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

by his friends Mr.. Fisker says he some one
20 Mr. Hall don't goort but he did leap out aye as
the adder from his coil, with death dealing irstru-
ment that had been prepared for twelve or fifteen
hours, each barrel loaded with sixteen 4 No lbuek
shot, and by the hands of FisherAto dowhstg Great
God! to kill an elephant? To kill moral monster
or physical giantg No, sir. To shoot the antler-
ed monarch of the forest as he goes bounding bva
No sir. But to shoot down like q dog that Gtts., 4
nearsghted, diseased fragile piece of humsn fesh
encased In one hundred pounds walking aions with
no visible arms, head dowa, umbrella over him aH,5
ram tripping from IT; man who never took as5
vantage OF anotAeF andlwould scOrn to 9pit Thu
ne was tracked, watched. announced and killed,
AND now what says the law? l do not wish 70
pore the Court with reading manE PASSAGES b II !
nave few upon which | will not copameTL a. !
would like to do as have already too l0Pg J. tain
ed you Let US see what the law saws - n n +bis
1raneh OF the subject know this Or .nrt " ants to
do what the law says is your duty< y "A S NV that
you feel you have to some extent an, ,.srl ,ts4ions
at stake; for this Is the most AZ ot;, n aI ever
held In this courthouse the p Mo bav n aIv eyes
~. Jpon ~ you 1AS me " is as gent lemen on
a. thev ;St 80 o. lacts justify su eh action
it. Srs do not say pa par, ~ :na ti.ct degree
according to the law, mt +bere il e1eh malice in this
case as makes it IA nv oninion. murder 10 the Sc
eond degree, OP'i'i'''
lug COUNSEL TO Mr. Hall have insisted, that though
. nuAlicue wa committed yet it was done in self
assooa,oS ents of the gentlemen, with whom am
asso.stV in this prosecution, on tire law OF this
s~a eel that brief citations from the books, on
~ ~ will satisfy this Court that the offence of
NJ NJ la in killing Mr.. Pondexter. was not justif-
a@ lit was not of such character, as to reduce
" to manslaughter-b that it was murder. As
regards the plea of sefdefence, remark that IT Is
the universal charge of Judge Turner, who so ably
| fills the bench. which you occupy, and (whose
decisions upon the criminal law of Tenness in my
opinion are only second to those of the Supreme
C0urt) that before the party killing justify,
under the plea of selfdeence, he must show that he
was compelled by RsesSsitg-sO as to save his life,
or protect himself from great bodily harm--and he
must retreat and withdraw from the Conflict unless
the assault be sudden and violent, that he would
by doing, be placed in more dangerous position.
And this charge is cOrrObOFated by every book that
has been written on criminal law. i cite few ex-
tracts from Wharton on HOmicide-lst: ITO justify
acquittal the ground of selfdefsnce, the dan
ger must have been actual and urgent. The cOntn-
gent necessity will avail ; and when the pretended
necessity consists of the yet unexcuted machina-
tons of another the defendant is not allowed TO JUS
tfy himself by reason of their existence. Wharton
on Homicide, 2l2
There was no danger actual and urgent to Mr.
Hail. sitting in his fifty yards from the street.
and hundred from where Mr. Poindexter was
shot. There no Vaccinations of Mr.. POindex-
ter executed and indeed the proof shows that there
were none devised, or dreamed of by Mr. POindexter,
that could possibly justify Mr.. Halls course, under
the plea Of necessity.
Again from the same book
In cases of personal conflict in order TO prove
this defence it must appear that the party killing
had retreated either as far as he could by OF
some wall. ditch or other impeachment, as far as
the ferceness of the assault would permit him.
Wharton's Homicide. 2l3
Now did Mr.. Hall retreat at all2 On tho contrary
did he not advance from his back Office to his front
upon the street and order the deceased to retreat
to stop, and this on a public highway, and the
immediate and direct route to place of deceaseds
business.
l cite now tine opinion of Pennsylvania Judge,
and also the opinion Of the New DIRK Court IN the
celebrated case of People and Mcleod: When an
assault is made upon another with manifest intent
take life TO do great bodily harm and the party
assaled has means of escape. either from the
situation in which he is placed, or the sudden y0-
lence of the attack he may take the life of the as
saant to save his own. In the words OF the Judge
IN People VS.. Mcleod. force which the defendant
has light to resist must itself be within striking,
(or should say also attaeking) distance itmust be
menacing and apparently able to intict physical IN
jury, unless prevented by the resistance he opposes
THE jury will remainder. thati is necessity which
can alone excuse the homicide. and this only be
ascertained by the consideration Of all the clrcum-
l. stances of the case shown IN the evidence n
light and trivial assault. not attended by menaces OF
personal violence calculated to induce reasonable
belief of the danger of death, or common bodily
injury will not excuse the taking OF life though 1t
may reduce the offence 10 manslaughter. w har-
tons Homicide, 227-22S.
Now the deceased never made any assault at all
on Mr.. Hall. There were means Of escape, and the
only means REQUIRED were, that Mr.. Hall remained
at his place OF business, instead OF coming on the
/ street with the ayOwed purpose of shooting down
IondeXter and not even nOtify him, had not Lei
! lyett so advised But viii now cite the law to
show how far the want of preBs idtiOH Is necessa
ry and feel satisfied that the proof in this case
clearly shows that Mr. Hall is altogether out of the
pale of justification. 1t reads thus If it appear
that the conflict was IN any ray pre'edaGtet by the
defendant the defence no longer be set up. The
law requires that the person who kills another in
his defence, should have Tetreated as far as he
conveniently safely could to avoid the violence
of the assault, before he turned upon his asSailant
and that not fictitiOusly in order to watch his
opportunity, but from a real tenderness Of she'd
ding his brothers blood. For in VII re-
treat avail, if it be feigned in order to get Op
pOrtunity or interval to enable party to renew
the fight with advantage. The party assaulted
must flee far as he conveniently can &c. The
defe.ce ceases to exist when il appears that the de-
PENDANT, though originally in imminent danger
escapes, arms himself with dangerous weapon
returns and Stays his antagonist" Wharton on HON.
icide, 23l.
Was not the conflict premedtated? Was not the
gun prepared forit! Wasnot Mr. Leyest FequestedtO
call at Mr.. Halls house 10 accompany him down to
his Office, and did not Mr. Lellyett go to Mr. Hall
house on Spruce street for that purpose before Mr.
Foindexter had been to Halls office? Did not Mr..
Hall go the street, under the advice of M. Lei
lyett in order to get opportunity to begin the
fight to more advantage, than he could do in the
house: Was not the gun prepared and loaded with |
buck shot, being more certain to kill than the |
pistol Mr. Hall had tried the day before?
think the authorities cited clearly show that Mr.
Halls plea Of justification is not sustained by the
law and cannot be sustained by this court The alb |
Sence Of actual and urgent danger to Mr. Ha-his adj
yanclng to the street instead of rotreating as the
law requiresth fact that he was in foul himself I
by the card published N his paper that he believed
would oasAe an attack-the reconciliation IN the /
preparation of the gun-the unusual load in it-the |
consultation the best place to have the conflict
utterly exclude the idea of necessity on the part of
Mr., Hall in killing PoindexteF.
Having disposed Of this branch of the case and as
suming that 1t has been clearly shown that Mr. Hall
has committed offence that renders it necessary
that he be bound over to undergo trial before anO
Their tribunal will proceed to examine what the Of
fence is of which Mr.. Hail is guilty by the commits
sion Of this hOmcide and will here state that muir
der in the first degree is not insisted on by Ie but
that the offence is murder in the second degree un-
der our statute-Qr murder at common law-and I
viii VERY briefly show the distinction between man
slaughter and murder and then apply the facts of .
the case to the law In order that you may determine
the grade of the offence.
Murder is where person of sound memory and |
Discretion unlaWfglly kills any reasonable creature
in being, in the peace of the commonwealth. with |
malice prepense or af6Fethaught, either expressed
OF implied,
Mansiaughter is the unlawful killing Of another 1
without malice, either expressed or implied.
Express malice is where person kills another, |
with sedate, deliberate mind and formed design |
The evidence of express malice Is circumstaRtial /
such for instance lying in wait, anteQedent men
aces, former grudges and concerted schemes to do [
the party some bodily harm.
TIE killing being proved, the law presumes malice !
Tie above definitions show the distinction between
murder and manslaugher to be, that though the act
which occasions the death be unlawful or likely to |
be attended with bodily mischief, yet the malice |
either expressed or implied, which is the very es |
senoe of murder, is presumed to be wanting.
And having thus stated these general principles of
law will apply them to the facts of this case and
endeavor to STOW that they prove clearly and une-
quvocally express malice upon the part OF Mr.
Hall.
The proof certainly shows that Mr.. Hall killed |
Mr. POindexter with sedate, deliberate mind and /
formed design. The evidence of antecedent menaces |
is shown in his case in which he threatens not only I
to defend himself but to punish the assAilqnt; and
this is written, believing, are. knowing, that Mr. 4
Pondexter To whom he alluded in his card, was I
compelled to demand a retractiOn Of the insult
tanned in that card Evidence of farmeF gFVlge is /
shown by the language Of his paper and in the fact
of his deliberately writing the card he did, after 1t |
is presumahle he was aware that Mr.. Ponde xter
had determined not to pursue the difficulty with !
Ill,