New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-10-30

then seeing Fisk and having his pistol 10 bis pocket
time and he drew his pistol aud shot him With intent 70
kill him. he Is guilty OF murder In the lrst Ton
ought 10 be so found Iomltted 70 ea yo been used
by Stokes "EOw have got you" II you are In
Il ~ true as bearing upon tho design OF stokes 20 ~
cOnyicting him OF murder In the nrst degree, ami,
His defense, TO which must now alllde urgen uPDn
there was casual that he had been called over 70 VA
hotel by accident, it were the lady nodng ~ bg
met nj Saratoga and leaving his friend Barley VINO
declined to go with him, went himself to inc hote W
the private stairs and 10 the door 0f the parloI $3.50,
He saw a lady standing at the window; she turned
her face partially toward him. and no saw rson III
20 get glance at her. he continued his walk no the nan
to look at the hotel no had never been tnero th
Turned 10 leave the hotel by the ladies' stairway ne
describes the no took in going back 20 ne %
ne mad on his oyercoa and his gloves and had MS sO
in his overcoat pocket. When he reach the sIatm1y
when he had got down than three, ana az eds'
four steps Fisk TO use the language 81 the
came with a rush or bound up the steps Directly o",
him with a pistol which he drew on tho broad stairs
from under his cloak held In both hands. -, ., ,o 40,
That 20 discharged IL without aiming NJ FISK ooes ~
follow and he Immediately started away under great
excitement without knowing what no ana WIN Lpo
This statement is cOrroborlted by several Witnesses D
JennyTurner who says she saw the prisoner pass w ~
the hail. looking into this room without entering, 10 Y
the dinng-roOm hail. back again and go thtnugh
or toward the staircase. That Is the substance tnh
..--f.
girl who was washing tho door Is to the effect tha WHO
She was washing the door she saw him come nor
seen him before, walking toward the staII, ,
case and moved back to look, and saw him star,
down the staircase. then heard cry Don't hEe anu
the shot. Then comes the testimony OF ME- Bedhe
saws she came down the street I'm stage IN pursuI VI
Tweed's Hotel In order to make inquiry rs To het
she could learn in the Grand Central where Iweeus
was that che cimo down just "a FISK leit ms cbrrS
that he entered the door closed, and IN mOneuI s5
steDped M TO door he came out, very nucn eNcu
i think she said his face was very red-dIcW us Ps.
there at the door from under his CLONES IN, anu
taking it in both hands, rushed quickly back now
that a. substantially the testimony tDat tes 70
crate tho statement made by the prisoner ~ 20 to
meeting with Psk It's being casual, and the crcun-
stances under which they met IL YOU come 70 t INC
conclusion the evidence thus given that thls sIe
ment is rue-that while casually cOulng nov" So, :,
after he had commenced descending, without SHOWING
steps he suddenly Fisk. who was coming MP the
steps, and who draws pistol ana - IN IN acJ % CVa
nstan of seeing an attempted assault then the prison
er'S act Is entirely justhable under the lA"
JUsrIFABLE HOMICIDE.
Justifable homicide is defined by statutes very
clearly and explicitly. consists OF two kinds. will
read for you the statute that may make no mistake
In the definition. We question here Of excuslbe
homicide "Such homicide is also iustiaDe when COM
mited by any person in either Of the following cases
When resisting an attempt TO murder such person, or
committing any felony upon him or her, or upon any
dwelling house in which such persons shall be-" You
sisting an attempt 10 murder, and 10 "a absolute
right-a right OF common law-that II man assaults
another with q deadly weapon Attempting 10 murder
him the party assaulted always has the right 10 kali bis
assliant. That right is preserved by statute This
statute requires an attempt 10 murder or the aleup
to commit crime 10 exist as TACT, ana under lhd
this was an attempt to commit murder upon stokes by
drawing his pistol there and shooting him. stokes had
right % shoot the spot. That was ms aWiu fighr
Under this statute, IL man Is breaking INTO house
committing burglary at midnight you have rlgnt 70
shoot hun the spot, and tho question whether yOn
are in personal danger IL OF no moment wbateVcri
whether you can escape, get out OK ms way, - OF
ND importance The law gives the right; ana 50
il man ia your house should attempt to ayish your
vito oy daughter the question whether you are4n any
danger or NOT "a VI no moment Tle INV gives YOU tle
absolute right TO KIN, aud the fact of being engaged IN
the attack il sufficient and whether you are IN personal
danger in such cases Is Of no moment. Ana
attempt 10 rdylsh woman, although ne lhtonus ~
do no other harm the law protects the party who ehoos
at him You will see. that section OF the statute
IL Flsk really meant TO commit murder ana hld draw
his pistol Tor that purpose the right Of the pris
oner 10 shoot him was what is called by writers
on the subject the right OF perfect defense-meallug
thereby absolute right To exercise that power. But there
Il another section under which II Is claimed TINS comes
more particularly than the one nave read. " HOmiclue
IL justhdbie when committed IN the a"iul delense OF
such person. when there shall be reasonable ground TO
,t norsona injury and that there shall be imn-
nent danger Of such design being accomplishing"
Under that section you Will observe That the rght arises
S,r The eNstance Of reasonable GROUND 10 apprchend
a design 10 commit felony commit great personal
injury aud where there especially imminent danger
of such beng accomplished. It Is claimed by the learned
counsel FOR the defense this that when stokes
had descended three OF aud saw Fisk drawing
M pistol from his pocket no was In me precise con
hitOh u'eNAA""H No. - - 49,
ground apprehend great personal injury or the COM
mission Of elony. and tnat there was imminent ap-
parent danger OF suCh dcSIsu being accomplished.
az coz o ON do ome 20 fine conclusion thar tba mis-
Oner saw Fisk describes IL, standing the fourth
stairwhie he Cd the hlrd or fourth etar-Fsk on
The Irnad patf1rm IN close proximity 10 him drawing
or with drawn pistol IN his hand, seeking to cock H.,
maneStng this evidence OF an intended assault which
these alleged acts would carry 70 the mind 50 tnat you
are satisfied there imminent apparent danger TO
his mind of the design being accomplished then under
this law he justified in shooting tlsE.
- Inn Ia H.
II he person advancing on nm, especially II he
nm 10 be an enemy, with pistol aimed at his
person. a threatening attitude, under circumstances
where had reason 10 believe that the party mtended
to inhict personal punishment he IS not bound to wait
until DONE but may anticipate the attempted act
by shooting his assaIlant. mat is the law Of self
defense, defined by statute It is the first law Of
nature and the law recognizes the right Of every per-
son, under such circumstances, to protect himself As
matter 81 course the jury are to decide on the question:
aud determine upon all the facts, whether there
reasonable ground 10 apprehend wicked design, and
apparent. imminent danger or ITS being accomplished ;
aud 1t necessary that IL should proved that In
point Oi fact there was no such danger or IN point Of
tact there was no sueh intent az, Ior IN
1t did, when Fisk had the pistol, as he described
and IN this threatening attitude, ami 1t should now
that IL not dangerous weapon at ALI nevertheless,
II the jury satisfied faith that he supposed
that he believed that his life in danger the point
whether loaded or not would make no difference
he had the right 10 fire. because 10 would be pre-
cisey the where there was great apparent imn-
nent danger aud reasonable ground 10 apprehepd
design. In such as that the person who incts
violence would be called upon 10 lay such case before
the Jury that they could say the state OF things
such that he had acted in faith upon such state
OF thugs. In justification OF his act In respect TO the Oh
legations OF party under such circumsan To retreat,
good deal has been said that subject. The language
OF the old law That placed in such jeopardy
must retreat to the wall. But that language merely
hguratiye IL meant simply that he must retreat
eDdeayor to escape the conflict far safety permit
ted 1t did not mean any more than chat. Who're
is attacked with revolver and fired unless there
is obstacle which he may step behind TO him
self he is obliged to retreat, turn his back his
assaiant, and be IN danger Of being killed IN the very
act Of trying himself So in this case II Stokes
stood on the stairs he testified aud was about to be
assaed by Fisk IN that way, II you that his
position the staircase substantially cut OF retreat.
that he could retire without danger xposng
self 10 be shot In the back he could stand there and
defend himself and his defense would be perfectly ust