Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-12-06

oosoifR plea OF pFoyocatlon viii not avail in any
$50 where it appears that the proUoc1sOa soGs
for by the act Of the party in order 10 afford
.ss8 pretence for wreaking his malice and even
IN there may have been previous struggling and
ne -, such plea cannot be admitted when there is
s~ ience of express malice and it must appear
- refore, that when he did tie fact he acted upon
= ieh proYocatiOn, and not upon any old grudge"
And again from same book
" II b draws his sword and makes pass at A, the
sword OF being then undrawn. and theFeupOn A
draws and a combat ensues, in which A is killed
this IS murder inasmuch as B, by making the pass,
his adFersary's sword being undrawn shows that
he sought his blood Wharton on Homicide, ISL
And again
. When a deliberate purpose to kill or do great
bodily harm is asesrtained and there is consequent
! unlawful act Of killing, the proyOcati0n whatever
may be, which Immediately precedes the act is
be thrown out of the and goes for nothing,
less it can be shown that this purpose was abandon
ed before the act was dOne.'
| Lastly, from the same book:
although person may not 90 in search Of or
/ lie in wait for another whom he kills. ye- il he has
formed the purpose to kill him, and within short
/ time after forming and avOwing such purpose, he
duly armed meets the other by chance, whether in
public or in secret and Stays him Immediately there
is serious presumption that he did it on the pre-
viOus purpose and grudge if there be noevidence of
change of purpose
Now, sirs. does anybody say that Poindexter as
saulted Mr. Hall, Did he ever fire upon hiIn? No,
srs the pistol shows it not cooked at the time
Nobody says it was cooked He made no assault
upon him; did not strike him; did not slap him; did
not punch him. did nothing to himi did not even
know him, and how can the law afford Mr.. Hall
any protection when look to the facts of the case,
Don't you how plain it is. He eourted the diff
ficulty after previous preparation-and even then
did not give back as far he conveniently could
with safety to himself.
Dr. Winston says he was satisfied of what had
happened. by hearing man who was running by
hallOOing, HurPah my Hail. he has killed Poindex-
ter | thought sirs. we had no such moral mon
sters in this community. That man should have
lived in the days of Mere. He should have been an
attaehe to the amphethratres at Rome when the
bodies of men were thrown in among wild beasts,
that he might applaud when the fretul hyena or In
furiated tiger Tapped the lifeblOod and craunehed
the bones of their victim in the pangs of death.
And, as | never strike in the dark, repeat his
name, that all merciful men may properly estimate
Barnes, an auchoneer, man of wares and watches.
The Doctor says all the wounds ranged from left
to right, demonstrating that his right pistol
and side was from Mr.. Hall, hence he was IN no
position to fire with bis right hand.
One two witnesses say Mr.. POindexter adj
Yanced after Mr.. Hall called him to stop; but
majority of them say he stopped. Still there is
nothing in that for if he advanced up to the muzzle
of the gun, 1t cannot exculpate Mr. Hall, says the
law, from being his murderer; because he prepared
for it and COurted the conflict, had advantage in
weapons and used the advantage for himself
If the court please, l contend, and l think / am
justified in so doing by the proof, that Mr.. Hall
was in the wrong from the beginning, and contn- |
ued until the termination OF the bloody tragedy.
He exhibited none other than bitter and OppFes-
siYe spirit IN his first reply TO the republication of
the article of 1884 and he epithets offensive,
such he himself, it seems, would not permit to
go unrebuked-and thus forced POudexter to retail !
late and then again, after knowing of the difficult
ty between his son and Mr.. p. and that cOrFeSpOn-
de7ce had ceased between them, and the matter set
tied least so far Mr.. p was concerned he again
further put himself in the wrong, by the pubiea-
ton of his offensive card. The context as well
the intention, with which it was done, has been
so satisfactorily criticised and with such marked
ability, by both Mr. Ewing and Mr.. Reid. that any
other examination might give It, would be unnec-
essary. He again wrong in having the gun
prepared and brought to his room, the evening be-
fore which was concealed. as Mr.. Lellyett says,
from the observation of his friend Col. Bell then
IN consultation with him. but left there for at
ter use-and next morning brought down wrapped
in its literary mantle, Judging from the evidence
of Mr. l.. Again he wrong IN leaving his
Office and going upon the street with his gun thus
loaded and cOcked-was wrong in the mere mock |
cry of notice that he pretended to give him before
iring-wrong and cOwardy when he saw him
alone, and not expecting an attack thus to shoot I
him down with 2 weapon superior to any Mr.. 2. |
could possibly have had about hin-and some one |
is wrong for having the other barrel of that gun |
shot of without the knowledge of DR.. Smith who /
had it in custOdy-sO if the court please, 1t seems
that he wrong in almost every particular con- |
nected with the transactiOn;-then how is to
cape the meshes Of the law. if justice be dOne2
But the defence say POindexter had out his pistol i
trying to shoot Hall, and therefore he had right |
to shoot We dispute the faet-but admitting it was /
so, for the sake Of argument, he then had no right
TO kill him because he had eourted the conflict, /
and challenged him to stop viii any man say that
Poindexter thus challenged TO stop-a double-bar-
relied gun staring him in the face-had not right i
TO draw and fire-thatis proposition that wlllno
argue. But, in point of fact did ne draw his pis-
toll? We think not. Look but for moment at the
locality Of the parties and the relative positions Of
the witnesses 10 them and you must be satlsned /
with the truth Of the proposition: Mr. Hall is at /
the door of the Nelos Office, garIisoned with his
friends and armed with "dOUble battery :" POin-
dexter is at distance of torty-three feet, On the
east pavement, directly north OF him, and on des-
cendIng grade; Judge Venable is from three to five
feet in rear and against the wall of Ewing's office
the left, the nearest man to POndexter, and who
had Just been passed and politely spoken 10 by Mr..
POindeXteP-he pistol until It. and the L
hoisted umbrella fell simultaneously the outer /
edge of the pavement ThOs. Quinn Is Immediately i
in front and near Mr. Hail. looking him full In the
face and be none; Oscar Noel witness for dc
fence Is the opposite side of the street at right
angle Hail. showing that discretion is the better
part of valOr by pokng his head out of Mr.. Vaughns
windOw-he sees no pistol in his hand few steps
further south, on the side with Noel is Lay
man Freeman, also in full view Of both parties
and he secs no pistol John and T. J. Seabury
standing in their door, distance OF forty feet,
and Immediately opposite POndeXteF, and expecting
the difficulty (by what Darden had SAID who was ln
the same door with them) and IN full view Of his
right hand and they see none, until j. 7, SeabUTy
picks it up in the IN turned open umbrella near the
side walk after the shooting; young kendPiek, too,
wha sweArs he was acquainted with Poindexter, and
had read Hail card in the AeIcS, watching him
and sac has TiqhI hind about the time he shot,
which was next TO him. and he had no pistol in it.
All these Witnesses are unc9nnected with the par
ties, are respectable. within hundred feet
of the parties, no obstruction TO intercept their
Of afol in
his hand. Who says he had it, No but Fisher, |
the man who put tllirty-twO buekshot in the gun
the day before and brought it to the Office under the
cOverO of highland the already defunct skinner wbo
processes to have it about the ume Ae crossed
Deaderick street. distance Of thirty OF forty yards
from where he was sho[abogt the time when be
politely spoke 10, and passed Nelable, who did not
see it. And strange to say upon cross examlna- |
tien for which he evidently Unprenared, he
declares it to be on the outside OF bis coat in his hand
Where now was FIsheF, the ex-hlihUsteF who went
to Nicaragua suppose (Judge BFien says he did, to
stick his spear in GreaseF Or discover new cOun-
try such as the BaFataria of CerYantes or the La
puta of Captain GGliYer-he found them, no doubt.
Well Fisher was in the first place the lookout for
and stands he says, in the door near
Mr.. Hail. looking with a sort of cOrmOrant passion,
like one of those venerable birds perched on dry
limb remarkable for their gravity and Stiffness eyaa
with prospective instinct the souLsokening saugh
ter. He says he saw PaiHdegleF have bus pistol out
in his right hand, placing i upon his left an resting
attitude in which he holds his shut a4JsaS (peeFiy
every other witness saying it is OPEN and with tele
scope vision saw him cock it-ald was in the act
of firing when Hall shot him.
Mr. Darden standing in the door with the Nessrs
Seahury and who left the AetcS office few mo
ments before notwithstanding, as he expressed it.
he desired to see the fun (and how did he know the
fun was to take place the street) thinks he saw
in ms hand after seeing him make more tlAn one
effort to get it from his left sdepocket the same IN
which Curry found the derringer after the killing
can hardly think that POindeXteF would have had
two pistols in one pocket. Mr.. Darlen further says
that he thinks the umbrella was in his right band
when the "stOp" pronounced, ttOw, Il IS abso-
lutey conclusive that his umbrella was in his t9t
hand when shot, for the staff IS shot off at the place
where the hand woaIo ordinarily hold il in boosted
position and he left wrist arm, and coat sleeve are
riddled with bslls-sQ the movement Mr.. Darden {
saw think was the changing Of the umbrella from {
his right to his LEFT hand if he had it, rs he thinks,
in that hand; and chat which he and Fisher saw,
think was the yellow handle of the umbrella, and -
not a pistcl for the best of sometimes mis-
taken as to the incidents of a fight The pistol "a
too short-four inch barreh-in the position they
describe it, to shoot, with safety to the band on
which it rests; besides neither ~ them describe
as being above the center of the body waistband
hfoL Of f4Dp