The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-24
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killing of another is herein declared to he nssahls ~
uces bv naa the party should be SO far
OF passion that he is considered incapable of inx
deliberate design to kill; and il, under these circu
stances he kills by dangerous weapon he will be guilty
of manslauahe in ths third degree The other definition
70 which will call your attention is that of justi6Abls
fable homicide Is found to be the killing when tho
act committed in the lawful defence of the q
the accused his wife, II it be female OF her hue
band ehid mistress nt where there sha be @
ground to apprehen an intent to commit fs
ony or to DO some other great srsonsi injury but theirs
must be great and ir inent dang of such design be-
ing accomplished The homicide 10 be justiaabs must
be committed either in the defence Of the party him
sell or OF his or her husband, WIFE parent, child.
mistress, or servent 1t does not include bro
ther or any other relative, exceps those havs
mentioned In ordsr to make out c~se Of justidabIe
homicide there must be reasonable ground sppsehend
csssn to commit felony personal ip try. 1t is not
suhcsnt that the party may apprehend such design;
he must have reasonable ground for the
such grounds as in estimation conde I'd
able There must be also ground apprshend rsat per-
sora injury, merely injury which arises from
sight assault or ,tseren or anything of the kiad:
1t must be manning nutlation or something which 4
equivalent to them There be imminent danger of
such design bsiag accomplished for If the circumstsness
show that There not that danger, which the partY
conit net have a7oioed the necessity of killing then ~
cannot get up this statute in his defence.
Now gentlemen, do the facts In this case prove ths
tie prisoner ct the bar is guilty OF nanslaughtsr in the
second or third dersee that it is ustaAbs
homicide There g good deal of discrepancy In the
testimony which haa been given in this case more
than is common and perhaps universal similar casss
give that version Of the story which is most f.voe.
able to them and in the same way the party
themselves But still 1t we can easily
arrive at enough OF prominent facts in this case without
correct conclusion to what is the character Of the
offence with which the prisoner the stands charged
IL seem. that the parties in this Sunday night
started 10 the rst place from the house of the first Wit
ness, Patrick Shirr and from thence the premi.
sss OF Herman Do cher brother Of the prisoner whch 1t
that time were occupied porter house, and perhaps
for other purposes The party went in there ana the
story is given By Mr. shirr they commenced sky
ng." While they were thus employed he says that the
prison at the bar there with his wife that he
tien for the FIRST time ascertaned that Herman Doschsr
was the brother of the at the bar Shirr says
that when heyascertaned that, he quellsd his csrn-
paniops and after they had commenced taking lib
critics with the wife of the prisoner at the bar he told
them not to disturb her, and he would not allow
them to disturb her. Fs says that then, aftsr
taxing drink, they left the premises. This is his
statement The staem nt given by Herman Doschsr and
his bsiheeper not contradictory though they state
much than shirr They state that after the parties
got there they commenced meking disturbance and
among other things of them jumped upon the coun-
and another pursued the wife of the barkesper This
alarmed the barke.per t, that degree that he deemed t
prudent TO outside Of the house and take hsr
of tbs window The witnesses say that at the time
the party there their such as to excite
ALARM and that whep they were spoken to n concilatoly
bTeaA bis head and that they would spt him AZ
ter Il ia they went to Bay ard street The witnesses an
agree that they drank =, Herman Doscher and at the
place in Bayard street Of lhe party drank again
There they fell in with McNulty, the deceased. Thso
they went to Mulberry street. and then shirrs whore
to the premises occupied by the prisoner at the bar
hen they went in there they asked for something to
theE At that time the witness Shirr went up to him
and said. "Give them what they want adding thas
lray infer from all the testimony is that Long John
late who was in there went into the back part Of the
vso IN WITH vent "
that owing TO the violence of these persons Slater vos
se,ed m om h the back P.t Of & the house house into the .So
be also Inferred that he seriously injured at that
time have not stated these facts strongly BE-
eve they al ould be sta ed and not strongly BE-
eve are warranted in nferripg from the testimony
Such the severity Of slatcrs injuries that he was
covered with bloc and says he carried black eye for
three weeks afterwards. Another fact which proved
is that while this going on HermanDoscher came in
eenies) under that surpe son they attacked him, e
they said, for the purpose of taking away the pistol
iepee was dore upon HIN. may inter sfea from The
roof that the bar keeper who had remained behind the
bar hso however attempted persuade Q, the par
taking some OF the bottles of sarsa paria
and appears that Re struck down with of thoso
bottles 80 that he fell upon the oor The prisoner At ths
bar then opened drawer that behind the countse
end took out pistol AID discharged it. The proof was
that there three discharges heard and
the inference would be that The others had Is there
uch proof Herman Doscher says the pair tAken
from his premises aud of the witnesses the part oe
tie ecuon ssys that the pistols taken away ~
Of The party. The question then, is whether these
pistols wee loaded dcs arged The testimony which
that OF thee pistols discharged The evidence o
Catherine Peers shows that the pistol at the bar could
nave |cunded ber III this conclusion, Of
you have grounds OF belief that anothse
pistol must have been discharged at that timaL
a n1s lie %n C.. ,scsms1pees Fms upon wnicn you can
OF The pistot OF Herman Doscher loaded and that
there as have been % another pistol discharged on that
There is another circumstance to which have aul-
Cd and tha the testimony given by the witness John
Walters He says that when this scene of confusion
goipg pistol pointed at him and Of the par
lies sad something about killing him. although it seemed
10 have been sad from wautonness and with de-
sign Of alarming him This statement presents substan-
italy the which took place the premises the
prise the bar the 18th of June certainly Il
must strike in rst place. tina; it is extraordinary
that like this occurred in a civilized COM
nunity like that in which we live It ia a msan-
ehsly fact that have in this community olaas
Of men wso exhibit such utter recklessness Of con-
sequences which seemed to have been exhibited
h the arties who this occasion the premises
of the prisoner at the bar There is her fact which
it melanchoyt reflect upon and that is that there s
renders necessary them carry firearms with theua
The testimony here would to show that it is the
practice of class Of men to keep themselves armed ct an
times. Tbsy, in the first place. distribute the poisoa
which eXctes the PASSIONS and then find necessary
from the consequences Of their acts But s what
the occupation OF the defendant may be- he Is under
the Iroecop Of the law fully any other mem YER of
the community, and the law applies equally to him
as 20 all others. IT. the occasion o. the fatal ccsur-
renee: it necessary FOR him, in defence Of hia
bodil injury to kill his ant he justified IA
doing 20, Now, whether this was case IKE that do
crbed in ths statnte, It s for you to detsrmine. All
that have say you addition i that the prisons
at the bar justified Ia taking the life Of the a.
faijant unes he had reasonable ground to apprehenf
great bodily injury TO himself meaning manning, mutt
lstior, other serious injury equivalent to it
There must have been imminent danger of such desg
teipg accomplished, and you must be satisfied that hs
could not have avo.c the danger by reasonable meAna
lie justified IL such the circumstances in Dc
tending not only himself bat his If you and
then that the parties in this wis to the houss
Of the prisoner at be bar, engaged the commits
sion Of misdemeanor and that he unnecessarily killed
OF them while engaged it will be your duty to and
him guilty Of msLslaughter in the second degree II you
find that be killed the deceased in the heat OF passon
produced by sufficient provocaton without design to e
.ct 6eah il will he your duty to nd him guilty Of man.
slaughter in the third degree If you find that he
ntted the homicide in lawful defence of his person
ard tho peron .f his servant you will bring in verdict
of not guilty.
The jury then retired, and remained out for about
hour aer which they returned verdict Of not guilty
jut t6able homicide
The court then adt urned to Friday morning At 10