New-York tribune., 1870-04-28

sashe n II goes In 1t will not have tnat enUW Gnose
your Honor please that t. witness should say a.
part Of this convorsatSn that Mr took MStas Siace
s4S b"fween reiorrGn nm 20 and years
ago; II they don't take the ground ina. don serve
The purpose OF the prosecution. II is not enough iDr
them show that Mr. Mcfarland nad Mr. Richardson
may have been assaan and we are 60nS nSsen 10 m
that in sy3s sydsnse snG M Gr sS they
TO put Mr. Mcfarland In the fau anu eon,,u t ' t Nn
the assalan and that from t ,nton e in his breast
,yhi"h caused him TO be the assailant In tho collision
which may have taken place three or "e se for t
c"nvsrsation and therefore your honor Is entitled 70
limit it. II had put Mr oi fse eSSnveraon they might
nave ad we are entitled to the whole but they have put
dsc evidence that was intended to reach the merit. OF
this Investigation, and which should have constituted
ton before they rested When they said they mean, 70
know by what Mr. Greeley has here rea,en Una, ania y'
tbsF eand m not hS1c been serious in that be-
cause your Honor perceiyes from the conversation
tell f that ena tneTe strength + " Mr. MFarand or show that
perfectly sane man. But they want nov ~ h
Court has right to restrain them, allowing 80 much OF
it TO come in and no more to introduce soneais VIII" t
they say shows that Mr. McF3rland was wrong IN uat
ter which occurred between him and Mr. licharuSoh
three years before. .,, Gov ,ho
prosecution to attempt try this unfortunate man more
han three years after an oeeurenee nhsn KY Faom &c
and doesn't IL cal upon this Court to pause when thi:
thing fresh why didn't they bring him 70 tne par o.
wped ont all the traces of this transaction except those
they seek 10 reanate and resusctate through the con
disnoVe and then rey upon what Mr. Mcfarland said If
it convicted him of cTimnaity Ia tnat mater l. ,,oa
Now submit to the Court that TINS court IL caleu
upon to act udieiay but 1t GA Snsd RpGn
act with humanity in this instance. IL MI Mcf ar'ma @
he not indicted for that crime will tell your HSGr R
why. it perfectly wei known mat II hiGi
Mcfarland was called in the indictment, he being living
at the tme he could have got out OF tnat co,c
him was such that they did MT dare TO attempt the IN
ycstigaton. j therefore submit whether such crnhl
chcanery can recognized in this Court whether l}
can allow the witnesses to die Off and become scattered
and then put him trial before court ana Jury on t
charge How 1t possible for Mr. Mcfarland 70 snow
his tate Of mind on given day three years agol Even
suppose there are living witnesses TO whom he could
% Cf The hCS v could % whe fas S saS the the
they might have observed, or the expression OF hls
there was nothing to point their attention to III And
therefore, the question simply for your Honor ~, ls
sanity of Mr. Mcfarland at given time they can put him
on trial when they know it will be impossible for hm III io 70
case of Mcleod. which is contained In volume volume
pamphlets compiled by my Learned PrSaser Saser
and among others he has preserved this one ana your
Honor will perceive that stand precisely within tne
| am N satisfied, will say that he never knew
an instance in which the presiding Judge OF TINS
il was clted did hold that the prosecution could give
replication rebutta of no part Of any case "hich
they failed part of their original case. ,
Recorder Hackett-There Is no question ABOUT that
at all - ,...ou =, ,;,i,, him,
show malice In this case they chose their own and
relied upon the circumstances OF the killing itself as
prove express malice in addition 10 that which
arose out of the action itself, were they not called
upon to exhaust their proof upon that point !
In the Mcleod case the question was this Whether at
particular point OF time, the accused was NJ M t
deceased whether he at that time at another Pce
where he could not have been concerned In that killing
In other words, the prosecution alleged that ne was at
Chippewa the defense that he was at the house
Of a man named Morrison at q place named stamford.
Mr. Patt Smith, whose evidence Mr. spencer objected
the ground that the case could not he az
that stage 20 show malice and Judge Gridey decided
that prosecution only entitled to repicatOry tes
timony Are the prosecution In this case TO drag IN
collision between the prisoner and the deceased AT ns-
tance of time when the prisoner cannot clear himself IN
of d the t death ST sSse Gt his ns
been disputed by any District Attorney, and have
GTdey says that the pPU9f to he in reply to
he strictly repcatory 10 5elg nun NJ
greatest strctness in criminal cases. Judge Grdley
also held that If the evidence offered were IN c0nrna
ton Of the original case II would be direct ana @
IL evidence produced to show that Mcleod hed te
fatal gum would he express positive evidence oi the
guilt OF Mcleod, and, such it would be inadmissiole
in rebuttal Ia criminal and especially in capital
cases, there he experimenting with the defense
They cannot keep back any reserve strength except LOT
rebutal They bound to tell the prisoners the wit
they TO produce against then and the facts
shall they put stand this witness (who this
previous collision, who heard of 1t from the unsuspec
ing lips of McFaT3nd for the purpose OF telling us that
Mcfarland acknowledged his crime, and then calling
upon us in eNultation TO defend ourselves against
charge which, in the morning Of its existence they dd
not dare 10 prefer against us in the tribunals OF the
landi
pOrtan direct evidence excluded from the Iebuta
and argued from the ne Engne In rnp
which to cut down the evidence OF the de-
fense without being Gonrna0n OF any part OF Ine Sv
Mr. Graham, seriously say that detailed account given
deceased is an evidence of his sanyi Is that to he
forced into the for the pretended purpose OF esab
pulse OF this defense and then turn upon It with case
which be fabricated in spirit Of falsehood, no man
oner upon American soil behind intrenchment beyond
which the Parliament Of Britain places even the common
est peasant in that land We suspected the prosecution OF
this when they rested their but we did not want to
suspect them. said then to of my associates that
able, and would recO their heads and, IL they
really hoped to win by thus nicely managing the case
to hide in shame their diminished heads. / ask your
Honor, in the name Of justice. whether in a case
10 he fnessed out ofbengi when the DstrctAttorney
with his commanding form stood before this jury at the
peculiar to the beauty and OF his countenance
aughterl" stand here not to claim the conviction OF
this prisoner thou gh employed his side -"
ask your Honor is consistent with the candor then
case and that al the time he meant to draw fire and
discover the strength Of weapons put 1t to your
that 1t would be unheard Of In the face of the
thorities have cited permit the District Attorney
simply TO prove enough TO establish primd tdce
TO tell the defense to exhaust their to that and
then TO permit the prosecution TO into the establish
ment Of those facts which, they existed, should
have constituted features OF the they orr
ginay called upon TO establish. Your Honor has
the theory OF the prosecution stealing steathy into this
through the insidous hypothese Of the opposing
counsel When 1t first suggested that the fact that
Mcfarland had met Richardson without hurting him
pruyed thHt when he OF himself he did not
attempt TO take Richardson's life, there preteDse
that it because the eye of Richardson was him,
and he did not dare to perform his work any but
assassin. II the prosecution knew that they
had like that they knew it when the facts