The New York herald., 1849-02-28


when the case would go to tse consideration Of the
judge before whom the examination made. The |
decision will probably be given soon.
Court Of Oyer and TermIner.
Before Justice Edmonds Aldermen stevens and Dodge
TRIAL OF JOHN s. AUSTIN FOR MURDER.
FIFTH DAY.
FEB W.-Tbe court opened this rorning at half |
past 10 O'Clock, after which proclamation made |
the names Of the jury called and the trial pro-
The Court gave its decision this morning. before the
evidence gone into, the application made yce-
terday evening by the prisoners COUNSEL that the
Prosecutor might be compelled to elect upon which
count Of the indictment he intended to rely for
yiosion HIS Honor after citing G number Of auhori.
the rule denied the motion In regard to the second
application, to overule the testimony of Mr. Warner,
GEo. HupsoN called and examined for the defence. |
Resides In Forty fret street, Fourth avenue Is
quest on the body of Timothy Shea the Inquest was
held on Saturday witness put coat into pile or
coats for old shea to identify the coat which the
prisoner wore the night Of the occurrence the
coat which he Austn that coat belonged
to witness 1t is the one nov producsd wtns's wore
1t on that day put 1t into pile Of coats In
the room Shea had been examined ss . witness the
the pile
Cros" esdmined.-At whose suggestion WAS this ex-
pertinent made?
AT the coroners; there were about seven coats
in the pile Shea did not describe the to witnesses
knowledge he was asked could he describe the coat
and he ssid he could think he said 1t q striped
Q--You say you piled up seven coats, and desired
Shea to .eleot the which Austin wors Was yours
the hrst he selected?
Q.-Did he take up the coat which is alleged to be
A-No, cir can't ray which he selected first he
was told to look through the pile and select one he
picked up several before he picked up tho one he said
Q-Did he ray that he could not select coat that
looked IKE T. and that all he could do WAS to describe
,A.-No, sir, not to my knowledge; his .ttsn.
for ,o%s a9s DO not hnos that the
stuff ef this coat looks differently in daylight from
what t does by candle light; he examined the coats
more than once upon the rst examination he select
ed my soat; no one went to the pile with him he
ssnt aeeend limo by the Corons-; th"r. YES good
the words he used the substance Of them ct
the time he made the witness not acqusint
ed with MIR Austin; knows him by sight.
M,GovrnN examined for the PROSE sutton - Knows
the prsoper knows Nesbitt; knew them In the month
Of September last saw Austin on the 2Sth OF Ssptem
ber last, between and O'Clock in the evening; he
was alone when nrst saw him; We afterwards met
Nesbtt in Park Row. Smith shortly after joined US;
never saw Smith before; he seemed tn be acquain-
tsDce Of Mr.. Austins; went to Leonard street;
got there about O'Clock; when got there went
into Woodrdges house the Victoria) and enqured II
he was In were told he WAS not; then left Mes.
bitt and Smith went out ahead We sat on Of the
steps and made bet Of bottle of wine that Nssbtt
houee Nesbitt proposed to Austin to 60 In and Austin
objected; the latter said Nesbitt could not get In;
Ano2d,
houre, and got considerable distance ahead Of
witness and Austin when We got opposite Shea's, .
person came running out Of the basement and spoke
to Austin and said, won't you come In and hear q
sorg!n Austin objected he asked him second time,
and be again objected he then took hold Of him BY
the collar Of the coat and woman lookd out Of Sheas
door and said ,omsthpg to the persen who had hold
OF Austn he told her to 60 In and mind her business
or some words like that and then said to Austin
come in and hear eong; Austin said will not he
the dra ustn down stairs at the time say
ing come In and you will hear nice seng when
would go in the person who had hold Of Austin
said "Ne,we don't want him I'M" they then went into
tns o.s%en, and 70: d1or % ss snsm sn%. on s1s IN
piled no he would not he was asked three or four
times Il he would drink he was then asked If he would
ssg cong he said no be was asked . second time
II he would sing he said no; but II you sing
frat, perhaps / may ring afterwards seme
Of them then got to .insiDs inside, and Austin
drink; witness VAS standing at this time outside, on
the sidewalk; they were still insisting on Austin
a. witnees supposed, ell had joined against Austin;
witness then hurried dow to the house OF i'll fame,
wh.Ie N.,bit. S and Smith had gone. to call them out;
him ort witness raid he expected John in muss;
Ne,bitt raid he would not go witness replied you may
stay and then lett and returned to Sheas house. at
which time the excitement seemed to be very great,
from the noise within; Nesbitt came up after, and
witness sad Austin cellar; Nesbitt then went
In and they seemed to be jswDg away there Nesbitt
when he vent in, rays, what's the mstter! and threw
the deer wide open and witnss then saw the man bo
hind the counter with the tumbler in his hand and
think Hupg IL st Austin It aimed that way;
be cred it, Nesbit out, and Of the parties
lights then put out; previous to the light goisg
out ore of the persons fred decsnter or pitcher,
nd ,ed r1 three times sss 10. ".
whatever they break and fall on the floor; they
were then very noisy and sppeaied to be breaking
chairs, crockery, and decanterr, or something like
that; witness then saw Auttin backing towards the
doer and two peisens following at this time heard
the report of the pistol twice. then crowd began to
m diner in tba
towards the station houae met the officers coming
from 1t, and told them to get light, that there had
been ebody shot in there; OF the ocers went
TO the station house and other went into Shsas;
the next thing saw two Of the officers taking the
sailor man to the station house, but In doing 80 had
good deal of difficulty; witness went back to Shea's
house and fou nd the officers guarding ana would lee
in; thinks there two pains Of glass broken
In the door, thsIe curtain over the door witness
stood at the time the walk, about foot from the
front ttep thinks, nesrs can guess, there were
bali dozen rtrsons n the basement; became satis-
air draw the curtain in ard OUT heard Nesbtt, a. he
entered the door, s.k person inside what he was
'Q.-was any question mked when the lights were
out, ard by whom
Yes; Au,,in raid, when the lights were out,
O. Did you see any blocd on Austin that night
o. Did you see Austin after he came out Of the
baonsht!
O : what was his conditiong
H-Ris fsce was bloody; the blood was streaming
down his cheeks, and over his face; nothing
throw the street that night into the basement
C,oss, ,Honi,ed II have not been ehown the depos
ton sde before the toroner tince made 1t; know
The prise fye or nix years; knows him intimately
Tor i've yess; went TO Park Row, No. IS; does not
hpew who hspt IL; IL called the Fountain stsid
there about an hour; drank once there; prisoner
Drank ess Of wine bttsrs; we went from there to
The corner ~ Brcsdwsy and Park Place at Sherwooda
smith and Ne,bitt srre with ne; met Smth asd
N1brtt before we got to the Fountain; met Smith
between Ann and Beekman ttreets; 1t was near
btr at the Fountain the others drank at Sherweodsi
\ AZ .t.out ufn nut a.