New-York tribune., 1873-05-08

signs and again. that he carried psVoi or
purpose OF protecting nmseh Ss"ni'' "N
g. asssasins, If he had any.
THREATS CONSIDERED
In addition 70 this several witnesses caeu ON hs no
half declared the deceased 70 be reckless bad man,
-n,Dg 70 resort to any means 10 accomplish hs pur-
nose one of them saying that he WIS dangerous man
10 ,vouId nat atom at having q murdered. The
aint in error therefore had the essential elements Of
these various subjects Of exception He had been sue
eessul in placing before the Jury te tsreat ne mao
persons on track his apprehensons OF violence from
a. meet such emergency by carrying pistol which was
solely that purpose and the desperate character OF
the dec ased. who would resort 20 murder 10
earry cut his designs He not only had the ADVANTAGE
of this evidence but II went 10 the jury uncOntradcted
nv any witness offered ON behalf Of the
Ssopie ~ ' They had not essSyed IN response to
susiaiD tie character Of the deceased OF 70
plautif in error except FAR legitimate criticism
might weaken OF destroy them. It NAV be well con
deceased was in fact the bold. bad he was repre-
sened 20 be, yet nevertheless on the occasion wheh vac
DO hostile intent. that the plantin in error moved
by other considerations than those OF seideense uu
the deed, for which he must De held resp9usoe pj6
be said with prOprey here, as said In the case 9i
Derae the character deceased may Oe AID however
many threats such person may have made he tOries o
b sn tSroas " oli .1 or 6y se ACT or demonstration
at the time Of the killing, taken IN eonheetoa a
reasona bic belief the part OF the slayer tna' ~ "
necessary 20 deprive hn OF life in order TO save t ns
% prevent s0me felony MS person. l. VIII slI,oaJ
perceived that Though the exceptions last NJ
and which were chiefly taken during the ~ e. VAS
Ire paintG 10 error seemingly excluded, II Was
rot n fact. ne having been perinltteo ~ ~ s1 ~, af
facts detailed and which the exceptions 10 par az
least related It cannot be said therefore sthat al
the executions are available as sucn IN thelr eutto
scope p cOnscqmnce of the admission OF evidence 70
the eexcuson of which sOme OF them related. Assuming
however. that this view Is the correct eVuence Vt "
tnreats NOT communicated 20 the plaintiff IN error ~
eond NOT eject OF influence or guide his conduct III
WAS unnecessary that h0 should receive any OtheI VI
further information than that shown 20 have beeu I'M
Ia D
~ one n peril from desperate Zoe, who stOppeu az
nothing 20 accomplish his purpose Whatever RUE lDa5
have been adopted other states, 1t has not yet peeh
declared here that uncomm mJnlcated threats are
bic for defense OF Justification III seems uIaton Ira @
n hold that mdus mud or conduct was or coulu nav
been n anY degree uhucnced by tacJS or circumstance
uureyeaed 20 hs. In tne case OF Powell ag Iue St0' %
1s Ala 577 ana State ag Gregor u LII Annual hep'
as thc doctrine was not s4ncuoled. ,,...,g,,
In reference 10 the threat 70 ralroad lIe pam @ ~
error 90 the state Prison, % must be sld tuat II was
clearly incompetent upon the question OI p ssOhI VIZ
leuce IL Imported q lesa pI9CeoNlnH -Du p6 ,7o.
make that ,facEve IL involved no threat Oh such No
leuce is tne Jaw contempA'es IA Jus~nsLto9 6i M, ~
ing "a human beiug. It did not estaDlsh lu-
mineut danger OF great bodily injury Whatever
apprehensi0us the plaintiff III error iet sDouIu
rest on something snDstanJ not mere i H M
uypUtuesls. IL would be anomaly n he cOull De
allowed 10 prove that he had seen persons hanging OF
proving aoOu bis lotel whom ne supposed ~. Deesm s ~
have been sent by the deceased, Without PROOF III
GOme way C0nues ing aim with them, or the haols OF
the llutn I'D error Nhie Hller AZ -nelon an ~, 81
SOM before lc homicide cJuld De received ID eFt
Seutr 10 sustain bis defense 90 iusuh1Oe hOmicue ana
yet tie tu o. prove tbt Nc FyIe IN SO!eIeu Or
{rom ftar Uf violence made without any evidence
-u
assaul ed lin With view % bodily harm'
had attempted to do it The testimony ON t4e I.a
however, not confined 20 threats coming nom 40
de- iseu IUuy, coupled WITH the PROOF Oh MS OaI d1u
gcrOus. reckless ci'raetsr; out the plaintM IA error
was auOweu ID warnings received OF persons on
ms Track WI the em,sJIies of the deceased. Inc
examination of plaintiff n error cannot fail, U seems
tO me, ~ SHOW hat great latitude wac allowed I'm
pcFculcu nom ltOc1edlA. Win MS ttS
tim0uy .s coutompiltsi desired, he was M no in
stance pieIIdlced Dy improper rulings. Ihe sca'e waS
he.d ,-o presIdllg Ju4Se WIZ IOeiu A1nd 'o"~fu
These are All tho exceptions deem it necessary to
mole "4A OarticdlaT1y. agree with Justice kdneher
Il -s 90 ."J-c not herein particularly mentioned Inc
prIc p. aAu important exception N tins is that
Tncre ta he no doubt that constitute in the
hrst q. rec tao. tEugs must cOnclr-there must he
klling must ue uv reconciliation There must in other
words, hluS WIN an intention 10 Kill existing at
been tine rc 81 common law It's inteudmeuts and pre-
SUMPTION, sabservient 10 tne intention 70 Kill as
question III fact, which is an Indispensable element OF
murder Iu urt degree IN such case as this The
proposition objected co. therefore abstracty considered
as enugcty, erroneous ana cannot be entertained
Tle iHteu, O. bu not spring bT presumption a
matter fact tine Killing or tie manner or killing
N musr Dc established, not by presumption. a
law. by cyld nye aud may De found by the jury as
question Of rJ,t from the circumstances attending
te Killing without any direct proof the subject. In
tent u TIE absence OF pOsldYt affirmative evidence may
ex,, and nO,wtDNaulng I.s su1tle character lnyolv
iu. as does operation OF the mind be brought
60 -lt or mado apparent rom facts and circumstances
tlCT grouped Aid valued. Was the element nt pre-
tle people relieved from the burden OF provng
i r necessity Of showing t, or was the subject treated
u that the pnrih In error was preJudiced
n ,i.l.r,.i ms fraSiy and treated IN bv eIaborate
dscu7sou. nut nevertheless propose 10 express some
views. more, perhaps, sense Of duty than IN the
expectation VI adding weight 20 the Judgment Of TIE
Court
Il lss been said that the language OF charge should
BE- considered DEB tie AgnJ oi the evidence to winch IL Is
app. .eI. and TO some extent this view should he re-
Of HE C5ut a. having heard the evidence and the
The ig.I tents well a. tie evidences OF the trial, when
the question whether by an Objectionable part OF tue
raalgs they may be-u mised Ortne prisoner preu
diced TIE examination Of the proceedings IN this case
shows mat te question OF intent on the trial
Ingredient ln the crime OF murder II Jhe
cous.s u drcilIn ln objection to evidence which
taken aun- 5le examination Of the plaintiff IN error
the Ju4se made the fOi"w1g observation: The Court
-Ile Theory ul the prosecution IN tins case eoutem-
pale, twO utluc- pOSslDt Itsus 10 tne nlhu Oh tue
jury one K mat the prenedlt-e ed design was formed
By prisoner lur tho killing o. FISK prior 70 the time
waeu le started iOr ulo Grand Central H0tei ana II
mat s aot prove 70 Dc True or il tue jury SNAIL not Oe
@snod tnstlt Is true they still claim that such pre-
reut1s,d design wa formed upon the moment when
soko standing at the top VI the STAIRS saw fsh coming
% and that be chen nred tAe shot with pre-
nedaicd des~n 20 ehec. ms death now the prisoner
being nus uFOu TIC e'ahd as wines IL s.eHs 70
ne M-Aly proper that he should state any
acs or circumstances which Tend TO explain
On on der rs umstauces from which the prosecution
Se -a r,t 10 negative that the design then existed
rh-r iy general denial OF 10 OF by spec1c statement
" WHAT ul9 OUl'cs ana FuApO7i' MciN fyl iuossiSci
te pfoerut has gwen in evidence that the prisoner
eH the house OF Mrs Mansfield 70 get out OF his
eOur6 by a woman the window getting back into his
couIe and starting OF, and very soon afes being seen
tie Grand Central Hotel OF course, this evidence
s given iOr tie purpose OF having an infer
enoe drawn rom It by the jury. To repel any in
ference which might be drawn from the evidence OF
tha kind, 70 proper Tor the prisoner 70 swear, Oh his
own behalf. what his real design was in going
there why he did not stop there why he
leit there ana went 20 the Grand Central Hotel.
Therefore AN Inclined " think THAI AL the acts and
motives and purposes Of the prisoner may be given in
evidence hy law, under the law which allows q
prisoner 20 De witness In his behalf and 10 is with
the purpose of ascertanng whether not he had then
premedlated design against tne life OF Fisk. OF course
tEe ur~ must &c whether this statement truth