The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-07-04


witness, bob, did not mean to shoot you" Also
that Sharkey admitted when ne surrendered him
ment OF errors are first, strong and prejudicing
comments and expressions OF opinion; second,
s
meaning OF the words .'premeditated design"
fourth, erroneous instructions about intoxicaton.
During the trial and summing up CONFLICTS regard
ing the evidence between respective counsel.
Perhaps the interested and interesting eloqnence
OF the distinguished counsel cOlored the testimony
The views regarding intent to kill and death per
ftJ0rtuntID were to some extent novel. j, there
course Of not commenting on the facts or sitting
them. Besides,
the EANNE. OF THE HOMICIDE,
wsrs sos demand anS on sns
Court in o civilized community some remarks. !
have sat in this Court many years, but never be-
fore listened to details OF more cowardy assassi
have disgraced Sodom and Gomorrah Under all
these circumstances could not become an auto
mend the Judgen observes Lord Hobart browns
Maxims, sly, .who seems nne and ingenious, 30 1t
tend to s and qne re II
was no authoritative direction upon the evidence,
such was oisapproved OF in Mitchell vs.. Har:
opinion and comment The Supreme Court. in
Lansing Russell, after learned arguments by
said rs Bar, SLY ION the issues the Judge COM
mented at large upon the evidence. and
TGnS TO the uy ws se. aRa Sa
an exception cannot be taken to mere common
tary on the evidence the Jury listens to the re re-,
difference due to learning and experience, but with
Q perfect understanding that they must decide
victions. To the like eject will be found Jackson
vs Temmerman, II wend., SOL Gardner vs.. PICK
IFS. The charge shows several intimati0ns TO the
jury that they were the sole arbiters Of
THE EVIDENCE AND THE FACTS;
but this additional sentence may be quoted, "what-
ever may have occasion to say to you with refer
to d although nssaang TO state IT.
TALLY stated BY me- must be corrected by you &C.
cording to your Impressions" 1t is concluded that
very wen see how You can wholly acquit, yet you
have the physical right TO do So" What else could
the prisoner brandished o loaded pistol. acct
dentally discharged It and killed Dunn. In the
TO in 5
fourth, degree for which Judge might fine cent
and discharge although compelled TO view it as an
should not have allowed the jury's recollectons Of
testimony to control, but that the stenographer's
cannot subscribe to sach novel invasion Of
THE RIGHT OF TRIAL BY JURY.
inr with the pistol that was nut in evidence. and
subjected TO the inspection and manipulation OF
the jury and commenting upon its use according to
hts hand necessarily ON the trigger" 1t is only
necessary in answer to this to say the evidence
tended to show the prisoner called attention OF de-
ceased to the tact OF the pistol being on iull cock
and exclaimed 1t was . hair trigger and then
brandisned it, with his manner of holding it also
fairly in testimony. Inviting attention OF the jury
to these circumstances was directing their notice
to the class OF acts arouna when ciosed me circle
OF Appeals In Muligan's case clearly apply to the
prisoners acts. 1t is averred the Court erred In
| THE PRISONERS DECLARATIONS
The remark, al do not think man who would use
such language Is almost unit to live, II especially
| characterized Is Objectionable. Certainly this re-
mark did not prejudice the accused, inasmuch as
mercy tsa y he mshs escape capital
punishment emphatlcally disagreed with the
The 0On charged eq snS Of the
the language Of the Court OF Appeals on People
as s ; hs
great Bar OF New York. The decision
1ne receny ered nenee the
same Court in the Foster case $50 NJ " 610 :-"It is
signed for the protection OF life from lawess vio-
| lence." Said the Court, In Clark's case (which
the defenceI NaIi there be- sufcient deberaton
form design to take life and to put that design
INTO execution by DESTROYING life, there is snflicent
deliberation constitute murder" No matter
whether the design be formed at the instant Of
striking the fatal blow, or whether it be contem-
stantly. The law mas no favor to extend
s sacS " design. 1 Such rule is ABSOLUTELY
necessary, especially as the common law
|
the unlawful act has disappeared IRON our State
Jurisprudence. The thoughts OF some men move
as rapidly as light. In mean wave OF the latter
there 800 600 000, 900 OF successive vibrations
in second. This shows how rapid may be a
succession without that absolute simultaneousness
which is implied in the great Thought and act OF
the universe, '.Let there be light and there was
| light.n Had the Courts been allowed to speculate
about the degree OF time necessary to form inten-
ton to KILL then
| QUICK-wITTED MAN sLAYERs
| might have enjoyed immunity. The law simply
| va ha net NJ n
| premeditated design How rapidly 1t may follow
| the jury must determine from the circumstances.
| A most careful reperusal of the notes OF evidence
and most Conscientious reflection upon the whole
case only serves to strengthen my original views:
witadrawn '' from the Consideration Of the
sell no intelligent jury could have arrived
at any other conclusion than that this killing OF an
nnarmed man by one who had peeuniary dif,cul-
A MOST UNMANLY DISADVANTAGE
OF situation and who did not kill his body, he had
soiled not only the victims soul with most horrible
| blasphemies and indecent threats but his own
also, was intentional and with express malice. In
short to quote from comment OF the Court OF
Appeals in the O'Brien case, before quoted (p 277),
1.-THE facts stand clearly and indlsputably proved.
nney cdse evong was witpont
shadow OF excuse or circumstance OF palllatlon.
The act was evidently fully designed, was premedi-
tated and deliberately carried into eject In
manner exhibiting the most brutal and heartless
depravity." In therefore characterizing crime Sc
The Clerk of this Court Will enter the order OF this
Court denying the motion in behalf OF the prisoner
for q new trial.
ASKING DISAPPOINTMENT OF SENTENCE.
AS soon as the Recorder had finished reading
his opinion Mr.. Brooke asked Tor further delay be-
fore sentence should be passed in order to make
motion in arrest OF Judgment.
Recorder Hackett said he should decline to post
pone the sentence
Mr.. Brooke then stated his reasons for an arrest
OF judgment, that the trial OF the prisoner was
without authority OF law, being upon statute
superseded and repealed by subsequent act OF
the Legislature; that no Judgment OF this Court
can be passed upon the prisoner, because there Is
no act In existence Of the Legislature OF this State
upon which the Indictment under which he was
tried could be based and that the judgment OF the
Court was without authority OF law.
The motion was denied and an exception noted.
PASSING SENTENCE
The Clerk asked the prisoner why Judgment
should not be pronounced against him.
Sharkey said, II protest against the Judgment
and tho vardict lie gnOke with most inter