National Republican. (Washington City (D.C.)) 1872-1888, 1873-01-25
O'BRlEN.
TIT! CASE ON APPEAL.


Win MS vile AMI mOthet, were IN court lnefP
has been most decided change In the appear
ance and bearing Of OBrien since he was last In
court. The confinement Of the prisoner has
palcd his complexion, and the say situation In
which he has been placed seems to have taken
the life out Of him. The firm, resolute move
mcnt, the quick, active, searching eye, have
given place TO quiet mien and fixed glance that
seldom changes.
Mr. Harrington appeared for the United States
and Mr. Riddle for the accused.
srArENEST or FACTS
/ hal been agreed TO by the counsel:
! The defendant was indicted by the grand Jury
Of the District Of Columbia for the willIul nuf.
der ot one samuel Cunningham, alleged To have
been committed on the 18th day VI July, A. y.
| 1874, upon which indictment the defendant was
! afraiEned, and to the sane plead mot guilty."
and Tor trial put himself upon his country;
whercupOn the counsel for the United States, Ia
maintain the issue upon their part Joined, gave
evidence tending TO prove that there was
| Springs, At which many people were present;
| that samuel Cunningham and his wife were
| there, and that the defendant, who was q mem
/ her Ut the Metropolitan police force, was also
! there, wearing his uniform, and having his baton
aud badge as such police Oficer; that on the
! ground at Green Springs there Is q hlr-roOm and
! pavilion, separated from each other by dis
lance OF from atty to one hundred feet; that he
/ tween the hours Of nine AMI ten on the Aforesaid
evening the defendant (OBrien) and Mr.. and
Mrs, Cunningham were cOnversing together In
the pavilion, and the defendant said he was going
! to get q situation for Cunningham upon the
/ reservoir on the hill; that defendant and Gun
/ ningham left Mrs. Cunningham and went away
together: that Mrs, Cunningham remained In
/ the same place where they left her until
defendant came back, In about fifteen min
! utica. Mrs. Cunningham testified In sub
| stance that O'Brien then stated to her that he
wanted TO see her alone; that II lay with her
| whether her husband got the situation, and that
! II he got II for him he should expect to he IA
yored by her; that she asked him what he meant;
he replied that she need not put on any of her
damned airs; that other men had had privileges
/ with her, aud he might, II he had chosen; she
| told him that she would inform her husband Of
/ what he had said; he replied she might do so,
and give his name: She also testified that she
I called her husband to her, and Informed him Of
what O'Brien had said to her. and that she and
her husband then went to O'Brien; that Cum
bingham asked O'Brien u he could prove what
! he had said, aud he told Cunningham that he
! could prove that men had been with Mrs. Cum
bingham alone; he said he hal called to see her
alone, and cunningham asked u that was not
when they lived In one room. Cunningham said
| that his wife was ~ good as OBrlens wife, aud
] that there was as much said about your wife as
there Is anSat mn, 9a heT GGoS ~
! TO see her alone about the business on the
/ Ill., aud that this was all that passed In the
conversation with 9,Brlcn upon that subject.
/ to prove that cunningham soon after this con-
planned to Lieut. Essex, an Officer of the Metro
| poltan police force, who was there on duty, that
the defendant insnlted his wife; that at thai
moment the defendant was coming from the
pavilion to the bar-ronm, and when near the par
lies last named. Lieut.. Essex advanced toward
mean by insulting ladies?" that the defendant
replied, Che had insulted no one"
When Essex Informed MIN that he was charged
by Cunningham with insulting his wife, that
defendant then turned to Cunningham and said
"t you say ] lnsulted your wife, you're
a liars" that Cunningham made some reply,
which ESSEX did not hear, In an angry
manner: O'Brien then said, 81 can prove
your wife Is a who're, that CUNNINGHAM
YOURS Is one too" that defendant then struck at
Cunningham. when he fell: that Essex grabbed
at the defendant and toll him he must behave,
and then took the baton and badge OF the defen-
dant from hun and ordered him to 70 TO the
house Of Mr.. Ehfmantraut, located about one
hundred and lfty feet distant, aud go home with
for him, and that he went there. And Essex
further testified that defendant became greatly
excited when cunningham used the words about
his tdeiendants) wife, but that when he left to
70 to the house he was apparently cool and calm,
! While at the house Of Ehrnantraut several wit
nesses testify to the conduct Of defendant; one
SAYS that he was not excited, others that he was
very much excited, and there was also testimony
to the effect that he talked rudey to his wife,
who was there. Three witnesses for the United
states testified to rhe words nrst used by the do
PENDANT about Cunningham, and one OF the wit
nesses for the prosecution testified that he was
present when Essex called OBrlen, and that Gun
ningham came and said "you called my wife a
whore" O'Brien said che could prove her 40, 50
and Cunningham said that O'Briens wife was 80.
one Of the witnesses for defendant testified that
In about i've minutes after this occurrence he
saw cunningham, who said he was going to Nil
the id -, meaning the defend
ant, before he left the ground that evening, and
that he, the witness, went TO O'Brien aud In
formed him Of this threat IN four or I'VE minutes
after II was made; that defendant then inquired
for Lieutenant Essex, and was Informed that he
was at the pavilion; that the defendant then
started Tor the pavilion, passing in the rear Of
the har-roOm, the best way 10 avoid the crowd.
And the prosecution gave evidence teading to
hat tNt a - NVaa U.I.
from the time that the badge and baton were
taken from the defendant by Lieutenant Essex,
the defendant meeting Cunningham at or near
the entrance Of the pavilion, sald "NOu say my
wife Is a whore" and Immediately nered pistol
at Cunningham, shooting him In the head, and
tho hail, entering over the right eye. Killing him
instantly, ami then fired q second shot; several
Witnesses who testified they were there and saw
what took place, swear that they heard no loud
talk. and that Cunningham said nothing before
the pistol was frcd; on the other hand the de-
fence gave evidence tending TO prove that Cum
ningham was standing near the entrance Of the
pavilion when defendant was coming toward 1t,
damned whore" and "thCrc IA the -
now" that Cunningham was about two pACcs
from defendant; that cunningham made KIND
Of turn round toward defendant and "sOrt OF
put his hand hchlnd hlm;" then O'Bhen nre,l
The fatal shot; II was IA evidence that the
parties had been on friendly terms previous
To this transariinn; that II was usual for POI
licemcn AMI the habit Of defendant to carry
= pistol; the previous good character Of thu
defendant was admitted by the prosecution;
l the defendant 10 IN person Of more than ave.
| rage weight and strength; the deceased was
! small and slender: the defendant also proved nv
Mrs. Essex. wife 81 Lieut.. Essex. and Mrs. Nolk-
man, that at about nine or half-past nine n'rlOck
/ they sat In the pavilion, and that near them sat
/ cunningham, Mrs cunningham and the defend
ant, apparently In friendly conversation, and
that they continued II for from half an hour to
an hour, when Cunningham got up and went
out, leaving the defendant there; anil they also
swOre that previous to thls they saw Mrs Cum
. uIuUhnm around with D'hFau fnF m
and apparently on very friendly terms; that the
defendant further CAV evidence tending TO prnye
that Cunningham did not complain TO Lieut.
Essek for an honr and half or two hours after
the alleged conversation IN the pavilion. testified
10 by Mrs. Cunningham.
lne defence had on his trial excepted to the
everything Of the following prayer:
I. n the jury believe that the defendant, at
the time OF nTing the fatal shot, was labOrlng
under such degree OF excitement arising from
the ProyOcatlon received ~ not to he master Of
his understanding, or " they nGye y reasonable
doubt as to whether the defendant had dellbeT-
ate or well-formed Intention TO take human life
At the time NJ frng the fatal shot, their verdict
will be only granddaughter.
2. And the counsel for the defendant again
asked the court 10 say to the Jury as follows
via: That II the Jury believe that il was The uni
Vgrzal custom Of the policemen In the discharge
Of their duty to carry pistols, the mere fact that
the defendant Killed the deceased with one can
not aggTayute the crime TO murder II Otherwise
II would he nAnslaughtcT.
0. And the counsel for the defendant again
Ashtu ANt NbuiN hal W tue Jury dN ltlONN, VIZ.
That II the Jury md that the defendant believed
that hts life was In danger hut they further ind
that the reasons for that belief were not sum.
Cicnt and reasonable, still they cannot md MIN
guilty OF murder, but must bring In u verdict OF
fnAnsaughter.
And also to certain portions Of the charge Of
the Court.
Mr. Riddle argued with much force and yIgor
against the rendering OF the Law as given by the
court below.
The government argued that It was shown
that at no time during the evening did the
deceased strike the defendant, but the only
pfoyOcation gwen the defendant was hy woris.
Words Of fepruarh, however greynns, are not
SUFFICIENT to Tree the party killing from the guilt
Of murder nor are provoking actions or gestures
without an assault upon the person,
custom whereby policemen carry deadly
weapons confcrs no right 10 use pistol except
I IN proper eases.
The case was not concluded.
The Shuster store Case.
James Adams, one Of the men charged with
robhing Shuster's dry goods store on the 18th
/ inst, had hearing before Judge Saell, At the
Police Court, yesterday, and the PRISONER pleaded
not guilty; Nc. Harrington Tor the prosecution
/ aud A. u. Williams for defence,
| sergeant vernon testified that he went 10 Shus-
tet's store and looked In the front door aud saw
| two men with goods In their arms max ing tnwar,ls
fhn haa ma ha - :