The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-11-27
BY SPECIAL EXPRESS.
Trial OF Sullivan, MeCleester, and Kensett
THE LAST DAY

THE LAST DAY.
The evidence being closed on both sides on Fri
day evening, as exclusively furnished to the readers
of the Herald yesterday morning, DAVID GRAHAM,
Esq counsel for McCleester, commenced Stunning
upyesterday morning 20 minutes before 10 o'clock
on behalf of prisoners. He concluded most eo
quent argument at 20 minutes before II O'Clock.
having spoken precisely TWO hours.
District Attorney Nelson followed for the prose.
cution, at G quarter before IL and closed with an
able review of the law at seven minutes before
O'Clock, when the Court adjourned for dinner.
AT 2 o'clock, the Court being assembled,
VIM. M PRICE, Esq counsel tor Sullivan, COM
menced summing up for prisoners and occupied the
attention OF the Court until twenty minutes past
three He discussed the various points of law al
legged by prosecution TO bear upon this case in a
most able manner, and closed in an eloquent appeal
to the Jury in behalf of prisoners.
After a short recess, Attorney General BARKER
commenced his plea for prosecution at half past 8
o'clock. He reviewed the law bearing upon the Of
fence, at length, and presented argument of great
force and powerful effect upon the Jury He closed
at Is minutes before o'clock
At the conclusion he took seat near Sullivan,
who STOPPING forward emarked to him that she
was better taker hanhe (Sulvan) was fighter"
JOHN JAY, ESQ son of Judge Jay of this county,
was associated with the prosecution after the trial
commenced but did not address the Court, as Gene
raj Ward, counsel for Kensett, assenedt the propo
sition of the Court that two counsel on each side
should sum up the case
JUDGE RUGGLEs then delivered the following lu-
min Gus charge,-
If in any circumstances gentlemen, it were necessary
fOr m q yOuO m of I
should have been relieved from that essy by what
the counsel each side have said tn subject You
cannot but be impressed with the magnitude the ques
ton about to be submitted to you not only relates
the prisoners who stand here charged with the offence
ss ss so Yo op Tsp %n ne
moral question is to be submitted you. Not merely as
aqueson of morality however, but question oflaw
The counsel in the opening very properly remarked that
criminal case, and this case you the judges
both ofthe law and oil the fact. That position which
the Court have disposition question the correctness
Of 1t is indeed matter in regard of which the Court
would itself have instructed you if the counsel had not
done But while the Court say you the counsel
they feel it proper to add that you bound
to Judge according to, the law. You not
at liberty to decide according to your own no.
tons of which ought to be the law II is the duty OF
Judge at all times, and under all circumstances with dill
gence to inquire and ascertain what the law is II is the
duty OF jury under the like CT cumstances, when the
duty of judge is imposed upon Them ascertain what
the law is and the jury much bound by the law as
the Judge is upon the bench Our duty is not to make
law is to carry the law into eect-to cause it TO be
enforced We take thclaw as we and it and all
sworn 10 the best oil our capacity to administer in
spirit as stands written far respects the statute
and according to the law as exists far depend
on the common law. You would ill discharge your
duties you to set up any of ancifu reason
ing as to what might be the best law If you are in point
TACT satisfied Of what the law IS to that you are subject
effect and your duty is best done if you approach this
causen that spirit The Court doesnot mean BY this that
you necessarily to take the law from the direction of
the Court If you should be satisfied that that direction
were erroneo you are at liberty to reject it, but unless
must decide according to what you suppose to be
should enter into explanation, and as briefly as
possible ofths law concerning murder and mansaugher
plain, and if understand the law my SELF shall hone to
be able to make you understand it also. And in the first
place would refer to the definition of murder it ap-
pears in our stane-book because is in the
first place to look at that in order ascertain what is
mansaughter and in what degree of mansIaugher this
case is properly to be ranked The statute is ths:-
"Section 4-The killing of hum being without the
authority Of law by poison, shooting. stabbng, or any
other means in any other manner is either murder
manslaugher or excusable or justifabe homicide ac
cordng to the facts and circumstances Of each
section 5-Such killing, unless be manslaughter
or usable homicide hereinafter provided
shall be murder in the following cases
when perPetrated from premeditsted design to
being.
"a-whsn perpetrated by any act Immediately dan
gardless of human life, although without any premed
tsted design to effect the death of any particular nd
"3-when perpetraed without any design to effect
death by person engaged in the commission of any
call your attention, gentlemen, particularly to this Sd
clause in the definition of murder If death happen
when the killing perpetrate without any design 10 e
feet DEATH by person engaged under the law in
any felony that murder BY our statute although there
were no design to effect DEATH In this law, the egsla
tqre Of this state have excluded from being
with those of MURDER and they have left them
be cassed with the OF mansaughter. According to
the English law, when the killing perpetrated with
out design to effect death by person engaged in the
ommisson under the law not only OF felony
but OF any crime or mislemeanor he guilty of rider
by the common law. So stood the law in this
country until this st aute passed. The legislature
passing this act therefore, before Observed have
cuded some from this definition of murder which
were formerly included in it, and they cassed under
the cases Of manslaugher Now gentlemen turn to the
statute concerning manslaughter Judge r. here read
the definition Of msnsslsSshtsr) There then are
common law were Of murder. They are now cases
OF in the first degree And the question
whether the killing in the tried ranges under
this definition or not Now you will observe gentlemen
that in order to make mansaugher in the first degree
other should be engaged in the preparation of some crime
or misdemeanor not amounting felony or in atem pt.
insto commit such crime mIsdemeanor And it is also
necessary that 1t should have been killing under the old
common law as it stood before the statute and both
these do not then the does
come within that definition of the first degree of man.
slaughter Now in this case is contended the part of
the prosecution that comes within the definition man.
lmgher IN the first degree But the Court after
iul consideration OF this matter have to the concu-
sion thai it does not within the definition of the first
degree oil manslaughter And they have that
they are sustained in this opinion by the advered to-
that OF the King against Murphy decided in land but
which we here in country accustomed respect
as ev ience OF what the common law in England and
what here This case expressly the point at
death which happens in prize fight without any other
circumstances attending the fight than the ordinary cir
cumstances is manslaughter, and not murder. And So
then therewere other than the ordinary circumstance
ola prize fight present in this case then this killing of
Mccoy cannot be deemed mansaughter the Ist degree
1t would not have been murder the common
law Bat 1t is said that there other circumstances
here which change the character of this offence from
what otherwise would have been, and that it is thus
made mansiaughter in the LIST degree. In the first place
ii alleged that this assembage was an unlawful one-a
rotous assemblage OF persons and that that reason
Mccoy and Lilly must he supposed to have been engaged
IN criminal offence below the degree of felony and
which under the old common law would have made this
Killing murder Now gentlemen il dos not annear