The sun., 1873-05-08

decision OF the General Term denying new
,rouI1 no upf,yor,b,, ,,,. ,on,ro,ly .v,.ctod
ss.'...,.', ". . ""o ~, - -
weli-founded rumor to that eject having been
ahoat since Monday morning. The court room
was crowded with lawyers and Iaymen' Dis
trict Attorney Phelps sat behind n breastwork
~ ia,y bn,ls Mr. nos possos s,ood With bis
,.,' ,.,, | A., ,'.,.,., '. ,. 49,
eyes beht on inc Jud'lhi ante-roO'n' nut the
venerable father of the convicted man was alb
sent from tho chair which he had ocr,,pied all
through Tremain's argument. A fifteen min
utes To eleven Juducs Rrady Fancher and Davis
,sco,d,d ,hs bench Id, pr,av ,,or. . Arm,
80 ,..', ,,,'.. -, ~ '. n,"'
pme Io"K' Ihere was ahu'h IN the murmur-
ing crowd.
TIVE DECISION.
r,,,o pr,,,, sai, ,..t,,,,,,,,,.. :. T., ,h ...
., ,r, 80 =, So - 81, ,,,''tS
stokes the motion for writ Of error is denied,
and tho iuJy,ucnt ,,ust I'm afnrp,ed A tho
anu '"e JuuRncht must DE anlrn'eu' AS .ne
judge uttered the closing words a murmuring
was again heard. and the excited audience
roovod IN and fro NJ Dos paseos bnstcned IN
'""'ou '" """ w. WI "'' i"'9"s ""7'''I'u '"
carry the news to stokes. The slayer Of Col.
Fisk had risen early and absorbed his breakfast
lii nar,.,,s daana,ch ma, ,,,h,r ,,yi,od no,
WIN nervous ueTpa,ch' h'' ia'her ''steo MN
about O'Clock, and together they awaited the
news from court Warden johnson was the first
20 announce the decision. He simply said TO
S.ohes' ~ ~, ,oui. nas ue,!cu N1u new ,ria,. M
I IL ~, nv H., ,, ,,,' LII .. ,,s -
naieu ~ IL, w. u" ~, Us .aIner n. su va, % % %riere
:.
o. hppeais W hsn MI Dos Passes arrived
otnh.s wa W ,.s pesn ~, ,i hiu .auEneu ,E
shu @ ioNu p as !, w uii,o W wv ,
was wsra p'eoe vi passing ""u "S'o'a''e '"'e'-
"k'"'o'
WHERE JUDGE BoARDNAN WAS WRONG
Judge Fancher says that the question which
most i'm pressed him uunn the argument grew
ont of the exception of the defendant TO the
following mort ion OF the cnar-e of Judge Board
iuan
.r, r., , A., ,,,,,u a., ,,. ,.o r,,.,, ,,t.,ar,t.u,
isSt ~ ,he nng "a ,x NV 'ie % sIssSr m .,t.
from The fact Of the Killing under arch circumstances
IN the absence OF explanation, &c.
whita ,onc.din, ,b., INDIA Rnnrduan cor-
rsr,iv s,ctad the r,,Ie as n . listed M common
law. II IL equally clear that for tho moment he
iast siabt ~ ono ~ The elements Of murder in
lie A., d.aros as da1naJ Nv the stat,tes of
New Yo,I An essential clement in the crime
~ murdar Ia III. intent with witch rho homi-
ci ILL H i. cans,,Ittea n ~ not avery bnr'irIdo
that ia muriar The word murder In aicient
cnmmon law aIe maiice aforethougbt IL an
a.snn,iai in~r.die,t ~ the crime II is e.nress
Yhen tLe offence ia comm tted with a deIibernte
mind and formed design. IA when the external
"irr,imatan,rs Indicat"d the Inward intention
such as iyin1 in wait, antecedent menaces
former grudges, aud concerted schemes to do
any deliberate, cruel act. whereby man kills
another without any, or any cons siderable provo
catinn
'"''on' - 80. -.
M, ~ Wy .,,,,,,. r.,,,ires ,xh,, rho corn
mon law did not. the existence of the actual in
tention 90 XIII. In the case ut the People
when an indictment charged the killing to be
isonously, wlfplIy. Of malice sfSre,honsht;
m te p @ ~ Car, nrai ar t
have 'py approved @ this his docrns n the case of Tts
aeraid aS,nst M reIPe' nme nis,ln;In %,
as one of the particuIar clssses falling under
The head Of malice atGre,h2ught, and gnt,e dis,
commission OF some ait dangerous to human
life or otherwise, Is an old one, and may be
i"una IN n ,he the NOM .tnt,te nace:
in the first class the killing with premodltated
design: me statu,c reg,,reSM, M ahd oruers 40 a
conviction of murder under the nrst subulNls-
ion, the existence "i an actual intentl"n 10 KIN
ana the existence OF surh intention must pe
TINS error IN the cnarHe' anu was aaileo upon oy
controlling considerations oI 3ncial duty and
propriety 10 allow ne wrlts ana grant tne stay
so that the point could be deliberately reviewed
I at General Term but an error IN Judge
charge Is "nlf lItM when u eau De pr3veu 70
nave h"eh INJURIOUS 70 .he prls9h,sr, Inat iin-
pa1 In, i,ictern,in.tinn w,s ,i,c jnrv nroneriv
insiructed upon the point Of premeditated de-
sirny
TnE EHRoR NoT HuRrfuL 10 rHE PRISONER.
Indgs rancnI coPilnar. ~ M"r car.iqlly r@adns "a. @
opnion tnat Tie erroneous of hs charge hch
o. single sentence was oni mo6lcnttry departure
from ~ general lor q m, charge on ne subject of
lions given t. the jury In repeated passages OF the
have been misleI They we're distinctly told that
"nuricr in thc nfst degree is the Riiing Of person
with the prcmrdiiated ae' gn 70 c1rrt the death Of
design to eject Tie death Of Fsk IN his
ease" and that they determine even
II there were two pistols. whether they mud IN TINS
case the 'Ndence OF prelntdIaisu utsgh on th paII
o. hs p,'ner 70 % s.s' !9r @ uetu M o' vo,hs ,
hnny ~ "v,densr and realize as c,arlS A. nossbi
The posion Of these parties and whether from the
whole body ~ the evidence there IL enough to satisfy
you inst the prisoner had at the time Of nrng the De.
slgn OF klnng flsk Inc nlreclOn Nss SO sieat ihat
me Jury c.uiu n1t nhNc VIA ",
W ~ ,bs design ~ ths Trisoncr hefore
ccnNi, ling nm Of murder in the nrst degree
/ -. -, ,.,,,,,,o ,,.y...,x,,
'p'I ''"''.' ~ - N''
Judge Fancher was of opinion that any error
IN the charge was fully cleared ny subsequent
explanations. Tie upheld the ruhny ni Juugt
tarduzo ON the trand jury trlal As Tor lhe
constitutionahty OF TN" new jury Ia" thar qilrs-
t"n had Already, ~ ahntheI case received thy
consideration ana lidsmtit nl this uurt ana
the mCid. OPINION OF Tue piesldlhg Judge oi th'
ilr't Judltlal department. u " We're hut plhu'
ing aS precedent W"llu 'nlnVel aSScit l"h
/ the l"r'e OF lt- reas"hihu' 'uuge fahcher CON
GUIDED
: M DOUBT THAT Srohf> hliitD flSk'
lh,rr j. no 1hcofy OF 'nc 'l. s'u sstant @ nr a! !
t,,r, ,bt ~, ,t,spiSir faet th,I tho fe az FisE Sa
drsiroysd by A bullet from the prsoner's pistol. m
victim the homicide hurried into eternity by h
act - the defendant Al the circumstances of the oc
currcnce were paternity con.lrr' bya Jury VINO hsy
prononnc'I lr uecu nlutncI W Wv Wv , NJ, uoRt~ ~