The New York herald., 1845-08-23

anger had time coolhs deliberate purchase OF pow
der and the pistol his deliberate preparation OF the wea
ponhis return to the storehis walking up toward thu
baaliey, as II to seek out these young men-hs imme
Young men from the hail laev 10 20 TO the boat club
their passing by the store where Elliott remaTi
Bailey that he ready now to settle the dimculty
which Bailey asserts not in anger-the crossing o
the the Avenue by Bailey and Kendall-the asking o.
young MPherson the store by Elliott to go over with
him 10 keep Kendall oh-were points used in their bare
recaptuation to evident Of the prison
or. The attack of Bailey according to his testimony
did not Justify any the of the pistol the nten
ton of Bailey being close in upon Elliott The learn
ed counsellor read the law defining the distinction be-
tween excusable homicide and deliberate murder and
referred to the testimony to establish the guilt Of
Elliott TO the latter charge. Mr. Hoban read from
Russell los, the case OF Richard Mason, very SINH
lar in points TO this) which decided up
by unanimity OF the Judges wilful murder
Mr.. Hoban referred to Archibalds criminal, 4l0
cd from mansaughter. He next referred to Foster
2a5-to Rex against Leach first Pleas of the Crown in
which it decided that if two quarrel separate
and OF them return armed with deadly weapon. and
lie in wait for opportunity to the quarrel and
the parties meet and fight again. and the armed
aforesaid kill his adversary, IT is murder Mr. Hoban
plead that this such that it was not to
be judged by the morality OF the hour the opinions of
upon the streets but by the decisions and sublime
morality Of the law.
General JoNr remarked that another witness was pre-
sent.
THOMAS DuMrRiE sworn.-I was standing at the cor
ner of Mr. Fulers Mr. Kendall was standing at the op.
posite or Jones' corner he raised his hand toward Mr.
Elots bosom but whether he took hold of him not
] can't say saw Mr. Kendall strike Mr. Elliott with a
stick think piece flew of the end of the stick ap-
peared to be piece OF wood il was iron cane
from its shining IN the sun alter the blow, Mr. Elliott
snapped his pistol at Mr. Kendall witness stated that
Elliott fired once at kendall-then at Bailey, who
approachingthen at Kendall and killed him-thsn at
Bailey twice when he retreated into the hotel Witness
insisted upon this arrangement OF the shots in his
examination.
DR.. JAMES HALL, sworn.-About four or five weeks
since was called to administer to Mr. Elliott for dys
enterrhc affection he confined for several days
supSldence symptoms,
about two weeks ago. when last saw him. still suffering
from looseness of the bowels may also mention that
about years ago broke his both broken
do not recolect which arm it prisoner has
been very robust at any time have been in the habit
Of ofattending him from his youth.
Gen. JoNrswith that remarkable modesty and placidity
olmanner characteristic of his opening remarks,
for the prisoner He concnded in the outset that this
upon its very face not the learned presecu
tor had asserted clear act OF deliberate murder but
offence which, il it did not call for the unqualified
discharge of the prisoner at least within the scope
OF hailable offences He conended for the prncip:e of
elfdeience in of assault where the slow force Of
the law afforded security. Indeed, il propo
ed whether he should yield the right OF the private c
to arm himself for the defence OF his life permit
the commission of murder with mpunity he should hes
ita which 10 choose. The erude counsellor then
viewed the rounds OF the law and the evidence
sci by the District Attorney, and maintained that Mr.
Elliott had perfect right go where he pleased inno
Gently, that he was under restriction to revisit the
drugstore which he had left after the two other young
walking up 18th street.-the guilty OF aggres SION
then the two young Bailey and Kendall came by,
dt store III conversation
with Dr. Miller-while Bailey and Kendall both looked
at him menacingy and angry and of them said
I'VE are ready 10 settle that difficulty"
thing OF that sort. And what the of Elliott
AS they passed over the curbstone he said; Yes you
have got your croney with you Was that an aggres-
son They did not seemed TO regard it. for they kept
across the Avenue toward the boathouse The learned
counsellor then rected the testimony the conduc. of
Bley and Kendall the street. the rference OF
young MCPHERSON With them for the sake of peace, and
the excited revengeful of Kendall, his going
across the street and his assault upon Elliott esab
fishing the proyocaon and the aggression the other
SIDE Elliott, with more than exemplary iorbearance
had norne the outiages of coward blackeye menaces
Jos'lngs, and all without retalating Gen Jones con-
trasted the testimony OF the intelligent little boy Owen
with that OF Mr. Hartman, maintaining from the evidence
ana argument that the two young had disposition
Tor peace intent OF the kind their couduct being al
together to the contrary. The learned counsellor con.
Tended further that forbearance after their insults
ionged 10 the other parties-it their duty make
overtures OF Cancellation rather than ince Elliott to
desperation by further proyocations Then as to the for
mldsDe weapon IN tie possession of Elliott Ifnecessa-
ry Tor self defence, the distinction between musket
SIX oarreled pistol any other instrument of death
was not material in the Why in some parts OF
the country on the Eastern Shore of MARYLAND or Of
virginia some time ago,a would IS soon think of
gong without his shirt without his pistols and bowie
kne and IN the West TO this day, they articles
OF dress. Bailey himself had admitted that he had car.
ried such weapons in Arkansas Gen Jones considered
from the TACT OF Elliott asking for cane from his pre-
ierring could It have been provided, wooden cane to
the iron gunbaIrel that il evident he did intend
the use OF his pistol till the last extremity With much
nuteness ano cearness Of reason Gen Jones enlarged
upon the circumstances OF the provocaons of Bailey
the able counsellor upon this branch of hlagumen
close for the mail.