New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-12-14

prisoner; the Court told the witness that ne need
not answer II he did not wish TO do So There seems
TO have been 10 exception, by the counsel OF tho
and the witnessed answered saying II will tell
truth; was IN the Penitenary" Then the counsel for
the people asked him, How long therei" TEs question
was objected by the prisoners COUNSEL objection
Overruled and, through counsel, duly excepted
This l. the only question relating TO the point which We
are bound TO consider" exception TO the ruling Of
the Court having been taken. to the preceding questions
put 20 the witness IN relation % his imprisonment In the
Pctcnary. There is point appertaning TO the rules
Of evidence which greater diversity Of opinion exists
than upon questions GAZING Tor answers having end
ency To degrade the character OF the witness. think
however that tile conflicting authorities may be
deemed reconciled. Where, as Ia NewcOmb agt. Girls
wold the witness was asked. cross examination.
whether he had been convicted Of petty larceny. al
though the opposite party alone and not the witness OBJ
jrctcd IL held that the party has right to insist that
the conviction be proven by the record because this Is the
ouy proper way OF proving convection But where as In
Great Western Turnpike Company agt LOOMS ga n r.
l2 the question called for answer calculated TO dis
parage the witness and not directly TO prove the conyc
ton IL held that such questions should be allowed or
disaOwed by the Court In the exercise Of It's discretion.
aud that the ruling not subject TO review unless in cases
of manifest abuse or injustice In the before ia the
witness having answered that he had been In the Pent
Tertiary. although the Court Informed him that he wa
bound to answer, and the counsel for the prls0Re
having taken exceptions, then asked How long
thereP This was not calling for proof OF his conviction.
did IL involve the question Of his conviction, winch
although his being in the Penitentiary presuP
poses a conviction. But having admitted with
out due exception the part Of the pris-
oner that he had been there an answer show
ing duration OF his imprisonment was II was capa-
Bile of producing effect merely
age him. The answer was IN fact given; II believed az
m By the Jury Ii must have bean favorable rather Than
prcjndlcal TO MIN lie answered Iour months, anu
added. innocent OF the crime" The counsel Tor tne
plaintiff Ia error in his twelfth point, maintains that the
Court erred ut the trial In refusing 10 charge tne July
requested By the prisoners COUNSEL that the PROOF
failed show which wound it that actually Killed the
deceased the not made out according W the IN
The Indictment charged in substance that the prisoner
made an assault with pistol CHARGED aa oaIeu ms
guupOwder and ieadeh Dulet nied az the uecedseu'
and then and there felOniosy and OF his malice afore
thought did strike penetrate ana wound te deceases
with the leaden Dullet. causing mortar "ounu.
OF which he died This tho prosecution were
bound 20 prove but it maered not which OF the bullets
which Of the wounds caused the death OF me
which bullet caused his death was nred by tho prs
oner out OF pistol held and discharged by hiu and In
cted wound which CAUSED inc deat OF Tue deceased
This point therefore, like the other hold to be unens
bic. have thus patiently aud carefully considered all
the numerous points, Win the introduction ahq com
ments of the counsel Of the plaintiff IN error have
conviction the conclusions at which have arrived
i'm relaton 10 these points ncontroverble. But
am convinced II have erred, ana III any OI the rulings
If the Courts the trial erroneous that the error
did not affect the rights OF the prisoner IL the rulings
were the other way, II is not within the range OF legal
possibility that the result should have been different
Inc perpetration OF the frighu act ITSELF the debera
tion the cruel yndictveness which accompanied IT, the
absence Of mental alienation, except what was caused
nv lie tumut OF magn passions. satisfactorily
proved that whatever disposition the Court made at the
Trial OF the objections aud requests OF the prs
onrrs counsel the jury could not without great derec-
ton OF duty. have rendered any other verdict.
The doctrine that the Court shall disregard any error
In the pleading or proceeding which shall rot have
affected such substantial rights OF the adverse party ana
reason of uc error or defect is autary aud just equally
in civil criminal cases IL Will make the adlnls
traton of Justice easy aud efficient the TRIUMPH "a
mere Technically almost impossible, and the inpunlty
OF criminals it may be hoped Of rare occurrence -
Tue Judgment Of the oyer ana Ierminef shouid "
Jnuee Barnard's opinion is to the effect that after
careful examination Of the rulings and exceptions
S'ade and taken on the trial Of the prisoner that
no error hiss been committed; that the charge was
very fair toward him. that the case was one that clearly
cal ed for conviction. The jury having proper regard
for their character and the evidence could have rendered.
no other verdict. -
which it is 50 plain that the prisoner Is e 0baSs
On the trial the prisoner offered show threats OF yo
Ience which had come to his knowledge made Dy ue.
ceased against him. and Also acts OF violence committees
upon him by the deceased after these threats. THIS eV
dence was excluded, and the question arises whether
upon the disclosed upon The tral tnat rug Vac
right IL may be considered geheralS tnat mele ,
or even acts of violence prior 10 the homicide ngh' 10.
be admissible, but ilat does not touch INC point sib
question here j., whether such testimony IS aussO
when there proof from which the jury may see Una.
the deceased assaulted me prisoner wen 'e i ths
done. There was evidence OF scuie w :,
parties before the firing OF the pistol Inc question
Which be@an the conflict evidence Of threats previous
violence by the deceased against the prisoner Is ot az
Ssao9 ~ ,h GO and AS Illustrating the cir
cumstances attending the homicide ana as tendlhg
TO produce rea sOnabe belief Of imninent danger IN tno
mind Of the slayer" Even the general character " to
deceased II shown 10 have been within the KhoWeIge
Of the prisoner nay De pr0yeh on ms Phe nrrs1mp
ton of malice and show that the Killing was under ita
sunable apprehension OF great Duu!J haih anu tnO
general character OF the deceased may uhoer sueu c
rumstances be shown, how much more clear wheI, as
this ease there evidence from which the jay mght
have concluded that Smedck assaulted the prisoner AT
tile very time Of the homicide. That evidence OF TVS
particular character speak, respects the prison
ers evidence OF Ill will toward him; evidence OF threats
which came the knowledge OF the prisoner evidence
that SmedCk had bruised aud beat the prisoner 10 tho
peril OF his life several occasions prior 10 the Eli ng
should received bearing upon the circumstance 81
the case, and tending 10 elucidate whether or hOt
when Smedck killed he was engaged IN attempting
TO execute the purpose which 1t was sworn ne aa Se
| should be admitted lie has no doubt The other eAeeP
non was the evidence which was admitted ulder Oo-
lection Of the prisoner that the witness Real ad Deu ~
the Penlteutlary; that TINS evidence pl'Juulceu an
prisoner since reflection MS witness canhot
be doubted IL is clear from authority that tue plone.
was entitled 70 insist upon his legal right to nave to
answer The witness might his privilege, but he
could waive the right Of the accused mat tue Iuuh
was erroneous scarcely disputed on me atgumen
aud is settled by the Court OF Appeals III NcNeohpc AK
yolyng life split hairs to whether an exception was
| Noted on the record with entire precision, when IL
appears by the error book that the ou9ecllon
| was actually taken, ana tue DlstllctAltoiuy
as being properly in and presented by the case ne
The more willing decide In this way since te learned
Judge committed in the charge not oecteu 70
winch tended greatly 10 tho prJuCce vi TIC
nrisouar and for which would be- entitled 10 new
trial under Statutes Of 1855 ANA 1858 e hnctmens
had tried in the Sessions Instead ol tue oyer anu
Terminer. The was presented Ia hcJuiy upon us
theory that the prisoner must be convicted tIthtr u
murder or else Of granddaughter IN the fourth degree
Had they any alternative between conNctng MN OF s
highest crime Uftcnse OF very hgh drgte'-haa
they been Instructed that they might nlh hl. Sis y.
might have taken dlH'iehJ view ol tno
case The Judge took away the opportunity, ana thus
| operated unayOrably To the prisoner