The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-03


= y i..essst until NE ;sntsaTy slpssn; sh.n = con
Ssst By evidence given IN court And where upon the
evidence given in court there in the minds Of the jury
reasonable doubt Of the guilt Of the accused NO mattsr
what the charge may BE- he who II aseussd shoud have
the benefit that doubt By the law which governs this
court and which ALSO al well ssn
In not called upsn TO establish his innocsnce
That duty is not imposed upon him His innocence \.
considered established until BY convincing proof
brought forward in court that estabished in
destroyed is the duty OF the government TO
convince the jury beyond reasonable doubt Of the guilt
Of him whs may be indicted and not the duty of the
cused convince them of his and they
not convinced beyond reasonable doubt Of the guilt,
then the duty OF the jury to acqut The disaster
which gave rise to this prosecution at the time it
red deeply excited the feelings Of the community and
the public mind for considerable period, in such
state that If trial Of those implicated supposed to
be plicated had taken place after il happened
there would have been some danger that that calm and
the investigation of the truth which is due to all subjects
of inquiry in judicial tribunal, and particularly to
subject demanding much impartial investigation as
the TO be submitted to your determine
ton. But that excitement has passed away,
and you, A. impartial jurors, sworn to . faithful
discharge Of your duty have been selected to pass be-
tween the government and the accused and have no
doubt that the duty which devolves upon will be
faithfully performed have told you what duty devov-
ed upon the government before they could claim con
victon It is incumbent also upon me to instruct you
what not Of Them and what is part Of their
duty conducting the prosecution. It is not required
Of them to prove wilfu intentional Encouragement
misconduct the part OF the accused In prosecution
of this lind is not the intent which constitutes the
of the offence but improper act although
unaccompanied with any evil intent negligence in the
performance of proper act nattenton to any duty
imposed captain, engineer pilot other person
employed board of steamboat vessel propelled
whole part by steam when by such improper act
negligence in the performance Of proper act mat
tenion to any duty imposed such captain, engineer
pilot other person. the life of board such
vessel is destroyed. But there must be some improper
act, inconsistent with faithful performance of duty,
or negligence in the performance of proper act,
or inattention to some duty i'm posed upon such
person. and death Of person board the vessel
in consequence thereof before there be conviction
There must be, not only such improper act negligence
inattention, but there must also be death of
person ON board as Dsequence of such improper act
negligence, or nattenton. And il these proved it
is only necessary to inquire whether not the accused
had any wrong intention. But though such improper
act, and negligence, and inattention, and DEATH
proved yet such death was not in of such
improper act, negligence, psttenon there be
conviction. Ar If there death, and such death
was in consequence of some misconduct neglgen
inattention, by some employed board the
vessel if those eendants not chargeabe with such
misconduct, negligence inattention, if it is not
this respect, there can be conviction. These who
conduct this prosecution do not claim that these dsfen
dants either Of them intended the death Of any
on board the vessel There is no necessity that they
should. They net accused Of any wilful design
take the life of any one. The indictment not placed
upon that ground but, as ! have before init
mated, it is placed upon the ground that the lives
which have been lost were lost by the misconduct,
negligence, inattentiop of the defendants
In an action in favor of any passenger on board the
Henry Clay at the time Of the disaster, against the
owner the captain Of the boat for any injury to his
person to his property the fact of such injury,
;c1sed by the burning Of the boat, would be sufficient
lns.s nothing else in the case for the jury
sroyed by neggsDo.n say mat Inc ,S SoA was de- Ss
'oL DIS ior 'ne ds.age claimed in consequence of
negligence and misconduct are pre sumed and the de-
PENDANTS would be liable fer neggence unless they
igence misconduct. From this fact tns law takes
for granted that the defendants guilty and In
vent verdict against them they must then nno-
criminal case there is no such presumption against
defendants which they must But all the legal
presumptons are in their favor until the contrary ap
pears And the death claimed to be in consequence Of
any misconduct or negligence must be proved to be-
before a conviction be had the direct con.
sequences of the misconduct and negligence com
painef Of And If it is not the direct conseo
Of the misconduct or negligence complained Of a con-
counsel from the books, where individual placed
loaded gun in corner Of roem, and another per son.
Gently snaps it. by which is discharged and
death OF some one, here there would be death and
there would be negger in the party who placed
loaded gun in the of the If there had not
been that negligence there would not have been
LIE. But that negligence could not be the immediate
duce the death 1t could produce it without the ct
OF some other person And the death was not intended
by the person who was guilty Of the negligence ia
placing the loaded gun, and the death not the
iDm ediate consequence of such negligence and would
not have taken place but for the another person.
sible for that death But the neggen e or improper
act complained of be the sole cause Of the death
SELL and such Burning of the vessel causes the the
loss Of life, then such loss of life is the direct
consequence Of such negligence improper conduct and
the party guilty OF the is liable TO the punishment
imposed by the act OF Congress upon which this
ton is founded An error of judgment merely no wever
not sufficient TO fix the charge of misconduct or neg-
gence upon the against whom such error of iudg
ment proved The law of Congress did not i..ud 20
punish mere error Of judgment. wnat is meaut BY
COL fa.xsx-
gress usc winch this prosecution is founded well ex
pressed by the learned Judge In his charge to the jury
the of the United States against FarnhAm In sub
stance use his language
BY misconduct negligence inatention in the manage
q m Is eSpaSuhs.ay meant the OMISSION
sequences made mnal it what ma 6s
proofs satisfy you .s h o. boat the
necessary or most probable result of it.
Bearing these rules of law in mind you will turn your
attention 70 the various questions which be deter
mined by you In order that direct decision may be had
OF the issue which has been found between the govern
ment and the parties now trial.
The first question is the lives of any persons on
board the Henry Clay destroyed by the disaster which
happened to her on her trip from Albany New York in
July, 1882
II is admitted and the proof is full. that there we're
number OF those who were passengers beard the
persisted in consequence of the sad catastrophe the de-
tails Of which have been related during the progress of
the trial Some destroyed by the fire and some at
tempting to escape from this destroying element pershed
in the water.
The next question is were these defep "a ats persons
employed board the boat having duties TO perform
connected with ner management and what
ever negligence misconduct there may have been and
however much the death Of the persons destroyed may
be connected with any negligence or misconduct
which may be claimed TO be chargeabe to the defend.
ants or to any else these defendants are not
sbe for such misconduct negligence in this proecu-
ton, unless they persons employed ON board the
boat having duties to perform connected with the man
agement and navigation of the boat admitted that
John Iallman was the captain Of the boat The cap
tain has the general command Of the boat All on board
performing duties under the authority of the captain
whoever he may be- They subject to his control,
and are bound to obey his orders 1t admitted thai
James l. Jessup the captains clerk. Among his
duties are the duties of collecting fare and giving tickets
and OF acting as the assistant Of the captain uder him
John German was the engineer OF the toss His duty
was confined TO attending to the engine regulating and
Greeting that and having control OF che Gfemen Ed
wsrd Huoosrd was the pot of tie boat and his duty
vas to direct the Of the boat And Jane
lmendorf was the assistant pilot and his duty |
vas to assist the plot, to act under him, |
md in his absence 20 take his place. But |
: u claimed that Mr.. Colyer although a part owner |
u the boat and on eoard OF her the time the disas
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