The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-04-25

tho rulings Of the Court upon the challenges FOR
principal cause are intended 70 present TO the
Court the question OF the constitutonaiity OF the
ready passed upon ~ tSis Court IN the case O.
this Court. II is only necessary to advert to the
opinion Of the presiding Justice IN that case,
would compel assent nom the force Of its reason
ing. Reference having been made In this respect
to decision In Tennessee, 1t might not be amiss
10 note tnat, while our statute Is careful
TO provide for the impartial and unprecedented
Jury. the Tennessee law makes no reservation OF
that kind. but declares that no citizen shall be
deemed incompetent TO act as juror "by reason
OF having formed or expressed an opinion. &c."
The exceptions to the testimony which was admit
ted as bearing upon the question OF motive were
not well taken. On the cross-examination Of the
prisoner he was asked under excepti0n) as to the
nature OF q complaint against Fisk Ia q Police
Court, in which the prisoner had given evidence
these matters were clearly admissible to show mo-
tive and. being collateral. no higher evidence was
81 se IN me 81 s
OF time, and evidently with the expectation Of
conycting them with proof OF the prisoners
have been fully competent; that failing, they be-
came harmless, especially in connection with the
ton to exclusion OF evidence ought to be intro
to n d Of
were clearly not we'll taken. The prisoner clearly
could not testify as to his own apprehensiOns from
Fisk without showing acts OF Fisk to justify them.
Fisk, only certain things said or done by others,
which Fisk was to be connected with by inference.
and excluded was one to railroad nlm (stokes
TO State Prison." which was clearly inaamls-
sibe. Uncommunicated threats are inadmissole,
and any threats to be available to the prisoner
in evidence must be of such q nature as 10 Justify
him In apprehending personal violence and injury.
The demeanor and conduct OF the prisoner immo-
diately subsequent to the homicide when taken
into the presence OF his victim was entirely
competent, and the exceptions taken so strenu-
OuSV evidence
The other rulings upon questions OF evidence viii
be found, upon examination. to be correct, ana,
which no possible preju, Ice resulted to the pris-
oner and where they will not therefore, errone-
Judges charge, that ne presented an hypothesis to
the jury that had not been suggested BY counsel, Is
not well taken. 1t Is sought to be sustained upon the
proposition that It is error fer Judge to submit
an hypothesis unwarranted by the evidence" The
hypothesis was not warranted by the evidence It
was suggested something which might possibly
reconcile the evidence. 1t is not error for judge
to present his own theory Of the facts IT, after all
lection to the Judges charge, however, undoubt-
eddy is that In regard to which the Judge WHO
s Of aice from the IN
OF the case. AS to that It Is submitted that read
ing the passage In the light Of the rest Of the
charge there Is no error; II the particular pas
sage referred to be erroneous 1t Is cured ny
what comes before, and more especially by what
follows. There is no substantial error which would
justify disturbing. the verdict, and the Judgment
should be affirmed.
Az the conclusion OF Mr. fnelps ADDRESS MI fui-
lerton made Q brief argument, which was princi-
pally an analysis OF the Judges charge. He con-
tended that, taken az WHOLE 1t was clearly in ao-
cordance with the law and did not conflict with the
provisions OF the statute regarding the law Of MUIR
der The charge upon the subject OF premeditated
design, he said is plainly and distinctly conclusive
that to constitute murder there must be such
design proved upon the part OF the prisoner.
but the circumstances under which the
murder took place in this case were sufficient to
warrant the inference that such design did exist,
unless, indeed, the prisoner can satisfy the Court
hat thQ an W. q CIR.
cumstances; but even supposing that that part OF
the Judges charge excepted to was erroneous, the
error was subsequently cured by what occurred at
the close Of the case.
Mr.. Fullerton, in support OF his argument, cited
this cases OF Ru0f the People, and Vosbright vs..
Walter.
Mr.. Tremain then closed his final argument in q
most impressive appeal to the Court in his clients
behalf, urging that In view Of the many strong
points raised the Court should order reversal.
1t was understood that the Court would not de-
liver Its opinion before next Tuesday week. The
Court then adjourned.