The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-05-25

u
prisoner had in assaulnng the deceased they
a. s'' bound 70 give the prisoner the bene-
AS to the seventh and eighth, while not entirely sub
ecriblng to them as law. am inclined to adopt them
charge them Seven;n-There is no presumption OF
law arising, from the fact OF the killing, that the
prisoner assaulted the deceased with premedltated
which the law presumes from the act OF killing Is
such malice rs Is requisite to constitute, with the
cases OF murder In the first degree which speci-
fed In the second and third SUBDIVISIONS OF the
defining aes Case murder Ss rv The noS e'
TO do with the crime specified In th
said second and third Subdivisions. / charge the
der In the first degree one kind OF malice Is essen
tial-vtz., q premeditated design to eiect DEATH
No otner species quality Of malice Is sufficient.
existed to the satiaction or he jnry beyond rea:
sonable doubt. IKE any other fact n the case;
are 10 be understood as they are used In common
parance. Also the eleventh.A premedi.
said OF an intent to XIII which Is formed
at the instant of striking the blow, or
where the act l a% sOo% e inc rv mon
to be the fact in tins case they cannot convict
OF murder In the first degree. decline TO charge
the twelfth. except so lar as il Is embraced IN my
general charge. l charge tho Jhirteenth-lf the
Jury fra that the prisoners sole intent was TO
commit an assault and battery upon the deceased,
the resulting death Is not more than ma.lslauQhter
in the FIRST degree. ] charge the lourteenth-Good
character OF the prisoner Is an element which. II
proved the jury must take INTO consideration In
making their estimate OF the guilt OF the prisoner,
and good character OF itself may sometimes generate
no doubt would arise In the case from the other
evidence Also the fifteenth The fact that the
prisoner came forward voluntarily aud gave his
name as that OF the unknown man who had made
the assault is proper for the jury to consider rs
bearing upon the question whether ne had any IN
tentiOn to make fatal assault. Also the sixteenth
When the act Of killing Is aomtled and the intent
with which the fatal blow Is given is In DOUBT proof
OF good character ia material to be taken into con-
sidernton by the jury as Affecting the question OF
intent.
Having disposed Of the requests to charge, shall
not detan You very long. gentlemen, in presenting
this case 10 you; for, as have often remarked ON
similar occasions shall not comment on the evil
dencc, because II did so should probably convey
to you my Judgment Of lis effect and might thereby
influence your decision which have neither the
right nor wish to do because the verdict you are to
render Is to be yours and mol mine and and not
are responsible. My duty VIII have been fully dis
charged when l shall have given you briefly,
and OF the theories as presented by the prosecution
and the prisoner and stated to you the law. The
prosecution charges and Is bound to prove that ON
Mr.. Avery d. Putnam received wound by blow
with an iron hook at the hands OF the prisoner and
2Sth OF April, 1871. There Is little or no dispute by
the prisoner thus far But just here the unfortunate
question arises. me prosecution asserts that that
was murder In the first degree, and that presents
the PRINCIPAL question which-applying the law
dence as you snail find them-you are to determine.
Before you can convict the prisoner OF murder In
the FIRST degree You must pc satsed ITO tne evi-
but that he did so from premedltated design to
effect his death; but that premeditatel design need
and II on believe that that design entertained by
Foster though you also believe That he found 1t only
the 0oe ne eharg e
The general theory OF the prosecution IS That
Foster after the matter about opening and
down beside Mr.. Putnam. asked him how far
he meant to ride, received no answer and repeated
the question:; sun naa no pr response Sf s IRON n Mp sa
to Mr.. Putnam that he Foster) would GO as FAR as
he lMr; Pulnam|; and before ne lelt EFT, the E, car
would give him hell. II Is urged, also, that Foster
few blocks before reaching FOrty-slXth street went
to the driver of the car and asked nm II ne mad
car hook and when Mr.. Putnam was getting or
FOSTER passed around and getting the other side
or the seized the iron hook; the driver caught
him, or caught at hlm, ana tried 10 stay ms hand,
but did not succeed, and Mr. Putnam was aliRitlng
at Forty street. loot yet remaining on the
STEP Foster struck either one or two blows-which
1t Is for you to sayproducing the injuries you have
heard described. from which he fingered from April
70 to April %. when he died at st. Luke's Hospital
TINS city MHw M ta a. nave ~ 1 or
the learned, Jealous and excellent gentlemen w1o
principally conducted the defence, with character
tstc candOr very early stated IN your presence that
Mr. Putnam was dead; they admitted that Foster
killed him; they admitted tnat he killed HIM with the
Sar wsn the they ask You to
ed I sSs SS gSs s$.,s Ssss
way . ia' FOSTER after the Killing said rm The
man, who wants meS LAID him out,o are relied
ap p1en o design 70 XIII Mr. rSiuam e IS ali
competent evidence, You are to say what deduc-
s Pc from n PSss u saS st
Intention was the result OF generalization, as have
explained the meaning OF that term to youf. II it
or short duration, whether the intent was formed
half an hour, ten minutes or but on the mo-
m IN take e' 1He en Se killing Of avery b.
Putnam by Mr.. Foster was murder In the first de-
gree and you must not hesitate You must mol con.
wet Foster OF murder simply because Mr.. Putnam -
Dead but only because If you SO conclude The proof
satisfies You that he has been brought within the
rules OF law which give you But If you so believe,
then, though you may sympathize with his family
In this dreadful catastrophe that must not influence
your verdict Your duty to the dead, 70 :1e living
two principal grounds are assumed. First, that the
facts relied upon by the people do not make out q
and this is also heard as bearing upon
yonr finding as TO their first proposition.
that Foster was intoxicated. ! shall speak Of
that II Foster was intoxicated, or that the intoxca
tion was other than his own voluntary act. volun-
tary intoxicaiIon furnishes no immunity or excuse
TOR crime aud even when, as here, intent IS neces
ssry Ingredient in The CRIME charged, mtOxtcation
VIII not affect the question OF tne prisoners crime
ne was incapable OF conceivlng u design, as was
said In the People vs. Kerncy, 81 New York, $780,
when one without prOvOcatiOn Kills another
with dangerous instrument In degree OF
intoxicaton short OF that which shows that the
prisoner at the time utterly incapable OF acting
IRON motive Will shield him from the consequences
OF his actsn Unless, therefore. you find his condi.
ton at The time OF this acthis subsequent condition
being only material so Tar as It may near upon MS
State at the time Of this crlme--to have been such
that his mind was incapable OF forming an intent,
then hs intoxication does not relieve him from the
full consequences OF his fearful deed. But In deter
mining what weight you are TO attach 10 this threat
To give MIR. Putnam 'hell,r and ms declaI that
he was the man that ald Mr.. Putnam out less
rigid rule in regard TO intoxicaton may be held.
In Judging that you Will consider exactly what
his state was and give 10 them such weight as you
think they justly deserve And when you have done
that aud considered In the light OF the rules have
given y0n all the evidence. will say whether the
premedltated intent to Kill ~ proven. As have
mentioned 1t Is claimed by the learned counsel OF
the prisoner that the design to kill Is not fairly de-
ducble from the proofs. THAT gentlemen, Is purely
q question OF fact which belongs to you. You must
Judge OF from all the circumstances attending the
act; from the act itself; the instrument employed;
the manner In winch the blows were dealt.
There IL but little saw to aid your deliberations