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

attempt has been made to murder the person com
mtting II. or TO commit any felony upon MIN.
or upon any dwelling house, IN when sucn
person ID, IN the lawful defence OF such person,
or OF his or her wife. husband. parent child,
master, mistress, or servant when at the time OF
the attempt there is reasonable ground 70 ap-
prehend q design to commit Felony, OF 70 20
some great personal injury and linmlhen. uaiso a
OF the accomplishment or such design. but appre.
neDsion OF a previous threat, followed Dy no overt
act surely does not justify homicide. Such n0mi-
the first degree while at the same time it arords
enectual remedy to the p rson against whom Tue
threat Is made to protect him from Danger reason
Strth-fhe same remarks and the Same course OF
reasoning VIII apply to the sixth point OF the counsel
Of the plaintiff IN error Previous 6aa asifx
homicide The law affords redress for the one a. u
affords remedy for the Other and in neither case y
SeUenth-Tne counsel for the prisoner at the trial
asked the witness Rowe, From what you saw OF
MN that night the night previous to the murder,
mime %ina Gid WI" his %osds a. ana i conduct leave
n ass1 70 5's stat. nas R yssssss ' & Ss
whole language and demeanor OF the prisoner, his
opinion relative to the general soundness or I'M
soundness OF his mind The object OF u. sup.
pose was to show that the prisoner, at the time
OF the commission Of the offence. was iaboring
under derium tremens. This the Court alter
to show and the witness. previously to the putting
and rejection OF the question, gave some evE
dence tending to show that the prisoner was IN
such q condition on the evening preceding the DAY
OF the murder He said he thought that the prisoner
then had the horrors. Il. 32oI But non pro-
IS mot capable q
calling for his opinion az 70 the general
soundness or unsoundness OF the prisoners mind.
opinion, sustain his proposition. (Clapp vs. Full.
lertOn, "a N. r., X. 1907 The Judge, who delivered
the opinion In that case, undoubtedly went very far
nj 10 M raO hnyUn tn m n
guage that he meant TO 0verrue the well established
and long established and only safe rule, that the
The witness must speak TO facts while on Quss-
lions Of science or trade, or others Of the same
kind, persons OF skill may speak not only as to
facts, but may be allowed also 10 give their opinions
In the case referred to the Judge says that to render
the opinion OF an unprOfessOnal witness admissible
even to the extent stated 1t must be limited to his
conclusions from the specific facts he discloses
this the witness In the case before US did by saying
that he thought the prisoner had the horrors on the
the general soundness or uns0undness OF the prison.
er's mind was, think, properly rejected.
E0hu-rnese observations apply with equal force
to the COunsers eighth point.
Ntnls-The counsel OF the prisoner at the trial
offered to prove that the prisoner was addicted to
hard drinking; that he sometimes drank TO great
excess, and continued on drunken sprees for days
and weeks at q time, ana had derlum tremens and
insanity. The Court asked whether the counsel
proposed TO show that, within two or three days
previous to tho homicide, he had one OF those nts
on him. The counsel replied that he did not propose
ton to prove 4. The court ruled out the QUESTION
and afterwards told the counsel ne could show that
the prisoner had the delirlum tremens at or about
the time Of the homicide, he could show by this
or another witness. the counsel remarked that >
proposed TO show the drinking first. The course
prescr bed blythe Court renders the objection unten.
able.
Tenth-The observations and reasoning which
have stated in relation to counsel's fifth and sixth
point apply to the tenth point whether the alleged
threats were or were not communicated to the prls
oner, the homicide was NOT Justihable.
Etecenth-Henry Real . witness called on behalf
OF the prisoner was Asked on the crOsSeXaminatlOn
by the counsel for the people, whether he had ever
been arrested in new York; He said he had. He
was then asked whether he remembered what
1t fors This objected TO by the counsel for
the prisoner, and 1t was not answered He was
then asked II he had ever been in the Penltentiaryg
This was also objected to by the counsel for the
prisoner; the Court remarked to the witness that
he need not answer II he did not think proper 10
do 30. There seems to nave been no exception by
the counsel for the prisoner T. the admission Of
the question by the Court; and The witness pro
ceeded to answer, saving, ~ VIII tell the truth, !
people asked hun "HOw long there ~ The ques
tion was objected to by the prisoners counsel Tne
Is ue ony
point which we are called upon to consider; no
exception to the ruling OF the Court having
this witness in relation e his Imprisonment,
In the Penltentary. There no point, appertainng
70 the rules Of evidence on which greater diversity
OF opinion exists than upon questions calling for
answers having tendency to degrade the character
OF q Witness think, however, that now, the con-
nicting authorities ON this subject may de deemed
reconciled. Where, as IN Newcomb w. Grswoia
ga N. T. r., 29sl the witness may be asked, the
Of petit isrceny sshouen the ooposite part1
alone and not the witness objected 1t was held that
the party had right to insist that the conviction
be proved by the record, because that Is the only
proper way of proving conviction. But where, as
IN Great Western Turnpike Company vs.. LOOMS t32
Calculated TO- the w i an and ne
directly to prove conviction 1t was held TO
be allowed or disaowed by the Court, In the exei.
else OF liz discretion, and that the ruhng IL
not subject to review, unless in cases Of manifest
abuse injustice. In the case before u.s. the wit
ness having answered that he had been In the PEN
itentiary although the Court informed him that he
was not bound to answer and the counsel for the
prisoner having taken no exception. was then
proof Of his conviction nor did 1t involve the question
OF his CONVICTION, which could be proved only by the
Judgment record; although his having been IN the
PenItentary presupp0scs a conviction. But having
admitted, without due exception on the part OF the
prisoners counsel that he had been there an an
swer. showing the duration OF the time OF his i'm.
prisonmenL, was, II 1t was capable OF producing
any effect, calculated merely to dlsparage him. The
answer, which was In fact given, II believed at all
preJudicial to him, He answered, -four mOnths;'
aud, he added innocent OF the crime"
TsetM.EIne counsel ior thc plaintiff IN error IN
the trial In refusing to charge the jury rs requested
by tine prisoners counsel that If The proof failed
snow which wound It was that actually killed the
deceased the case was not made out according to
the INDICTMENT The Indictment charged, In sub
stance, that the prisoner made an assault
and, with pistol, charged aud loaded with
gunpowder and leaden bullet, fred at the
deceased and, then and there, feloniously and Of
his malice aforeth0ught did strike, penetrate and
Ing q mortal wound OF which he died. This the
prosecution was bound 70 prove; but 1t mattered
not which OF the bullets or which Of the wounds
caused the death OF the deceased. Whichever
bullet caused his death It was fred OF by the
prisoner out Of pistol held and discharged by
n 10
death OF the deceased. This twelfth point there
FORE IKE all the others, hold to be untenable I
have thus patiently and carefully considered all the
numerous points, with the introduction and voIum-
nous comments OF the counsel Of the plaintIn IN
error. have strong conviction that the conclu-
sions at which | have arrived III relation TO
convinced. II / have erred, aud II any
OF the rulings OF the Court at the trial were err
roneous that the did not AFFECT the substantial
rights Of the prisoner. II the rulings the other
war II Ia not within the range or legal possibility