The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1870-06-25
TEE BURKE-HERNAH SHOOTING CASE.
Michael Marley on Trial for Assault--Another
Phase Of the Burke-Hernan Tragedy-A
Flaw in the Indictment Marley Con-
victed Of Assault and Sentenced to
the Penitentiary for Six Months.

In the Court OF General Sessions, before Recorder
Hackett the whole OF yesterday was occupied IN
the trial Of Michael yarley, who was Jointly indicted
with John Mccarthy for a felonlous assault and bat
terry charged to have been committed upon oficer
William Burke, or the Fourth precinct on the "a Of
this month. 1t will be remembered by the readers
OF the HERALD that at the time OF this occurrence
man named Patrick Herman, q letter carrier was
shot by officer Burke. After the jury uwere sworn
Recorder Hackett read over the indictment and de-
cidea that, as matter OF law, the defendant could
not be convicted Of higher grade OF offence than
assault and battery. a club not being sharp and
dangerous weapon IN the meaning OF the statute.
HIS Honor made this announcement In order If pos.
sible to shorten the trial.
TESTIMONY or OFFICER BURKE.
william Burke, the complainant, was then exam
ined ana proceeded to give his account OF the trans.
action He testified that on the night OF the I'd Of
front Of 3J5 Pearl street, fifteen minutes before
twelve O'Clock; John Mccarthy was one Of them; he
NAM made the remark, "There is the son OF b---h
that sent Mangin up;'' vaiey said, "Let us send
taken from under his arm; he was taken by the col.
lar Of his coat and pulled backwards towards the
window; Marley kicked him In the side, at the same
time swearing, and he felt q pain as II lie was
pricked with a pin; he was positive that he was
beat around the shoulders with a club; he was lying
on his back and drew his pistol; Marley caught hold
or the barrel OF the pistol assisted by Mccarthy;
varley. twisted il so that the nuzzle OF II
pointed at the ollcer's breast; MCCARTHY
officer finally succeeded in cooking the pistol
and fred, Marley having hold Of the barrel ut
the time; the officer tired again, anu the three men
went into the door, which was boted; he called Tor
help and officers came to his assistance.
The witness was cross-examined at length, and
denied That Herman was running away when he
(Burke) deliberately shot him.
OTHER EVIDENCE
Ohicers Ryan and Irving testified that they heard
the shots nred and upon reaching the scene OF the
occurrence they saw Burke standing bleeding, hay.
ing no Clubs there was u man lying ON the sidewalk
VINO afterwards proved TO be Herman. The officers
went into the house by the window AMI ARE: ted
Mccarthy and varley. Captain Allare testified that
when Burke came to the station house he saw that
he had cut on the LETT eye about u quarter OF an
inch long, and that he found BurAes Clue
hanging behind the door OF 1867 Pearl street. DIR.
Waterman, WHO attended Burke, described his
dltion ANA said that he found only slight marks OF
violence upon his person. The accused (Varey)
gave very different statement OF the affair. lie
said that lie was standing With Mccarthy and Her
nan III front OF the atters premises when the officer
came up and said, "Get away from here;n Herman
replied, 81 i've mere ana WON'T 50 away;' the officer
his arm and caught hold Of the weapon; they both
seized the club and got down, whereupon the officer
the pistol and Kept the muzzls on, Burke having
turned II upon his var!eys breast; the ocer tired
u again and the deceased was then standing upon
the front step OF the door; Marley said the ocer,
don't shoot" and he said. II VIII shoot your
he saw the officer come afterwards within six
feet and fire, tho ball striking his finger; Var
ley caught nod Of Herman, who trcmDed and
fell. Two witnesses who happened 10 be passing at
the time examined by the defence, one OF WHOM
heard the words, suppose a mans business Keep
him outr' and tAe other that he heard two three
blows OF a Clue, a scullle and then a shot. Burke
was recalled ana denied having spoken to the men
lrst.
CHARGE AGAINST JUROR.
After the testimony was closed a recess of fifteen
minutes was taken, and upon tile court reassem-
bling the Recorder stated to the jury he had been
informed that one OF the jurors had been approached
since the adjournment and certain persons had
talked to him about the case on trial. The foreman
and another juror replied in the Affirmative, and
named the fourth Juror az the party who, upon
being mterrOgatcd by his Honor, SAID that he had
talked with policeman, but not in reference to this
case
Counsel for the defendant then proceeded to sum
up, and III the course OF his remarks while paying
Just tribute to Recorder Hacketts fairness and
Integrity, animadverted In severe terms upon the
brutality OF the officer In numbering . peaceablc
citizen denounced the democracy for electing public
officials by repeaters and INDUCED in 'Intem-
perate' language IN abiding TO matters outside OF
Assistant District Attorney Follows replied In
language which compelled Mr.. Charles Spencer to
officer administered. Prosecuting counsel INDICATED
the purity OF the bench and the impartial and eff.
cient administration of criminal Justice the part
OF the prosecuting officers Of the county, ana in
able argument supported the charge that the pr-
sOner Marley was guilty OF assautiIg ,he officer.
VERDICT GUILTY.
Recorder Hackett, In his charge, gave clear
statement OF the evidence, and, after dcliberaJing
for half hour upon the case, the jury rendered 4
verdict Of guilty.
The Court in passing sentence, said thar had the
Indictment allowed the jury 10 find Varey guilty of
All assault with dangerous weapon, with intent to
doing SO; that one OF his companions met his death
OF the hands OF Oifcer Burke, who was perfectly
justified under the circumstances In taking the lie
OF Herman. His Honor said he must show Marley
and all others that policemen must not be inter-
fered with III the performance OF their duty, and
should sentence the prisoner TO the PeDentary for
Elk months