The New York herald., 1874-12-13

.
These men met Borst and Costello; Whatever their
secret purpose may have been we know not !;
whether lawful or unlawful we know not. AS Iar
as the evidence s concerned. as far as IL ought to
were dong nothing at that moment unlaw-
arrived. Borss @ says p' that tearing % % aistur,snce
ne oeckoned 10 O'Brien and U'Brien came MP, and
aSs poR seaus ses
who fred the nrst shot, the second or third shot
all after that IS invQived In connict and In the EN-
great numDer OF Witnesses who were themselves
excited. The other fact about which there is no
armed, and that at least one Of their pistols mas
been made away with after this occurrence or
during Z; because i IS an undoubted fact on the
each Hickey ana Sheridan having one,
and T. is an unaouo,ed fact saat
soss cxsy a ss ose nom
so that the pistol which Henry Hickey had was
removed; and If you believe the testimony, W.T.
then his pistol was also made away with, because
the pistol finally discovered had but one chamber
had but one chamber DISCHARGED; II not, then It
must have been that one had two pistols, but IN
W SO SeeSe
been made away with. Now It appears that In the
anc II appears that the witness Craig came rum
nlng IN ana ana made made ar an % accusation that the
is, II you believe the testimony or the
witness Craig says that ne never made use OF the
word "cousin;'' and II would appear from The
testimony OF that witness that an accusation or
murder was made. Now all the rest, except the
circumstances to which have called your atten-
to make about that is this-you are the final
aroters In reference to the credibility or the wit
nesses It does not follow that the preponder-
Ance OF evidence depends upon the guam
the testimony Of one witness against the
0eSS09 III.
bic IN ITSELF or which py the light OF the surround
ing circumstances cannot be believed. You are
to Judge Of the witnesses BY their appearance
upon the stand, their manner OF giving their tes.
timony, their seeming frankness or otherwise,
or 81 nss
follows that Witnesses commit perjury because
twenty OF thirty having seen an occurrence
the contrary, that suspicion would be more apt to
be raised In reference TO the witnesses II they all
having seen an occurrence shall come In and tell
d hair ID lheir account, II would be. In my judg-
to show that the men had been scncoled together
and induced to give their testimony in partic-
turai ,n.periections which attend US all. If We
have referred, It invariably happens that there is
witnesses and that there s always conflict In ref.
eren-e 10 minor details Of the case. II is natural
as 10 the credibiiiy Of the Witnesses, s wnether
their stories in your udgment as sensible. inteIli-
gent men, are plausible and reasonable, and credi:
reSucea nave Quantity s usess sssa
a quantity Of where al otser tSass
are equal. 1t generally happens alter ALL that no
matter what the quantity Or quality Of the evl.
speaking from an enlightened reason ana tue
honest dictates Of their hearts, arrive at
main
in each case Is TO be got at And that one great,
main fact here Is whether the prisoner at the bar
and in measure likely to determine 1t.
is the question whether ne had pistol or not. If
chatn OF evidence against him. II he had no pistol
at all on that occasion he Is absolutely entitled to
acquittai because he could not fire the shot with
out one. II he had pistol 1t does not absolutely
follow that he fred the shot but II he had pistol
and concealed II that would be a crcums tance to
the question, whether it Would be BE- likely II a
t, he would have made away with IT,
Now, gentlemen, II you come to the conclusion
that the prisoner at the bar had no pistol and did
nre the fatal shot he is entitled to acquitta
he aid re the fatal shot the question then arises
as to the measure OF his guilt. feel bound to say
to you THAI ander no circumstance Is this case OF
murder in the 1rst degree. There Is nothing
whatever the evidence to justify the idea that the
fatal shot was fred with deliberate and premedi-
mands before that verdict can be rendered. The
question, tnen, arises, Was it murder In the sec
ond degree I The law says that murde,
from deliberate. and premedtated design
70 the death Of the person Killed or
qured the prosecution to show premeditated de.
sign, and the Conrt held thar II MAN Intended or
tated, ana men were executed who had formed no
previous deliberate purpose. That law was
amended BY Inserting the word .deliPerate," with
der In the lrsU degree where the purpose was con-
tempora1eoas yit1 the firing, where there pad
9een no elements o. previous malice or ia anything
degree-such killing, unless 1t be murder in the
first degree, where perpetrated Intentionally,
II you come to the conclusion that ne dred the
question Of ntent Was VI y his Intention to take
judges OF intent. The law no longer infers intent
rs legal inrerference; 1t Is always an interfer-
the na a m m o
deceased It is ior you to say whether or not he In
tended to take life. II You should come to the
lie 1t Will be case OF murder In the second de-
gree II the shot was fred without intent It
tnrd wscS o. m 70 1
as the Killing or another in the heat
Of passion by dangerous weapon, with the
where death ensued, but where there was no in.
tent 10 take liie at the time It happened. The
not re I the sta Shot Scn caused the @ death M Of
McKenna he IS entitled to your verdict OF not
guilty ne did fire that shot, and with the intent
TO lake the Lille OF John McKenna, your verdict
should be murder in the second degree; II ne fired
the shot IN the heat OF passion, without intent to
take the life oil John McKenna, your verdict should
be granddaughter in the third degree These are
all the observations think 1t necessary or i'm
portant to make to you, with the exception Of one
other. The prisoner Is entitled TO the beneht, In
all cases. oil reasonable doubt in the minds of he
jury. need not say to you that II must be
o reasonable DOUBT, doubt that is born
OF honest, earnest and serious thought In all
cases, ana on o case like the present as much as
any other. The doubt must not be capriclOus or
unreasonable or light IT must not be the result OF
carelessness or Intellectual ind0lence or thought
lessness, but must be the result OF sober earnest,
thoughtful analysis of the evidence. II, alter the
jury nave given attention to the case, they as
honest, enlightened and intelligent men, should
be unable to arrive at rational CONCLUSION, satis
factory to their minds and consclences, they are
bound 10 give the prisoner the seneht Of, that
reasonable doubt. The case is now in your hands.
1t Is all important that Jesuit shonid be arrived
at important to this prisoner that he should
have speedily his liberty II he Is innocent; import
ant to the people that he should not escape
n ne is guilty, and important TO ns all. You
nave Qtven the case patient attention. 1t has