The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-19

/ O.
Cross examned-The prisoner stated that he had had
the pistol his loaded for two weeks that on
that morning be vas sitting By the stove reading PAPER
TO shoot herse he got up for the purpose OF
taking from her. scue ensued, and the pistol went
| of.
JOSEPH Roach deposed that he heard the alarm, and
went to the prisoners back door; it fastened
be then went into the street. returned again. and
prisoner and Michael Dolan, Mrs. Fitzgerald lying on
the floor then took the prisoner to the station house
Cross iped-Saw Thomas Ward go into Mrs Etz-
gerad's room on that Sunday morning
To DTict Attorney-Heard the prisoner make unusual
renal ks to his wife few months before this.
Captain Featherst0De corroborated Dolan testimony
The for the closed and the Court
| took recess half hour.
AFTERNOON SESSIONS
Mr. Palmer opened the for the defence the theory
of which that the deceased woman OF violent
temper and that she had seized the pistol from the man
Tel piece and that in scue between them it went oil,
apd deceased was shot.
Bridget Rourke deposed to the bad and quarrelsome
temper of the deceased and that she her
cason throw tumber al the prisoner saw them several
times fling at one another.
Cross examined by the District Attorney.-Dd not
catch his wife by the hair had seen him chase
her.
Terence NcCuskey deposed that the night before Mrs.
Fitzgerald killed he went into her store she
asleep and be wakened her and asked her why she
was Dot Winding the store asked for something he
up t. get what wanted, but fell back and went out;
she in the habit OF coming to store for liquor and
pint Of brandy; saw her strike Fitzgerald she often fol
lowed him into 10Y store and boxed him in the face;
Il
TO the district Attorney. When she came to my
store it TO prohibit me from giving Fitzgerald
Johanna Kossina sister Of the prisoner depossd;-I
knew Mrs fitzgerald in her life the saw her about
week previous to her being shot, at my house Ftz
gerald there Mrs. Ftzgeia aid teok gridde OF the
stove and beat him shout the head and arms; he was
knocked down by the blows; Fitzgerald did not do any
thing to her. it because he would not go home
she struck him was very sick at the time and
my brother said ne would 60 home IN the morning |
4
sion had to call in two doctors after the beating
he gave him. recollect Fitzgerald shop being broken
open be used always to keen the pistol the manel
piece psto producsdl can't say that this is the one;
/ thought it older looking one.
To Juror-There fire in the stove when Mrs.
Fitzgerald took the grdde of it to hit the prisoner.
Cstha1ne Eaine was At Mrs Kossnas house the day
deceased struck Fzgerad she took him by the hair of
the head. and said that il she had pistol she would
shoot him he did not strike her. be said he would not
strike her, as she was woman; she was in violent
Mr. Philips called Coroner Hilton to prove that in the
pocket of the decease found the key of drawer
il which drawer the Coroner found pewcer balls and
caps Mr.. Hilton, however, was not present.
The District Attorney said that where there are four
Cororers he did not why of them could not be
spared TO attend witness case of this impor
lance. He, (Sir. Blunt would admit the fact il the
counsel desired it, the evidence would cut both
The testimony the part of the prisoner here closed
Capt. Tlandrow re- called by the District Attorney,
and deposed that the pistol produced is the taken
from the prisoner barrel the lef discharged the
The District ATTORNEY said he would send and have the
contents OF The loaded barrel drawn.
The barrel then drawn, and the District Attorney
said it proper for MIN to state that it contained
nothing but powder aud waddIg
Mr. Phillips then proceeded to address the jury upon
behalf Of the prisoner contending that the PROBABILITY
defence showedthat the explosion OF the pistol
took place IN scuie between the prisoner and the de-
ceased
The District Attorney then proceeded to sum up the
for the prosecution, which said pre- Sented
melancholy picture OF coniueal quarres and unhappy
state Of life resulting from the habit of intemperaace.
He reviewed the evideI at considerable length and
tended that the crime in this instance under the
first subdivision of murder.
Judge Edwards in charging the jury said that it
ed from the testimony the that the tic
laons between the deceased and the prisoner had not
been harm onous; they had frequent and violent
res; they both less prone to Incorporate
habits the deceased woman Of large stature-not
inferior in that respect to the prisoner would appear
also that occasions than she the aggres
sor that he assaed her husband and knocked him down
On the other hand, seems that on one occasion he
stzed her by the hair of the head and another
pursuing her with in his hand and she flying
| from him. 1t was with persons between whom the
occurred The proof shows that two nights pre-
vous to the occurrence in question Mrs Fitzgerald had not
slept at home she slept with her neghbor Mrs Hardy
hs s nt her that hs was at the house Of Nc Reach
where heard the ort Of pistol folio we'd
and she found dead The proof is that she killed.
physician says that taking off her skull he found in
the head two ugs. pistol found the pr oner,
and no other pistol was discovered The presumption is
therefore, that the found the prisoner is the
by which she met her death, and the only question for
you is whether it was discharged by him, and, if
1t was whether the act comes under the crime Of
murder mansaughter. The evidence is entirely
crcums antial but crcumstantia evidence may be
satisfactory positive evidence It Is however,
sary for jury TO find a complete chain Of circumstances;
there must be link wanted t0smake it conclusive of
guilt the circumstances must be inc onsistent with any
reasonable hypothesis of the Defence not inconsistent
with what is possible but inconsistent with what is pro-
bable. The theory Of the defence here Is founded
the statement of the prisoner which is not admissible
evidence but the it is received that if the party
is nnoce he be able to state hypothesis cons
took the pistol from the mante piece and attempted her
life that he endeavored to prevent her and in the
struggle she killed The learned Judge then reviewed
the testimony and said is this consistent with the de-
enceY-is it consistent with human action, it is ordi
nar developed that the circumstances occurred as he
states If you should come to the conclusion that the
upposn presented by the prisoner reasonable that
you cannot find him guilty then will be for
you But the other hand you think
otherwise you will what ia the nature Of the crime.
The Judge then defined the crimes of murder and
slaughter in their various degrees, laid down in the
statute and continued to say the comes to this
Do the proved here show that the prisoner
did With # so then he
Is guilty of murder not and that he did 1t in the heat
of passion with deadly weapon, without the design to
effect death why then he will be guilty of manslaughter
in the third degree you believe the prisoner guilty.
matter Of what degree Of crime, then you will say
your oaths regardless of the consequences. mercy is
10 be extended that is the province Of the executive The
jury retii ed at about a quarter to O'Clock.
At twenty minutes past seven they came into court,
having previously sent a~ritten communication to the
Judge.
Judge EDWARDS sad-All can DO in answer to your IN
quiry is to read the statute The Judge then read the
statute again, and said that Of granddaughter had
ference 10 this If they think the evidence here
shows tie prisoner guilty Of the crime of murder
tanly it is their duty to find him The sovereign
power Of the State to define the punishment the duty
OF the jury to find the verdict the duty the court
TO pronounce the sentence
The jury again retired but they intimated that there
probability of their agreeing the court separated
directing that they should be sent for when required
At the time this side Of paper sent to press
the jury we're still locked up and had not agreed.
| Theatrical and Musical.
BowERY THEATRE This establishment is in career Of
great success if good houses be index Wadron and
Stevens very active and energetic, and being we'll
known possets both tact and talent the public have
full confidence In their managerial abilities The pieces
selected for this evening William Tell" with Mr.
Eddy Tell, and Mrs. Parker Tells wife The en-
tertanments conclude with the extravaganza Of Lola
Monez.n
BROADWAY THEArRE,--Mr. Forrest, who appears this
evening for the forty third time during which he
LAY ed to very good houses is announced night to
- -. ~A~- r. H.