Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1873-01-09

mony or control evidence. An excep-
tlon may, perhaps, be made in the case
OF Jenny Turner, who claims that Mrs
Morse tried to get her to leave for the
purpose of avoiding being a witness.
But Mrs. Morse denies that
There is another subject / call vour
attention to in this cOnnection-the nris-
oner's own testimony. HIS testimony
stands on a different footing in many.
in all respects | might say-from any
fair, disinterested witness. He stands
here charged with crime, for which, if
guilty, he may be punished with death
lie is, therefore, most deeply interested
in this case. You cannot conceive of
any deeper temporal interest than that
in mans own life when endangered
You are to consider his testimony with
more care, scrutiniZe it more closely,
and receive it with more hesitation than
you would that of another witness not
subject to this overwhelming interest
Having thus given you some leading
views as to the manner of looking at this
testimony, we will now proceed to the
theories which exist, or may exist, in
reference to the number of pistols found
after the homicide. The theory of the
defense is that Fisk had pistol in his
hands; that 1t wasawhite, silver-plated
ivory handled pistol; that it was dropped
upon the stairs, but by some means was
concealed or put out of the way. They
call witnesses, and claim that the evil
dence is sufficient to satisfy you that that
pistol did exist.
1t is unnecessary to call attention to
the evidence of the witnesses. the coun-
sci having so deliberately done it. That
is the theory of the defense. A second
theory is that of the prosecution-that
Stapleton, Chester, and Jenny Turner
testify falsely, and that the testimony Of
De Corley, who identifies the same pis-
toll or one like it, is false or mistaken.
This explanation does not relieve you
from having conflicting testimony which
1t is impossible to reconcile. There is
another theory which may not have been
suggested by counsel, which, perhaps, |
should suggest for your aid. 1t is posi-
BILE, perhaps, by this to reconcile all these
witnesses. 1t is possible that a lady did
actually come up those stairs soon after
these pistol shots; that she picked up a
pistol either on or at the head of the
stairs, as testified to by Stapleton that
1t was seen in her hands by Jenny Tur-
ner; that she gave il to a gentleman.
the two passing off into the hall and
that these persons, fearful of the conse-
quences of their knowledge, concealed
the pistol in the sofa of parlor No. 297,
and concealed the knowledge which
they possessed, the pistol being the pis-
tOl used by Stokes, and droDped BY him
Immediately after. Where he dropDed
his pistol is not clearly determined by
his own or other evidence. This theory
has but one qualification. Il allows the
reconciling Of greater amount of testi-
mony but does not reconcile the differ
ence in the color of the pistol Another
discrepancy is that Jenny Turner swears
that the pistol was one she had before
seen IN Fisk's possession in Mrs. Morse's
room. You are to judge finally whether
there were two pistols in that room.
You are to recollect that there is no evil
denCe that any one saw the pistol in
Fisk's hands except the prisoner himself.
All other evidence shows that this pistol
whenever seen was in others hands. If
the testimony Of the prisoner is to be be-
ieved this theory is overthrOwn-it
ceases to be Of any consequence.
If you find that there was hut one pfs-
tol there, then / apprehsnd that YOU viii
have more difficulty in believing that
this prisoner was actuated by a feeling
of danger to himself from anything Fisk
proposed to do, and was rather actuated
by malice and a design to effect the
death of Fisk, since there could not have
been any great danger TO Stokes. he be-
ing at safe distance from Fisk 1t
was easy for him to have defended him
self, or have avoided such conflict as il
was in the power of Fisk to make, with
out pistol, and if he failed To avoid or
escape from a conflict which he antici-
pated, or if he fired with the intention
of killing Fisk, when no assault was
made against him, either threatening
life or great bodily harm, of course he
will stand undefended before you. If.
however, there were two pistols there,
then the question is was the prisoner. In
firing, acting in self-defense2 Did he
do what he could under the circumstan-
ces to avoid a conflict with the person I
coming up stairs with a pistol in his
hands? 1t was his duty to avoid il SO
long as it was possible without great
danger to himself. If he saw Fisk COM
ing up, with pistol in hands pointed at
him, If in his power to avoid danger to
himself by Withdrawing from the con-
test, it was his duty to do so, rather than
by inflicting the killing now in question.
But if Fisk had pistol drawn, and the /
could not avoid a conflict with |
ont exposing himself to a con
tinuous and greater danger, then lac
would be justified in the law if he be-
lieyed he was exposed to this danger
that Fisk was intending to shoot him.
and that the danger was eminent-then.
and not till then, he would be justified
in firing at Fisk in self-defense.
Justice Boardman here read the stat
utory definition of murder, and instruct
ed them that even admitting the two
pistols, there was still question as to
Stokes intent, and upon that question
they must examine the whole testimony.
He cursiyely recalled the main points
bearing on the question of intent and
continued:
If you should be of the opinion that
the prisoner fired that shot with the pre-
meditated design to effect the death of
Fisk, and without being or believing
himself in danger from him. and there
was nothing that should excite a reas-
enable apprehension of such danger,
then. of course his crime IS murder in
the first degree, unless you should think
it, from all the evidence, manslaughter
in the third degree. (Here he read its
definition You are, therefore, to in
quire whether here was a sudden con-
fiict in which sudden passion arose, and
in the heat of that passion the prisoner
fired three shots without generalization
without design to take life. Then
the prisoner should be convicted of no
higher crime than manslaughter in the
third degree. 1t is in these connections
that Fisk's character comes in, but only
as to this, was he a man of personal
viOlence?" A man who, by his own
strength and holiness, would infiict
chastisement upon another? A man
who would make personal attack on,
murder or inflict indignity on one who is
hostile to him? And was that known
to the prisoner In this aspect they had
the right to pass on the character of
Fisk as an element to show that he was
seeking an encounter with Stokes, or
was ready for it, and exhibited such
spirit as he would exhibit in his mena-
ces to the prisoner.