The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-23

before the next Grand Jury who may possibly iudict
the accused parties for trial The extent would be
uon, would involve a punehment of heavy fine, or
Imprisonment ut in the Penitentisry, or both fine aud
imprisonment according to the pleasure of the court
Court OF Oyer and TermIner
Before Chief Justice Edmonds and Aldermen Prsnkli
| and Delamater.
| TRIAL OF DEiANY FOR THE MURDER OF MARY
| NJ INTYRE--coNvIcTIoN or MANsL.AUG HTER IN THE
THIRD DDEGREK-sENrENcE
| THIRD DAY.
JAN ~ AT the sitting Of the Court, this morning
MT Jas d. smith resumed his address on behalf of
the prisoner speaking at considerable length, and
citing starkie evidence and various authorities in
support OF his srgume mt to the degree of orednc
to be given to the statement of the deceased which
was offered by the prosecution AS dyi ng ton
Counsel also sdvered to the intemperate habits OF
deceased and the violence OF her conduct and lam
hkey TO have been the first asssilant, as it ad
mitted that she left her bed in anger to go into his
room Tor the purpose Of turning him out OF her house
| be murdered in his bed by herself or her men. Mr..
Smith recapituluted portion OF the evidence, and
creIsnci.s RENE of the witnesses swearing that the
deceased went into Delsnys room whilst Julia Butler
returned exclaimipg that she had been stabbed
The Judge, interrurting Mr. Smith said that the
District Attorney agreed with counsel tor the defence
that the prisoner must either be found guilty mur
der or be acquitted altogether.
The District Attorney would state his views now, In
order that Mr. Smith may apply his argument to them
1t VAS his uhe District Attorney opinion that the
prisoner must be either convicted Of murder scqut-
ted altogether If the beiere that death
nom the wounds Inflicted by the prisoner he was con-
strained TO cay that IL is capital but ii the jury be-
li.ve that he did not die from these wounds then un
DER the statute the jury could convict him Of
ssuit with an attempt 70 kil by tho statsmsnt OF
out OF the grad. Of manslaughter, and the verdict
must b. murder or acqutts.
Mr. Smith resumed his address and said, as he need
not further conhne himself To the charge OF mAu-
slaughter he called upon the jury to make pro-
Mise IN their room or say between themselves that az
they could not eonscieItiocely commit the man OF
murder they would bring in verdict Of assault with
intent to XII for the ingredient should .xis in
the mind Of tho prisoner 70 convict him Of
sault with intent TO kill as thatwhich would convict
hia OF murder COuhsel then asked the jury did the
prisoner act like man determined to commit mur-
der! He was uHdressed for the purpose going to
bed and II he armed himself with knife IL was for
the purpose Of defending himself from the violence he
apptehsndsd In consequence cf the threats used to
wards him by the decreased II he had pr-msditsted
murder would he not have been dressed for the pur-
pose CT .scaping after he had done the deed After
acme iuttLsr obsers ations MIR smith committed the
prisoner TO the hands Of the jury with the full
renee that they would render a verdict ot acquital
IL wac pact one O'Clock whtn sr. smith coo cludsd.
H.tu the Court took recess for an hour.
AFTERNOON SESSION
On the reassembing OF the Court, the District At
torn.y rose TO sum up the lie stood before them
a tht advocate Of Justice the part OF the people,
agsnit the prsorer at the bar who !. charged with
the highest crime known to the laws He had feel
ing TO gratify he sworn, k. the jury perform
Cutyto perform that duty, not harahly but Justly
townrds the proc. cutioa and the accused lie would
IN the outset apply himself 10 propositions ofsw
yineed that The jury would be governed by them no
matter how painful the duty might be TO thea lIay.
ing tated the particulars OF thu the District At
torney snid that 10 commit the prisoner they must be
saithsd that death ensuei; that the proxmate
oitrg cause wan the wound inflicted and that the
wound inflicted by the prisoner aud that the cir.
cumsfsuces under skich tbs wound was inflicted
,ucb ~ 10 Indicate warrant the conclusion OF pre-
Dscitatcp on the part Of the accused Ctrs from the
statutes hat constitutes the crime Of first
when committed from ptemedi;afed design. Second
ly when p.rp.ratsd By any act Involving danger TO
another aud evineine deprsved mind, though With
oct ~. design % take the lite Of any particular person
Ttt first expression, premcdtated design Ia malice
Hioreihought-they are equivalent terms-mslics
httethought or IN other words. premedts'ed design
There In lev 40 kir De of malice pressed ma
bce;n the other Piled malice = Express malice
" proved by previous threats living in wsit SC Inn
pied malice IL malice i'm Piled from the act itself and
the jury to take into consideration all the cir
cumstanoes Of the the instrumen; used aud the
othrr facts sworn to The las implies thst when an
Individual dos an s-t calculated 70 result IN death
hs committed II for the purpose Of In xing iifethe
lsr iHrre. that " a man innicts an injury fron
which death eDsues, that be did u with the In
tsruor TO do 90 and u remains Tor the msn
charged 20 show the extenusting circumstances
The District Attorney for the legal deantion Of ma
lice. referred 10 Roscoe's Criminal Evidence. pages
ts1 t52 t64 and 66s; to Dssn Medical Juris prudence
page b44 end to the ca 80 OF the people azsinst
shorter; ond continued to ssy, that II without
the sppteheneion Of danger, the prisoner wsnton-
ly ftsored to the uss Of the kniie, the iev i'm
Plies that he premeditated 10 taks lite " death
ensued from the wounds inflicted by him. The
learned counsel then referred TO the nature OF the
words between The partiss and the character OF the
wounds inflicted on the deceased, and having applied
bimself To the Law Of the he called the attention
the jury to the testimony and said that possibly
there never vac q case In criminal evidence where
there was such abs nee ~ discrepancy and
every witness presents an ubbroken chain e testi-
mopy. going TO prove the crime With which the pri
soner stands chs fged The prosecution de.irous
of laying he whole before the jury they would
have examined Gala aghsn who productd for ths
defence had they knoWR Of his being Their ~ the
time, they would have examiued Msrshsil only they
knew bis testimony ". not TO b. depended on lie
Nfr. BUnt would bs willing 10 examine every one
Who prsfent at the Transaction be sause he h-d 10
10 be the duty ~ public on 70 suppress any
information that may tend a. the sNcuipsian ~ the
party ascused Referred 90 Deans Medical Jurispru-
eeuce page q and sait tha. m matter whether the
deceased was temperate int mperate the in.
fctrg the injury liable 90 the coaseIuenees ~ the
act fCiied Roscce's Criminal Evidence. pp go Bls
The District Attorney then continued 90 say that
ingenuity, no pains ba' been spared and all that
talents legal acumen nbd ec4v-uce coui1 effect has
tten faithfuly rendered ~ the c0ursel iof tfe pg
soner We'll aud truly has he disflared enc 81 hose
nCh'esut glorious sttihutcs which belong to the pro
fetsicn q which be IL member and when tells NJ
that The advocate Is not A. liberty 60 desert th- sHli
wretch In hi lowest estate, sBt that be is ~ take
the trial q the accused Alter very long and shle
R15refs the learned gentleman concluded ny stviut
/ that the deliberate conviction - vfch Dr. had ar.
rived urCn thg Law that tbs act et0ca withn tha
fatUpry prorisions a. the crime OF fa4rdes vas be-
4 cause he found provision ot TIE statute o4 NAV
fEurftFr which meets this daeUcs. G0i forbid, said
The Difrist Attorney in conclusion, that nv heart
should le 81 s'tfled public sasscutor ss =,
W regardless Ci human tymp&thsts, and more psTtCu
lssiy ol ttmgn lirs but In tse HsehaFNe 81 NJ 4Gt
~ he eYls, anon l represent, 7 ~ bOund a. al
Justice at your hand. lyon God aoy tifrursf apca
N tLetaee which would watfsnt d04bt tHen xtv
the ptsCntr tte ben Ga * tbat dcubt bat II tou
t.u.Eu U3rUt rvk8.ra tNs 80 a = il -