The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1879-03-29

A SEARCHING QUESTION ASKED BIZ THESl
OF THE COURT-COUNSEL. FOR DEFENCE
/ THEREUPON AGAIN. ARGUE THE LAW
| POINTS AND SUBMIT SEVERAL INSTR UC.
TIONS WHICH ARE NOT ADOPTEp-IN.
| sTRUCTIoNs OF THE HEcoURT-ExCEPTIoN
| TAKEN-AT 0 O'CLOCK THE JURY AID.
JoURNED OVER UNTIL IL THIS MORNING
At,1l O'Clock yesterday morning'the jury
| in the Poindexter case were brought into
court. In answer 10 the question OF the
Clerk, Have you agreed upon verdict ?"
Mr.. Pearce, the foreman, answered, 1--WE
have not" The Judge then sent them to
their room, where they remained until
about 8, when they were brought into court
with the same result.
| The Court then took recess until s.
The crowd was large throughout the day,
but was nevertheless not so great as on, the
| day before, when the speaking was gong
on. ..... ..- -.
A QUESTION FROM THE JURY. ...
At the Jury were again bf ought In. and
Mr. Pear &C submitted to The Judge the fol-
lowing question:
Shaii the jury accept as an established
principle OF law the fact that il a party pro-
yoke an assault. and then, as q consequence
Of that assault, kill the party, that be there
by dep,iycs himself Of the plea OF self-ae-
fence? ...
THE JUDGES INSTRUCTIONS.
The Judge said he would take the ques-
ton to bis room and in ten minutes write
out an answer and read 1t TO counsel for sug-
gestions. r...... ...
The Judge, upon his return to the bench,
read the following:
l. II the Jury shall believe from the'ev
dence that the accused killed the deceased
whilst he was advancing on him and Strik-
ing him, and That he then killed him through
mere necessity, in order to protect himself
from serious. bodily injury, or from death,
having first retreated until his further re-
treat was prevented by some .impediment,
or as far Us the fierceness Of the assault per-
mittcd. then the Court instructs the jury
that the accused was eXcusable in killing
the deceased. But the Court further in
structs. the fury that in order that the ac-
cuScd shall be eXcusabie in the killing OF the
deceased from necessity they must he salts
fed from the whole evidence before them
that he was without fault in bringing that
necessity OIL himself. -; -
2. Ii the inry believe from the evidence
that ut the time of the killing there was an
existing Prudge on the part of the accused
to the deceased, but that the shots fired by
the accused, which caused the death Of the
deceased, were fired on sudden afiray and
because of the fresh provocation produced
by the assault ON. him by the deceased, then
the presumption OF law is that the killing
was because OF the fresh prorocation pro-
duced by the assault; and the burden OF
proof is on the Commonwealth to show that
the killing was because Of The old Srudge.
g. If, upon the whole evidence in tic: case,
there is any rational hypothesis consistent
with the conclusion that the homicide was
eXcusable or justitiable, the accused cannot
be convicted. .. .......
MR.. YoUNG's OBJECTION.
Mr.. Young, of counsel for defence, OBJ
iected to the first instruction rs it stood.
He wrote out the following amendment, and
asked hat it be added to ihc first instruction
as prepared by the Judge: ... ~.
III the jury believe from the evidence that
the accused assaulted the deceased at the
store Of ,Winso, Elicit q Crur1p, corner
Main and Tenth streets, in the city OF Rich
mond, in whose employ the deceased was,
about the hour OF 8 O'Clock on the morning
OF the day on which the deceased was killed,
in consequence of an alleged insult-by the
deceased to Miss CotsrelI, inflicted on him
blows with: j horsewhip, to which: the de-
ceased made no actual physical resistance at
the time, and that the deceased and accused
then separated, the latter going TO the office
OF his employ X. ;Chidrey, at the cor
ner OF Main and rwenty-iourth streets; and
that after such separation the deceased, after
consultation with his friends, determined
to demand an apology from the accused for
hisassault upon the deceased above set forth,
and in case OF failul c TO receive such apology
to attack him, The said accused: and that
in pursuance of such determination went
with his friend and adviser, the witness
Mcclure, armed with stick, to the otfcc OF
said Childrey about the hour OF IL O'Clock
of the same day, and after demanding an
apology OF the accused for his said action in
the morning, and said apology being re-
fused, passed rapidly from outer office into
inner one, in which the accused was, and,
being stimulated by the said Mcclure, made
an attack upon the accused with said stick,
then the accused is not -precluded, BY reason
Of the occurrences at the store OF Wingo, El-
lett S Crump, from his plea OF self-defence
for having killed the deceased in and in
consequence OF said attack, ana from salts
fying the iury,'if lie cnn, that the said kill
ing was excusable homicide in self-defence.
O. - ., .cpoL1NG-TIME. fl,% -. .
Mr.. Young spoke at considerable length,
and with great earnestness, to show that
Curtis had had ample cooling-time before
he appeared at Childrcy's factory; that in
the whipping affair he had the fullest liberty
20 protect and defend himself as best he
could but that in seeking and attacking
Poindexter an hour and n half or two hours
afterwards he was himself breaking the law,
not exercising the rights which were his in
the whipping affair. And his (Curtis's) un-
lawful act in going to The factory was What
made the whole posture OF Poindexter
changed. a good deal Of the ground traY-
elled overin the argument Thursday was
gone over again, aud the authorities which
Mr.. Young relied upon were duly recited.
APPARENT DANGER. .. ..
Mr.. John S. Wise offered the following as
an amendment to the first instruction, and
showed Gas he had done in the argumeEt)
the difference between real and apparent
danger:
The Court further instructs the jury that
il the prisoner killed the deceased under
circumstances Of such a character as 10 AZ
ford the prisoner reasonable ground for be-
ieving the deceased designed to commit q