The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-16

cuar sbaraeter We nd the most satisActory definition
TO be ths-Is presence 10 discovered when has been
attended by such the ordinary symp
which indicates heart regardless Of social duty and
liberately bent mischief To sustain the ufctment
you have TO show the presence Of that malice wnca
vigorously accurately described in the aW books with
reference TO the question OF malice So necessary u 70
constitute murder and sustain Indictment for murder
srudees threats and killing subsequently yet il fresh
provocation, calculated 70 excite the passions,
has interviewed between the old grudgs and the
the old grudge or threat Il is said by my learned friend
Granted But this is only presumption, and, like other
pIeeumptoDs may be rebutted by evidence showing the
fast friendship Of the parsiss which would exclude malice
by just provocatop There two modes by which the
prisoner may relieve himself from the presumption which
character the offence for which he is indicted AZ 70
the first mode-of rebung mace-we would be enabled
tbere parties date long anterior to the time Of killing
Now propose 70 the second mode OF rebu'ng the
presumption OF malice, which would arne Out Of the
and The provocation which led 70 that passion.
Az To the rst the rule, which has been well laid down,
and on which tins Court mas acted 49, that OF
towards the deceased always considered important as
showing what his general disposition towards the de-
intention Was not what the charge imputes When
to the second mode OF rebuttng the presumption Of
the pTssecuon ws are met By the objections Of he gem
emen engaged for the prosecution, who say however
true that may be, there Is wall built by the Law which
forbids s 10 the jury. Mr. Philips here referred
10 the Commonwealth against Bell in Addison page 162,
adding-here the judge lays down the doctrine, which
ney %n ,se o we
vocation ID evidence OF the absence OF malice,
We think have proved tho passion That not for u.s.
the presumption Of malice by which would change the
character OF the offence, we have only one thing TO doo
ton and while pursuit for the doctrine Of the
law and while attempting to rebut the presumption OF
malice, the gentleman takes his stand with drmnces
which, in bis OPINION will not and canno. be shaken and
speaks about certain things which would lead TO most dis
asous consequences to the community father kills one
who has beaten hrs son. and he is indicted for murder To
what authority would the gentleman refer 70 exclude from
the jury the evidence Of the provocatonf n admitted
that il father kills one who has assaulted or
as connected with the passion, for the purpose
Of reducing MITIGATING the offence; but here
who has committed adultery with his wife, cannot show
that the passion which led 70 the killing was produced by
that The very last decision which my friend
which be inflicted on any human being Tho Ian
Ruage Of the Judge was ait s than human nature
bear" adultery be the greatest provocason that
can befa man. other provocatons necessarily Of
less deeree-l presume there is no misapprehenson OF
that The killing OF man who has beaten bis SOD s not
therefore the greatest provocaon for he adultery
s He may show prOvOcaon, but as TO the latter the
greatest provocaton 70 be excluded But coming
husband find see the wife in the act Of adultery
then the provocaon and the passion induced by the
vocation, would mitigate or lessen the offence charged ~
murder. But II ne did not see IL, then the adultery,
however henous and under whatever state OF aggrava
tion the mind conceive forms not the slightest
cation In the eye Of the law for the act and the gentle
giving his construction Of the word " finding"
which s the word in most Of the books nterprets ito
mean "see with his eyes the &C. Of adultery" Nov
why say the eyer We have the eye the ear and the
touch; all Of them messengers OF the mind in
which knowledge Is obtained The knowledge thus do
many there might be knowledge derived through
the ear as by the eye What II man see
his ssr 20 hs anS heor sao evencs
which would give him indications of but one act aud
which is not necessary for me TO describe or TO paint
gentleman tell in abored argument that there
provocaon because the did not the thing aud
the information Of the adultery Take the question
touch where neither the nor the is invoked the
messenger OF the mind In the course of my experience
circumstances In OF them the facts to illus
frate the point on which am speaking. A
Mobile Bay, after an absence Of some weeks
returned 10 his home He arrived about twelve O'Clock
at night he went into his house, single story with q
pszza opnd and two doors, leading the bed
the other to the paror On entering the chamber
where thick darkness prevailed, he nothing heard
nolhing he advanced TO the bed, put his hand
in Il, and felt a man. He drew bis knife
the knife of . stevedore-loDg and broad bladed,
and stabbed him repeated blows til he fell from the bed
to the Hoor dead the slayer called for neighbor to
bring light he put to the face Of the deceased when
he found that, as in this case the man who had most
grievousy wrOnged him, he had hed TO bis bosom
frend.,i merely this illustration was the
touch that communicated the knowledge of the fact
mans mind. Where then the for the argument
that provocation Of this kind is worth anything
court Of justice except 1t be presented 10 the eye
Mr. Phillips was proceeding TO other parts Of his argu
mept when the Court reminded him that the usual hour
OF adjourn ment had arrived.
The jury were conducted under charge Of ballG to
their Quarters at the National HOTEL and the prisoner
manded.