The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-05

LndL WOuiu ESTABLISH the uSSuIueu ldCt tHdJ LntEo
were two pistols, one OF which was In the hands Of
Fisk. You WILL therefore, first OF all, determine
WHETHER THERE WERE TWO PISTOLS
there, and il you find that Fisk had no pistol, that
there was but one pistol and that the one with
which the prisoner innlcted the fatal wound, you
% nave s aca Y 9a the grs
himself from anything that the deceased was pro-
posing to do or able to do, and was more actuated
because there could in that case have been no
great danger to the prisoner, he being armed and
at safe distance, and II was easy for him either
such as it was in the power OF the deceased
to make, and, consequently, II he failed to avoid
the conflict which he anticipated, ana had to kill
Fisk at the time when there was no assault upon
himself, endanRering his life or threatening any
great bodily harm. he stands, in that event, unde-
Tended before you. But II you fnd that there were
two pistols two questions will come up before you
for to whether the prisoner,
WHAT he Could %as te to
avoid the conflict 1t WAS his duty, II he
anticipated conflict to avoid 1t as long as
And II he saw Fisk coming up with pistol in his
hand, which was not raised or pointed at him-lf
1t was practicable for him to get out Of danger and
withdraw from q conflict he saw appr0aching-it
was his duty to have done so rather than to take
other means and to effect the killing. But II Fisk
in situation that he could not escape a
conflict with him without exposing himself to
continuous instfsS s. and greater danger he would be
intended to shoot HIM; then and not till then was
here proceeded to deine the law applicable to
murder In Its various forms, enumerated the heads
conclusions and explained the theory OF the prose
cutton so FAR as It was based on the perforatl0ns
made by the fatal bullet In the clothing OF the de-
ceased; he instructed them that the silence of the
prisoner when arrested and confronted with the
deceased was not q proof OF guilt. Neither
been made by him or by those who surrounded
him. for 1t was easy for him or other persons un-
ger such excitement to say foolish or false
thlng or to misunderstood what was said. There
were two shots fred. According to the prosecu-
ton the first was the fatal shot, That the prisoner
knew this, and that Notwithstanding that the dis
tress OF the deceased evinced that all danger to
himself was removed, which the prisoner ioresaw.
or thought he oresaw, he, with continuous malice
lch passed through the arm Of the deceased.
1 Inc prisoner says that this was all done on
TN the n instinct Of the moment, and that
had an opportunity OF witnessing the effect OF his
first shot. All the witnesses indicate that there
shots. II you be OF the opinion that the prisoner
nred with premeditated design to effect the death
OF FISK and without being in any danger from
MIN, or without believing himself to nave been in
danger nom him. and that there was nothing to
excite reasonable apprehension OF such danger,
necessarily ind him guilty Of would be murder in
the erst degree, unless you might think from all the
circumstances that 1t might be
MANsLAUGHTER IN THE THIRD DEGREE.
You are, therefore, to inquire whether the evidence
In this is such as shall satisfy you that there
was conflict between the parties in which passion
was reused, and that In the heat of that passion
the prisoner fired without reflection or premedita-
ton or design Of taking liie. Upon that question.
great danger to which the prisoner was exposed
and which would justify him in the shooting OF
FISK, does the character OF the deceased come
before you at ALL and only so far as this does 1t
show that he was the man OF personal violence,
man who would by his own strength or bOldness
innict chastisement upon another, and who would
undertake In DergOn the DuniShment of indi-
vidual to whom he was hostile, or murder him, or
innict any indignity upon him whatever, for If
TO the prisoner, and that they had collision
under circumstances which led the prisoner to
believe that FISK was about to shoot him or do
the other facts Of the he would have right to
act on that knowledge and to assume what he
knew Fisk was coward and II hostile spirit was
exhibited in menaces towards the prisoner. In
His Honor, after explaining the nature
titled, said: II hope and do not anticipate that
there will! be any disagreement in this case. The
Is grave and serious duty which the law ' i'm
poses upon you. The prisoner is either guilty
and should be punished, or innocent and should
ay %ouyS Gq Ss 70 sn Ha sc T o Mus
tice In one form or another and therefore, thing
the 'S fact ered in Evidence thas the case was
once tried before and that the jury failed TO
agree. 1t would be misfortune II you, also, failed
when you retire, to divest yourselves Of all outside
feelings, opinions and prejudces, ana con1ne your
selves solely to the evidence, and render your ver-
dict, after mature elaboration, conclusion and ar
gument, az snail seem to you just and right. II you
are the honest and intelligent men believe you to
De you VIII 40 what suggest, and submit the
f Mr fSems tSeH rose Ana took exception to that
portion of the charge relating to third theory-as
to the pist0l-which was not suggested by the cOun
sci. Exceptions were also taken to some other
points, especially to His HonOr's refusing to change
the Jury IN the exact words Of the propositions
submitted by counsel for the defence, the Court
deeming IT safer TO read on the points raised from
Inc jury then retired the Court intimating he
hours
THE SCENE IN COURT.
deepest attention by Counsel on either side, by
Stokes and his relations near him and by the audi
ence, undimnshed in number and greatly excited
him who was the cynosure OF all eyes and the SUBJ
ject OF comment to all, as to how his fate might
turn On the charge uss delivered and on the de-
the law consigned. There was little comment
INDUCED in on the charge ITSELF or In what way 1t
to the prisoner. 1t was not charge to crticise;
II was brief considered just, perhaps, under the
circumstances; but It was admitted that
ter in the third degree, giving rise in the
minds Of the audience that after all the jury might
or o he
was, however, far different. After some requests
to charge, or exceptions taken to portions OF the
charge by Mr. Trematn referred to in the proper
place, the Jury retired. There was then Q general
Uprising OF tie audience, played out by their long
sftting stretching OF limbs. an adjustment OF
headgear by the ladies', a Selling OF overcoats,
and a general stampede towards the DOORS
until the stern mandate OF the ON
GERS insisting upon all remaining in their
places Tor time. The prisoner and his guards
have, properly, the right Of way in this case, and
until his removal In custody none are allowed to
leave the room. Looking around IL was noticeable
that the interest or the morbid desire to see the
affair out for the night actuated great many, who
retained their seats, determined to await the
ually all desiring to leave for while got away the
majority remaining to discuss the proceedings OF
pressi0ns.
WAITING FOB THE VERDICT.