The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-17
the lawful defence Of person and there shall be

reasunaole ground 10 apprenen0 deslgD 70 connis
felony, OF s,me great personal injury, and there
shall oe imminent danger Of such design being
complished. You will Observe that justiiabe
homicide in this subdivision Of the statute take
place only where danger shall exist and where there
Is reasonable ground to apprehend great personal
injury. Now what Is reasonable ground? Reasonable
grouno ia not merely what man may choose to con.
slider as sufficient ground. 1t is such ground as
shall appear to all OF you to be reasonable grouni,
under the circumstances under which the party
acted In this point Of view, of course, it is proper
and necessary to take eto consideration the charac
ter OF the party accused IL Is necessary to take that
into consideration, not as varying the rule but TO
assist you In applying the rule. 1t is important Tor
you to know whether or not he IA a man OF gres.
courage, the other hand, OF great constitutional
timidity. So again, it IL important for you to know
what was The char acter Of the assaiant because
man Of ordinarily quiet disposition might pproach
another under circumstances which would indicate
reasonable grounds that he intended to infct per-
sonal injury, when 3 man of turbulent and violent
character If he should approach you under the same
circumstances, and you, or any other persen. would
draw different inference as to what was intended
10 the two casesin that point OF view, it is mQor
tant that you should know what the character of
the party who was IL is alleged, killed in seltde-
fence There must be danger Of great personal
injury which amounts to mutation, or something
equivalent to it, But there is another branch-there
must be imminent danger of the design being
accomplished. The statute says there shall be
imminent danger of the design being accom-
pished. The rule is that the party as
sailed must retire if he can do 80. The defence
contend that under these circumstances it is not
necessary to retire although there may be means of
retiring, if The party assaied be in his own house.
But do not think that the rule of law goes to the
extent which is claimed by the prosecuting attorney.
The English law and our own which Is derived most
ly from the English, have always attached great
saHotty to mans dwelling house. In the old Eng
lish law the dwelling house is called mans castle,
and it was said by one of the first of British
statesmen, and one OF the greatest advocates Of
fhaf hr,p,b
ing might be, though the winds of heaven might
whistle through It, and the rains might beat through
it, the King of England must not enter it. But,
gent emen although there is this sacredness attached
to persons dwelling, do not think it goes to the
extent which is contended for by the defence.
Neither do | believe that it is necessary that man
in his own dwelling, when q person comes there
and assaults him, should fly from room to room
until he is driven to the wall after having exhausted
every means OF escape Neither do believe that 1t
is necessary for him to desert his dwelling, and
leave the assalng party in possession; but he must
all reasonable means to prevent the necessity for
taking human life and although the law undoubtedly
teaches the great sacre mess Of mans dwelling;
it teaches equally the greater sanctity of hum 10
life. say gentlemen, that he is bound to use all
reasonable means 10 avoid the necessity Of taking
life, even in his own dwelling house. There are GER
tain rules always to be laid down for the guidance
OF jures in cases OF this kind. The jury must con-
slider the previous re ions and connections OF the
partes-tbey must consider the motives with which
the deed was committed they must consider the
nature Of the sapon used and the conduct and
demearor of the prisoner after the offence Was COM
mitted. In reference to the previous connections
and relations OF these parties it seems that the
cused was engaged in business at the corner Of
Reade and Greenwich streets; that the deceased was
in TIE habit Of visiting him very frequently that he
had sometimes borrowed money Of him, (the ac
cuse5O that he called upon him as his fiiend, that
finally he requested him to visit his house in order
to his wife, for the purpose of render lg to her
med -! services; that he went there number of
times. and as far as we can inter from the evidence,
on all occasions he went in company with the de.
ceased that whenever he saw the wife Of the de-
ceased he saw her in his company, up 70 particular
period. On that occasion she requested her hus-
band to retire and leave them alone; and he
did so. When he had withdrawn, she, in the
presence of sirs. Barker, lady living in
the house. stated to the prisoner at the bar that her
husband treated her bad y; and that she was unable
to assist her to remove from him. Mrs. Barker says
that the prisoner advised her to be patent She told
him that she had a wealthy uncle who would supply
her as soon as he arrived and she advised 10 be
patient and wait until her uncle came. Finally,
however, she left the house of her husband and went
to the Franklin Square House. The evidence does
not show that the prisoner had any agency in this
business. After the removal he visited there, and
was seen there on two three occasions by Mrs.
Barker He was seen going w 10 her room on the
morning of the 3lst OF March, before the homicide
took place; and that is the only evidence that we
have as TO his visiting there alone. The test s,ony
kDCWS THAT during IIilS prisoner
had provided himself with pistol. He at that time
ignorant OF the Hammer Of loading il, and after
leaving the store in watch he purchased it, he went
back AID requested the clerk to show him how to
lead II. He made secret OF its possession, but
told his partner that be had bought it as
means of preserving his life from the deceased,
IN selfdetence. The partner, who was q man
of stronger temperament than the prisoner said,
q allowed him to have 1T as a whim of his,
and thought nc more about it," What was
the principal motive Of his procuring this weapon
we can only conjecture Mrs, Barker had told him
TO beware how he jnterfered between Melville and
his wife owing 10 the violent temper Of the deceased;
and it was owing to the danger of his suffering
violent attack, that he procured that weapon This
Is the evidence that we have up to the time the oc-
cureDce took place. The next subject is the motive
by which the prisoner is supposed to have been ac-
tuated. One of the motives that has been shadowed
forth in evidence, and that seemed TO me the only
motive, was that there must have been a criminal
connection between the prisoner and the wife Of the
deceased. bave stated the circumstances of their
previous relations, and there is nothing but that
showing any criminal intimacy. But suppose that
there had been would that have induced the prisoner
to kill the deceased? Would that have promoted
his criminal intentions upon the wife! Why, at
that time the wife had commenced legal proceedings
against hiI, and II she had succeeded So they would
have bad all the means Of intercourse that could have
been desired She would have been separated from
her husoand and Melville could not have interfered
with her; and ii his intentions had been to procure
safety for his illicit correction, his best plan would
have been to let things go on as they were going.
But we also learn that De Corn had lent Mrs. Mel
vile money! but it was done openly and publicly.
BE had even taken receipts for the sums and in one
instance the receipt is in toe handwriting OF third
person II those sums had been the price Of favors
granted or TO De granted, is it reasonable to suppose
that he would have done everything 30 publicly.
And gentlemen do not see as far as any evidence
s concerned that any motive Of that kind is shown.
it Is said however on the part of the District At
t0rney, that nj that time the prisoner ct the bar
kI that he had been assisting the wife to separate
from her husband and was under the influence Of
these feelings when the act was committed. 1 can,
no viewer, conceive Of no motive for killing a man
because he had done kind act to q wife. I cannot
see the connection between the two events. The
neYt subject for your consideration is the facts and
circumstances which occurred at the time of this
homicide. The testimony upon that point s, that
shortly after nDe o'clock on the 31st Of March, the
deceased came to the premises of the prisoner. He
came with weapon in his hand-a cane--which has
been exhibited before you. He was highly ex.
cited and inquired with much anxiety for the
prisoner. When told that he was not in, he
went out, but soon returned and renewed