The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-23

- IT,
considering the state Of mind under the influence Of
the provOcahon seepeesnefs &C., which had praoeded
that event, extending through saturday night, when he
his declarations be saw the wave Of the handkerche
and ippeled by an influence which he bad power
10 CONTROL the ACT Of homicide, intelligent wit
ness can be brought the sand than the Attorney Gene
raj himself who in this city, and who must have wit
messed all this transaction.
Mr. Carse-Tbe point of time 70 which this eyiden
relates IS that which covered the period BETS the
soners into Judge Backs house and the comiog
into that room Of The Attorney General aud the copv w.
cation which passed between him and these witnesses
when the Attorney General wac not present
Mir. Brady-1hst must have b. a very brief inerva
beg ran TO say your Hopor We are mot /, be con
sidered ohectng We want all the evidence that
throw light fairly on any o. the Question. 70 be gyeo TO
o,med Of the facts, and is they who be the
judges. Ny remarks made exclusively for the par
Of saving time, and bringing the case to close as
soon possible
District Auorney-I look upon the evidence az exceed
g mt IN rs sSs ssoss nn %. y BE-
10 evid has been yet givep snd IT a very
point Of time thai occurring almost Immediately after
The hcmcire The United States have done all in their
ROVER to secure The dance of these Witnesses In no
sense, therefore, are the United States in default
Mr.. Brady--we do rot gay there is any default
nsict Attoruey-f we're to propose TO adjourn the
ill to absolutely, think request would
be and ought to be ersnned by the Court We
the defense 10 avoid delay, but ths proposition
really which does 20, delay II s that we pro-
coed With the discussion Of these Instructions.
Mr. Clifton beg leave IN make few brief suggestions
10 regard 10 This matter After tho very long borough
and ahorious Investigation that has BEEN given the
after he discussion or every question or law that could
possibly are In H. after the citation in the bearing of
the jury f the various decisions OF your Honor
cases bearing analogy to this, and which, humby
conceive, contain the whole law or this case il
purpose when had closed the testimony to make a
proposition 10 the counsel engaged for the TO
submit this TO the jury We had hoped that wond
be acceoed to; we had hoped that should be met
ibs pForosiion in consideration of the prison meet
which The jury have undergone, and in consdera:
ton or the interest OF AL concerned Therefore,
the proposition here to continue this case merely
for the purpose Of adding cumulative evidence the
part OF the prOsecuon and II the desire of the
jury to hear any further evidence it, We would Of
course submit without word to continuance till TO-
for The purpose Of procuring that testimony
But we think that proposition be not acceded to,
and we are 10 have discussion the legal question
before The Court OF prayers for Instructions first
preferred by counsel for prosecution as q matter OF
that discussion be met and we would prefer
that there should be discussion On thsse prayers till
the evidence is entirely closed Therefore cannot
meet the proposition Of the gentlemen the other side
unless they accede to the proposition which make We
cannot permit them 10 go with the discussion the
law iii the evidence ie fully closed. would add that IN
What have snid express the feeling desire OF the pr
at the bar taken little no part case,
and certainly do rot feel any desire perform the
assigned to in the argument before jury If
be avoided. After the evidence is closed after Whist
seems to me to be the full and complete exposition of
the law in this case doubt exceedingly whether discus
sion on either side will operate any change in the opinions
which The jury have formed in regard to the On
our part we are willing to submit It to the jury not feel
ing inclined further to detan them further 10 subject
them to the very oneIous burden imposed upon them.
ply to the remarks Of the learned gentleman When this
shal have been concluded when the law properly
appyp to it shall have been determined by your Honor,
in answer TO such instructions as be prayed for or
the part Of the United States and the part OF the de-
fence the United sates will be entirely will ng meet
the oner which BE gentleman has just indicated of
to IL most cheerinly and with the greatest gr a'dci
ton on our part. The United States on the c'ner
hand, feel that II is due To the subjects that
have been brought in controversy, questions Of law
and questions OF fact during the progress of the case
that the entire law OF the case should be settled by your
Horror in the form Of instructions to the jury. We
cider the will have properly terminated then and
when it does assure the gentlemen they cannot make
any offer moro acceptable to us than the one just in
Dictated
Mr. Chion--I have only to say in reply to that, that
We reserve Whit have TO say that proposition TIL
the prosecution anpoun to us that they have concluded
the case, whether that conclusion 10 OF ev
dence or the form Of Instructions When shall have
arrived at That point Of the case, If hear nothing from
the opposite eide or from the Court from the jury we
shall trouble the counsel the other side with any
further remarks, but shal understand that GO to the
jury on the argument. That is all can say at this time
but repeat that do not deem II consistent with
duty 10 this defence to take the legal argument until
the prosecution announce to that they have closed
their evidence, until all matters OF fact which they
| ely are before the Court and jury.
The JudgeE proposed by the United States that Two
witnesses being absent who expected here to morrow
he evidence shall stop for the present. and that certain
propositions OF law, prayers they called here be
unlimited by the United States, and this afternoon be
AIKEN up in their discussion. This proposition under
tand TO be distinctly declined by the defence. The only
other matter whether the Court WILL 10 the exercise Of
s discretion suspend the further prosecution OF the
until morning waiting for these absent wit.
The defence do not very strenuously object 70
that course think therefore, that under The circum-
stances Of the case the United States having
pGnas on the parties and attachments having been taken
TO assist them which attachments not yet returned,
the discretion Of the Court would be properly exercised
postpoDipg the further hearing till tomorrow morning.
But there ought to be some limit to this thing. 1t to
be understood that not to wait further for these
Witnesses
The District Attorney-Undoubedly.
Mr.. Carlisle The limit is to morrow morning
Mr. Brady-I have suggestion 10 make my friends
the other side which may the effect OF saving
time and enabling to dispose advantageously of the
two hours that remain today Let them give their IN.
stTuctons now, and We will whether will agree TO
or Dissent from them.
MIR. Carlisle (producing paper from bis portolo)-Io
anticipation that something might to bring us to the
point of instructions to day, prepared this at late
hour last night have submitted my colleague and
he copcurs 10 1t, but he has critically
would desire him to do Twill give you copy Of 1t With
pleasure.
| Mr.. stapton--will that include the wholeY
| District Adof ney-Oh no. We may have more to add
after the defence submits its Instructions
Mr. Carlise-ln my own view Of the matter that is all
the law test s necessary 10 be laid down the case
cept further Instructions Shall be prayed on Your side
Mr.. BIadyN agreed that the prosecution furnish
with copy OF their propositions. We VIII return, IA
coon as we prepare them furnish them. By doing
20 the discussion when into Court 10 morrow
morning will be comparatively brief. No time viii be
lost by this arrangement, on the contrary time will be
The JudeeI am very glad to hear Of anything that will
| tDd 70 save time.
Mr. Brasy--It will undoubtedly have that effect.
Mr. CarseWe may not in fact, disagree as 70 certain
| propositions
Mr.. Stan.on-I think you will agree 10 our law.
This agreement being made the Court at quarter past
one O'Clock adjourned
INSTRUCTIONS OF THE PROSECUTION
The following the nsruc ions proposed to be sub
mited for the prosecution
If the jury believe, from the evidence in this whole
cause that the prisoner the day the indct
ment, and In the county Of Washington aforesaid killed
the said Philip Barton Key by dschargng A. against and
into the body Of him. the sad Philip Barton Key pistol
or pistols loaded with gunpowier and ball, thereby
giving him mortal wound wounds and that such kill
ing was the wu and intentional Of tho prisoner and
was induced by the belief that the said deceased had
dnced his (the prisoner's) wife; and day or
days or for any period definite indeanite prior 10
the day OF such killing, had aduterous intercourse
with the said wife, and that the prisoner not pro
vosed TO such killing by any assault offer Of violence
then used and there made by the deceased upon or
against NM then such vilful and Intentional killing, If
found by the jury upon all the acts and circumstances
given 10 evidence, " murder But killing cannot be
found TO have been wul and ntento in the sense of