The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1870-08-04

EmCUlCk, Oh NGW 1OTK. VIII be hanged To-
morrow at the Tombs 10 that city.
ASSAULT ON OFFICER sMEDIoK.
Previously to the murder of Officer Smedick,
on the night of Thursday, July %, 1858, Real
had been arrested for assault upon this officer.
Il appears that Real had said that he would do
for him." They had had several quarrels at va
rious times. Real claimed that whenever he
obtained q situation Smedick was sure to inter-
fere with him, report him to his employer as a
man of loose character, and thus secure his
discharge.
THE MURDER N THE TRIAL.
On the night in question he lay in wait for
Smedick, and virtually shot him without giving
any warning. Real was arrested by officer Nee.
On being taken TO the station house he was
asked whom he had shot, to which he replied
''Smekick, and to the inquiry if he was sure,
nswer that if he was not IL was not his fault.
He was tried before Judge Barnard. During the
trial the excitement was intense, especially
among the roughs and pot-houseipoliticians, who
filed the courtroom, and threatened vengeance
upon the court and jury if he we're convicted.
Notwithstanding these threats, the jury brought
in a verdict OF guilty. The doors were closed,
and Judge Barnard sentenced the condemned at
midnight.
THE COURT OF APPEALS DECIDES AGAINST HIM.
A writ of error and stay of proceedings was
granted by Judge Sutherland, and in November
last the appeal was argued at General Term be-
fore Judges Clerke, Barnard, and Cardozo. The
principal exceptions were-frst, to the exclu-
sion of evidence on the part of the prisoner to
show threats of violence on the part of Smedick,
which had come to the knowledge of Real, aud
also acts of violence committed upon him by the
deceased; second, to Judge Barnards overruling
the objection of 81 IL. Stuart, the prisoners
counsel, to the question put to the witness
Henry Real as to whether he had been in the
penitentiary. The General Term rendered its
decision in December last, Judges Clerke
and Barnard concurring, affirming the
Judgment of the Oyer and Terminer.
Judge Clerke, in his opinion, thus, dis,
posed of the first objection above referred
to:-"The law j~ustifes homicide only when an
actual attempt has been made to murder the
person committing it, or to commit any felony
upon him, or upon or in any dwelling in which
such person is, or in the lawful defense of any
such person, or of his or her wife, husband,
parent, child, master, mistress, or SER
want, when at the time of the attempt there is
reasonable ground to apprehend a design to
commit = felony, or to do some great personal
injury, and when there is imminent danger of
the accomplishment of such design; but appre-
tensions OF a previous threat, followed by no
overt act, do not Justify homicide. l repeat, the
law pronounces it to be murder in the first
degree, while at the same time it affords an
%effectual remedy to the person against whom
the threat is made to protect him from danger
reasonably apprehended."
Judge Cardozo, who delivered a dissenting
opinion, held that the question was whether
such testimony is admissible when there Is proof
from which the Jury may see that the deceased
assaulted the prisoner when the fatal act was
done. In reference to the second objection,
Judge Cardozo held that the evidence was inn
pIODcIlN dul1lllCu, tS JIG DllSOuCl w u
to insist upon his legal right to have the record
produced, even if the witness was willing to
answer.
The case was argued in the Court of Appeals
in April last, and that tribunal affirmed the de-
.cision of the general term and directed that the
judgment be executed.
HOW REAL ACCEPTED HIS FATE.
After this discussion Real was brought into
court and directed to stand up by Judge Ingra-
ham, who said:-"You have been tried, found
guilty of the crime of murder, and sentenced to
execution. You have had writs of error issued
in your behalf to this court and to the Court of
Appeals, and in consequence thereof the time
fixed for the execution of your sentence has
passed. Since that time the Court of Appeals
have affirmed the judgment of conviction
against you, and have sent back the papers with
directions to proceed in the enforcement of the
judgment. 1t becomes our duty, therefore,,
under the statute, to designate the day when
the sentence of death heretofore passed upon
you shall be inflicted according to the statute;
therefore, it deyolves upon MS to name a day
on which you shall be hanged. We have named
Friday, the 9Th day of August, as the day on
which the sentence of death shall be carried
into effect.
After sentence had been pronounced Real said
Every good, sir, and then listened very atten-
lively to the reading of the several
necessary, including the death-warrant.
When the reading of the papers had been con-
.cluded Real turned to his counsel aud said the
thing is done, | suppose and a few minutes
after he left the room and was taken to the
&
cell.
THE MURDERER AT HOME.
Real does not appear to have lost flesh during
his long confinement. He is hearty and appa
Do rently in the best of health. He is about 5 feet
9 inches in height, stoutly built, hair cut short
but not cropped; his countenance is cheerful,
and does not bear traces of his having suffered
much agony. Still he says, The cannot help
thinking, " as the hours are long, very long in
his cell sometimes. He wears a red flannel
shirt, neatly trimmed with white stripes, black
cashmere pants, kept in place by a neat strap
around the body, and a handsome pair of we'll
shined Balmoral CATERS. His appearance is
trim, and bis step is light. He said not long
since that he was getting used to this way of
living, and. even joked about the easy times he
enjoyed. He has good living, and the best of
care and attention from the attendants, and were
it nst for the circumstances would be satisfied.
His cell is No. 70, second tier. 1t is about
1CX12. The walls are neatly white, but have a
few coarse prints hung around various places.
The floor Is covered with a handsome three ply.
A string is stretched from side to side of the
room, on which are artistically wrought curtains,
composed of cloths of various colors, prints
from illustrated papers, and interspersed after
various fashions -tinselled paper-the whole
forming q screen and archway leading to the
lower end of the room, aud hiding the furniture
The little window, looking upward to the sky,
lets in a dim light from the east.
HE STILL PROTESTS HIS INNOCENCE.
Under the advice of his counsel, Real has
published what purports to be a detailed and
truthful account of the circumstance under
which the fatal pistol was fired. He declares in
the most solemn manner that he was prosecuted
for months by Smedick in the most violent and
merciless manner; that Smedick, under show of
arresting him for drunkenness, beat him and
dubbed him over and over again, until he was