New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-06-23
TIE HOWARD STREET HOMICIDE.

TIE HOWARD STREET HOMICIDE,
TRIAL OF DANIEL CUNNINGHAM FOR THE AL
LEGGED MURDER OF PATRICK M'LaUGHLIN.
COURT OF GENERAL sESslONS-Juns 2a-Bssore
Recorder BAsSaRD.
At the opening Il CouIt yesterday, Judge w bit
iug commenced summing up in the case of Canoing-
ham for the murder of Patrick Mel. tughltn. He
spoke for two hours, elaborstely reviewing tie evil
dence aud ives followed IN 81 Eloquent speech by Mr.
Sedgwick the Assistant District Attorney. Re-
corder Barnard then delivered the following critical
charge:
GEsrILMES OF THE JURY Daniel Cuuninshsu
has bee indicted and placed his t,is for tue muir.
der Of Patrick Mclaughlin.
The prosecution slege that the deceased came 70
his de sth by means Of pistol-shot fired by the
preouer.
The justification eet up for the act is, tos, it
done in the necessary set-deiense Of the prsocer.
The evidence having been finished, 1t bee )rss tho
duty Of the Court, previous to the case being hoaly
submitted to YOU TO lay down for your guidance those
legal principles which apple ble to the case and
the definitions of the various grades OF ne OF which
the prisoner be convicted provided In your jadg
ment the facts will warrant You 10 so doiog It's
your duty to whether or no tue facts proved prog
this case within any OF the principles 10 DC ald uONn
for your governarce.
The killing Of q human being without the authority
of law by shooting stabbpg, any other msaus, or
in any other manner is either MURDER, msnsaughter,
or excuesble or usisble homicide, according T. tbs
facts snd circums of each case Such killicg,
upess it be msnslsughter or sxcussos or Jdsilhsoe
homicide shall be murder. when pspetratod iron
prem edtated desgn 10 effect the death Of the person
killed or Of sry human being Murder, therefore, is
the killing with malice. Any formed design to DO
wicked or unlawful act may DO termed malice NAL
ice is deliberate vic ked temper; 1t eau seldom be
proved by express declarations but must be inferred
and collected from all the circumstances attending
and surrounding the nature If he Transaction and
manner of the killing. Deliberate killing without pss-
zion, whstever msy have been the proyocatlon, tua-
lees was conc ued up TO the time OF the thcton Of
the fatsl wound is murder-for IL the prisoner uAs
cool self possessed, aud master Of bis passion, aud
had the full exercise of his Judgment, ne must suffer
the cdr cts OF bis conduct.
The low pre- suUee thet the natural and probable
cOnseduenees of every acc ahe...S!y done were
Intended by the perpetatOr and the burden OF proof
TO overthrow this prssumItl0n lies with the prisoner.
If, therefore, killing be proved TO have been com
United by the prisoner, aud nothing further shown
to the satisfaction of Jury, excusing IT, the presump-
ton is that IT was malicious and m act OF murder.
The formation Of intent to take life moment be-
fore tie blow ID inflicted is sufficient to constitute
malice.
TIE statute provides that the killing Of human
beirg Is ustifiable when committed by any person in
the lawful defense OF such person, when there shsu
be reasonable ground 10 apprehend design to COM
nit felony, or to do some great personal injury and
there shall be Imminent dsuger of such design being
accomplished.
BY the word felony Gentlemen, you are ID UNDER
stand ofierse for which the offender, on convic
ton snail be liable by law TO be puLished by death,
or by imprisonment 10 State Prison.
1t IL not necessary that person should suffer him.
sef ~ be dangerously beaten, with prospect OF is
contit uaLce, before the law would justify him 10 de-
Tending himself. The rue extends to those cases
where N party sssed stands 10 imminent danger Of
death or Of great bodily injury at the hands Of his
asssilant-be must not only have his mefe naked be-
le but must see some attempt on the part OF his
ssilant to execute his deslgn that he IL 10 al sp
parent stu alton 10 do So which would thereby sson
ably induce bin 10 think that he intended TO ex cute
his design immedistey-in other words, the danger
must be actual imminent and urgent-no coatsgsnt
necessity will avail. IL the prisoner at the time Of
the firing OF the pistol had grounds TO believe that
the deceased intended 10 commit some great bodily
harm upon him. ard 1t is made to appear the trial
that he acted that belief and the Jury are sstisa ID
that these were reasonable grounds upon which to
found an apprehension of such design 10 the mind of
the prisoner, then ne would be ju tilted.
In CAGES Of personal conflict order TO receive tho
benefit Of such defense, II must appear that he party
killing had retreated either as far as he could by res
SOD Of some wall or other impedments, as far as
the ierceness Of the assault the nature Of the cir
cumstsnces would admit. II it appear that the coz
fct was in any way, sought by the prisoner, he not
justified. II the attacks Of the deceased had dessted
snd the prisoner on his part renewed the conflict.
then he Is not justified. perton is not justified in
returning blows with dangerous weapon whore
lie il struck with the naked hand, and there is
70 reason to spprehend q design TO do him grest
boo lily harm, nor is homicide justified when the
combat be avoided, or when, after IL Is
once CONNER ced, the party can withdraw from
II IN eaety before ne Kills lis adversary. but TX,
gentlemen, you find, from all the circumstances at
tending this transaction, that the prisoner had rss
TO believe that be was in danger Of crest bodily
injury at the hands Of the deceased but tina. an ord
nary assaut arc battery all that he mad to fear
from bis acts end declarations then he is not free from
crime in the eyes Of the law but may be convicted OF
manssughter In settling 1s matter you are TO LOOK
at tie situation OF the parties at the ums their 40
tions and positions, their conversation, threats ana
mensces, as they may have been given before you:
You also Jnscer their relative sze strength ana
pb ysical powers You must aso look IS to who COM
united the fret assault; whether II was continued or
stopped whether there was any rea,onaDle aPpfo-
henson 70 believe would be continued ana whether
equaized oniy by pistol IN the hands OF ether one.
II YOU should come 10 the CONCLUSION that under the
eycerc the prisoLer cannot be convicted Oh murder,
hnt Il guilty Of some crime, then becomes necosssy
10 look at the different degrees OF msasaugbter "
these there are four. In my judgment, the hfst and
Tsnslsughter N the third degree s the kiniss Of
another 10 the heat Of passion, without design %
sfrect death, by Q dangerous weapon, except where
such killing Is either excussble or jasthsoas. Mea-
sisushter ia ths fourth degree the Involuntary kng
~ secthsr by any weapon or by any means nsithsr
cruel nor unusual in the heat Of passion in aay esss,
except il be sxcussbe or justifahls. IT, exsu-
nation of this mstter you have reasonable doubt
fairly dedusible from the evidence ~ 70 which OF Tho
degrees Of msnsaughter you should 6ad the prisoeee
guilty you should give him the benefit Of that doubt,
and find verdict under that degree about which yoU
have NO Doubt In order to ind verdict Of guilty
under any degree, the iacts proved should exclude
every other reasonable hypohess except thst o. gues
In this in nearly I'll trials the witnesses have tes.
fed 10 dasrest sats Of fscts, q hsviaf csasPre9