Year: 1869

case even, involving lew dollars, thai q review


not for equity only, but Tor Tue law; and should not
| case III which o human lia was involved 20 up
there, not for equity, but for laws lie asked the


court to examine carefully this case OF Cornclh JUST
] quoted


Is 1t that where the court allows writ and refuses
| q stay there should be q stay graniedf


Mr.. Stuart that y IT. SIR. say that legality and


granted there nothing for tito be done but to stay


the Judgment. VIII state some OF the points gen.


orally that we rey upon - matter OF error SUD ,ns
| killing the officer, and that we proposed to show


that the deceased had shortly prior 70 the occ aston
| peril OF his HE different OCCASIONS under pre-


tence OF justinabe arrest climing that the effect


or belief on the part Of the prisoner that the same


cruel beating would 1e or was about 70 De resoted


TO- at the time Of this nliing There. There was was
| the 0f1cer were clenched that the offcer's


arm was raised at the time, and that he mad club


fired. There 0fIer Of proof also that previous


TO this occasion the 0flicer had beaten him terribly


s ry yea to say Whether such eamens had or had
not injured the prisoner with belief OF apprehen-


sion OF the same treatment at the time Of the kilng
aready decided the question OF the admssibllity Of
such proof The facts in that case were these:-


man man named Shepherd. humber q people
came to RectOr's house in the night time and


,h sspassn 4 against @ n py ue
They left and threatened to reufn again Within zen


days, u being supposed tnat his house was place
OF bad character. About ten days afterwards some
persons went 70 the house with like menaces and
showing the same spirit as the former party, and
Rector tired from his window and killed one OF
them. de was tried ana iound guilty, and upon ap-
peal 1t was held expressly that the former demon


on have I've en ras IN Rsos o@ Io
the previous attack ana threats OF the par
ties, was justified in apprehendiag danger; A
sion OF great bodily harm may kill In defense
and be excused. even though laboring under mis-


that this oflicer was actually ABOUT to club him ter
riby, and reasoning from previous assaults antlc-


Pated great bodily danger & we say ne @ nad rS Sns 70
give the evidence. The Indictment charged killing
with malice prepense, and this evidence was part


prisoner had been in the nabit OF excessive intoxica
tiOn on various occasions, and that before and


dslirinm tremens % or It's efrects in the form Of
insanity; that he had been In continual series
Of intoxicatons from day to day and from week to


week. Not that ntOxcatiOn was In itself 1uStinca


ton, but that 1t IL source or cause Of insanity Our


EFFORTS to get this proof before the jury were over
show insanity but to establish foundation Tor the
Jury to say what they considered the state OF the
prisoners mind TO sanity to be. Mr. stuart then


the case OF Capp vs. Fullerton, as TO the competency
Of evidence on the question OF what the witness
belief was OF the condition OF the prisoners
mind, Judging from certain acts Counsel next
directed his attention to the effort to mpeach Henry





swore that he deceased and the prisoner cinched


and struggling. Tho District Attorney on the trial


conned G In the Penentiary. The defence Objected
and the Court Instructed the witness that he might
decline to answer he chose, thereby over
witness on this point counsel claimed was in
competent. the records would determine the
long q this higher evidence was in existence
oral proof was incompetent The witness could not
n "
referred to to sustain the point.


Judge Peckham-That was decided upon the strict
there was higher evidence. That was all.
Mr Stuart-Yes sir, ana that s exactly this case,


cause eau there was higher and better evidence and It


should not have been made privilege with the wit.
and that that was the wound that killed
him. the evidence was that there were two
both mortal each BY ITSELF The Court was asked 70
charge that this was variation between the proof


ns Sa II rss ss


already been said enable the Court to say that the


Cause e M s
error. Mr.. stuart closed his argument by claiming


on such
der. At the most : hearing on the writ


tx monSs a. shs General Term would Sit IN
April. He would be ready for argument at that


He believed there was nothing 70 prevent the case
being finally adjudicated upon at that time.
briefly recounted ne incidents OF the murder, in


cluding the fact Of the prisoner being secreted near


the coal box. his rst shot at the deceased his sec
ond shot while the 0f1cer falling, his threat to
shoot of1cer Mee who intercepted him in his tight
and his boastfu language at the police station sub


sustained by eli the witnesses for the people, whereas


was controverted by none on behalf Of the defence
save Henry Real. whose testimony was such as to
1nad fha uIrv tn. ~ n
truth In It The District Attorney claimed that the
question whether stay should be granted was not
pysus The counsel had applied to the court at nist


prfus and the application was denied, and they had
no right to make application before another Judge
The associate. counsel on behalf Of the prisoner
then made lengthy and able argument. covering
and enarging upon the points raised by Mr.. Stuart


and st the close Of his remarks the Court took the
papers, reserving its decision.


The Union Pacinc Railroad Iitigafion-NI0-
tion TO Punish for Contempt.
Before Judge Barnard.
James FISK, Jr us. The Union Pacific Railroad
Company. When this case was called yesterday
Mr.. Field, on behalf of plaintiff, moved to vacate


the order OF Judge Rosekrans and he felt confident
that he could show the Court that the order was
absolutely void. The order purported to be made
by Judge OF the court, not blythe Court The
rity had not been approved. The statute Of the


United States that the petition for removal must
be TO the supreme Court not TO Judge out OF the
court.


Mr.. McFarane said Mr. Tracer, who was now
absent, had fulfanidavt stating facts which the
defendants desired to present.


Mr.. Field opposed any delay. He understood Mr..


Tracey was in the United States Court. lie thought


he had perfect right to distrust any application for
delay.


Judge Barnard observed that it was unnecessary


to produce any affidavit Certain facts were patent
namely, that but two special terms OF the supreme
Court were held In New York on the day when the
order was made and neither by Judge Rosekrans.
lie would now grant the order which would have


been lanted on saturday but for rtesy to coun
sci.


Mr.. Allen said that they csired to present the
question whether the case was not now actually


transferred to the United states Court aud the court
had not lost jurisdiction 10 make this order. Mr..
Bell had made an AFFIDAVIT on this point.
Mr.. Bell inquired II the Court would not permit his
clients to show that the order was improvidentiy


granted. to which Judge Barnard replied In the
Affirmative.


Affer aonc discuaaon Mr. Field moved IN punish