Year: 1873




in the sofa Of paror No M and concealed the knowledge
which they possessed the pistol being the pistol used by
stokes ana dropped Sy hm immediately after Where
own or other evidence. This theory has but qual
cation II allows the reconclliDg OF greater amount of
color of the pistol Another discrepancy that Jenny


Turner swears the pistol was one she had before seen In
Fisks possession IN Mrs. Morses room. You are to
Judge, finally whether there two pistols in that
room You are to recolect that there Is no evidence
prisoner himself All other evidence shows that this
pistol whenever seen I'm others hands III the es
Iuonv Of the prsoner was to DO believed this theory is
overthrown-it ceases to he OF any consequences.


sToKEs's ABILITY TO RETREAT.


II you find that there but pistol there, then
apprehend that you viii have difficulty in beev
ing that this prisoner aetuated by feeling Of dan
ger TO himself from anything Fisk proposed to do and
rather actuated by malice and design TO effect the
death Of Fisk since there could not have been any great
danger TO Stokes, he being at safe distance from Fisk
1t easy for him have defended himself or have
avoided such conflict in the power OF Fisk to
make without a pistol and If he failed &c avoid or
escape from a conflict which ho anticipated or II he
fired with the intention OF killing Fisk when the
assault made against him, either threaten
ing life great bodily harm, OF course, he VIII
stand undefended before you. II, however, there
were two pistols there, then the question is, was
ense Did he do what he could under the circumstances
to avoid the conflict with the person coming up stairs





long az 10 was possible without great danger TO himself
If he cav Fisk coming up with plstOi IN MS mana
pointed at him. in his power to avoid danger to him
self by withdrawing from the contest IL his duty
do SO rather than by in1ctng the killing now in ques-
was IN posifIon where he could not avoid conflict
without exposing himself 10 continuous and greater


ieved he was exposed TO this danger that Fisk was
tending shoot him. and that the danger was imminent
then and not tii them he "oud Dc uS'eu Al HinS a'


Judge Boardman here read the statutory definition Of
s,.rsr han. hot "a
two pistols, there was sun queston as 70 o'Vhcs ~
tent and that question they must examine the Whole
testimony. he cursivey recalled the main points bear
ing on the question Of intent, and conuanea; II you
should be Of the opinion that the prisoner red TINS sho
with premedaed design TO effect the death OF FISK ana
without being or believing himself III danger rom hin
and there nothing that should excite any reasonable
apprehension OF such danger then Of course his crime
is murder III the hrst degIee onlesS you t .iA %
it, from all the evidence IN the trd de
gree. Here he read its defnton You are, therefore,
10 naure whether there was sudden conflict IN which
sudden passion arose. and in the heat of that passion
the prisoner fired these shots without premedita-
tion without design to take life Then the prisoner
should DO convicted of higher crime than mansaugh
ter ia the third degree II is in these connections that
Fsks character comes H. but only as to ths Was he
man Of personal violence Y man who Oy Hls m own 0
murder, inct indgnity on one who was hostile 70
him. and that known 70 the prsOner In TINS aspect
they had tAe right 10 pass on the character o fhk as a
element TO show he was seeking an encounter win
Stokes ready for IT, and exhibited such spirit as
he would exhibit in his menaces 10 the prisoner.


After briefly alludlng to the discredthg testimony
against Thomas Hart ana DE corey ne continued: 1ne
fact OF the killing being conceded It Is the duty OF the
prisoner satisfy you it Is not murder as the law would
imply from the killing in the absence OF expanaton ana
that ID was manslaughter jushabe homicide. IL is
his duty because the law implies malice The prosecution
has made out that you can nave DO donp OF
BILE. Ordinarily, naturally, and properly, Jurors
benefit OF reasonable doubt that may exist in the
case and don't know that this Is an exception III you
should entertain reasonable doubt the evidence Is
evenly balanced, so that you do not Know where Ie
truth lies the prisoner ontited to It's benefit But
when we speak OF these doubts the law means not any
conjecture the jurors might indulge In not any possDe
mode in which the event might have occurred consistent
with the prisoners innocence They are not at liberty
TO indulge their fancy guess ont possible conngen-
cies OF facts to enable them 10 raise doubt Tor the
benefit Of the prisoner The doubt must rise legtimaey
out of the evidence. 1t must not D. doubt OF your


Now gentlemen It is not ordinarily or even naturally
the that IL honest intelligent men disagree III their
Judgment OF series of facts laid before them Juries
generally do agree They consult upon the verdict they
shall render Sometimes, when iuries are actuated by
sordid mercenary motives, when they are Influenced
by passion by prejudice, by sympathy or when jurors
obstinate or unreasonable, unwilling TO listen to the
suggestions of their fellows to hear considerations
urged, in such il not unrequenty happens that
ought not TO expect any inaehces Of this kind 1t is
case of very great consequence. There is
very serious duty imposed upon you; neyerthe-
charged by you faithfully and well This prisoner is
either guilty and should be punished or is innocent and
should be set at liberty IL IS Tor you to say which,
Disagreement of this jury is an act OF injustice IN one
Gated am led to these remarks by the TACT that the
case has been tried and that the jury failed to
agree therefore earnestly ask you to divest your
minds of all outside feelings and confne yourself to the
evidence Look IL over carefully, canvass II fairly, and
such conclusions from IL after mature eonsidera-
ton, after conception and argument as shan seem to
you TO be Just and right. If you are honest men, as
believe you TO be, you will do 1t. commit tho chse "
you.


THE VERDICT.


Juror asked the Court where Mr.. Stokes first Mr..
Fisk7 The Court replied: GAS Fisk coming in the
inner door" Mr. Tremain and Mr. Fellows asked the
Court to charge specifically certain OF their written
requests, and Mr.. Tremain took exception ~ certain
portionsof the Judges charge.


As soon as the jury retired Cat $40 p M for consulta
ton so general was the anticipation OF long delbera
that nearly all the spectators at once left the court
room in body, until scarcely more than 40 persons,
including the reporters remained TO wait for the verdict
The prisoner and his male friends and relatives retired
to the adjoining courtroom in which Stokes has been
accustomed take his meals and then the hustle and
stir Of settling down to wait was heard Judge Board
had gone to take his lunch and 1t was rumOred that
the counsel both sides had accompanied him. Half
conversations sprang all over the room and
the case were made, and the merits and
fairness OF the arguments and the charge freely
The common. absorbing topic, however,
the result OF the solemn conference at that moment
holding the upper where the jury, under lock
and key, MISUNDERSTANDING the question OF life
or DEATH Stokes. himself ihe walked to and fro in
the room appeared sangune in regard TO the result aud
reported that this feeling existed 30 strong among
his friends well, that his cousin, Henry Stokes had
bail bord made half an'hour before the return ofhe
Jury ready be signed at in the jury,
seemed probable should disagree.


The ervousnesswhehstokesh hasfalIlaong displayed.
and particularly while waiting for the verdict the
other trial. completely vanished now and he stepped
about the smiling as nc met his friends and
received their words of encouragement and hope and
the sympathetic grasp of their hands He smoked al


most constantly, and watched aectionatey by his
young brother Horace, who exhibited much more aux.
iety than Stokes himself. At ol5 D. he partook OF


light supper OF oysters. At m the jury came down
into the Chambersroom, where really sumptuous re-
past had prepared and spent 20 minutes over the
meal after which they again retired.


Meantime in the Courtroom the ladies connected with
the family Of Stokes all of whom appeared to belong to