The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-04-03

''Weli, Wn8t OCCURRED between the TWO w
'sThey had scrimn. agen
what do you mean Dy scTimmage."
y am no dictionary man, put mean they got
"Hew did you come 10 be . witness In this
case ~
= was telling the facts, and was advised TO 60
'H0w long ago was itW
"H0w long ago was IL, Mr.. Howesn called ont the
witness question that evoked, OF course, consid-
I'VE: were you ever arrested"
"Gettine into muses. laughter)i but have
learned enough TO keep out Of them. 1t don't pay.n
'l .DS yoa know ofncer Van Busk,rs p, @
'DOes ne know me y, asked the witness In Q loud
tone. more laughtero
hopeless case, and the Court thereupon took
cess.
STATEMENT OF NIXON.
Nixon was now placed on the witness stand.
Mr.. Howe told him he wished him to be collected
and tell the whole truth to the jury. He said he
ton bill poster; on the day OF the shooting he
was employed by Mr. DAILY. Of the Grand Opera
House, to post some bills Tor him; he used an ex.
press wagon; he had posted various bills and
reached Chatham square and was crossing the
Third Avenue Railroad track when the man he
You want to doY he said something that don't
remember and then struck AZ me with whille-
tree; the end Of the whilletree struck me and hit
my watch, breaking the chain; there are marks OF
the blow yet on my hip; he struck at me some half
dozen times; was greatly excited and shot him;
at the time shot him believed my llfewas in dan
ger; the man had the stick over my head and
fired; hardly knew what l was doing; l went
home and was there arrested by officer Van Bus
kirk have o wife and three children nv age Is
thirty-three; l told Officer Van Buskirk and Cap
tain Ulman that shot the man; was frightened
fore to my knowledge l took the pistol from a
pistol pocket In my pants and shot with my right
hand
Cross-examined-My house is not a house OF pros
ututiOn; the first time saw the man shot was
near the head OF Catharine street; he was on big
spoke first; told him to get out OF my way he
said he would not get out Of the way; we were
both at Q standstill; he was ahead OF me and we
were both on one track; / hauled out TO
the left and he turned to head me of; he
then came alongside OF my wagon; pile OF snow
asked him what he was doing; he called me all
sorts OF names and said he would show me he
came on my left side; he then struck at me with q
whlf1etree; was on the seat; tod him he was
acting as a damned fool ne said something, but
what, don't remember; he struck and hit me in
the best could then Jumped up from the seat
and went In the rear Of the wagon; the whifletree
was raised in his hand as shot him; never car
red any other pistol 1t had been loaded since last
New Years.
Q: Was You arrested last August by officer
Waters, OF the Fifteenth precinct Tor an attack
Ann Sullivan at Grand street ferryp
Mr.. Howe objected to the question, and the Court
sustained the objection.
q. Was you ever in ailS
Objected to, but objection Overruled.
A. Yes, sir; / nave been in the Penitentary;
was put there for posting bills over other bills;
told the man a dozen times to 90 away; the man
fell of the left size OF the horse; did not know
whether the man was dead or not: told my wife
mad shot man and that was going to give my
self up.
SUMMING UP by COUNSEL.
Mr.. Howe stated that the above completed all
testimony for the defence, and he proceeded TO
sum up for the prisoner, and his address to the
jury was characterized BY both great depth OF
an important stage In the case. The life and
destiny Of a fellow man lay in their hands. They
had heard all the evidence and upon this they
sympathy bias influence them. Nixon had
no motive to crafty, no motive OF revenge. The
struck at the delicate and feeble Nixon with a
murder0us weapon AS this weapon was raised
above his head and his life in imminent peril Nixon
drew his pistol and fired on his woud-be murderer
That pistol shot took fatal effect The
would-be murderer was killed. and he
stood before them an indicted murderer 1t was
theirs to justify his conduct In the eyes Of the law
and the community. He reviewed at length the
testimony, and then insisted that they must bring
common sense to bear upon the facts. There was
he claimed, no room for doubt that the decease4
pistol shot in self-defence. A more pathetic and
stirring appeal has rarely fallen from the lips or
counsel than the close OF his speech: He spoke
present listened throughout with the most untring
attention.
After calling attention to the soemnity OF the
trusts imposed upon them he called their atten-
in the e case he Claimed that It clearly showed
front OF Nixon's wagon AS to Nixon's statement
he deemed that not worthy OF the slightest re
ance In the rst place the h deceased ne insisted
the whifietree, seated on a horse without saddle
In the second place, such blew could not have
been struck in the way alleged without hitting some
thing and without throwing him from his horse.
Another thing fatal to his story was that on the
night he was arrested he made no pretence ofbeing
HIT Still another thing fatal to the case was, he
urged the testimony OF the boy, who says that alter
the shooting the whifnetree was hanging by the
yoked nature OF the murder, he called on the jury
to put stop to such murders and by their verdict
in the present case TO give TO the public seme
guarantee OF protection.
REQUESTS TO CHARGE.
After Mr.. Phelps had concluded MIR. Howe read o
number Of requests to charge. They had reference
dinIerent degrees OF murder and manslaugiter.
''Your requests said Judge Brady, ''embody
almost everything intended TO charge, and are as
long as my charge will be-"
II only hope they are as good law" answered
Mr.. Howe.
Judge Brady now proceeded to charge the jury,
which he did in his usual clear and comprehensive
manner. He began by saying that he charged all
their bearing, and to those two he would call their
attention before concluding. He would be
dne the
Der, and, he thought, comparatively easy. The
prisoner was arraigned for murder in the first
degree. His defence established by the evidence,
as he claimed, was justidable homicide. To con-
sttute murder in the first degree two things must
be established, and they must concur. FIRST there
must be killing OF some person, and, second, that
killing must be with a premedftated design to
eject the death OF the person killed. The design
may be formed upon the instant OF doing the deed.
1t was not necessary that there should be any
brooding for the purpose OF constituting such
design 1t did not require any other elaboration
than that which existed at the time the deed was
done. The law set high value upon human life,
and when man who Kills another asserts that he
was Justified In killing him 1t was necessary he
should make 1t appear that there was reasonable
ground to apprehend the design to commit some
great personal injury and imminent danger that
the design would be carried out. 1t was necessary
that the person attacked should be without fault
himself; that the attack should not be provoked
by himself, and that he also should be so situated