The New York herald., 1877-02-27
IHE CART RUNG MURDER.
Young Carrity Convicted Of ManSlaughtet
in the Second Degree.
JUDGE BRADYS SOLEMN CHARGE.
Escaping the GallOws Through
the Mercy OF the Jury.


OF one OF the young ladies'. as they walking
through Twenty eighth street. Tenth avenue,
how Garray. ncsnsed al the attempt 10 interfere with
him, seized a cart rung ana striking Smith over the
head, crushed IN his skull. killing him on the spost
how the young despcrado caught and indicted lov
murder the drst degree. and how his trial was
begun . few davs since in tho Court OF Oyer and
rermIncr before Judge Brady--,ll theso facts
have already been gwen in the HrRALn II has
also been stated that there never before was
arrasncd at this Court SO young prisoner upon se
grave charge The evidence clear and posi-.
tive against him. Tho only evidence set up or At
tempted be up his ntoxication at the time
On the rcasscmb'ns OF the Court yesterday court
crowded, and the tbrong continued
listening TO the summing OF counsel and the charge
by Judge Brady occupying the whole dav Tho
prisoner sat behind his counsel, Mr. William +. Howe,
and despite his youthful looks expression Of
doggcd indifference as 10 the final result II was Q
noticeable fact that. although Judge Brady in his
charge assumed that the verdict murder
in tho drst or second degree and made reference
whatever to homicide OF inferior grade. the Jury
brought in verdict OF guilty OF mansiaughter In ths
second degree.
SUMMING rr ny COUNSEL.
Mr.. Howe made lengthy and urgent argument fov
the prisoner In the SUNNI ms up address, IL was very
evident that the facts Of quite stumbling
yer and so he occupied his time mainly in appealing
to the sympa,hcs OF the jury Hc said that although
he could not Justify the language OF tho prisoner he
assault committed by him on tho dciencccss girls ho
yot claimed that the prisoner only guilty OF man
slaughter IN tue Second or third degree and that tho
highest verdict at all hazards should be the orn,cr
He dwc at great length on the semi Intoxicated
dition OF the prisoner and concluded with earnest
appeal not TO convict tho prisoner OF murder tho
ilrst degree.
Assistant District Attorney Russell insisted on a
verdict OF murder In the rst degree, aud urged that
| md eH vtot
and upon their demonstrating isoner continued and
repeated the insult, and followed this up by X ckng
ono OF them Deceased ntericrcd tor tho girls pro.
lection, and tho prisoner with murder IN his heart.
deliberately walked the street. detached from
cart the murdcrous weapon with which he returned
and crushed In tho skull Of tho deceased. This ho
c0nended was murder IN tho first degree aud that
the ingenious defence that prisoner intoxi.
Gated as not to bc able To deliberate should bo wholly
dsrcgardcd
CHARGE JUDGE BRADY
Judge Brady followed with u most clear and I'm.
partial charge He began by stating that the case was
one OF very great Importance to the prisoner and
the peoples that the administration OF criminal Justice
was always important TO tho masses OF tho people,
whose rights. to certain extent ars violated when
crime Is committed; that II was important not only to
the prisoner because II involved his ie liberty
they shall determine, aud important to the people II
the State. who have right that tho laws winch
they enact shall he rigdy observed by the people
dwell within ITS BORDERS After thus stating tho
OF the and reviewing tho testimony, no concluded
follows, showing TO what extent passion or drunk
enness palliatcs CRIME ana the difference between
murder IN the nrst and second degrecs:--
Well gcntcmcn OF the jury, passion not defonca
to the crime of murder, because passion should be
strained That Is an obligation imposed upon US NOT
only by the laws OF God. but by the laws OF man;
| II passion were excuse for crime all that man
would have to do would be to got himself into that
condition, or ieign IL, in order what he c0ntem-
plated IN moments OF deibcrntion. And although in
some aspects OF the law OF this state reference 10
homicdcs It is entitled To place IN your considera.
tion yet standing by Itself isolated aud alone
It furnishes no excuse Tor tho preparation oi
crime. lntoxication whom II exists to tho cx.
tent which by tho law is tier also
for your consideration, ana when II 10 such an
extent that IA man IL Incapable OF forming, motive,
then II necessarily receive cousidcration iron,
the hands OF jury; because cannot inau
OF murder unless you can show design intention.
and u there be no mental power to form design of
form an INTENTION OF course tho crime Ia Incomplete
necessarily so II there is no power TO 'orm motive.
no power 10 orn design, IN consequence OF the
dnion oi the person arising from the OF spirit.
uous liquors. then he VIII DO entitled 10
scquitta whero intent must prevail. But you
| must be careful To TO that the
condition OF the prisoner this SUCH arising
from liquor, that he was Incapable Of forming a
tive, incapabie OF conceiving design incapable Of
forming an intention; and unless thai degree IN.
toxlcation existed at tho tho blow given II Is
no dciehco IN this case remember expression
IRON the Greek, familiar TO me In my college days,
that drunkenness n short insanity; and although s
IS short insanity, yet Il does not furnish
crime unless II exists to tho extent To which have
stated And that s tue law of this state and that A
tho rule py which your deliberations are 10 bo
governed. Now need not say to you that IL Is q
duty that every man owes 10 society to preserve ha
reason. He owes II 10 society," because when he do.
parts from It voluntarily he exposes society TO the
dangerous consequences which may result from 10;
renders him dangerous TO other people, and In that
situation does harm he should not complain II he ID
called upon to respond Tor the INJURY he has done.
now pass to tho suggestions murder In the ntst
degree. Murder IN tho first degree is "king from
deliberate aud prclneditaed design TO effect tho deaf
OF the person killed" Dcliberation Is the act OF
dcbcratng the act 0 considering the offence tho act
oil considering the thing TO he done. Prcmcdatiou 10
the act OF mcdtating beforehand and It does not IN
my Judgment require any long prcmedtation or any
long deibcration TO mako = person guilty oil An Of
encc within the meaning OF the statute Let Illus.
tratc u IN thts way y-Suppose, Tor example, that ],
having antipathy to person on the other side Of
this court room. should form tho 0esgn, sitting hero
where am--dcli0cratcly form design-to kill HIM.
ard proceed to do II. and do IT, that would be sum.
cient deliberations sufficient premcdtaton to justiiy
n convection OF murder in tho first degree.
In other words II there be sufficient for the mint
10 act deliberately upon q concm plated Decd and tns
deed Is done II is murder In the Grst degree Murder
In the first degree ~ the formation of the dosltn "a
kill before tho blow IA struck and that makes The dis.
tnction between murder IN the FIRST aud murder I'd
the second degree Because murder In tho rs degree
requires deilOeration and prcmedita,ion, aud mur.
the intention TO XIII shall be formed st the
very instant OF striking tho blow That Is thc
difference between tho two, so that " In fhia
case you conc TO the conclusion that before the blow
was struck there was deliberate determination on
the part OF the prisoner mt the bar kill with
rung. that would be murder IN first degree II ha
had no such intention, but at the OF striking
inc blow formed the intention TO XII. then no would
be guilty oil murder IN the second degree II there
deliberate purpose TO Kill and that carried out boz
tore striking the blow that murder IN the frat doe
gree. II the intention TO Kill exists only at tho mo.
ment OF striking the blow then Il is murder IN the
scconu degree.
VERDICT SENTENCE
Tho jury was out but short time when they
turned with verdict Of guilty OF mansiaughtcr In tho
second degree. Tho youthful prisoner was thc1
called upon To receive the sentence, which Juis0
Brady imposed as follows--
'.You have been most successfully defended and he
Jury took most mcrciiul OF your case. Tnis
should be another warning TO the youth OF this
munity TO abstain from indulgence in intoxicating
liquors During "a long experience have found thaS
ninc-tcnths OF tho cases which have been before mo
have arisen IRON the pcrnicous of Intoxicating
liquors o hoped that this example deter others.
deem II my duty To pass upon you the extreme son.
tcnce the law provides for the offence OF which you
have been iound guilty which s seven years In the
State Prison, ut hard labor"
After receiving HIS sentence young GarrIty bowed
and resumed his seat HIS mother and friends cIus.
tered around him. and Mr Howe congratulated inc late
tor on having saved hun from the gaIows.