New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-04-16

| die.
Mr.. Cs,hsls-We ere growing - ford ofescb other,
cir tina. AFRAID j: viii prevent us from dong oar
dafy.
Mr.. Philips resumiss) said lie. contrast with the
declarations the gebt has made, the object OF the
speech be has addressed bo1 10 20 mt anf stJe,
though this is matter Of taste is rather becoming the
husiirgs than 10 the Judge question OF las Lst
con rover Them vito the temper and manner OF taAt
,n4.eh While he has on one h.1d given expression
20 the yymosthy which ought % exist every on
the other he has srgoed 70 e1cece from the consders
ton Of the Jury tue ground OF tte provocaon Hnea
iptnesi the passion winch led TO the CON usou OF the
act Tsis the whole scope object aod effect Of the
speech was that the Jory should not have the PROOF
Of character the provocation which led 70 the comnis-
! sion Of the act.
| Mr. Carl Sic You are q1ite ris BIT.
! Mr. Pbillips-The gentleman also declared, II be
thought this case made out ACCORDING 70 the cyl
depoe given, could produces from the Jury another
verdict than that Of murder he trusted the bopes Of
him ,ef and his childTens bones, which no expeced
womb be gathered round him. mig ht not rest 10 euch
land; there .as pollution in tue atmosphere o. SUN
OF in this broad land where liberty ard virtue WAX
| hand in hard there is not spot where jury would
| be found TO render gu Sd verdict in such case.
Mr.. Carh.le-You do lot state my proposition acca-
rstey. said nothing about the facts OF this case
wss speaking With reference to suggestion Of Mr.
| Graham snd ssid, when the day came that a Jary
undertook to set their faces against their sworn du:s
and apAipst TIE law and evidence, l Touli wipe of
| the dust Of my feet Of this community.
| Mr.. Phlllps-The gentleman explanation doee not
| charge nv construction. He maintsns that such
is made blythe evidence s murder, and nothing
| elee. cannot mis- axe his argument.
| Mr.. Csrlisle-If the Judge lays down the law as
| murder, the Jury Will conform to il.
Mr.. Phillips further controvertei bis points, and
Mr.. Carlisle explained.
| feel as q husband and father, feeling NJ doubt
! shared by every man who hears me; enter this
Court-Honse eDdesvorng to suppress thoss feelings,
and bring ng myse the act Of thinking and speak
Jog as lawyer in this spirit, dscardiDg trust for
eli tme any feelings which may have been excited by
The remarks of my friend for take pleasure in cal
| ing him NY friend.
MIR. Phillips proceed now 10 ds;uss the merits OF
the case The evidence we propose to offer is on four
| points: First, just fcstioo; second, provocstioni
third infsrity; fourth, the explaining words uttered
! by the defendant at the time Of the homicide, and
proved by the prosecution. To one of these points
will refer namely az 10 how far the evidence proper
TO sbos tue prosecution on which the passion 10 nis
case il to be iuetisd eXcused L. admitted on
the opepitg that II the evidence be competentor any
purpose, there is end OF the question; that the
weight Of it is not for consideration. Il competent
TO prove the fact Of the adultery The indictment
sets out by stating what the injury is and represents
| the accused a. having been moved by the devil, as
| pre- iminary Introductory remark-noth,ng morei
that he insigated by evil passion or spirit. The
old form of indictment has been foil ved which would
| be more honored in the breach than the observ-
| nnce. The same evil spirit was q fgura-
| tive description Of the devil. Bat further on
Indictment
and the tee 1pical words Murder and Felonious'
| are used. All tness words and description embr see
the malice and premt Citation, which alone the lsH
will rest any accusation OF murder which this iddlct
| meet charges. The distinction between murder aud
apslsu Sbter is familiar TO the mind OF lawyers and
your Honor that il s needless 10 enter into techoca
.pe 10 clare It, We know that In murder there
is preu editation and deioeraton, GU. Of which t1e
law raises the malice of one th ,ueht, and that in
manslaUghter there is absence OF deibera-
ton, p,emeiitatiOn and mali;e aforethought.
And this is sufficient TO indicate the true lice between
these offet with reference 10 malice and its pc
cuar character tnd the most satisfactory definition
to be this-its presence lie discovered when IT has been
attended by such circumstances as are the ordinary
symptoms Of wicked, depraved, and malignant
spirit ard which indicates neart regardless Of social
outy, and deliberately bent on mischief To sustain
the indictment You have 70 show the presence Of that
malce which is vigorously and accurately described
10 the law books with reference to the question OF NAL
ice So necessary lie TO constitute MURDER and
| tain indictment for murder, that In case where
express malice is proved by old grutges threats and
Blirg subsequently, yet, fre, povocation cal;u
sted TO excite the passions, has interviewed between
the old grudge and the commission of the act the law
refers the killing 10 The new provocahon ard not TO
the old erudge or tbrest. " is said by my learned
friend that alice may be presumed out OF the act OF
biliI e-grapted. But this is OILY presumption, ADD
Ike other pesumptons may be rebuttsd by evidence,
showing the fact friendship Of toe parties wulch would
exclude malice IL may be shown that the klhng rose
from passion, excited by just provocauon There are
two modes by which the prisoner may relieve himself
|
of killing and thus change the character OF the ohense
for whca he is inoiceo. AS to the fret mode OF re-
buttirp malice, we would be enabled TO enter into
! proof and show the kind relations between these
parties at a date lorg anterior to the time OF killing
Now We propose to the second mode OF rebutting
the presum II on of malice, which would arise oct OF
the Killing TO wit: propose 10 prove the passion,
| and the provocation which led to that passion.
Az to tie first, the rule, which has been well laid
down, and which this Court has acted, is, that eI
pressions of goodwill and acts Of kindness gu the part
Of tie prisoner toward the deceased al Ways consi
cred important showing what was his genera dspo-
sition 10 ward deceased from which the Jury will
| be led TO conclude the intention not Whist the
| charge inputes. When We come To the second mote
OF buttiDg the presumption OF killing with malice, by
showing passion corrected with the prosecution,
are met by the objections of the gentlemen eng sgei
for the prosecution, say however true that may
be- there wall built up by the law which orbiis its
access TO the Jury. Mr. Philips here referred 10 the
! Commonwealth sgsiht Bel, in Addison, page l62,
ADDING here the Judge lays down the doctrine which
10 s.sept entirely with everything We have said
Iamey, that the passion rising from sufficient
| provcation is evidence Of the Absence Of malice.
We think we have proved the passion thst is not for
us but for the Jury 10 determine. Then in order 10
cut the presumption Of malice, by which we would
change the character of the oense we have only one
thing &c do, 10 wit To chow that passion from
sufficient provocshon, and while 10 porsuit for
the doctrine of the law aud while attempting TO rebut
! the presumption Of malice, the gentleman takes bis
| ttaId with hrmness which, Ia his opinion,
| will not and cannot be skaken, and speaks
about certain things which would lead TO
| most disastrous consequences 10 the community,
II father kills who has beaten his son. az he IS
| indicted tor murder, 70 what authority would the
gentleman refer to exclude from the Jury the evisIce
OF the proyocaton IL is admitted that if father
kills one who has assaulted or killed his son YOU
may chow the provoeaton connected With the
/ passion, for the of reducing