New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-02-18
SIMMONS CONVICTED.

SIMMONS CONVICTED.
ARGUMENTS BY DIsTRICT-ArToRNEY PHELPS AND
MR.. GRAHAM-CHARGE OF JUDGE BRADY-vER-
DICT OF MANsLAUGHTER IN THE THIRD DEGREE.
The trial of John E. Simmons for the muir
der of NicholassW Duryea was continued In the Court
Of Oyer and Terminer yesterday before Judge Brady
The courtroom,las duringthe preceding days was 50
crowded that il next TO impossible after the pro-
c.edpes Of the day had begun TO obtain Abundance.
The prisoner. with his crutches resting against his
shoulder sat his counsel throughout the day. HIS
wife and child remained near him. The proceedings
began with the introduction Of several witnesses Tor
the prosecution who testified to the quiet and peaceabe
character of Duryea.
The prosecution then rested and Mr. Graham began
the summing up the defense He reminded the jury OF
their responsible duties. regard TO this event, which
would never have occurred but for the rashness OF the
deceased He then explained the theory of tho law IN
regard to sedefense and argued that II simmons ne
lieved when he thrown down by Duryea, that his
life In danger the homicide was JusthaDe lie also
argued that the sudden shock consequent upon being
thrown down, had far disturbed Simmons's mental
faculties that he did not know what he was doing He
then reviewed the evidence and claimed that 1t hau
heen shown that Duryea had uttered threats against
simmons, and had foully abused him, and summons mad
tried TO AVOID him in consequence OF such threats Tine
encounter was described ana the circumstances
detailed such as the flying back OF DURYEA'S
coat ~, MN hat MS enemy was armed This
with the prisoners inability 10 release himself from the
Se Ignoring Of his cries to be let up he found his
leg broken was enough to JUSTIFY the resort 70 weapon
| in defense OF his life. Mr.. Graham concluded with
references to the injuries received by the prisoner
the testimony to his good character and the natural
right OF eiidefeRse; Inns argument consumer n'"''
io Phelps then began mis- summing up
for the prosecution The OF the killing OF Duryea,
he said placed beyond doubt as was also the fact
|
justified act OF sefdefense He claimed that the
shown TO be more than mere talk the evidence
showed that Simmons entertained no fear On the con
trary Simmons had invited alteration in the first
place in his Office and had followed Duryea To the
street almost Immediately when he could easily have
refraned doing II he had been afraid OF him.
as he had tried TO snow The deceased. instead OF
attacking him in his office, where better opportunity
almost in conciliatory manner MIR Phelps then re-
viewed the circumstances OF the killing argued that 1t
was Duryea begged to be let and that simmons
who must have had the knife ready at the beginning OF
the ARRAY, had repeated his thrusts with II over and
that the case every element OF murders premedta
ton, preparation, an unlawful weapon and the homi
AT the concusonof Mr.. Phelpss remarks, MI. Graham
Indignantly declared that the point about an unlawful
weapon was unfairly sprung upon him. and handed TO
Jadge Brady some requests to charge the jury upon
that point the fact OF unlawful weapon did not
vitae the claim OF justidable homicide
Judge Brady charged the jury and then said that
oner he was sure the jury would act calmly and with
no other feeling than desire for justice he read the
the elements necessary to make up that crime and
that design to kill must exist at the time the blows
uS ac ia Sbon the element Of de-
kill at the moment of killing. 1t would not he
the act was done in justiiable self-defense. and
himself from death, or from great bodily harm
After briefly referring TO the testimony that the de-
ceased cried, Don't you draw anything me- that he
asked TO be let up and that the prisoner was seen
have the you" he up. and the conflict of
testimony as TO which OF the Two men cried Let me
II was a question Of intent, for If Rooney was not
mistaken in saying that 1t was the prisoner who cried
determine Whether the prisoner believed himself in the
extreme peril which would justify him in killing TO
t ff% principles OF seif-defense, and instructed
the Jury that the law will excuse a man for
This he can do II he honestly believes himself in imm-
peril and he will be justified even 1T sfterward
be made the subject Of judicial investgat and he
must be able prove that he in bodily fear and
exposing himself his adversary He then instructed
the jury weigh the evidence that the prisoner told
man who tried 10 rob him. and also note his excited
state he told the officer ttat he
lowed too quickly after the deceased from his Office
that question for the jury IN connection with the
right the prisoner to into the street any moment
and pursue his way home As TO the character OF the
deceased the evidence for the prisoner only assaed 1t
so tar that he bad man when In drink but
whatever his character he was not 10 be slain unjust
aby on that account ana h tne aeo was , able
explained the different degrees OF murder and man
slaughter and instructed the jury, II they had any
doubt 10 let the prisoner have the benefit OF II.
long list OF requests to charge was then handed up
by Mr. Graham. Judge Brady seemed DESTROYS OF CIV
ing the counsel for the defense little opportunity for
taking exception possible and reiterated his charge
as requested To points he thought III 10 add
plantations, and Mr.. Graham took exceptions TO the
modified charges and TO the refusal 10 charge IN his
exact words Exception taken 10 few words in
the main charge Judge Brady withdrew them, and
explained what had meant, but Mr.. Graham still
copied The portion OF the charge in relation To muir
der the second degree also excepted to- and with
drawn by Judge Brady who then dismissed the jury TO
their ROOM telling them thaJ they were disturbed by
the number of requisite to charge or from anything in
| his own remarks, 10 return for explanation.
| THE VERDICT.
The Jury retired att p M aud remained until $50
p IN After p m. the audience had grown smaller
and At this time very few beyond the friends and
acquaintances Of the prisoner remained The jury
having been poed. the foreman was askcd II they had
agreed upon verdict The answer was that they had
found the prisoner guilty Of mapsaughter In the third
degree. The prisoner did to be much affected
by the verdict but took IL very coOly The audience
jury had gone out had seemed TO eIpeot veriiot on
! mansaughter In one OF the four degrees
Col Fellows, OF the counsel for tina deensa ann,,aa
for p0stpOnement OF sentence until the conrse w. he
| taken by the defense could be determined The Ms
said IL his duty that Sentence
shOud now be passed upon the prisoner Judge Bradv
also said that he could reason for delay but a.
l s.,stnoled anti tn nnorrow morning. - 1r,.'.i