New-York tribune., 1874-12-10

craig was the urst man who spoke to him.
Mr.. Clinton then called sttention to Q number Of
authorities: and said that this happened after an the
other associaiions It was o most uncertain KIND OF
testimony. more dangerous rule. he said which up
sets ell the reasoning OF authorities upon the subject.
than 10 admit testmony under the circumstances rs
proposed II this s part OF the rec Gesta what hap
when the deceased had had opportunity to hear what
declaration based on what outside persons said aud
not on his personal KNOWLEDGE
Mr.. Phelps answered, denying that the authorities
quoted by Mr Clinton met the case.
Judge Barrett then gave his opinion as follows: 60
ons have no donb whatever that they are not within
the legal rules which govern such matters; that they
are or are not admissible as part Of the res gesfd Is
more difficult one. The principle upon which such dec
are substantially part and parcel Of the recurrence al
though not directly yet substantially They are admitted
as species OF exclamation or nterection proceeding
from the injured party, while his nature is yet con-
yused so TO speak by the occurrence before there has
natural composure. and rather difficult at all times
" Draw tie line between what an exclamation or IN
teIjeeoD In Ibat sense. and what Is narrative OF the
event 1t niater which must be determined by the
peculiar circumstances OF each case. Judge Barrett
then detailed the facts elected and said that what
be eSto the question MS 70 VINO shot hD,
after eeen minutes had eaps ed since the shoot
1 think. he continued, that this comes within
the definition OF narrative, rather than exclamation.
pouring Of convulsed nature, still excited, still wild
either claiming protection or demanding assistance IL
that he SSs Injured d. whO Is Ssn and @
think that 1t would be dangerous rule 70 hold
OF the aud as such is part Of the res gesa
It is dehcate doubtful thing. but think, con-
we be too careful 10 sD gulsh between what
narrative and what is ejaculation and unless case
pouring OF the Injured person. tnat the true course s 10
exclude 1t. therefore feel constrained 10 exclude the
evidence.
TESTIMONY OF DIR. MARSH.
Dr. z. G. T. Marsh, VINO examined the body OF Nc
Kenna the day after the DEATH testified 10 the wound
which caused the dea:h-a hole made by bullet-whch
he found right side OF the head, about two inches
above and behind the ear; the bullet was fonnd
imbedded on the left side Of the brain technically
McKenna died from extravasa Ion OF tue pood over ne
BRAIN the result of the pistol shot, toe ball, IL had
tue place the left side; the pistol must have
held right angle to the rgdt side OF tue head
out OF the line Of vision Of the shot To this Mr..
Phelps objected, ana the Court sustained him. Inc Dali
black felt hat was then produced in court. which
bore evidence OF powder around the mole III ts sde
but as IL had not been Identified thar worn by Nc
Kenns it was not evidence. The bullet also was
SHOWN, hatteDed in Its passage
TESTIMONY OF EDWARD DowNEY.
Edward Downey then recalled, and in his direct
examination said that he did who shot McKenna
He saw persons with pistols in their hands before the
shot vas heard On looking around after that he saw
something shining in Crokers hand about Two inches
long, but did not see what Croker dd win u. ,.,
Mr. Clinton examined the witness at great length
with regard men who were supposed to be In tie
district in OBriens interest Ine witnes: said ne was
trey his volition but did not cooperate Win
any gang, with OSney Geoghegan, " Dan the DOG
g. Rtner re uctaDtly 1t would seem, he told about
night early the morning between Lake casey, qu1r
uealer, and Larry OBrien IN when ,he ttteT srack
tIe former and was taken away III custody. He Was
questioned regard to the movements Of GeoShegan,
Borst and others at susn enen as 10 oaas1 ie s
mouy sought all Important and tnat he had rght
TO show tuat tn SO witnesses were engaged tnat
ming in
not iu the interest OF OBren. At this the witness
indignantly called out "No, Sir deny H." calling out
rPeaf Iauger from those around aud severe rebuke
from Judge Barrett, both 10 himself and the audience
Mr Cmtnn continued that they had the right do
first for the purpose of breaking down their credbi!iy,
and again for another purpose which would be shown
me circumstances OF the ARRAY SUBSTANTIALLY pre-
yious witnesses had done. He ddnt hear Brlen say
anything 10 Croker, but heard Crokers remarks and
slw Que blow Dy eacn. They talked about three Inln-
ues He didn't them have hold OF eacn Other Ile
pext thing he noticed WAS tnat George Hickey was de-
claring nm a Ioud voice that he would Int any man
that hit that man" Hickey was then further east than
OBrlen and about on level with CROKER on tDe slue-
walk. TDen the next thing he observed was nearing
shot and seeing man fall Inc man was rignt 40 front
Of O'Bren and Croker who were tnen IN tue street,
though he had not noticed when taey chahseu 'nen
TIe witness did not 60 MeKenua after he fell un
the firing was over Mcktnna tc win MS IecI ABOUT
five feet from the cuTD, aud fell toward the south after
firing over he went up To Mc chenha ana neiptu
other persons got ncre before hlm ms
Shots we're red the witness entered tile hallway of he
oyster saloon TO get out OF range lie was there
bnut three or four minutes he then started out ana
lust then shot red ana ne rereated after
one shot was fired he eame out and helped PICK up
McKrDna; he saw pistol from hrs TO lass; when lie
came out hall way Croker was near tue car track
opposite Murphys qloT store ta't was Dne n'' as s
theu holding his hands. as If with pistol after the
Sot was red 0Bren wss aTSI Ds - nee se ncs sou
were there first blows were nterehangeJ at
least three or four Officers were e Se1 % a ,e w s
Hogan OF the Eighteenth Precinct aud Ohcer s.nytne
the Twentyrst Preclnct they were near enough 10
touch the opposing parties
TESTIMONY OF STEPHEN oBRIEN.
stephen O'Brien. brother OF James O'BrIen who was
present at the shooting. was the next Witness lie con-
tradiced himself several times In response to questions
by Assistant D!strictAttorney Rollins, he said that
while standing at Thirtyffthst and secondave on the
aTound the poll in the XIth Election District; he
started for the place. and saw Croker meet nus brother
nsn men he heard tbe words "repeang'' aud sucker'
when they had separated after slrikins MeKenna
came running IRON Murphy's corner, ana stopped
his bands up. and the shot went or and he fell down
McKenna was about five or six feet from
Greker; Croker "1S the witness
os'ien ss no N'Ids pistol nniil after MeKenna was
~ his hand with his hand before him; the first shot
fired WIS he fatal one; aflerward the witness saw
ipnSed: thought George Hickey took Croker's pistol;
after Mc4lenna fe went toward him to PICK nun up;
when Hickey ordered me away with an oatn; looked
around for with which TO defend myself and
picked up stone; McKenna fell, aud George Hickey
took the pistol and toward the mi idle OF the
street, aud then pointed the weapon at Mckenna's
head out don't know whether he fired or not think
George Hickey fired at the fallen mans Henry Hickey
fired three shots me; Henry Hickey shouted out,
"Shoot those fellows" aud said shoot ue partcu-
larlv.
On the by Col Fellows the witness
said that he on the avenue before the ngnt Oc-
cured. but neither Owney Geoghegan. Borst, nor
Michael Costello were with him. Earlier IN tne day he
mad hign words and blows with a man named Michael
Costello and little later had trouble with another
man When the blows struck his brother was
conp toward Thirty-fOurth-st. and Croker facing
partiy toward Thlrty-thirdst. and the curb HIS
brothers back partly toward Croker when
the Latter struck him. George Hickey behind
Croker when ne pistol and little to the rignt
of him Croker facing toward the oyster saloon.
'Hrlen continued: only think Croker passed his