The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-02-11

4 told heal what Slnedick had sad. $3.50.
June; 1t was after Real had been arrested and put
under bonds he was arrested by Smedick, but
- rfS rs or oq ss ea s weas seR
Redirect know OF difficulty also between Real
and Smedick that took place IN First avenue.
James Mcdonald was next called and sworn, ana
testiied-I know the prisoner and knew the de-
4 ceased
Real and the deceased on the evening OF July lasts
| A. Yes:
The Court held 1t to be incompetent to show these
i isolated transactions
Mr. Stuart SAID he proposed SO to connect the
threats oil Smedick previously testified to with this
1 evidence as to show that Smedck SO arrested him;
that Real was helpessly intoxicated and cruelty
| create grounds OF apprehension on the part OF the
prisoner as to his receiving like treatment at the
The Court overruled the ofer, ana counsel ex-
cepted. All other evidence OF q similarinature was
| also governed by tins ruling.
| at 5s1 First avenue IL IL about two blocks above
where Smedick was killed; !! conversed that nilht
first; / saw Real. about six minutes after
wards; they both went down the avenue
10 the same direction Smedick went dow Town
just below and talked with the clerk; the clerk stood
at the door and asked him to sell me some bread;
| he said the store was shut up; went back TO my
store and about four minutes afterwards heard the
shooting; left the clerk standing at his door
Cr05s-examlned-It is not quite block from my
| store to the store where the clerk was standing;
was not over minute perhaps, In going back to my
been twelve minutes before saw the clerk that
| Smedick went down the avenues don't know
whether Smedlck went into any store after ne passed
me he might have done 30, and Real might have
| passed him there
James Rowe was the next witness, and tcsti1ed-I
know the prisoner; 1--we, think at 403 Broadway;
the night before the killing saw Real at Thrty-sec
1 ond street and Broadway.
MI. stuart proposed TO SHOW state OF denrium
| Witness resuming-Real didn't seem to know me
| at first. and saw he had been drinking; asked
as it is your business he said .they are after me
and viii put me out OF the way;" don't know who
and he grabbed hold OF me suddenly and said, Il
thought you fire.; after going some distBnce
further asked him TO take drink, and as turned
into the saloon said "here they are, by God, alter
me;n ne then ran away and saw him no more.
Cross-examined-I am now Q car starter on the
| day: it was not dark on the evening when con-
yersed with him; was about half or ee-quarters
OF an nour ID ms copany srIus. Vas Nc rH s1
Kedirecr--what impression did his actions and
| conduct make upon you At the timer Objected to
| and overruled. Several questions OF similar
| nature were put and 0verruled.
To the COurt-rhere was nothing said about police
officers being after him; don't know who he meant
by saying 'they" were after him; there were people
Thomas Mui6are was next called and sworn, and
| testified know the prisoner; saw him at half
past six on the evening Of the murder; was with
swim; we had drink at jones' Wood and when the
second drink was called he wouldn't drink with us;
would not come out when we wanted him TO; when
we were coming down the river ne said when men pas
sing the pen a =, . wonder what cell they are
The Witness opinion Us to Reals mental condi-
ton and state at that time was overrued and excep-
Patrick McCauley was then sworn, and testified
know the prisoner; ne Is my brotner-in-law; know
The court overruled evidence tending to show that
the prisoner was addicted to drink at periods and
that when ne had abandoned these debaucnes he
was always attacked with delirium tremenS In the
| form of disease. The counsel excepted
The court offered to admit evidence, II any were
offered, showing that Real was suffering under such
! an attack ut the time OF the killing.
Henry Real was next sworn, and testffed-I am
der was working IN the Admras garden on Cow
ern0r's Island; was In New York on the night In
question, and was In First avenue gong down town
ON the northwest side; saw two standing the
corner of Tmry street talking and they both
| clmched; then saw shot fired and then second
gest man raise his hand. and | think he had club
| or some weapon in his hand; think It was the
policeman.
Cross.examned- might have had little freaks in
| New York; was arrested In New York.
| q. Have. you ever been In the Penitentiarys A.
| have, SIR for four months; saw no one standing
| around Thlrty-second street when these men were
clinched; before l moved l heard shot and saw
shot was fired before the man fell to the ground;
| saw coal box; they were on the avenue. think,
h
| man who nred the shot came from.
| The defence here rested their case, and
Mr.. b. X. Phelps proceeded at six O'Clock, to the
closing argument behalf OF the prisoner after the
persistent EFFORTS to obtain the consent OF the
Court that the case be concluded to-day After much
discussion the question was left to the Jury, and
they decided remain last night until the case was
| finished.
| the people In an eloquent argument
Judge Barnard then charged the jury. He said
The statute Of our State defines murder to be pre-
cab nF hxrv0a "a H.
dong OF that act The Grand Jury OF this county have
placed John Real on trial. In order to sustain the
trict Attorney who represents the people, has brought
before you some witnesses who testified that on the
Esd Of July. 1885, officer John smedck came by his
death by being shot with pistol loaded with ball.
II appears that that shot was fred BY the prisoner
at the bar. The killing then. having been proved BY
srs Counsel becomes necessary for them 10 satisfy
you that 1t was done by accident or with some cause
which In the eye Of the law would make II excusable
II they have failed to do that the law holds him re-
sponsibe for the commission Of the offence for which
he has been placed on trial here to-day; for pre-
| cessary consequence Of his own alleged act and
that would be, that II he pointed pistol loaded with
would BE- a. he aIS it
him. and II the prisoner, gentlemen, has shown you
any excuse Tor It We will take IL mp and examine in
offence charged 70 one Of lesser desres s.' 6s
his witnesses says he saw scuffie take place be-
tween the two men and that is question OF fact
have nothing to do with Il is my pro.
You meI make 70 %0 " enc S @
law. II you are satisfied that there was scue be-
tween these two men and that Real, At the time he
fred the pistol did 90 on the supp0siton that fhis
policeman was going To innict great bodily injury
upon him. that his life was In danger or that he was
! going TO be killed. and you are satisfied he labored
under those impressions then, az matter OF course
| II would become an excuse and bring 1t down to
| mansaughter In the fourth degree. IL would 10 ex-
| cusable or justInable, and although he may have
supposed at that time II II occurred that the man In
tended TO Kill him, though reality he never meant
TO do II, then OF course he would be entitled TO the
| benefit OF that doubt which would result also I'm
the same verdict, because the law does not compel
| a man 10 stand and suffer himself to be
| killed. r. then You have any reasonable doubt
arising from the evidence IN this case as to whether
| the defendant IL guilty beyond moral certainty,
you Will give him the benefit Of that doubt and fnl
| HIM guilty OF a lesser degree or homicide. by a
doubt do not mean mere possibility. imag ination
or abstraction; mean such reasonable doubt as a
reasonable human being In the ordinary pursuits OF
life would say that the case was SO evenly balanced
that he could no, say he was guilty TO moral cer-