The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-02-16
Court OF Oyer and TermlRer.
Before Justice Eamouds, Aldermen Crolius and
Stevens.

psisopsr's council commenced summine M BY i@ersss
ING the mind. Of the ur, the solemn duty they
them the esarness and simplicity Of tue tsstimony
There was. he said, two theories in the case; tie
to his death BY kicks and bruises received from the
prisonsr The theory oftbe defence that he oams
might adopt Il vas CLEARLY ,hown that there vas no
Prsmsditstsd desisn and Of cours malice could DO
n,,es and therefore: ts: jg,y cannot aad him
deceased we're utter strangers to sseh other never
November last In this aspect Of the ease the nrst
question you have to decide H. was tho homicide COM
y 0a S On
this view. Cockest and the policeman tell you that
prisoner raid that tn. having against
what followed Was the effect Of passion and s1oitsmen
any doubt on their minds a. to tho manner In xhioh
the d. ceafed came TO his death, they bound to
. ses o. : for
might give their opinion - to the which pro
dueed death, and the jury were bound to discard
who have made the science OF medicine and surgery
thestudy Of their lives: He then awst the tssti-
In doubt whether the death n tho deceased pro
duoed Naturalization and the fs or by external VIC.
BY The testimony Of Doctor Wnsts.r ' s"as
was therefore, the duty OF the jury, with this doubt
the
prosecution undoubtedly will that the deceased Dame
TO his death BY the blows described by the witnesses
He 1.-THE counee) would however, contend, that he
came to bis death BY means Of circumstances which
happened previous to tho niction Of the blows that
Timothy stated, that conclusion OF the brain would
be effected by fall q: we'll - BY external violence
when he up he found the deceased lying ON tho
in state Of insensblity, with the prisoner
him. and no 81 that ms In
alss remember, that insstsd the District Attorney
should call his employer and put him the stand and
had drank little that he had sent home with
him, who had returned, and said he wAs able to take
care Of himfslf From this testimony, then, it dis
tipsy appesrs that no FELL and the congsston Of the
brain in its inoipent state st the time that Nor
.sS found t9s Rs:ons, e;sr
the dect ased, whe much superior In physical
strength and power to the prisoner would not have
time; be- therefore oontsnded that II the jury was
satshed that the fall was the noipsnt cause Of the
much sos,er they might dsprecats the Kicking and
canning by the pri.onsr Into bis subsequent conduct
ns s1sa sn,s - the counsel
should take the whole eft unless evidence eroum
vs,: shown to r:Dus tbs. part Of It which
both Mtrr and Coskelst thahe prisoner stated
at the moment that the transaction fresh his
mind, that the deceased and he met tho side
| walk; that the deceased struck showed him, and
that he the prisoner) had knocked him down in
self defence. There was evidence produced to
rebuff that declaration, and tho jury were bound to
receive It as true. There was another Circumstance
connected with 1t, from which the jury should infer
that the deceased was the AGGRESSION They would
recolleet that Doctor Whittier swore that the pr
soner Was . man Of . herculsan frame. much
| larger man than the doctor himself, who tho
jury would rccolieot Of fair proportions; he
therefore submitted that within the range
size and strength to the deceased the ssgrsssor in
the unfortunate afrsy in viii ,h Mcclure to his
death Taking into consideration these facts he
tended that the jury could come to NO other
than that It was justiasble hemcide. But II the jury
disagreed With counsel and were Of opinion that the
deceased came to his death from the blows Unlisted
upon the dsoessed BY the prisoner then the inquiry
wss what was the degree q crime TO DO Imputed the
they could only dad him guilty Of manslaushtsr in the
The DsTKIcr ATTORNEY then commenced summing
up on the part Of the prosecution. He isd that
wthst.ndDg the able defence made BY the prisoners
council, and the patient and considsra hearing Of
the Court towards the prsoIsr he felt Il his duty
call for conviction We net, said he, here to In
Soss IN ,,Inctvs assoss neither are W permitted
his family, or friends; We only to consider the
guilt OF innoceDce of the prisoner Therefore the
terence by the prisoners counsel to the family Of the
sppy equally to the family Of the uniortuts dse.sssd
sympathy those Of the prisoner He proceeded
to define the crime Of murder; after which he said
hemicids only was committed But does that sar.s
with the testimony in the case? We have it frsm the
bps Ct the witnetses that most oowardly and
manly advantage taken OF the deceased and that
seruel and cold blooded murder was perpstrsted
him, which agrees exactly with the definition have
js 10 Mcclure dead! The second question IT, did the
wounds inflicted on his face and breast by the
prisoner produce his death To decide these two ouss
evidence Of Morris He tells distinctly that when
he nrst raw the deceased he had signs Violence
his face; but when he turned round, in . minute
after he saw the prisoner kicking him the head and
bre he also tells you he exs.nsd his face, snd
found 1t most dreadfully mutated. For the murdsrous
intent Of the prisoner you need emily refer
timony Of the policeman S~seny-he tells you he vas
the other hand, was quiet inofensive man. Upon
this occasion he happen 20 be in liquor can very
well understand how the hole affair urred the
ran agsipst each other and the prisoner knocked tue
deceased down. he being most BY liquor. Nor
fs came up before the prisoner had time to indulge in
his Vindcuve feelings ana he seemed tosmovs on but
biz alice having his better eepgs II ever be
bad any, he returned, and assaulted the deceased ia
the brutal way whi,h 40 fatally for both
parties The District Attoi ney adhered the jury lor
about ap hour, and concluded BY calling ON them for
teI sict Of guilty.
He told them the crime Of MURDER With which the pr
charged defined By tho statute to be the
peIp.srst.d with prsmsaifst.d design to effect the
death Ct the person kulsd, or OF any human being
When p.Ips,I.,sa By Any &c. to
bfe, although without any premsd,tstsd design to
Effect the cath Of aay particular individual the first
thing to be made out the corpus deca Of the crime,
that the death of the deceased, and that it was
caused by violence certainly true a. the prison.
nfsl insists, that prosecutor should make
out naivsy the death Of the party but in regard
to that, there 10 NO reasonable doubt, because IL IL
proved ihst he died the 18th Of November last.
The evidence Of the physicians shows that died Of
congestion Of the brain and the lusgs; and the only
qpetton for to oonsder 10 whether the congestion
ofIhs brain and lungs ecoasoned BY the external
volen which appeared on the decesssds body, Or ~
the prisoners counsel contends was 1t ocsxsopsd by
jntcxcat,on? lift 10 doubtful In your minds whether
this injury resulted from intoxcation or the bruises
the dsceseos body would not be safe for you TO
eonvist But the physicians both tell you that this
congestion produced by the blows, and this tssti
mopy, gentlemen, you cannot overlook In dstermin-
ing WI 1t may be the Immediate cause Of DEATH You
are to ak yourselvss whether death was caused
by intoxicAton by the fall! IL produced by
the blows nniotsd him BY the prisonsrl II dsoid
ing this quetion you to bear these tnpgsin mind;
and repeat to you, that you lightly overlook
the testimony Of the physicans You will constantly
bear in nina they both stste that death was produced
by The kicks on the breast; but IL you are OF opinion
death Oaueed nv the fall or hv iuta