The New York herald., 1869-06-26
SUPREME C0URT-GiRsaAL TEsni.
Tue Real Murder Cnse-gLotion for New
Trial.

Tue Neui Murder Cnse-Motfon for New
Trial.
Before Judges Clerke, Barnard and Cardozo.
John Real, pta,ntiG n error, rs. Yae People, de.
JeHddils.-1hs case came up on a motion for a new
trial. Some interest appeared TO be manifested in
the proceedings.
Counsel for the prisoner made a lengthy argument
in his behalf anu recited the circumstances con-
nected with the case, which are too well known TO
require recapitulation Counsel having gone over
the evidence and commented thereon, proceeded TO
state that the testimony showed that the prisoner
the time OF the occurrence frenZied ana mad
dened, from some cause other, that visited ac-
countapilty upon INN for his hand 1t did not allow
him TO De preludlced by his tongue. This referred
TO The reason the prisoner assigned for his act 1t
was admitted that he very much excited at the
stations house. IL was contended that the Cour T.
Of the prIsoners counsel to show ,e previos crmeI
y OF the deceased 10 the prisoner-clubbing him In
Ii umany on July 8, 1865, when almost insensible
from lntoNlcati0n--to justify an apprehension OF
similar treatment from the deceased at the time OF
the homicide. The ground OF exclusion was that
the defence could not shOw Isolated transa ctions
of that kind.u The Court likewise erred In eXclud-
ing the questions to James Rowe, witness for the
prisoner as to the impressions the acts and words
ol the prisoner made or left upon his mind when he
had the conversat on, ana walked with the prisoner
between five and eight O'Clock, on the after
noon or evening previous TO the homicide
Counsel further cOntended that the Court committed
similar error IN excluding the questions TO Thomas
Mulhare, another witness Tor the prisoner who tes-
titled to facts occurring before ana up TO hai-past
six O'Clock on the afternoon oil the occurrence In
question: utterly inconsistent with any other idea #
true, than that the prisoner was not right IN mis-
mind. The evidence OF others proved q condition of
mind on the part OF the prisoner on the evening be-
certainly not very rational, II 1t did not amount TO
absolute mental derangement for the time being.
The habs OF the prisoner were adverted TO at
length, and II was argued that he was IN
sane from excessive drinking. IL was also
claimed that the Court at the trial
erred In excluding the oner of the prisoners
counsel on the examination OF Mr.. McCauey as fol-
lowS:-"Judge Stuart also propose 10 show un-
der your Honor's ruling, that Smedlck bruised and
beat the prisoner TO the peril or his life on several
occasions prior TO the killing and that he also made
threats oil violence against him. and | propose to
bring the knowledge Of that these threats) TO the
prisoner" This, u was cOntended, was strong
point, because the exception embraced an offer TO
show threats OF violence ON the part OF the deceased
against the prisoner, and that those threats were
communicated to the prisoner. This knowledge
must have, more or less, influenced the feelings and
conduct Of the prisoner IN meeting the deceased,
anu particularly II the deceased attempted any vo-
lence upon hlm Again, the Court refused TO charge
the Jury that N the PROOF failed TO show which wound
1t was that actually Killed the was not made
out according 10 the Indictment. The evidence
showed that there were two WOUNDS upon the body
OF the deceased, and but two. that the story of
three shots having been seen fired at and into the
deceased IS not true, II this circumstance,
whicn cannot but be tIue, IS relied upon.
The present indictment should have contained TWO
counts, one framed upon the wound in the head the
other upon the wound in the body. II the evidence
In this case did not show, beyond all peradventurc,
that the deceased died from the injury In the head,
the prisoner could not be convicted under the IN
dictment Until the courts hold that an Indictment
need not set out the injury that caused death nd
dispense with one OF its fundamental attributes, he
present exception must be sustained.
The District Attorney replied at length. contend.
ing thai the supposed flaws IN the indictment were
not material to the main fact at issue. lie argued
that the Court had merely exercised It's proper func-
tons during the trial and reued the assertion that
any errors mad been committed.
MessTs. Stuart and Phelps appeared for the pri-
s9ler and District Attorney Garyn for the prosecu-
tion.
The Court reserved decision.
Decisions.
Moran rs. The PcOpit.-Judgment affirmed.
Richardson US. Acknowledgements affirmed.
Kramer ps. Ne,C YORK and Harlem RdibOdd-
Judgment affirmed.
Meyer as. ADiid0H.-Judgment affirmed.
Cd,cer as. BuingS.-Motion ior rcaraument denied
iSchedter rs. Shuster.--Judgment affirmed.
Lockwood Us. Higgiag.-JudRmcnt affirmed.
HcHearp rs. Hdzdrd.-Judgment atiirmcd.
h ~ Do,csOn rs. Hdm.-Reierence ordered TO
ascertain facts.