The New York herald., 1845-08-24

axssrts i, was with q view Of arresting Elliott was
most naturally construed BY Elliott into violent as,
Ia his hand his psto he rereated as far as consist
tent with his ssfety-he was as'aed by stronger man
stones are deadly weapons and the learned gentleman
reverted to their in the siege OF Troy in the battles
Of the Greeks and the Jews to the death Oh ooah 10
fsems controversy here followed between Messrs.
FsndaI and Hoban upon that point of the testimony
whsre in passing Elliott at the drug store Mr. Fendall
assuming from the evidence that the two men gave
hm .s,s al tba dcnys while Mr. Hoban contended that
from the deposition OF Bailey the proposition with
REV reconciliation and that the menacng look was
not given till Elliott had moved his hand II to his ps
tol in his pocket The testimony apparently sustaining
MIR Fendsll
He proceeded to the bellgerant conduct of Kendall
and Bailey over the way confirming inevitably in the
mind of Elliott that there would not only be attack
but ajoint cooperate attack upon him by his
sailsnts Mr. Fendail upon declaring his regret he
had rodden rudsiy upon the grave Of young Kendall
and nss ne wOaa JGn % tne Q, ms emo
that from the law and the testimony he should dec
svey ask Of the Court the discharge Of the prisoner
for that his offence misfortune rather than crime
and misfortune from which, in any event. he will be
the greateat sufferer The learned urist did his whole
Mr. HoBAN, in reassummg the argument for the prose
cuton disavowed any intention OF inhamng the min
Of his hearers with any extraneous matter With bril-
lancy of thought, beautiful the morning light upon
the pples of the he complimented the defence
for the strong and superior minds engaged in his behalf
The District Attorney contended in opposition conn
sci for the defence that where there killing the bur-
den Of proof in showing that there malice
the act, with the prisoner according to Black
stone and that such the position before the Court of
the prisoner in this case The of Sefridge was diff
erent from this, in SO far that Sefridge entirely
innocent IN the whole transaction not having given any
provocafon up to the time of the assault in seeking
his adversary, &C.
court in this case Mr. Hoban said was not derived
from the creeping slaves of the Halls of the Montezu.
mas put rom that nation OF brave men whose drumbeat
echoed with tho circle the around the worldhat
Colossus among the nations that stood with one foot
upon the shores of Australia and the other upon Oregon
or california as she wiled itthat nation who has
tablished her her language and laws all over
the face Of the earththa nation distinguished for its
warriors on the continents, the seas ct Waterloo and
at New Orleans II is that nation of brave men from
whom the authority of the law this case is derive
and the prisoner is amenable to this law MIR Hoban
with some controversy with the opposing counsel upon
point OF evidence) deliberately assumed the offence of
the prisoner the rule ofba discharge under
Bailey and Kendall, that he would be revenged on
Bailey before sunsethat he had the Ratchet on
the counter when Bailey struck him in the store he
would have slain himhis deliberate purchase of the
powder and the psol-hs return the store his walk
up toward the bowling alley-his subsequent starting
over after Kendall ard Bailey after they had rossed the
street were all circumstances establishing the guilt Of
malice aiorethought the prisoner the weak and
unequal parsonage in physical vgor his counsel had
represented him to be, why thus throw himself in the
way OF danger The District Attorney said he should
cite numerous authorities from the common Ia awths
goodod Saxon law, as he called it, showing that death
IN an ARRAY where the weapons unequal favor of
me king party IT is primd Jaca murder The District
pistol at Kendall before the latter any aggression
upon him He should rely for this proof materially upon
the testimony of Wells, the young mechanic fixing up
tSa behind the counter in the store at the time OF
.ne AM array, General Jones, from the peculiarly
to certain Irish witness in case who said he
turned over and went to sleep when the man killed
maze II necessary for the prosecution establish the
egiumacy OF this witnesses testimony by proving him
man OF character and veracity And had Wells heard
me enlogium upon him and his honorable vocation by
tne District Attorney he would have been highly graz
% dea; AZ nve o'clock we leave Mr.. Hoban citing pfsce
IN "a w. esa oushng his positions the guilt Of the
Deween the two parties And he said and said it boldly
a ne should prove this of homicide aside from the
evidence OF malice, murder any how MIR. yioban has
returned to the testimony of Wells, as we leave.