New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-04-19

Goo sud nsn-noi1irg more tbsn tnat IL Nj key
tsf b-er engaged ia a not. or II ne hai beeh oias
phsmrg =Csli Il &c c5tisH't0 inst 4! Hia- IA a'
An biGi
NJ. ershsn-In 40 effgt 70 prevent him commit
ting a oriue Il rval1 OF b. mlTier - sisy uim;
District httcrey-weuld It be poPsr to XVI = MA
% p.eyeut tim tunir ittug assault sod 6atttiy
SIR Grshsm-I take roe ground thst u mto ss-
SAINTS me have rget 70 'e-is' hin to the death.
District Atto..sy-gtat cfPelds altogether on eir'
cbmstsnoes ia.
I Jadge-h woud depend 0pon the ns:nre o. the
aesck
Ttr Distiict Attorney proceeded 20 irEss that his
testimony regard 20 the hand SeTchei dii no' coz
rect the parties with any adal,erous iolercOure tAis
VS. therefore not proposition 20 rc1tSu' eviiencs
ss.sady partially eive0 TO give new evi ienc' on
jntincs pOmt. He bed mis- position tast X Vas iof
lac Court, sud the Court alone to pass upon toe ha
tnre q tie cebce offered IL was cay Tor tue airy
10 psss upon the facts afored T. re vee 70 eyds1cs
Tisl by Jury sas a Creature Of the comLoa !AT sad
rLeu II Constitution Of the Uoed 3 aies gave 10 ire
snsgueo the privilege oiirs by jury, II ass ac'fu-
snce sith The course Of the GOWN n ltT, am Ia no
other way. TIE common lay I'd been nroucced oy
Hal. and Foster and l. 2st amt others, and what be
conte nutd for vas one Of tie puncipes Ol tas'
ooncn law. u raj been ale ed By the ds'en5e ina
HE case poB presented analogous 70 th6t O. Jsr
noe He proceeded 10 chow shat no such analogy ex
i.ted Ia tue Gaze nov before the Court tae prisoner
nsoe the DEC sTaiion AZ toe tms OF tne hlUltle,
" He has def.ed ny bad IL JsIboe' ease t1e iss
ton was By tie prisoner to tns deees'4o' IA. 90
see what intsua 70 do That was matter vniih
old no. e1psis its- and therefore i; VISA rSnt for
the Court 10 allow the evidence to be gwen to explain
the decsI There the declaration OF the prisoner
explained itsef and therefore evidence was neces-
ary to elucidste Il. The facts themselves carried no
further Impression 10 the hrular mnd than the az
preston Itself does. There was another distinction
between the two cases: In Jarboe's case the .r,
pressiop was made use of both by the deceasei ani
Inc prisoLei; here expression was made use OF
by the deceased. His Honor, IN Herbsrts csSe drew
a Obstruction between the declarations msde oy
the deceased and those made by the pIisoner.
Otherwise, party might manufacture testimony
in his own case, while no such obiscion could
possibly epply to the declaration of the deceased lie
ssted t6at the instruction of the Court in Jarooe
case applied to this here namely that tue facts
cid not justify the act, or constitute legal proVoa
ton, and that the killing wa murder In regard
TO the question OF insanity, his Honors ruht 90
hitherto had been that no declarations inside
by other parties. to the prisoner could De
admitted as proof of insanity, and on that
groutd TIE evidence must necessary be ruled out.
Whist then was left as competent evidence IN isW
Nothing bat that the prisoner was witness TO tue alui-
ferrous intercourse between deceased and the prisoner
wife. The last ground on which this evidence nau
been urged vas on the ground Of its being res sesfe,
that il was competent explaining the declaration OF
the prisoner that the deceased had violated his bed
The declaration itself part OF the res gesfe ana
was receivable but the evidence Of the truth OF the
dc caT was rot ges0 ard was not receivable
As well might the United States SO into long cyl
de1ce Of the manufacture oil Firearms and detail tne
manner OF making the pistol which had been "a
evidence in this Gaze. Bat say the defense the decs,
ration Of the prisoner shows his motive, ara
this evidence ought 10 be recsved because It explained
the declaration. That raised the direct question
whether the fact of adultery stituted legal provo
cson or justification and he had already sho wn tina
did not II had been limited rather thsn argued on
the other side, that the prisoner at tne time Oh the
homicide was but defending his wife from future adj
vauces Of the deceased. The law however, says
10 Oh n
exouse affords 70 publication or excuse
Notkirg but an attempt to commit felony can e1ouse
the takirg of life. II must be distinctly and satsiac-
tory shown that the deceased was at the very tine
Attempting TO commit felony. Bot an invitation to
adultery does not rise even to the dignity OF trespas
The Judge-Five propositions are stated as tne
basis of offer 10 prove the fact OF adultery IN THIS
case ard that that fact is known by the prisoner
The proposition is not TO introduce evidence
Of adultery as proper under all or any
circumstances, bot whether, under the eIis+
ing state Of the evidences already gwen, the de-
Tense ale entitled to sdduce further evidences thsn Tue
have already given TO the Jury. l. Is q question OF
competency OF evidence for any purposes what may
be its legal effect s not the INQUIRY Inat the Couo
the trial terminates. But will not anticipate IT,
That opinion mast be founded on all the evidence,
and can be properly Investigated when the evidence
on both sides is closed. great mass OF testimony
has been received going 30 show the adulterous in
tercourse, he irequeLhng by deceased OF tne IN
mediate neighborhood OF the defendants house.
The exhibitions of a handkerchief What did they
mesn Have not the Jury right TO unders'and wnat
they meant BY themieyes they might be regarded
ss weighing very H.Ie, or as having more or
ltss influence on any particular point raised. Lac
Jury must pass on them, and on al the evidence
Can they do so without fun knowledge OF what tnat
testimony imports At the time Of the homicide the
prisoner declared that the deceased had dsh0nored bis
iouse or deled or yio.ted his bed for all ,hese ex-
pressions have been used by the different witnesses
examined. This declaration ia part OF the princlps
81 I.a IfrWar %. hoN aN ali
and il is the right Of the defendant, in al justice, 70
have IL explained Jarbce's ca1e has been referred 70
as decision dered by this Cour. on great deoera-
tion il is from which not disposed TO depart
la that Gaze considerable testimony having been
given It was proposed to prove what passed az an in
teryiew between the witness who was the father OF
the prisoner, ard the deceased ard the prisoner him.
self in regard 10 the engagement OF marriage. ms
Interview i. will be observed two or three months
before the homicide. Here the Judge q1osed his
rur z in that case, and proceeded. IL Is said now
ever that the EXPIRE son Of the prisoner here a. the
time of the homicide that the deceased had dehed his
bed, explains tseb, and that 1t Ia not susceptible oil
any further eucc alton IL certainly not stronger
than his Of Jsrboe, where the prisoner asked the
deceased if be was going 10 msrry the unfortunate
sif his sister, and he said, No. You see,
or you will see, Whist l goipg 10 do
The plain English Of that is, " | am rot goirg to
marry hsr." In this case, i s tire, the expression
used by the prisoner is that might be ordinarily
UNDERWOOD IN particular sense; but men may have
various idess OF phraseooey aad Tue Jury orc "
on ts Gaze on the evidence. Thai declaration 10 Do
cure, is in proof BY the United States but still there
nav he a different construction put upon II by one
msn from that put upon it by another. BE that as 1t
msy IN order to insure perfect understanding by the
Jury What wa. meant by that declaration, thlnA on
that ground also the evidence is atmssibe-the
Court reselyiog Of course, opinion on all the ev.
d.ncs until accordance with the ordinary course Of
practice here that opinion is asksd IN the shape OF
shst lawyers here cali prayers. am Of opinion that
the evidence s sdmiss able
The silence in TIE Court, as Judge Crawford pro-
pounced this decision, was almost psinful. and @ lie
closed, there was pereeptbs though silent express
sion Of satisfaction.