, 1873-02-20

UrlVera, to tho effect that LIE had just found out
that Mrs. Fitzpatrick could tosttfy for him, abe
being the only Witness to tho dying declarations
OF tho vito. Ha was not hware that thort
could be any opposition to tho motion for new
trial. Certainly there could bo no question
about receiving tho dying declarations Of the
Mr. Reed nuggested that Mrs. Ftzpatrick's
affidavit did not state that Mrs. Driver was con-
aoioua Of hor cortain doath.
Mr: Mason conlmcntod on 11r. Reeds un-
blood Il liz States Attorney % would IL wait, 0l he
would aoe that tho affidavit was in proper form.
Ho road therefrom to Blow that Alrs. Drivers
statement stat WAS mado, knowing that her wound
was fatal, for she said It was tho drink that her
husband took that caused hor death. Those
words, Mr. Mason thought, woro sufficiently ex-
pliclt, and tho affidavit would bo strong enough
even Il it yere not au explicit, to prove which
also referred to tho books to show that tho owl
denco referred to In tito affidavit cA1no within
| tho definition Of now1y-1iacoyored evidence. It's
matorlality Was unquestionod, and, il introduced
1sfG;sl, 1sfGGF;S would probably have l'a to different
Ho had other grounds for moving for now
trinl, but they were not strong us the ono al-
ready stated, and hc did not desire to arguo them
Tho Court agreed that tho affidavit was proba-
bly, sufficient, rs far ~ Mrs. Drvera conscioua-
moss OF doath was concerned but were til Gao
declarations t1sel, 9n evidence ot ANYTHING moro NOR,
s9aa sna Das' as ths iss e 1t psssf ooad
they .bo taken us oyidenco of. his Intentions,
which could bo Judged Of only by hia acts7 II
not, the Testimony would simply go to prove Dri
timony on that point3 There was no question
ho was drunk then, and the testimony went as
far as Mrs. Drivers declaration did.
Mr. Mason said. His Honor's reasoning would
drive out ill cumulative evidence.
Tho Court thought not; only in cases where 1t
was sought to pile up evidence on d point not
disputed. II it wnB proven ilo was drunk, 1t
made no difference il further testimony was
put in.
hlr. Mason aaid tllere was no such evidence.
The Testimony Of tho elildreu went to ahow ho
waa not drunk, but n little excited with liquor.
1hny sa nwq thns II order to han thS
firmed Mr.. Mcson's ataten1ent.
hir. Mason went on to say TINT Mrs. Peters.
Testimony, as to the threats made by Driver,
ahould DO excluded, since they wero made in
ho would shoot Ills vito. During the interval
nothing was proved. On TINT ground alone O
new trial should be granted Then tho Testimony,
as to threats six montas ago, should be ex-
the jury against the prisoner. The btarko
testified to acts three months before
tho homicide which certainly could not be con-
ncctcd with it. He lad attempted to prove troy
the homicide, went to markot together, etc., but
tho Court excluded it.
Tho Court said that was q mistako-the testi-
mony was in. Even If it was not it amounted to
show lin intention at tho time lo did shoot hor.
They proved lo Ind dolibeTated on tho rnatter.
u Mr. Mason Insisted thoro must bo continuous
chain Of threats.
saiy for him to say anything. -,
Tho Court could not 600 any ground for grant,
ing new trial.
5lr. Mason said ho had also taken exceptions
$r>e nnF 1l~..1k t,,.I
ton was, would not Mrs. Fitzpatricts testimony,
u; It had gono before the jury, haYo changed
thoir verdict and aont tho deienlnnt to prison
rather thnn tho gallows7 He dwolt for Aomo
Tho Court.-fho decision Of tho motion must
bo basca uron strict legal principles. Tho coun-
sel OF courno feels the. Importance to his client
Of the decision, and whatever is in hia power 10
urge, # is right TINT he should urge. but. tho
ground Of tho motion for q now trial Is, gubDtan-
wor:an Is to s tliso offoot that ut 1T
tho time Of tho shooting tho prisoner was drunk.
ghat i fact was proved Of the trial there vas no
listonea to the trial. The jury wero instructed
TINT they wero to takc TINT fact into coneidora-
tiou, II they boloved It from tho evidence, which
they could not avoid and coanuel, on Luis argu-
ground upon which the jury wero to exercise
their discretion as to tho character Of tho pun
tehmont. 1t waa for them to determine what |
tho punishmont should DO with that fact |
Now It ia quito possible Is the counsel urges,
that If tho declaration could be got before tho i
jury, that she did not believe that lie intended |
to kill hor, that tho jury might; give to TINT
md oonsidor it a. evidence when It ought nos @ to
bc considered ut all, and 80 giyo verdict not |
upon tho evidence in tho calao-tl1at which ia
tho legitimate eyitenee-but based partly, upon
9 naw trial with tlAt Wow. I should bo vlolat-
Ing all legal principles to grant now trial with
Tue expectation that BY tho new trial tho dofend
tttle him ,to. The. fact OF his drunkonnosa,
IF his condition ut the time, OF Ills being drunk
1t tho time, Is tho only fact with reference to
which hor dying. declaration is admissible, and
no9a 3no was ps nStor9 s th' jury must deny tho
Mr. Maaon excepted, and flod motion In
arrost of Judgment, which WAC also ovorruled.
10 ashod for timo to flo bill Of exceptions
nd d, during that timo to stay tho aentonce.
Tho COURT knew OF no precedent for 1t.
Mr.. Mason wantol Rll tho time no could got
or bis bill.
THO Court gayo linn till tho 18th to prepare 1t;
hat, ho believed, was long enough,
Mfr. lscod moved tilut tho Court proceed to
5eMtonco tho prisoner.
After Tho prisoner had stood up, the Court
mid: "Yonr counsel lns urged every argument
rhlc'a hia ingenuity Gun deyiHo, aB . reason for q
nee with usago that should nslt you wl.othor
on hnyo anything to Hay why sontenco OF death
liould not now be passed upon you II
Tho prlsonor-Your Honor, Sir. NIL / havo got
o say Is did not iuteud to shoot that woman
ny moro than do you now. Wo Ind little
ronblo, and Ind n .u,all pistol that had put
J, my poolot. put thia hand In my pocket, as
think did, aud, aa remember woll enough,
caught my loft hand, and 1t went ofr. IL
won't into fho bedroom to look for my COM ]
ortor, and I say tho little boy and girls In tho /
thor room, and 7 wont out to 500 thoin, and allo
'oked Of mo, aud did not speak, nor I. won't t
p Blue 1sand nyonue and thinks to myself, I t
my have shot her-I did not 1uow-l will 10