The New York herald., 1870-05-11

against prejudice OF sympathy growing out 81 acts
TO d. with your estimaion Of the facts that one coun
sci has lett one side Of the case 9r tlat extIa counsel
came TO aid the prosecution Extra counsei lor the
The assent Of the Court. Says Bishop on
Criminal procedure vol 1. sec. oss:-"A prosecut-
ccurrence of the Court be assisted by other legal
personsn TO crit else. therefore, the employment OF
extra counsel Is to crlicise tne action OF the Court
with which either prosecution OF defence is con-
Quoted is legitimate subject Of criticism subject 10
the rules of candor and taste In the United States
vs. Harway i2 Wallace, Jr., 1881, the Court approved
OF counsel coming by order OF the Governor as coun-
sci employed by the friends Of the deceased per
Bishop, IN the section quoted, sayssssrhe Question
OF help may depend somewhat upon local usage"
The records OF this court show that there has seldom
here without additional counsel for the people. Some
OF the very cases ced by the counsel for the defence
and Attorney General representsd tie people.
prosecutions for I. the Crown are conducted
The zea q he Counsel r e deence ss seen
criticised by the District Attorney. deem 1t to be
the duty OF counsel as laid down by Mr. Henry
Brongham IN his speech for Queen Caroline. As ne
aterwaid became Lord Chanceor, and lived, be-
liete. or niAey years and ~ the extract appears
In his publ shed works II may be presumed To re-
main az least OF the same value IL possessed when
prove OF L.. state II as the extreme view and Que
which any counse! for de cnce might adopt with
"
charge Of h duty knows but one person In all the
world, and that person is his Client. 10 save that
client by all means and expedients, and at all hax
ards and costs to other persons anu among them 10
minis III, Is his irst and only duty, and In perform
ing THIS duty ne must not regard The alarm, the
tcrnents, the destruct on which he may
bring upon ohers. separat ne the duty Of patriot
from that OF an advocate he must go on. reckless OF
4uences. though II shond be his unhappy fate
10 involve his coultry IN C0niusi0n.n But Judge
and jury must at all events discriminate only the
evidence, AMID Jealous means aud jealous cXpedi-
us..lfr
mist further discriminate between the real issue
and those disracting Issues which may have been
Brougbanl inviting ''hazards and costs 10 other
petsons,n or including 'torincnts brought upon
lheni." Dismiss utterly from yotx minds any refer
ences 10 or Impressions ABOUT tcrs0ns who have not
BEEN witnesses. Heed no criticism or even Wit
Desses, unless you flnd II authorized by something
direcsly In tie evidence. Conscentiously reject
from your memory every fact or circumstance In
evidence which, IN your estimation, cannot Illustrate
the question OF sanity or INSANITY, or Of malice, or
VIII Gil does mol bear upon the tine. place, mode and
aci or killing. te ...l.t
Let US begin with the first day. While
some Of you. perhaps most OF you, sat IN court
a, individuals and not yet jurors Daniel McFarland
WAS arragned at mis- bar. The Indictment stripped
bert D. Richardson. intending 10 ktii him. Included
In the direct charge was an implied one that ed
In all cases OF crime that ne N ention was of man
III state OF sanity. I SHAH for brcvity use tine
phrase 'state OF sanity state OF Insanity" con-
tnuously through this charge l do so because
In STATE OF insanity can be punished as an odencen
The statute did Iot aud no arbitrary statute could
ss deaa,tIon % q w. which ~ - sho1ia include al
tho courts. In using the phrase Estate
OF sanity,n' | am to be understood throughout as
meaning thereby this, the state in which o man
knows the act he is committing to be unlawful and
morally wrong and has reason SUFFICIENT to sapply
the phrase, state OF insanty,,l am to be UNDER
stood throughout a. meaning thereby the state un-
der which man is not accountable for an alleged
criminal act because ie does not know that the act
he Is Committing y unlawful and morally wrong
and has not reasolfsuficlent TO apply such know:
ledge and 10 be controlled by IT, The accused
simply pleaded not guilty TO the charge.
That general denial las subsequent testimony has
shown yoo) was really particular denia-a denial
that he killed with intention to Kill, because he was
not legally capable or forming intention to Kill,
as an intc,tiUn which was recognized by the law 70
human law. vsI ~ ~
Practically, by the evidence, the physical act Of
clde cases. has been admitted. But the mental
character Of the act the legal accountability for the
act were put In issue. After the arraignment you
were then sevcrally called and sworn. Whatever
was said or done during the progress OF challenging
or empanelllng Is to be dsregarded forgotten by
lions between You and tie prisoner For instance,
the circumstances that the defence or the prOSecu
lion excnded jnroIs are not IA the remotesr manner
given and exercised under statute Is not afnenabe to
criticism That process OF challenging and empanel-
ling was simply upon The relation Of each OF you as
juror in the then future toward either tho people
or The prisoner When you were sworn both the
10 have You hear evidence, and that which preceded
the empanelling OF the twelve is II IL never had
Deen sad. The evidence began and 1t has closed
Your first inquiry In considering the whole evidence
fo@--what the theories Of each side'
SadWhat the rules OF law that connect themselves
with those theories!
Tie theory upon which the defence seek acquitta
Is substantially that domestic troubles produced IN
the accused q state Of insanity toward Mr. Richard
son. The theory upon which the prosecution seek
CONVICTION Is that the domestic troubles originated
ana iostered such spirit in the accused toward Mr..
Richardson as The Law calls and rebnkes as malice.
Reviewing the evidence upon ihe subject OF the state
Of insanity onered by the defence, can see that
neariy ali OF It would have been admissible hal it
been offered by the prosecution to prove malice
Ine defence justly tue accused in dOnestlcally act
ing as he dld toward his wife and her
lrlends The prosecution take some Issue
that conspiracy to disturb his domestic
relations ex sted the part OF some OF lia wife's
minds that the actual state OF these domestic rela
tons, or the blame or praise appertanng TO them
or the act or Color OF act or the fasity OF any such
conspiracy, are not at all materially for you 10 def
ntteiy ad udcate The question iOr your considera-
tion whether you estimate insanity or mace) Is,
relations or conspiracy, and how did thai belief
Impress his mind, sanely or insaney? The law books
are full OF cases OF sane men who have killed from
occurrences or individuals Medical records and
law books contain many Instances VI insane men
most delusve or unsubstsntal OF irrational con-
ceptlon OF human conduct or material events as
well as from insanity occasioned by the operation
OF actual facts.
The theory Of the defence as to the operation Of
the domestic troubles upon the mind Of Che accused
was undoubtedly fully presented by the long .ques-
ton put by the counsel or tho defence to Drs Vance
and Hammond, and which you can doubtless sub
stanialy recall. The theory OF tho prosecution
mainly as to the malice and partially to the sanity
was quite substantially presented by the compact
question put 10 the same witness BY the prosecution
On the cross examination, and which you may re-
CALL do not intend to comment upon the evi.
dence In detail. do not think ought to, In the
first place it has been summed up II parts BY the
speeches on either side during evidence, and as
whole In the closing arguments. LII the next place
IL Is impossible for me TO take up the evidence
without possibly impressing uponyouby my arrange
ment OF IT, or emphasis IN repeating It, the very de-
cided conviction upon the merits OF this prosecution
which have formed. shall simply group 1t as APP
pertaining to the question Of malice or insanity Or
legal questions, and leave the details to your mem
CRY. The legal necessity for man slayer TO have
been IN state Of sanity when he slew before he can
be held accountable to human law Is deeply rooted
In jurisprudence. AS far back as the civilians the
maxim was "LtuiOsus .es,,Qso S0lUn 2,Unfttsi''-a
madman's madness Is hls only punishment. In the
carly history OF the common law one OF the essen.
tials to definition OF murdcra definition which is