New-York tribune., 1873-07-04
SHARKEY'S DOOM.
NE rs To RE HANGED IN AUGUST.


The hour was too early attract even the usual nuoe
NJ Ioungers Soon aftorward the Recorder ana shern
brennan came into Court. and fheIps
and his ASSISTANTS, Messrs Lyon, Rollins, ana huSse'
were present on behalf of the people, while Charie' '"
Brooke represented the prisoner, william Sharkey "ho
by direction OF the Court placed at the Dar lno
prisoner was pale appeared calm and sefpossesseu
The Recorder then his decision refusing TO grant
tho prsoner new trial He began by referring to the
Langan case In which the Court OF Appeals heid that
he had erred in denying on his minutes tne nos'on
for new trial without hearing argument He therelofe
filed tho following reasons IN this case Tor refusing
new trial: .,
NV frat impresson was in favor OF refusing to con-
slider the affidavit Of the prisoner and its rreguary
but from sense justice to the prisoner have read
them They do not. however, purport to show nregu
larity but only explain why three jurors joined IN
the verbal recommendation to mercy. This recOm-
mendation was not and cannot be made legal part OF
the verdict The latter only be "guilty or not
guilty" (I Bishop on Or. Prac, Sec S2') Wneh inc
verdict has been rendered recorded 1t Is conclusive
and it cannot rotraoted by all OF the jurors
Neither can juror afterward heard TO object that he
did tho verdict thus rendered Even had
the Jurors adavts explanatory OF the tech
nica verdict OF guilty. Of opinion it would become
the duty OF Judge not to awardweght to them' Such
practice" said the great Mansfield. "woud open each
Juror TO great temptation, and would unsetle every
verdict in which there could Dc .lOuDu upon
man who could induced TO throw discredit on their
common deliberation" The New-York cases OF PeOpo
ek rel. John HOsmer agt. Columbia County Court
OF Common Pleas, Wendell 20 OF and "
counsel, Parker c. c. 2j6, follow tho same
reasoning and division. The arst OF these cases
was elaborately argued by Ambrose l.. Jordan and
Elisha Williams, and tho latter by the late District
Attorney Blunt and the late Horace f. Clark with whom
was Henry L. Clinton. The Court Of Appeals have de-
cided this Court may set aside verdict on the
minutes But tho question therefore considered by
tho light OF this paragraph in Bishop on Or Procedure
Sec $40: II is easy to how Judge, having 1t
legally in his power TO aside verdict sentence
defendant to imprisonment TO death when for any
reason which presents itself udciay to his understand
ing his Judgment refuses to with the jury in the
conclusion of guilt" In Sharkey'5 case my reytewing
Judgment cOneurs with the jury. have reread all the
testimony, all the requests OF the counsel, and my
charge the spirit or which, under the statutes OF 1885,
both tho Supreme Court and the Court Of Appeals must
necessarily review hereafter upon this statute. The
head note Of People agt jeremiah OBren, 80 NJ Y 26.
reads "Chap OF the of 1855 passed for the
advantage OF the accused that trial ought TO be
awarded when substantial justice required lt, even
though the record disclosed no error"
1t Is said that there error In taking away from the
Jury the question Did Sharkey kill Dunno at ali r.
True, remarked that the killing was admitted by the
counsel as the steuOgtaphers notes show and the ad
mission Is not against constitutional right Re can
cemi) In the arguments and decisions the hearing
exhaustive may here remark that cannot conceive
reasons behalf OF the recommendation. 1t It is not
correct practice to allow them TO explain their verdict 1t
certainly cannot be error to refuse TO hear their reasons
for reporting the Court private requests Of human
but not legal character. To the effect People agt
Wilson. Abb, 49, 30 much for alleged irregularty, |
Tie prisoners distinguished counsel puts upon his
brief that "n felonies the prisoner has pOwor to
admit anything" am not furnished with any case in |
support OF this proposition aud all the elementary books
and decisions tue other way The rules OF evidence
and the practice in civil and criminal concerning
admission tho same. The charge the jury shows
this II lind that the Robert Dunno named
tho Indictment be dead, and died IN consequence OF
pistol shot fired by the hand OF the prisoner then your
inquiry Will be- Is he amenabe 10 legal punishment,
and II what IA the legal character OF his act of killing
90" Again; II you entertain any doubt as to the
killing, you should acquit" Thus the question OF the
killing was technically LEFT to the jury Yet apart from
the admissions OF counsel the testimony Is unconra,
dcted that Sharkey said after tue shot from the pistol
anota6r an 16 % Wines BOB did not mean to shoot
also that sharkey admitted when he surrendered him
OF are-Iirst Strong and preiudlcng comments
and expressions OF opinnion. second; Erroneous n-
GUS instructions upon the meaning OF the words pre-
about intOxication. During the trial aud summing up
conflicts regarding the evidence arose between repec
eloquence OF the distinguished counsel colored the tes
mOny.
The views regarding intent to kill and death were 70
some extent novel l therefore deemed 1t my duty to
depart from my usual course OF not commenting the
facts sitting them Besides the manner OF the hOHi
cde whether by accident design and its surroundings
Of acts and declarations we're such as TO demand from
any Court in civilized community some remarks. L
sat in this Court many years. but never before
listened TO details OF more cOWardly assassination,
accompanied with language that would have dsgTaced
SOdom and Gomorran. Under all the circumstances. l
could not become an automaton, nor appear judcaly
Indifferent. 81 commend the judge" observes Lord
Hobart (Brooms Maxims, 81, who seems ae and in
in to the remarks Of counsel the argument
There no authoritative direction upon the evidence
such dtsappr0ved OF in Mitchell agt. Harmony.
Is Howard, u g. r. SIMPLY expressions OF opinion and
comment The Supreme Court, in Lansing agt Russell,
after learned arguments by John Van Buren, and
Samuel Stevens pro and con-, said Q3 Bar, 52l the
issues the Judge commented at large upon the evidence
submitted IL the without controlling dl-
recOn 1t lis well settled that an exception cannot be
taken commentary the evidence. The jury
listens the remarks OF the Court upon the testimony
with the Difference due to learning and experience, but
with tnat they must decide upon
matters OF fact according to their own convictions. To
the like effect will be found Jackson vs. Zimmerman, ~
Hend 3Ol Gardner vs. Rckett, 10; Wend lS7; Mckee
People. SO; n ~ p rs The cnarges show several
Of the evidence and the facts but this additional SEN
tence may be quoted: Whatever may have occasion
tending to state It fairy and impartialy, yet II mis-
stated or only partially stated by me- must be corrected
by you according to your own Impressions"
words: cannot very well how you wholly
else could Judge say upon the faeti The defense was
that tho prisoner brandished loaded pistol, accident
ally discharged IT, aud killed Dunno. In the most favor
able aspect TO the prisoner this act would necessarily
become mansaughter IN the fourth degree. for which
Judge might ine a cent and discharge although CON-
landed that the Court should not have allowed the iury
recoectons OF testimony to control, but that the
nographers notes the official and peremptory guide
cannot subscribe TO such novel invasion OF the right
Court H erred ia Illustrating with the pistol that
put in evidence, and subjected 70 .h4 .4 ihs pee
tion and manipulation OF the jury, and comment
ing upon It's use according 10 the evidence, and
especially in the remark with his hand neces.
sarily on the trigger" Ii is only In this requ-
site to tho evidence tended to show the prisoner
called attention Of deceased 20 the fact OF the pistol
ing full cock, and exclaimed 1t hair trigger and
then brandshed IT, with his manner OF holding It, also
fairly in testimony Inviting attention Of the jury TO
these circumstances directing their malice to the
class OF facts around which closed tho circle OF design
and accident The remarks Of the Court of Appeals Ia
Mulgans clearly apply 10 the prisoners acts. IL
ayered the Court erred In commenting upon the prs
Oners declarations The remark, do not think man