New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-04-27

,.,rr,,;or i committed The Cour; has not only to
decide tie question of law, but all The law Nhlch De-
longs to the oHse. II nade 40 matter "hGihef DC
criminal or civil law. the very moment IT become,
1uesticn Of law II became the tOurt 10 decide ~
n become. IN. .JJiry 20 find the facts and 10
apply the law as j. lad down oy tAe 'oHI
question Il Justification. malice or prov ocatuh, +
matter If law and cooling time IL question 81 law ana
IN this connection he comhatted the arguments 81 the
defense and quoted 81 Benefits Missouri Reports,
the Commonwealth act Moseer, and various other
authorities, IN support Il ms position. lie 40 qeu
authority which be said, recognized a. controlling
IN this District from 9Th Cranch, IN which was en-
bodied the remark Of Judge Story: That i Is The
duty If the Cont 10 instruct the Jury ~ 70 the law,
and the duty of the jury 70 follow the law thus lmd
down The District Attorney had stated what are the
functions If tie Court and jury. In al tton, the
Constitution Of the United States has imposed on the
President certain duty To PERFORM Ia connection WIN
the administration 81 public justice, naInely-the par
donirg power This, by the true policy OF the law, Is
given TO the Chief Magistrate for the express purpose
0f keeping the Court within rs functions ana the
Jury within theirs also with the view ui preventing
gross and from being perpetraed on
party under form of law. As the circumstances Of tins
case had been referred To BY the defense, he would say
in reply. n pistol found. His learned aud distin
cu-led friend Nh Brady inquired, To whom did l
belong and " ho used 1t lie (Mr. Ouldl should no
pretend give the answer; he would let the witnesses
speak. Mr.. Van WICK said lie saw a pistol IN the
hand Of Mr. Sickles. Mr.. Read the clearest witness
vhCse statement seemed the most coherent SAID ne
saw pistol in Mr.. Sickess hand az the very spot
md further that no pistol was in the hand Of Mr. Key
at the time. Not only had Mr.. hey no pistol at that
time, but he had none at any time Not solitary
witness had stated any Vretense 81 the tact. no,
then had the pistol, and who fired IL! To whom did
i, belong. II must have been the man who vas seen
to have a pistol and not him who had none ut AL.
And in the same connection Il was asked why not
nr,.iuce Witnesses 10 show that Mr.. Key not in
the habit of going armed Was il incumbent on the
United States o show that he not in the habit of go
ing armed when there was no pretense that he was
armed al all
MIR Brady-You have not forgotten that offered
TO show that Mr.. Key said he was prepared for any
emergency at the time placing his hand on the
breast pocket If hIs coat.
District Attorney am speaking Of the testimony in
the case Ills IIonors ruling that that did not
she'd any light on the question, and was imma;eria
Mr. Brady-But understand you now 10 say that
there J. pretenSe that Ny. hey was armed pre-
tend that he armed.
The District ATTORNEY explained that he spoke only
of the testimony; but If the gentlemen wanted to give
evidence to the jury 70 show who used that pistol
why did not the defense summon Mr. ButterwOrth. ne
defense complained that the prosecution did not pro-
duce the friends of Mr.. hey to give the negative proof
that the deceased did not cany arms habtualN but
WHY did not the defense itself produce that friend 81
Mr. sickir. who Witnessed the whole transaction, ana
who could cav positively who i was that used the p'-
tol in question The defense had referred to the case
Of Mnco but that was case of mutual combat.
Mr. Brady-The question there arose as to whether
malice should bee proved and Judge Curtis ruled that
uuder all the circumstances of the case, the Response
bility devoycd the prosecution to prove malice
He conteuded that where the prosecution failed to give
evidence a. to the controversy between the parties at
the moment of the homicide the jury should acqrit.
The District-AtOrney replied that the plea in Min
20. case was plea If self dernse aud that that was
80 sustained by The evidence that the Judge had the
impression that II was case oil sell deiehsei Dht IN
this case the evidence was put upon the Issue that Mr.
SicLle intended to Kill Mr.. hey, and that he was JUS
tilted in killing him. Counsel for the defense had
argued that cooling time applied only To cases ot
mutual combat and that this, not being u case OF
mutual combat the principle OF cooling time did not
apply. ,.,.,..
District. ittorney-lt seemed To- be c0pccssNm in
this ease that there an intention 10 Kill Now he
held that where there intention Ia KILL that r.
proof If malice. Malice and the intent Ia Kill Were,
IN cases where there mutual combat, one and
tLe same thing. If the defense claimed the eNclama-
of Nh Sickes a. proof that at the moment o. the
homicide there was no malice, he asked could hc not
refr 10 that other declaration, wherein the prisoner
followed mp the first exclamation by the question: ~
the id villain dead :! To his mlnd tnht ihe'lhoy
rroved malice His learned friend Mr.. Brady IN one
If his airy wheelings, had said that Philip Barton
Rev could be put upon the stand he would say 50 and
90 would To- God, said the District Attorney, that
Philip Barton kcy could be put upon the stand per-
hans much that isnow dark much that is covered
with Gloom much that i now not understood, could
be made IlGin ~ if by the flashing ol the sunbeam
PERHAPS the gentleman tMr. Brady might be put IN
unssps-ou Of facts of which he does not now dream,
atd which he doe, not now believe to exist. II might
chow very different transaction from that which has
been painted by the evidence. The only party who
could array facts in his defense, IN his behalf, has
bq.n sile need in DEATH and the testimony which might
have been adduced for the purpose Of yindicang his
character j. unknown and uuheard; therefore, so
lar as he is concerned, It l. the same as
if that testimony had never existed. lie might have
shown perhaps that although SHINING himself, he was
suued against that instead of a. has been charged IN
this case his entering into the house of ms bosom
friend for the purpose Of wronging him. Indignantly
and violently IN defiance of all the laws of God and
man and II the sacred obligations of friendship, he
himself was seduced by the temptations r:ated and
continued until those higher moral bul"ark- that
.honld have supported h- character gave way be-
meath repeated shocks. say not whether II was So or
was not so the only party that could have had the OPP
rnrtuuy nf bringing that evidence here and yndcat-
Ing his character gone say not what the fact was.
Nh Brady-The District Attorney will recolect that
we offered To- prove his declaration, that this was
mere child aud that he stood in parental relations to
IN. District Attorney made no reply, and pursued
that Uo.ut lo further There but one other posi-
ton fo which hc would allude, and that was the con-
nection If this question with insanity The matter 81
insanity had been frequently under the consideration 81
thi, Court and he would therefore simply refer To some
doctrines which, with great solemglty and authority
had been given at other times, bearing on the question
now under discussion. He would refer particularly tn
the opinion rendered by the twelve Judges IN England
IN the McNaughton case IN response 10 certain queries
ropouniei hy the House of Lords. That decision "a
rendered BY Chief Justice Tndall, appeared to him
model not only Of eloquence but OF judicial learning
Counsel read Of the queries and responses, COM
mentiry upon them be proceeded, and referred TO
other authorities bearing the same point, among
them To Chief Justice HOrnblOwers ruling m Spencer
case quoted in WhartOn's Criminal Law !, IL.
Hi- Honor himself had decided that % was not uec,-
ssrv for the nrd States Ia prove the sanity of The
accused. Tn, plea Of insanity in the nature Of
-pecal defense Nay in the nature Of plea OF con-
sson and avoidance II was necessary for such plea