New-York tribune., 1873-05-08

ton made On the rart Of the defense and the
elements OF the defense and said All these IA ,es
proper considerations addressed you upon tne qg
ton Of the motive with which ne he s MAS 20
m e % s % IN that hotel on mat day on further exam
inatiOn dud that the Judge. after connua
the prosecution that the second a,nti in error in
carving out his design and sfter chnsG - cference 10
Of the judge TO the prisoner Ss views are submitted
for your consideration, and you VII raasonahle and
seiNes via mS' esion a. from all the circumstances,
probable 10 YOU A,her. All en- thet there was but
vsry fT,fns interval between them now y goS th %
be OF opinion that the prisoner deatb of Fisk and
nremeditafed design to effect the % ueHn 6ont heev
Hp,ibonf beng in danger from FISK anu NiunouS thr
ing himself he in any % %densoi ~ reasonable apure
Mss hOA On his mart that was any such danger
them of course the crime whloh Sou w th Arst deSree
nuu nn s6onld think from all the evidence that IL
might be maDsaughter IN i tHe % Y w Will therefore in
Auu Sea ST., the evidence in this is such as Will
satisfy ySu y i'm which passions aroused and in the
heof ~ nsson whether the prisoner nred these shots
the design o. te Ttsoner shoud not he convicted OF
@ U 9 crime greater than mansaughter IN the third de-
yrssa All these instructions were gwen before lhe
EtLtgecc,ionabIe mart OF the charge de-
Iyered / do not stop here to consider whether
& the W0,gs IN the absence of explanation does
not so qualify the whole proposition as to render IL M
definite uncertain, and OF little force because II Is az
parent that was insufficient assuming IL 70 have Oeen
aarstions referred to- that there exist and the
49, 'st an determine ripOp the whole evidence IN
tenon 70 KIN 10 constitute the Oense OF murder IN the
@ e m o. trne that n was NOT retracted in express
trs or exponed by the Judge by direct reference 70
a.. hut upon the CONCLUSION OF the Chg NY Jd5 ne
I'M two requests, the part OF me feoe abu oe
ON the part of the plaintiff in error, advised OF the rune
that premeaitated design was necessary eelheh. u
ar i'm the frSt degree And further. when the ooun-
SCI or the plaintiff in error asked the Judge 70 charge
the fourth proposition suDmtseu ~ thoh w tior m oi
and hegan 10y saying, In cOnsd ing the dueston vi
a
il was stin regarded as Their ouiy " tho iase pass
upon that question on tne te nv ipstPueting
tnem that fhey should take into consideration on .ne
CT IN maj essential element OF tine defense, men
fber 9s we'll as the other evidence in the case
refecng any light the intention OF the prisoner OF
taken i'm CONNECTION with his own testimony. ~ seems
IN me entirely clear that the jury could not nave oeen
mslpd by the paragraph objected TO- IL was VIZ, Z
inslaient IN doctrine and IN language TO lead them
away from the duty OF deciding upon a INC es
and not 10y presumption alone Whethei' d1 ve td 'u
NJ III, tta daceSsei TIc Intention to Kill, as an esse-
ta element the crime OF murder IN Ihe nISV ue-u,
was stated, referred 10 and eOmneAeG upon' % al .or
Iudpd To- and in such % ADVISE anu H4s'IucU
Inc iury of their oBl CATION in reference 70 %. .
- rbege I'M thls case bears close resemblance, on the
doctrine or presumption 10 the charge reviewed h lne
case of The People agt. Mckee &c n. y lis.
IRe Judge charged IN tnIt case The law presume.
that person taxing the Ire OF another Win ueug
weapon intends 10 do H. ana a sale liaI 50 - ~
makes no difference whether ne had nOdte OF not' 4oI
IL Is not necessary 10 look for mouNe W1el eIsu
mas been 30 killed with a deadly weapon ana sdd' IL
h. question lOr you determine whether the prisoner
ei MILAN with prcmedltatiou OF whether ne acLed
in Inc hett OF passion without premedhduon.
frg al tine charge and that it IN no respect err
roueous The presumption of an intent 10 XII "Aen NE
bt fhr ifoJ of intent was left TO the jury. In this
case the presumption OF malice was stated Du the dues
ton OF Intent lett the jury % determine max tAt
cases analogous bus ID may uct be Important 10 dscer
tam prece-ly whether tney were or NOT. .,.. -.
Tho OF this investigation ls therefore tlat the
pl.iutiE in error fairly tried, aud thai ne" uid
should not DE granted