The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-14

missipie As bearing upon me question 81 vso evr
menced the attack. and las Illustrating ~ cream.
produce reasonable belief OF imminent danger n VOC
mlna o. the slayer" inai !. zee ssam
nation Of the cases o. Chef Judge Dawes. IN rns
People w. Lamb q Keys T. 500, think u must ~
considered indispntable THAI when there ~ essasacs
from which the Jury may nnd that the deceased ..
lacked the rrisoner even the general character oi
the deceased, II shown TO have been brought 70 Tie
part upon the principle that Il tends 10 rebut ne
presumption OF malice, or 10 show that tue khlinG
prehension OF great bodily harmn Id, sIi.l
And the general character OF the DECREASED
may, under such s.rcamstanees be shown' no.
much moro clear In II when. m this case, thers
WAS evidence from which the jury might have
concluded that Smedick assaulted Inc prisoner -
the very time Of the homicide that evidence Of
his particular character lso 70 speak ~ re-
spects this prisoner-evidence OF ii-will toward
him; evidence OF threats OF attack. 20 the knowi-
adge OF the prisoner; evidence that smedick had
bruised and beat the prisoner TO The peril Of his
life on several occasions prior 70 the Suing
should be received as bearing upon the ercum.
S SssslSaf ASi when slsdicS Was nyeq ne
winch Sss sworn ny aaS ns
rulF' the prisoner ITO death.n The exception in
this respect which was taken by the counsel for the
prisoner Is well founded. The other exception ~
which l shall aliude Is To tue evidence which wss
admitted under the objection OF the prisoner thss
the witness Real had been the Pcnitentiary. That
hs evidence preludiced the prisoner, since u cast
rejection upon his witness cannot be doubted, ana
u Is Clear upon authority that the prisoner was en-.
produced, even II the witness were willing 70 Answef-
The witness might waive his privilege, but he could
not waive the right OF the accused. Tnat She ruling
this SUBJECT was erroneous WAS scarcely disputed
on the argument and Ia settled by the Court OF
/, where the precise polat was decided. IL IS sup
posed, however, that the enect OF tnat case over
y sas o. ns Court ~ ,as
n. Y, p. 1917. But that Is obviously . mistake.
There Is no Inconsistency between the two cases.
and lt Is not pretended that the former case was
Intended to be overrued BY, or was considered, OF
even referred to, IN the latter. ~ iscs .ns
1Sn presenea AND aedea By oom case
are entirely distinct. The latter case simply hods
that the question OF the extent 70 which inquiry NOS
the purpose OF degrading Witness rests In the dis
cretion OF the Circuit Judge, and Will not DO re-
discretion But nowhere intisnatss that the legal
rule which prevents recordlbeing proved by parole
rests IN the discretion OF the Court Tue extent 70
which inquiry into irrelevant subjects, With view
to discredit q witness, shall be allowed, Is DIS
sretl sa,r may be no allowed or Or, rd may
same rules Of evidence apply which control as to the
issue. It Is to be remarked also that in the case
last cited the Court asked 70 grant new trial,
because the Circuit Judge had not permitted the
extent that the party desired The Court said that
subject rested in The discretion OF the Judge below,
nishng ground for exception; but 1t dld not say,
and think no case can be found IN which II ever
had been said, that the admission OF incompetent
evidence, tending to discrsdit witness rested on
the discretion Of the Judge and would not be cause
for an exception in favour OF the party prejudiced
am not willing In q case involving life to split
hairs az to whether An exception was noticed on
the record with entire precision when appears "
the book that the objection was actually taken,
and when the District Attorney treats the exception
claimed by the prisoner as being properly 10 and
presented by the case. On the argument the DIS
subject matter OF this objection was before the Court,
and he SO treats it IN his printed points. cannot
doubt therefore, that the exception should be
considered as duly entered, and certainly, II any
question exists upon that point instead Of refining
error was not committed we should call the District
Attorney before us and have him say whether the
olatey preceding 1t or whether IL referred by his
concession on the argument i must have done, to
the whole inquiry upon that subject to which obleo-
ton had been taken and noted. In case involving
an exception after objection duly made would
Court, and, SO far as / am concerned, shall not
consent to be less considerable when lie Is involved.
For both these errors am Of opinion that . new
brought to this conclusion because though no OK
ceptlon was taken to that particular think the
learned Judge committed an error In the charge
which tended greatly to the prejudice OF the prt
soner. and for which he would be entitled to q new
trial under the statutes of 1865 and 1885, II the In.
dictmeDt had be en- tried IN the Sessions instead OF
the Oyer and Terminer The case was presented to
Tue jury " Tue lcuTueO JuOxc upon tue Lu0OTy
that the prisoner must be convicted either of muir
der or else OF manslaughter In the fourth degree.
In other words, the jury were told that they had
alternative between convictng him OF the highest
crime or Of an offence oi very light degree. Had
they been Instructed that under the law and the
facts they might convict OF the serious crime OF
mansaughter IN the third degree perhaps they might
have taken that view OF the case ana rendered
verdict less severe upon the prisoner than they did,
and charge which took away the opportunity for
them to do 60 operated untavorably TO the prisoner.
The charge took from the prisoner the benefit OF hav
ing the jury inquire whether HIS case did not come
within the definition OF mansaughter In the third de-
gree and as the evidence certainly would nave war
ranted such verdict tue prisoner preudiced by
having that subject withdrawn from or not pre-
sented to the consider alton OF the ury and as this
Is subject on which life depends and in which q
jury, upon trial cond ucted certainly In not the
most suspicious way for the prisoner unanimously
recommended the accused to mercy. SO much
doubt as to the measure of his guilt seems to
that should not be astute 10 Ind grounds to up
hold the verdict, but should incline to view BY
which the case should be again submitted to jury
under proper 10 structions 80 that complete justice
may be done TO the prisoner as well ~ to the people,
and 80 that life be taken through the Instrumental
lty OF the law and IN vindicat0n OF It's supremacy
only when all Its forms and requirements have been
strictly and accurately observed. l am for new
trial.