The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-02-18
MANSLAU GHTER.
THE SIMMONS TRIAL ENDED.
Summing Up by Counsel and the
Charge to the Jury.
A Verdict of Guilty of Manslaughter
in the Third Degree.
SENTENCE DEFERRED TILL TOMORROW.

The general impression that the trial In the
Court OF oyer and Terminer OF John E. simmons,
for the alleged murder of Nicholas w. Duryea,
would be concluded yesterday proved to be cor.
rect In such anticipation the court room was at
an early hour densely crowded, while a greater
crowd than on any previous day thrOnged the
outer hail and vestibue. The prisoner showed the
same unconcern, and was accompanied, as hereto
fore. by his wife, child and brothers.
Alter Judge Brady had taken his seat on the
Bench and the counsel on both sides had shown
their readiness TO go on the days work began.
MORE REBuTTING TESTIMONY.
The days proceedings opened with the calling
by the prosecution of more witnesses in reDuttal.
Augustus c. Fisher was first called. He testified
that IRON pretty long acquainta lance he knew that
Duryea was aquiet respectable and peaceable man.
Francis jenkins, DR.. Nelson Tucker, William II.
Little and Elisha Crowell testified to the same
thing.
All these witnesses were closely crosse Xamined,
but they could only testify as to Duryea's general
character, and to not having seen him drunk.
DR.. James Brownlee, OF Port Richmond, had
known Duryea for the three years prior to his
death; all who knew him regarded him. so far as
witness knew, as one of the best men in the CON-
munty On his crOss-examination witness said
he did not know that Duryea led two very different
lives-One at home and the other abroad.
Nicholas Van Pelt, President OF the village OF
Port Richmond, said that Duryea was a good citi
zen at his home while at Port Richmond. None of
these witnesses had ever heard Duryea's character
discussed. Talbot Butler, livery stable keeper at
Port Richmond and Abraham Laforge, grocer
there, gave similar testimony.
Sidney +. Rawson District Attorney OF Rich
mond county, knew Duryea we'll ana knew him as
good citizen; had heard him spoken OF by others
as to his peaceable character, but could not re-
member particularly the conversations. He had
heard Mr.. Jewett and others canvass Mr.. Duryea's
character and speak well of him.
George d. Allen, OF No. 81 Liberty street. was
called to show that Duryea had business there on
the evening of his death; but the testimony was
excluded as it was not intended to show that
Duryea had business at Simmons ONCE, at No. 81
Liberty street.
Mr.. Rawson was recalled and testified that he
had sometimes seen Duryea under the influence of
liquor, and that he was not then quarresOme.
The above closed the testimony, and when the
fact was announced there was general sigh Of re-
lief all around
SUMMING UP FOR THE DEFENCE.
Mr.. Graham now proceeded to sum up for the
defence. He began by calling the attention OF the
jurors TO the fact that they were in the grave po
sitiOn of arbiters OF human life or human liberty
They were to pass upon the question OF the sacred
right OF seli-deence. II IL had not been for reck-
less desperadO's attack on the defendant the de-
fendant would not now be awaiting their judy
ment. For Simmons not to have resisted in the
way he did would have been TO prove false to his
duty to himself to his wife and to his family. 1t was
too much to expect that he would commit virtual
suicide by submitting himself tamely to the nfuriate
power OF his bitter enemy. The question in this
WIG fla IL Jt
would not need atrOcious assault to justify O
homicide; any first assault, even with the fist, in
tended apparently to severely inure justfes
defence that may result IN death. Men furiousy
assailed are not to be expected to nicely dscrimi.
nate as to their exact danger. II appearances
warrant belief Of imminent danger a defence re-
sulting in death would be justifable. man as
sauted with an imitation sword or pistol or an
unloaded pistol, has the legal right to
resist to the death, II he believes he
gerous weapon. II Simmons, knowing Duryea
to be dangerous man and his bitter enemy, had
reason to believe that Duryea mad a deadly
weapon Simmons was more than justified In taking
Duryea's life alter Duryea had acted as though he
had a weapon, and had then mrioasly assailed
Mons unprotected, afterwards endeavOred to pro-
tect himself from the deadly assault OF Duryea in
oe on the Whole OF the
the charge against simmons they must give him
the benefit OF doubt as to his guilt and acquit
him. AT the worst, there could not be shown pre-.
medirated design or intent on the part OF SIM
MONS and thus IN no event could this homicide be
shown to be murder in the first degree. He asked
the Court specific Instructions to the Jury as to
ustif able hOmlcde that If the jury believed that
the prisoner inflicted the mortal wound ON the
neck OF the defunct, ana that at the time he had
reasonable ground to believe that he was IN dan
ger OF great personal injury. the homicide was
clutched the defendant by the throat, throwing
him upon the ground and breaking his leg-if the
jury believed That the defendant did no more
der the circumstances than was needed to extrl-
cate himself from the grasp OF the defendant then
the killing was iastiaable An honest belief by
rendered the circumstances the same as
though he was actually armed. If SIM
mons ms 10 the pc ITO and
which had made him helpless by the breaking of
his leg, was not in condition In which he could
from an opinion OF Judge Mullln that it would be
madness for man not to go armed after threats
from Duryea. The latter mad Throughout that day
contemplated this attack and had prepared HIM
self for it by course OF reckless drinking. Inc
idea that he was going to lodge that evening was
a fabrication. Mr. Graham traced the course OF
Duryea during that day before going to Sim
mons office Infatuated by the drink he mad
that Duryea had steady purpose to kill
the defendant. what was the character OF this
man when he went that evening to No. 81 Liberty
street, The testimony or the witnesses was that
Duryea, when IN liquor. was more a brute than a
ulin-eACeculuSly NlOieuJ, QuaTFelSOme, desperate
and infurated. The evidence OF the ARRAY was re-
viewed, and simmons, 1t was urged had no idea
OF the extent OF the injuries he had innicted until
sometime AFTER that he was underneath MS assai-
ant when the mortal wound, by the severance OF
the fact that he was completely saturated with
blood emptted upon him rom the wound
The Court at two O'Clock TOOK O brief recess. and
on the reassembling OF the Court MI. Graham re-
sumed his summing up. He began by reading coptOus
extracts from the INMATES Of the evidence with
view OF showing the hostile nature of Duryea's
visit to the prisoners Office, and that Duryea's
OBJECT was TO carry out the threats against the
prisoner which he had uttered to Mr.. LOmis, and
when ne invited him out to drink. The prisoner
was perfectly justified In replying ~ won't drink .
with you" He had heard or Duryea's lar
euage about him and was not bound to
give up all his manhood. He told Duryea
that ne was going out to go home" Duryea
walked out and was standing on the sideTalk and
simmons could not see or know he was there until