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

anxious attention the evidence and Igument in this
Your labors have been severe and so far as the
Court has been enabled to judge youhave acted under
the Just appreciation Of the momentous and solemn
duty which now devolves upon you. 1 conceive OF
no higher or nober duty than that OF juror selected
from the great body OF his feowctzens to pass upon
the question: OF fact in case Ike TINS iOr
the determination Of which the courts arc
powcrles justice stands parayzed. unable to ad-
minister the laws hand to acquit Innocence on
the other. II Juror conscentiousy discharges that
duty regardful OF the exgency of his oath. unswerved
by personal prejudice or popular passion seek
ing and speaking the truth only he finds 1t III the evil
dence laid before him, he In my Judgment tnat
high encomium which Heaven pronounees upon all goou
men: "Well DONE thou goOdland faithful servant but
he who dsregards the obligations of his oath ana the
duty which he has assumed undert earns the execra-
tons which attach 20 dishOnor and untrustworthness
Tie prisoner stands Indicted forfthe crime OF murder
I'm the first degree His ofense is said to have been
committed and contaminated the 9th and 9TH OF jan
uary 1872. The law Of homicide, as 1t then existed III
this state ia still force as rospects this case, unat
fected by any subsequent legislation on the same SUD
tect. All homicides In our state are defined and de-
scribed by express statute The killing OF human
being is declared either murder In the first degree
or murder in the second degree or manshushter In one
Of It's four degrees, justifable or excusabe
homicide, according, as the statute says 70
the facts and circumstances OF each case
The facts and circumstances OF each are TO DO found
and determined by the jury who are to decide. unem-
barrassed by any Of the legal preBumptons which the
common law throws around all homcides to which class
or division Of a class the particular case before them
belongs On the part OF the prosecution IN this case the
ofense is claimed murder IN the first degree Muir
der in the first degree, far the definition OF the
statute is applicable 70 this case is defined in the words
which now read to you;
Such killing shall be murder IN the frat degree when
/ fTltg IA
death OF the person Killed.
Lis not necessary to embarrass you with definition
Of anv other OF subdivisions Of murder IN the
first degree The form OF language which have already
read TO YOU covers the Murder within that degree
involves the act by which the killing injury rather,
is said TO be inflicted. 1t involves also the death OF the
injured person in consequence OF the act thus commit
ted For as matter OF course without the consumma-
ton OF the injury by the fatal result there Is nothing 10
the case making it an ofense OF murder
THE MORPHINE THEORY.
have stated this In that form for the purpose Of
bringing 20 your minds In the order in which
both sides have t 20 adopt and which strikes Inc
as perhaps the order for the Court 70 follow In pre-
senting the case hrs the question which has been so
deliberately argued by the counsel for the defense well
as the prosecuting attorney-wbether 10 This case the
nroOf shows that the deceased died within the meaning
of the law from tho effects Of the wound which 1t Is con
ceded he received al the hands OF tbs defendant That
arises upon the proof produced the part or
the defendant-the defendant himself principaly-
death was not the consequences Of the wound but of
some other intermediate agency subsequent to the
wound which in fact deprived the deceased OF life. Thls
s most interesting and delicate question so lar as the
Jaw is concerned, which Is not without authority IN
other States and other cases. yet which has
received, that have been able lind, the confirmation
Of Inc apDeate Court In this State The only case that
has fallen under my observation is One IN which the
learned ChiefJustice OF this district had occasion
10 9 to show that The deceaseds dc1h was ac
tolerated by the medical treatment that he received
Now il Is claimed on the part of the defense in this
is, "A
mine that after Fisk received this wound, and the
cOrre OF the following evening, about O'Clock
OF medical treatment was begun by administering NOR
phiue first by the mouth and subsequently by injection
nuder the skin, and that by OF that treatment
and the want OF proper and the administration OF
excessive doses OF that vegetable poison Fisk killed
by It's operation, and not by the wound which the
going through It, for I shall not ATTEMPT 10 do that
me evidence on the subject given by the several
learned doctors. DR.. Fisher describes the quantity
that was given to him. the intervals at which was
given, and the time when the administration OF the
medicine arrested, at which, after. he mani
tested symptoms OF ITS having taken effect upon his
System. The substance OF his testimony ls that IN the
various doses given by the mouth and tha two doses
given by injection under the skin. an aggregate, he
phine had been administered. The learned counsel
Tor the defense set the amount, j believe, az
greater quantity but In that believe he was mistaken
You Will remember the testimony Of Dr. Macready, the
although DR. Fisher states the amount as equal to q
grains, vet in its power and effect upon the de-
ceased 1t was, as claimed equal to a considerably
question for your consideration in determinng-that
becomes inportan-as 10 what was the amount actually
administered.
REsPoSsmLrrY OF DOCTORS
Now upon this subject it is claimed by the prisoners
counsel that testimony OF te physicians shows that
the wound which Mr. Fisk had received lwas not
sary fatal Several witnesses. IN TO that direct
question, responded in the negative, giving their
opinion that the wound necessarily fatal baslng
their opinion on cases which had fallen either under
their observation which they had read OF reports Of
cases where recoveries had been had from similar
de pe ell
weight of those opinions as 70 whether or
not I 6 TO But eg onSb as matter
course looking at that evidence TO see for your own
satisfaction whether II was che intention OF those gen
temen TO express opinion Of that particular
TO the probabilities OF recovery or whether tDey were
having an opinion which amounts 10 nothing more
less than an expression Of possibility. Because re-
eOyeTy extraordinary cases was recorded In the DOCKS
that have been known " the medical profession. 1t
NAV NAV follow. perhaps, as logical deduction that
because who IL injured by q wound
we Ga4 to he that OF rR Sas om
the wound there was possibility IN TINS case OF re
gone expressing opinion has been the evidence OF
Dr.. CarnOchan, who said that he should expect re-
covery IN this case had he known the condition OF the
wound It's extent and character the night before tine
death. whether he meant to have used the word ex-
est hope on his part. or whether he meant to declare
that the wound was of such a character that
there would probably be a recovery, submit
altogether for your constipation On the
wound as inevitably fatal Dr. Crosby expressed his
opinion based upon the postmOrtem disclosures OF the
character OF the wound well as upon the symptoms
manifested by Fisk prior TO his death. that the wound
fatal one from which 10 recovery could justly
have been expected The substance Of the testimony
the part Of the people, far IL relates 10 ques
tan to be found IN the expressions Of those
tors OF the opinion that the wound fatal one aud
the part OF the residue OF the doctors called in the
that in their judgment 1t necessarily fatal
because recOveres have been had in OF OF
similar character, affecting the organs OF the
body might add here that, in connection with the
testimony, get from some Of the doctors tabular
statements Of the mortality attending gunshot
wounds Of the abdomen involving laceratons OF
the tnvestines " during and
daring some European Those tabular state
ments differ pretty largely in the percentage of recOy-
cry the one-the European taDes-substantialy being
that 90 ost OF 100 with wounds IN the ntsstnes die