Burrows, and the written testimony taken at the examining trial of defendant, contradictory statements made by Mrs. McGuire and Mrs. Powers. Now, you are instructed that this evidence was not introduced as any evidence of this defendants guilt and you must not consider it such, but you may consider such evidence safely as going to the credibility of Mrs. McGuire and Mrs. Power as witnesses, and you must not consider the same for any other purpose whatever.

11. You are further charged that while the law permits the defendant in a criminal prosecution against him to testify as a witness in his behalf, yet he is not required to do so, and should he elect to remain silent, then the law is that his failure to testify should not be taken as a circumstance against him, nor alluded to by counsel in argument. And this law has been construed to mean that the Jury must nor refer to such failures in their deliberations nor allow it to have any weight [text missing] in this case the defendant having elected not to testify as a witness you are instructed that you must not allow his failure to testify to be considered as any circumstance against him, nor must you consider the same, nor advert to the same either orally or mentally in arriving at a verdict, but base the same solely on the evidence adduced on the witness stand and the law herein charged.

12. Now, if you believe from the evidence in this case beyond a reasonable doubt that in Burnet county and State of Texas, on or about March 12th 1899, the defendant B. L. McGuire did then and there unlawfully kill J. A. Power with express malice as the same has been hereinbefore defined, you will find him guilty of murder in the first degree and assess his punishment at death or by confinement in the penitentiary for life.

13. The next lower grade of culpable homicide than murder in the first degree is murder in the second degree. Murder in the second degree is where the killing is upon implied malice. Implied malice is what the law implies from every voluntary killing of a human being, when the circumstances, upon one hand, show no express malice, nor upon the other any excuse, justification or mitigation, nor reduce the offense to manslaughter, voluntary killing of a human being without deliberation, from some rash inconsiderate impulse would be upon implied malice and would be murder in the second degree.

14. And so in this case if you believe beyond a reasonable doubt that the defendant did kill said J. A. Power, without express malice, but under such circumstances as that malice is implied, as herein before defined, you will find him guilty of murder in the second degree and assess his punishment by confinement in the penitentiary for any number of years not less than five.

15. If you believe the at the defendant is guilty of murder, but beyond a reasonable doubt as to whether it was committed upon express malice then you must give him the benefit of the doubt and not find him guilty of a higher grade than murder in the second degree.

16. If you have a reasonable doubt that the body found on the river, and about which the witnesses have testified in this case, was not the body of J. A. Power, then you will find the defendant not guilty.

17. The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and if under the evidence you have a reasonable doubt of his guilt you will acquit him and say by your verdict not guilty.

18. The Jury are the exclusive Judges of the facts proved, the credibility of the witnesses and the weight of the evidence, but you are bound to receive the law from the court which is herein given you and be governed thereby.

It may be truly said, the trial of "Bud" McGuire for the murder of Jim Powers almost made up this term of the District Court. All the other matters disposed of together paled before it in absorbing interest. Wednesday entire was consumed in securing a jury out of a large venire of citizens. All of thursday was taken up in the examination of witnesses, of which there were about 46 for the State, and six or eight for the defense. Friday was occupied with the two speeches of District Attorney Kinnard and the single speech of Capt. Hammond for the accused. Judge Blackburn was taken sick during the examination of the witnesses, and was unable to address the jury, but it may be truly said that, though championing a desperate, hopeless cause his junior partner won new laurels as a criminal lawyer. Mr. Kinnard was simply magnificent.

The atrocious nature of the crime committed has been the theme of conversation for weeks, and the fact that the evidence was entirely circumstantial, but of marvelous coherency increased the intensity of the interest. The Courtroom, consequently, was crowded every day during the trial, with both men and women. Public opinion was almost in one direction, and there was a great sigh of relief on the part of hundreds of people, nerved up to an intensity absolutely painful, when the verdict was announced.

District Attorney Kinnard in summing up the evidence at the end of h is closing speech, addressed 51 circumstances converging toward the conviction of the prisoner. To use his own figure, they formed spokes of pointing to a common hub - "guilty as charged." Some of the principal ones were as follows: McGuire and Powers were at variance as to the possession of the latter's little child; they slept together in Chris Dorbandt's rent cabin; Power's bloody pants found at McGuire's home; they were last together the night of the fatal deed; Bud's explanation of Powers' absence; the tell-tale boat-key, sack and hammer, and the floor with blood upon them, which Bud had claimed was hog's blood, but which Prof. Harper of the State University tested and declared it was not, but very probably human blood; the missing quilt on Bud's bed, the fishing pole with hooks on the end, bud's absence at night from the cabin after the man had been killed, and the identity of the cotton sack to which the body was tied and dropped into the river.

Capt. Hammond's strong points were: appealing to the sympathy of the jury, insisting that all the evidence was circumstantial and therefore unreliable as a chain with a broken link; mercilessly ridiculing the expert's theory of the blood stains, and complaining that the State and officers were hounding a poor man to his doom. the speck surprised even those who knew his ability and the weakness of his cause.

In working up this case, District Attorney Kinnard won the admiration of the law-abiding people of the county for his intelligence and zeal, as did a competent and searching Grand Jury, (Wesley Fowler forman,) and the twelve brave men who listened so patiently and who decided the case according to the law and the testimony, as they were sworn to do.

His Honor, Judge Furman's charge was short and delivered in a most impressive manner. It rang through the hall like a bell, and a tocsin bell at that.

The jury remained out all night but not because any member was for acquittal; the only point of contention was whether the sentence should be hanging or life imprisonment. Over one half the members were for hanging, but inasmuch as the evidence was circumstantial, they agreed upon the latter. All through the District Attorney's terrible presentation of the evidence, the prisoner's cold gray eye was fixed upon him, but never quailed; and when Clerk Munn read the verdict in a calm, distinct tone, we watched Bud's face, but it never switched a muscle; all he did was to swing his leg and chew a match. As he left the Courtroom, hand cuffed, he laughingly remarked to Sheriff Arbuckle, "If I had been a younger man, maybe the jury would have given me longer [unreadable word...looks like term]." Bud is about 67, weighing at least 175 pounds, and is a man of wonderful strength and with nerves of steel.

In strange and pathetic contrast with the tragic surroundings was the pretty little year-old girl of poor Jim Powers, running and prattling about the room and winning many a smile and caress as a sunbeam in a dismal swamp. Poor little innocent!

Thursday morning, Counsel for the defense entered a motion for a new trial, and made a brief argument the general point was that the verdict was contrary to the evidence, and that the expert's testimony was specially defective. The Court overruled the motion, and called upon the prisoner to receive his sentence, after being asked if he had anything to say why it should not be passed. He had nothing to say, and then heard the sentence of his imprisonment with folded arms and with no show of emotion. He was pale and his face a little drawn, but that was all. He thanked the Court for having appointed able counsel to defend him, and then submitted to be handcuffed preparatory for his trip to Huntsville.