Year: 1873

l


The prisoner was brought into the cour


room with Michael Kane, convicted of mar


slaughter IN killing his brother, who " :


brought out for sentence at a few minu 4,


OF eleven O'Clock, and appeared in remsrka


bly, good spirits. There W re comparative


~ few persons in the cou.t room. Severa


of the jurors who sat in the case wer


present.


Al quarter past eleven the court wa


opened, and the prisoner took a seat nea


mis- counsel, Judge Rice, General Henkl


and Mr.. Williams, Mr.. Harrington bein.


seated on the opposite side of the table.


General Henkle read the motion pub


lished in the Chronicle of Wednesday


promising that some of the grounds the de


tense would not rely on. but had incorpo


rated them out of abundant caution. HI,


did not insist on the fourth, fifth and sixth


grounds (errOrs by the COURT, nor upon the


seventh, charging misconduct by the jury


as on investigation they found that it couIG


not be maintained. They relied emphatic


ally upon the ground of newly y-discovereG


evidence. The following are the grounds
| assigned in the motion: First, the verdict


was against the evidence; second, the yer
| dict was against the law; third, the verdict
| was against the charge by the court to the
| jury; fourth, for errors in the rulings Of the
| court during the progress of the trial; fifth,


for errors in the charge of the court TO the
| jury; sixth, for misconduct on the part of
| the jury; seventh, for that two of the ju-
| rors were disqualified from sitting upon
| the Jury for the reason that they had
formed and expressed opinions adverse to
| the defendant before the trial; eighth, for
that the defendant, since the trial and YER
dict, has discovered evidence material to
his defense, and of which neither he nor his
counsel had any knowledge until since the
trial, and could not have discovered by


reasonable diligence.


General Henkle then read an affidavit by
LandOn Smith, who tesrites that on the
night in question (sixth of August) he was
employed as waiter at Abraham's booth
twenty yards north of Wills, in which the
homicide took placeI, and in passing Willis
he heard party who he has since learned
was Michael Husseyl say, II will take you
by the ears and butt your brains out" that
a woman was then lying on Slatter's shoul-
der; that Hussey struck Slater; tussle
followed, and Hussey said he was cut.
He then called the attention 20 the evi.


dence of N. II. Duprez, who had testified to


Slater having received three knives (of
the New Orleans thug characterj and to
account for the same he read an affidavit


by Calvin L. Sayre that in May last he had


been attacked by body of five men; that,


in consequence of threats made, being de-


sirous of having the means of protection, he


applied to defendant to get him a knife
from one Thomas Boylan, in New Orleans,


and the defendant sent dispatch for the
knives-one for Hannegan and the other
tor the affiant-and they were brought here
by express. Also read the affidavit of
Edward Kelly that Hannegan did not call
for his knife, and he kelly took it. Also
the affidavit of Gillis Key, employed at DR..
Filbert's office, who testified to the knives
being delivered, aud that there were but
two, not three.


General Henkle, after speaking feel
ingly of the responsibility of counsel to eli
ent, and especially to one whose life was at
stake, proceeded to recount the cireum-
stances of the killing, and, quoting from
the charge of the court he claimed that
there was no express malice in the case.
and no implied malice, except as to the
character of the weapon, and therefore
there was no murder. He commented on
the manner in which the case was present
ed to the jury. They were led to believe
that the knife was similar to one exhibited
by the prOsecution-a thug-but there was
no proof that such a knife was used. How
could he have had any malice against Hus
sey, to whom he had Just been introduced,
and who was then partaking of his hospi-
talify! He would not claim that he was
innocent of manslaughter, but did contend
that he was not guilty of murder, as he nm
derstoOd the definition of that crime. He
further claimed that his poor client on the
night in question was not in condition to
form deliberate attempt to commit mur-
der Drunkenness, it is true, is not an ex-
cuse for the commission of crime, but it
should be considered by the jury as to
whether he could have formed a deliberate
intention to take life


The defendant had proven a good char
acter at every place where he had lived,
and was it probable that, on the slight pro-
vocation OF an Offensive remark, he would
form the deliberate intention to take life
and carry that intention into effect! The
jury had found that he had malice. but
they could only have SO found on the pre-
that he was in the habit of carry.
ing such murderOus weapon as the one
described. Although he owned a knife of |
the dirk kind, he did not make a practice
of carrying one except when out paying the !
hands. He claimed that the Jury ignored |
all the presumptiOns of innocence. General |
Henkle then referred to the affidavit of |
Langdon Smith, and claimed that his state |
nent corresponded in some respects with |
that of the woman. He would not say that |
they were entitled to have it go the jury.


Mr.. Harrington said that he would not !
discuss the facts, but would be content to |
submit the case, as far as the government |
was concerned, to the sound discretion of I
the court as he felt satisfied that the pris. !
oner would have full justice done him. He
also knew that the facts were still fresh in I
he mind of the court, and it would not be
necessary to again detail them.


Judge Rlce inquired If the court would |
near any further arguments.


Judge Macarthur replied that this was
He proposed to decide, after
that such motions are addressed
o the sound discretion of the court. The
ourt was entirely satisfied with ths con-
luct OF the jury, who for several hours de-
liberated on their verdict. On the trial the
ury were asked to acquit on the ground of
xcusable homicide. The jury could not
ave found such verdict on the evidence
dduced; it would have been out of place |
t is barely possible, under the evidence of
cred, that the prisoner was convicted Of |
rime higher than that of which he was
uilty. Had the newly discovered evidence
cen offered at that trial. it would have
oubtless had an effect on the iury,
specially as to the point in the charge in
'hich it is stated that nothing short of vio-
,nce or fear of great bodily harm is an ex-
use for taking life.
On the whole evidence before the iury
ley might and probably did infer that
lere was no provocatiOn, but in view of
le newly discovered evidence it was the
fest course to give the prisoner the benefit
it by granting the application. On the ,
lbject of homicide he felt that it was i'm
,rtant for the community that the verdict
juries should be sustained, and although
, had tried a number of such cases, this {
as the first one in which he mad granted a
wv trial He had in none of them felt that
,gree of doubt which he had felt in this
Sc; this doubt arising from the presenta-
IN of the aftidavlts to-day. He would, g
erefore, set aside the verdict and grant !;
w trial
General Henkel asked that the case be a