The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-12-14
General Sessions.
General Sessions.
Before Recorder Talmadge, and Aldermen Rawson and


Dc. l3.-aAeged Mansaue her.-The trial Of Charles
f. Isenprise indicted for manaughter in causing the
death of Abraham Barger, by stabbng him with knife,
the 23d September last from the effects of which he
expired on the 4 day Of November following was con-
tinued.
Mr.. THOMAS PBrNIx on tho opening of the Court adj.
dressed the Jury the part OF the prisoner They would
observe that he young man of excellent characters
he mechanic by trade; he had near and dear con.
neXions he just budding into life with every pros
pect of becoming useful member of society and the pre-
sent was the first time he had ever called before the
bar of justice TO answer for offence This misfortune
ont of sudden ARRAY There enmity what
between the prisoner and the deceased on the con-
trary they all appearance, rend and was II at all
likely that young man. like the prisoner who had been
proved to be peaceabe character would stab his
friend without any provocation 1t would require the
strongest possible testimony induce the Jerry to believe
that This however, case in which they would
h ,as he proof mat he o ms
upon that subject they bound to pronounce
diet Of acqutta He Nlr Phcnix) admitted that the
occasion OF this ARRAY there was upon both sides dis.
graceful violation of the laws but he conended that all
the provocation had proceeded from the men of Engine
No 49, and not from those of No a. to which the pr.
soner was attached The men of No as were the assal.
ants those of No "a the defendants twas true that in
the melee the deceased received the wound but the evil
dence by conclusive that the prisoners
hand struck the blow Doubt ran through the whole of
it-a point which Mr. Phenix urged at considerable
length. But it, upon the other hand the Jury thought
that the prisoners hand had caused
the death of the unfortunate man. he commended that by
the common law OF the country he was JUSTIFIED IN ~
his companions. In conclusion he Alr Phenix) address
ed appropriate observations TO the Jury upon the
Importance Of correctly dischargng their duty to the &C
cused in a ofthis serious nature.
The DISTRICT ATTORNEY. Uonas B. Phillips. Esq
replied at length urging that the Jury % Sas
themselves in swearing the prisoner had inflicted the
blow orhowever painful the altenative-that the de-
ceased had his end by the hand of the prisoner
The RECORDER then charged the Jury. The prisoner
the bar indicted for manslaughter and before he
called their attention to the testimony of the witnesses it
proper he should present to them the law it related
to Of this description There were four different de-
grees of mansaughter, and il exclusively the pro-
vince OF the jury 10 sayif the prisoner guilty at all
of which degree he guilty He indicted gene
rally for mansaughter and the jury had therefore entire
range and scope determine which degree the
belonged The offences in the calender of this descrip
ton ranged from degree little short Of wilful murder
down to those of almost accidental death The Recorder
then read to the jury the several definitions of the four
classes OF manslaughter, observing that the case
now before them did not to come within
the meaning either of the first second but with.
in that of the third fourth. The third degree of
mansaughter thus Defined" The killing of another
in the heat passion. without design to effect death by
dangerous weapon. in any case except such wherein
the killing Of another is declared to he justiable ex-
cusablc shall be deemed mansaughter in the third de-
gree" The fourth degree defined TO be" The in
voluntary killing of another by weapon by any
neither cruel unusual in the heat of passion
he homicide shall be deemed manslanghtrr in the fourth
The distinction between these two degrees
this in the third mansaughter was constituted by the TAX
ing away of fe without the design to effect death by
dangerous weapon in the fourth the crime was con.
stituted by the involuntary killing of another by any
give the jury an illustration OF the difference The use
of dirk pistol or any other weapon which would he
considered deadly in its nature brought the offence within
the third degree. The Of club stick which were
deemed deadly weapons Of other means not
classed among mansauphters of the fourth degree He
ould give them another illustration person thing the
roof of house threw tile down into the street careless
y neggenty without regard to the safety OF the pas
sengers in the street and the tile falling upon indvi
dual passing caused his death. In such there
was no passion revenge intention Of taking life
Such n
niton of the fourth degree The Recorder further Illus
raed these and briefly pointed out the changes in
the law relative to manslaughter which the legislature
in its wisdom had been pleased to make and said that
having expounded the law to them succnctly as he
could he would address himself the facts of the
That death had onsued from injuries received by the de-
ceased could not of course be questioned and the first
question that presented itself for the consideration of the
fury did the prisoner at the bar commit the act =
With reference to this question the Recorder stated the
evidence Of Drake and the other Witnesses leaving the
Jury to form their conclusions upon IT, The next
question they would have TO consider whether,
suming they should he of opinion that the pr-
soner struck the blow, was it iustiiable on the
part of the prisoner II was in evidence that there
had been deliberate intention the part Of individuals
connected with Engine No 4s to assa the of No "a
They had avowed that intention in the of Drake
and the foreman of Engine No. u they had not only
avowed that intention but they had in gone down
the engine house and there placed themselves in at
titude Of attack upon the men of No M they had not
only placed themselves in attitude of attack but they
threw stones they used violent language and uttered
threats much that according to the testimony Of
foreman Of Engine No 81 the individuals connected with
engine fled and the engine had to he taken to its
ton by volunteers, who not remen II also in
evidence that the prisoner the bar connected he
with No. o. severely beaten-that he assailcd
and knocked down and that he complained of the injuries
he had receivcd-that he had much very much, TO
exasperate his feelings II further appeared that the
deceased was connected with No. AZ, a circumstance
which should be considered by the jury in relation to the
probability of the prisoner experimenting attack mas
much their province TO determine the question
IN this state otbnrs Whilst his feelings were excited bv
The rudeness exercised towards his person Barper
who had been in the melee placed his hands thc
who has beaten the chiidr Now Il was for the iurv /,
| determine whether this offensive or otherwise
he should he reassaled If thew saw reason to beIiev
hat the objects Of Barger TO fell him TO the ground
10 assail TO attack himhe would have been justified in
he act but IT, upon the contrary they believed that in
he language Of Drake the deceased merely nlocea
his hand upon the prisoners shoulder then clearly tho
rniustfahc and ncycusable IL was then. for the Jury
% whether this attack was usfahlc or excusabc
md thcv satisfied IL not iustifablc
hle they say under which degree Of crime shorh
he Chased Was II done in passon2 Was II done with
deadly instrument Or II done with instrument
Nv which death ensucd although the instrument was NO.
'eaily in its character! The Recorder then pointed
% the jury the extent to which good character might
avail prisoner In this the accused had produced
strong charactera character which certainly ought tc
make strong appeal 10 their Judgment in thew hal
reasonable doubt the prisoner had inflicted the blow
cannot avoid rcmarking proceeded the Recorder that y
Sa subject Of COMPLAINT in this citv which, coming
from the citizens Of this metropolis ought not TO he disre
|
otten disorder and arrangement lido hope that the fire
companies Of this city will correct this abuse for CHI
zen pass through the streets without his heng
ortred nv these ccnes violations OF the public peace
md whence do thew arsc1 win not charge them upon
he Fire Department hut upon the volunteers
Ners-thc individuals who connect themselves with the
companies from time time They attributable
the regular rfmen for there is responsibility resting
rpou them and thew liable to punishment If thew Of
nd but with regard the volunteers there respon
hilv Various difficulties have arisen in this
1iv from them and gross violations Of the public
nt ,1,- Tho hRnO
occurrence wherein life taken. But the blame
that ought not certainly TO he visited uuon this prison
'r. although ho was volunteer at the time in question
Won ought TO I've satisfied the evidence that he
oitei the act with which he Is charged The Recorder
hen said that with these remarks he would leave the
in The hands Of the iurv, satisfied that thew woul'
rive all the dcihca'ion which the nature of " required
The urv then retired 70 consider their verdict and in
,Nont twenty minutes Afterwards rc'urncd with verdc'
VI guilty Of n,usaugh'er in the third degree
Sentenced The Recorder. behalf Of the court or
Tered that all persons convicted in this court who wcrr