The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-17

rsbupe testimony when the summing up both sides
will follow The case will Close then towards the end Of
next week.
PROCEEDINGS BEFORE THE COURT.
WASHINGTON, April 18--ll A. NJ
We are requested on the part Of Mr.. Sckes, state
that be deeply regrets for many reasons but particular
" for the sake of child, who must day
record Of her mothers shame that the confession
ckles was published The publication contrary his
visbes and " 1t had been within his power he would
have suppressed IL.
The Court opened at the usual hour and with the usual
srswd In attendance.
The argument on the question Of the admissbily OF
evidence Of adultery pretermted for the present.
order 70 allow Peter Cagger Of Albany, to be examined
he being desirous TO return home this afternoon.
EVIDENCE OF PETER CAGGER.
Peter Cagger examined by Mr.. Brady-I am q member
Of the bar residing in the city Of Albany have known
Nr Siekles twelve years and upwards; Mr.. Key
but once in June 1885, introduced TO him by
ffsm Mr. sckles, and engaged him in case counsel
To the Court-I retained Mr.. Keys services on tho
ground Of that letter Of introduction
Not cross examined
ARGUMENT OF COUNSEL.
Mr. Oud would like refer the counsel for the defence
10 one or two additional authorities third volume Jones
Law Reports State against Reuben Samuel the State
r.
John g. Ferguson Hills South Carolina Reports page 8l9
Mr.. Phillips resumed his argument. He had discussed
yesterday the following propositions IL That the evil
dence offered is admissible for any purpose must be
received g. That the issue presented by the indct-
pent s not whether there has been killing, but
whether there has been murder. 8. That to
constitute MURDER there must be established killing with
deliberate intent malice prepepse. 4. That the
malice Of the law implied wicked depraved and malig-
nant spirit, o heart regardless OF social duty, aud
fatally bent on mischief. g. rnat even In cases
OF express malice arising out OF past grudge, II
there has htervsned . new provocsiion, il was
TO be presumed the killing was ON the Old grudge
from The act Of killing this presump.on may be rcout
ted by expressions OF good Will and acts OF Kindness
the part Of the prisoner towards the deceased always
sidered important evidence, showing what was his
general disposition towards the deceased from which the
Jury may be led TO conclude that his intention could
not have been what the charge imputes (Quotng
I'd Rufse page sss) rhat this presumption may ais
be rebutted by showing that the killing in passion
for passions arising from sufficient evidence
Of the absence OF malice. (QuotiDg from tho Common
wealth against Bell, psge 1922 Z. rnat as the law
there could be no such legal absurdty as permitting ey
depce Of provocation, and excluding evidence
the greater 8. This brought me to the consideration
Of the prosecution that the accused had
seen eyes the very act of adultery, then the
provoca,on given could be gwen in evidence, but
oshsrese This demonstrate 70 be wholly unreasonable
and faacious by showing that the eye the the
touch we're but through which facts were trans
mted to the brain and that these governed will and
knowledge Of adultery at the time Of its
coud be asde6niey conveyed TO the mind by the
The touch as py the eye aud cited examples end
when the adjournment of the court took place. had
yesterday presented in illustration of the fasy and
abturdity the doctrine that must
adultery 70 entitle him to set IL up IN justification He
might also illustrate the idea by the Of the blind
man. He bad picture OF Hogarth's representing
scene English hustngs where old man, with Iae
SHOWS Of many winters ais head and without his right
arm which he bad los; in The service Of his country
and Judge declared that nasmuch the form Of the
oath required the person taxing 70 place his right hand
the book that this man bad right hand, he
was a competent voter That doctrine about as
absurd the doctrine laid down by the
the husband find the aduerer In the very act Sup.
pose husband found the aduterer his wites bed in
state Of quescence, found him dsrobing clohng
himself in the bedroom Of his wife, would be held that
that fact would not be ieea justacationq
The District Attorney did not know that there any
we'll defined line tn this matter.
rule in the nature of things would be impossible
make the proof and where the Of the Law does
invariably epdoavor to shield himself from detectiona
Besides, II the husband did find the parties in the
shs he .duitersr Is pased the tongue 'Ds'' of the U
vue is silenced by the law, and the prison.
so therefore the mere witnessing Of tho fact bu, tSs
knowledge of It, however derived, which srs the human
passions and lasbes them into fury and If the aduerer
h killed In the transport OF passion thus aroused, the
NV, which rule for the government Of man, has
gard for the frait,es which hang around the human
hesrt The most liberal Interpretation Of the law docs
not require that the killing should be concurrent
with the act Of adultery Counsel referred 10 lst
RUSSELL pages 10 10, 10 show that though the killing
may be subsequent yet will not be murder not done
deliberately and upon revenge counsel also discussed
Sho case OF Manning, whcn he said this prosecution
entirely rested aud there the Judges unanimously
declared that the killing was but manslaughter, and
1he prisoner having clergy at the bar the sentence
that he be the hand and the Court directed
execatoner burn the hand very slightly adultery
was the greatest provocation that a man could
receive, and was too much for him to bear"
With view OF testing this matter still fur.
ehey, suppose they we're 70 convert this judicial
against adultery that any person found the act should
suffer such ana such punishment, and person in.
dcsed under that statute what amount OF evidence, he
would ASK would be sufficient 10 the Jury that
The offence bad been commtted2 Would Il he for mo.
ment contended that the witnesses must testify
70 sccing the very act tseiY The statute Of
hasssonasetss declared that Any party who had bccn
guiy on the crime Of adultery should suffer go,
ana tnere wne evoence was necessary TO
under II. He would read some of the ferisbons there
Council referred TO the OF the Common wealth VA
Morris, lst vol. Cushing p 394, also 10 vol, II PICK
eTing p BIS, In the case Of the Common wealth va Nor
rton The rule the other States and in the
EDesh courts. He referred 70 the OF the STATE vs
Wallace, ~ H. Reports, and TO q case In Alabama He
also referred TO the opinion Of Lord Stowcl vol
lcafs Evidence, where Il is declared that Il IL
NOS nece sary TO prove the fact Of adultery
bat 70 prove such facts "a led 70 the inevi'
table inference that the offence had been com.
mitted The circumstances must be such lead the
guarded opinion Of discreet to such a conclusion
Counsel would ask whether the knowledge the
Che husband Of the adultery required 70 be greater and
more complete, IN order TO justify the provocaton than
would be required by jury OF twelve deliberate and i'm
para men 10 convince them they were trying the very
fsue OF adultery. To msk that would be 10 reverse
Ill notions In reference 10 the principles Of law
n ,he case Of John, reported In redeII John was
snave there being marital rights M be