The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-06-23
THE HOWARD STREET TRAGEDY.

1uE 0VW AMI oIREEr VRAGEDYs
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CsacSusaea 81 the Trial Of Daniel Cumming
ham Cor the Murder OF Patrick MoLauxhIin
Tho Recorders Charge.
COURT OF GENERAL sEssIoNs.
Before Recorder Barnard.
FOURTH DAY.
JUNE 22.-The evidence In the case OF Daniel Cunning
ham, charged with the homicide OF Patrick Mclaughlin
alias Paudeea, having been finished yesterday counsel
proceeded this morning 70 up for both sides. Al
haKpas eleven O'Clock Mr.. Whiting commenced his sd
dress TO the jury In behalf Of Cunningham arguing that
his client perfectly justified in shooting the deceased
having been placed In imminent danger by the Of
Paudeen The counsel maintained that the testimony
end the law, the jury were bound either to hang
acquit the defendant Mr.. sedgwick, the Assistant Dis
tut Attorney replied in behalf Of the prosecution argu
ing eoquenty from the circumstances OF the CASE that
Cunningham that Paudeen did mot give him sucept
provooaaiou 70 justify him in taking h ie BE occupied
the undivided attention Of the jury and the audience dur
ing his speech, which was q very able argument The
Recorder charged the jury a. follows
indicted and placed his trial for tho murder Of Patrick
Mel Aughn. The prosecution alege that tho deceased
rns Sc. up for the sc
was In the necessary self defence OF the prisoner
The evidence having been finished, becomes the duty
Of tho Court previous the bsng finally submitted
to you lay down for your guidance those legal prnc
pies which applicable 70 the case, and the definitions
the q o
warrant you in SO doing II is your duty 70 say whether
the facts proved bring this within any OF the
ing Of q human being without the authority Of Law By
shooting, stabbipg or any other means or In any other
cussbie or justia.bio homicide, according 70 the
facts and circumstances OF zach Such killing,
unlsss 1t be mAuslausher or excusable or justihAbie
homicide, shall be murder, when perpetrAted from
premedated design TO effect the death Of the person
killed, or Of any human being Murder, therefore, Is
ns s ap M ss s
deliberate wicked temper can seldom be proved by
express declarations but must be inferred and coe,ted
from ali the circumstances attending and surrounding tue
nature OF the transaction aud manner Of the killing De
berate killing without passion, Whatever may have been
the infection Of the fatal wound), murderor If the
prisoner COOL self possessed and master Of his
son and had the full exercise Of his Judgment he must
suffer the effects OF bis conduct The law presumes that
the natural and probable consequences OF every act de-
Lberatey done were intended by the perpetrator and
the burhen Of proof 70 overthrow this presumption lies
with prisoner IT, therefore killing be proved TO have
been committed by prisoner and nothing further shown
TO the satisfaction OF jury, excusing IL, the presumption
Of intent TO take life moment before the blow
is inflicted, Ia sufficient TO constitute malice. The
statute wbsn nS Sed
the lawful defence OF such person, when, there
shall be reasonable ground TO apprehend design to
commit q felony TO do some great personal Injury,
sha be imminent danger Of such design being
accomplished. By the word felony gentlemen, you
TO understand an offence for which the offender on con-
victon shall be liable by 70 be punished by deah or
by imprisonment in State prison. II is no necessary
that person should suffer himself 10 be dangerously
beaten with prospects OF its continuance before the law
would justify him in defending himself The rule extends
those where the party assaled stands In imminent
danger OF DEATH OF great bodily injury at tbs hands OF
bis assailant-he must not only have bis mere naked
belief bur must attempt the part Of his
ssAn to execute his design or that he Is Ia an apparent
him think that he intended his design i'm
medAtely-in Sther words, the danger must be actual,
imminent and urgent-no contingent necessity will avail.
II prisoner the time OF the firing OF the pistol had
grouncs believe that the deceased intended to commit
some greet bodily BARN upon him. and made 70 appear
that he acted that beef and the jury
s6ed that there reasonable grounds upon which
found apprehension Of such q desgu in the
CAGES OF personal conflict in order to receive the
benefit OF such defence IL must appear that party
killing had retreaied either IS FAR as he could by reason
wall other impedimont, far the derce
OF the assault the nature OF the circumstances
would admit II appear that the conflict In any
way sought by the prisoner he Ia not justified II the a.
tacs Of the deceased oad oessed and the prisoner
his part renewed the conflict, then he Is not justified
person no, justified returning blows vita danger.
weapon where be struck with the naked hand and
there reason TO Appreheod design 70 him great
bodily harm; s homicide justified when the csmbat
be avoided, when after is once commenced the
party withdraw from IL In safety before he kills his
adversary But If, gentlemen, you find from all the cir.
had no reason 10 believe was danger OF great
bodily injury Ut the hands Of the deceased but that
diary assault and battery all that had
from his acts and declarations then he not free from
crime in the eyes OF the Law, but may be
convicted Of manslaaghtor. In settling this mat
you to look at the situaiion OF the parties at
he time, their actions and positions, their converse
ion, threats and .menaces, ~ they may have been
relative size, strength and physical powers You must
also look 70 who committed me first ASSAULT whether
was continued or stopped; whether there vas any rea
sonabe apprehension to believe Il would be continued
ard Wheeler the inequality Of their strength
would be equaized only by pistol in the hands CT either
evidence the prisoner be convicted OF murder bat
Ia guilty crime, then becomes necessary 10 look
a. NE dmerent degrees o. or these there
Apply MAnslaughser In the third degree the killing OF
Anoincr in tho heat OF passion, whou, desgn 10 cec,
Is either cxovsAbc jus1able. MansIaughser In tue
fourth degree the involuntary killing OF anotber by any
respo9 Or ~ any mss ooner c'ae sr unasss IN tho
tinable. IT. on an examnaton cf this matter, you have
reasonable doubt fairly ceducble from the evidence,
should find the prisoner guilty, you should give
him the benefit Of that doubt, aud nDd .
doubt In order and verde, OF guilty under any
degree, the facts proved should exclude every other
reasonable hypothesis except that Of guilt In this ia
nearly all trias, the Witnesses have testified different
state OF facts having ranspired at the
The truth rasy Of these facts may materially affect
and within your province TO reconcile these inc
cts, the Law makes the sole judges Of the facts
and the credibiiy Of The witnesses The credbty OF
witness IA compounded Of his integrity means OF know
ledge imparaty, conduct aud appearance the stand
regard for bis oath You have the right 70 reject
the evidence OF and all witnesses provided you choose
70 exercise your duty TO society should you
not TO exercise the right 10 arbitrary One
dbe witness sufficient 10 warrant you In finding
dict Of guilty not guilty. you satisfied that any
witness deliberately and falsely sworn 10 material
statement number Of facts you should throw aside
and dsregnrd entirely his evidence the law holds
person viii do 20 In instance, he is more than
likely 70 DO 30 In another. should he, however, be
radctcd ia and sustained In another that may
be relied The value az testimony does no, depcnd
on the number OF witnesses, but on the degree Of
credit 70 be attached 10 II BY sjury. Caution careful
should always be exercised In crnn cases. far
a eaat that shall not suffer otherwise tn by due
Of law, that any hardship severity be
ercised upon him, where the testimony will admit OF
reasonable doubt You are not however 10 be carried
away By your feelings far 10 reader the law nuga.
tory and Intellectual when proper has been made
cut You have nothing whatever do with the charsc
ter Of the deceased FAR the proper administration Of
justice IL concerned Every man equally entitled 70