The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-09-28
CNuaI o. aERERAL SESSIONS.

Conviction Of EIcNaIiy for Attempting 10 XIII
Spencer, tie Fireman-Judge De0ford's
Remarks in Sentencing Kim 10 The State
Prison.
Before Cunning S. Bedford Jr, City Judge
At the opening of the court yesterday the trial OF
Cornelius McNaly for an alleged attempt 10 kill
James Spencer, member OF the Fire Department
b. shooting pistol at him on the lst of-ldst June
was resumed.
Assistant District Attorney Hutchings called Dr..
Mcmillan who testified that lie made an eXamlna.
ton of Spencer and found pistol ball lodged
III his arm, which could not be extracted.
Counsel for the prisoner proceeded to open the
case for The defence, and called his witnesses who
gave their version OF the affair. John Conway, who
was VITA McNaily at the time he had the difficulty
the head with wrench. lie followed them into the
engine house and separated the parties.
James DeYeny IA par.eeper ut stephen Ge0Ghans
iouor st0rej ana aicleal Rupert testified that on
the night Of the shooting McNally was IN their
company a. the liq uor store; ihat ne had no pistol
wien he eIt the store TO 60 home there were no
other perte5 present.
Ing through Iortieth street on the night Oh the
shooting, was called and said that man let the
liquor store ahead OF him, and as he passed the
engine house he saw some oae come out and heard
him say, II have got you now.n He afterwards
heard pistol shots, but could not tel who fired them
The counsel for the prisoner addressed the jury
claiming that the complainant provoked the DIM
Guilty, and that McSally fired the pistol in self
defence.
Assistant District Attorney Hutchngs reviewed the
testimony tor the prosecution IN a clear and I'M
partial manner, claiming tnat the jury were
warranted in rendering verdict Of assault and
battery with intent 10 Kill.
Judge Bedford charged the jury as follows
GENTLEMEN or THE JuRY-Cornelius hcNally, the
prisoner at the bar stands indicted for Ielonious
assault upon the person OF James Spencer on the
eight and nine O'Clock. II appears in evidence il
behalf OF the prosecution that Mr. Spencer, men,
Der OF the Metropolitan Fire Department on the
evening in question WAS standing IN the small side
door Of the engine house. situated on TWenty-eighh
street between second ana Third avenues
Mr. William Finch. While thus engaged it Is
In evideace that the prisoner at the bar
advanced towards them, and without moments
warning and, when within q few feet or Mr.. Spen
Ger, drew pistol took aim ana fired four succ sssve
times, one Slot taxing effect IN the arm and contn-
ing Mr. Spencer TO the house for one month The
prisoner. alter firing fourth time ran or, was pur-
sued BY O policeman, but was not arrested til the
following morning. 1t is also In evidence in behalf
OF the prosecution that but few moments before
the prisoner discharged the pistol at Mr. Spencer he
was In a saloon near the scene Of difficulty
with o pistol IN his hand ana was heard to saw
81 Will hiH the son OF =" lie then LETT
the saloon. few moments after the shooting
took place. IL is also in evidence, In benaf
Of the prosecution that at half-past twelve
June, some twenty hours before the aforesaid
shooting the prisoner at the bar visited the
engine house, ana that he then and there KNOCKED
MT. Arnold down. and wllle the prisoner was in tue
oct OF drawing pistol upon Arnold, Spencer the
complainant, who vas inst then entering the engine
house, seized wrench ana, aiming it at the
mead. The defence called John Conway.
Hi story as regards the nrst dnlCuty conflicts
with the testimony given 10y the prosecution. lie
tells rs thG he and prisoner pas cd the engine house
about halpast twelve O'Clock at night; that at
thai time spencer and another man. named Arnold,
al tie engine house door; that prisoner called
Arnold 70 account for something that he had said.
eaid' IL ought to break your Jaw with thai Con.
way tells that Spencer struck prison over the head
with wrench, and that the prisoner had no pistol
and WAS not using pistol at that time upon Arnold.
Gentlemen OF the jury, charge you as matter OF
law tnai the dinlculty which took place Of half
past twelve O'Clock in the. night time, as teslI
ned 10 by either the witnesses for the pro-
secuton or for the defence, was no eXcuse-ln
one word WAS no pallaton whatever for the subse
guent conduct Of the prisoner at eight O'Clock on
the following evening. Two other witnesses ar'
called and tel us they were in the barroom between
eight aad nine O'Clock and deny the fact that tht
prisoner threatened 10 ELL any one and declare th
prisoner had no pistol with him while In the bar
room. Neither Of these witnesses heard any plst0
slots. On the evidence IN this case IL becomes YOU
duty 10 render one OF the three following verdlcs:-
assault With dangerous weapon with intent to d.
bodily harm, or, Thirdly, verdict OF acqulttal
assault with intent to xii you must o.
satisfied from the evidence that, had death ensued
the crime would have been murder; or, IN othe
Gner at the bar when he fred the pistol intended
XIII Mr.. Spencer and that he was not justified in s
doing then you should render verdict OF guilty 0
nm assault with intent to KILL In order 10 render
verdict or guilty Of an assault with dangerou
satisfied IRON the evidence that had death ensuel
the prisoner would have peen guilty or maj
- slaughter; or, IN other words That the prisont
when nc fred the pistol was N heat OF passion
and had no Intention OF pfcmeiltated desig
10 take fe. In order 10 render verdict OF acguil
tai you must be satisfied ircic tho evidence thi
when the prisoner fired the, pistol there wa
sa1casonabe ground for hini 70 apprenend great pc
wal injury, that he believed THIS ana that he Wa
1ed in this belief II you have any rcasonab
arising upon the evidence as regards q