, 1874-01-15

innl Court Of Cook County, found guilty, and
sentenced to throo years imprisonment In the
Tho application for n writ of RuporsodoaB was
made to Alr. Justice MoAllistor, iii Chambers
yoatorday. md nh ortlor gvon by him to tbc
Grand Division, at OTTAWA directing tho super.
| aottoas to iRR,le. i"
rho points rrosontoi1 by Mr.. storrs, and on
wiol, tho order Of Jutlgo McAllistor Is prosltll-
Wrsi-Tho cylcnco contained In tho nflldayita
| nroii which tho motion Tor . nov trial waH
baaod waB not cumulative. No covidonco what-
evor wnH oiroroti by tho defendant nron tho
aud Duval upon Tho OCCASION Of their moot-
Ing, nor whit waa said by Dnyal. Tho
| witnoAHos by whom o,1r version OF tho oaao wna
| sustained woro 80 far from tho scone Of act,lal
could not l,ear what Tho parties anid. Tho
moro fact TINT Dtlyal himself tcstinel as to
what trnnspirod cannot mako tho evidence
which wo offor conclusive. We oiforod no owl.
aonco Of that ~ ta o
there Is no evidence on bohalf Of tho defendant
in tho whole caBo that point, and nothing that
1t could cutnrlato. 1ts lnateria1ity is beyond
ss a tho sa ss"'e trs ssns tSs tue sss ssp''o
which Duval was injured, ID self.dofonso,
without nlnlico or intont to, do serious
bodily injury. Evidonco showing TINT ho
had been Violently assaulted mud beaten in tho
morning by tho prosecuting witness, aud that
upon tho occnsion Of tho shooting tho proso-
outing wftnosB thtoatonod n repetition Of tile
experience. Of tho morning, cortainly WIS ma-
torial, as showing tint ho had ronson to appro-
hend repetition OF tho morning afrray from tho
noHs-A powerful man, in tho company OF a
notod doaporado-an aortot1s bodily injury. Wo
!tisist That, l'ou tu uyitlutco thua produced, no
Jury would be justified III conricting.
Erfan1-sjhO GNnrt nrra1 IN rnff1afhEr tHa tItrnn
Instructions marked " Refused" Tho Instruction
that II the Jury believed, from tho ovidenco In
tho caso, TINT Duval, and tho witnosHcs Hart
man, garrity, aud Mcdonald woro mon Of do
PRAYED aud abandoned character, 1t WIS the
right aud tho duty Of tho Jury to Hcrutinizo their
Testimony, md to disorodit tile snmo, If tho jury
thought thoy woro not entitled to belief," was
refused by tho Court, md clearly ought to havo
nosa is necessary, but TINT ihor characters wore
abandoned and depraved sufficiently appoaroa
from tllcir own Testimony upon tho stand.
Thi,u--Tho Court was nskod to instruct tho jury
beyond reasonable doubt Tint tho defendant
intended to murder tho prosecuting Witness, and
that o Ind this intent 1t the timo Of tho firing.
The indictment was for M assault with intent
to commit murder. II tho tlofondnnt had not
tho intent to commit murder ut tho time ho COM
mittod tie assault, then it iB noroly plain cnso
OF assault. .m!'he gravamon Of tho whoIo action
is "telonions intont," as charged in the indict-
ment hnu 1t 1s difficult to Understand why tho
Court refused this instruction.
F0utth-Tlle Court wns requested to inBtrucE
tho Jury that If tf,oy bo|ioycd from lilo cyilenco
that thnrn ,yna n rnoaonnhln Tonht oa r. ,vhothnr
fhn rr;ea,,or ~ tL ,,,o ~ ~ sso"t;' ~ ae
uudor reasonable apprehension that tho prose-
cutting witAesa intended to lntlct upon him So
riouB bodily injury, aud that lo 1irod tho shot
In Belf lofonBe, the Jury must acquit.
am content to Htato this Instruction. and
submit to tho Court thnt tloro is no conceivable
Ieadon Why lt shoulo not nave neon gwen TO the
jury.
WfM-Tlo Co,1rta1Bo crrol in modifying tho iu-
struction asked bv tho prisoner. ,yherein lilo DO
fenInnt naIrod ia ronrt IT, ;rs,rnat I'm ,ur,
ttnt ~ t,,e to .i'.+ n, M to Juny
tiAt - tnoy oo,etou t!a. DusNt Mas ~ e1io cula7
pahy u mon "Honl LIE Prlaonor K'cW 10 20 tlcs-
pornto aHd dangerous chnractera. mud that lie
bad boon assaulted &c. Tho Court struck out
thia ]nnp,1neo.
RI .roa hoii 1,v tho f.ourt tn ,yho,o fin orr,1ic,
~, 49, = ~ ,.S;t ~ 49, n, H, ! ~ -" -" " @ ~ ~. @ II et tI.
toll ~ WY ~ sAi'tI Ihetlcns WIS !'lAuG 1fae
NnoWlouRo OF Inc 1act ts1nt Duval nl11Bolt Nhd
his ussoclAto8 wer9 mon Of dangerous nnl dos
perate character might contribute, in q large
degroe. to excite tho arnrchepstons Of tho nris-
mar lint ear;ous hoditv ,v was r. hn infl;rt
farn Pror., ~. s'n ..n 4.a nro ~ ~
that cousideration from thn iury.
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