Year: 1872

The courtroom was literally filled when the
Judge enered after the recess and orders were given
person should be admitted or allowed to leave
the room and the various doors closed. Outside
large crowd clamored for admission. and raped so
loudly as frequently to drown the Judges voice


The charge was commented upon generally directly
against the prisoner and characterized by some as
Reinforcement of the prosecution, and in its array
OF the evidence certainly read like an argument But
IT, in the summary the testimony the Judge appeared
In any degree partial 1t not apparent in the rulings
requested by the for the defense for evidently
determined TO ground for exceptions which
apply for trial. he ruled they asked in every
Instance The following the main points of this re-
msrkabe charge, emitting the introduction and In part
the summary Of the evidence;


THE INTENTION TO KILL


The presented 10 under two aspects on the
part Of the prosecution entirely different on
part defense On the part of the prosecution


oontended that prisoner, before he arrived at


the hotel had formed the design TO take The life OF the
deceased. Another theory is that. concedng the pris
did 20 the hotel with the intention OF taking
fe but prior to this time when he at the head of
the stairs he saw Fisk coming and then determining
take his life fired the pistol and shot him described
You form opinion as 10 the intent Of this
his conduct and declarations; by all the cir
cumstances connected with the incidents for which he
trial. Tie fact of firing twice is also a circum-
stance which you are to consider we'll and also the at
tendant circumstances before and after the shooting
took place. Whether yOu find in that case the evidence
Of intent not previous 10 the arrival at the hotel
leave It all 10 you. II you do come 10 the CONCLUSION
that he had that intent when he came there, carried IL
out and you don't hud any circumstances TO warrant
yOu IN seeing that he justified or excused in that
nf & ST % sce yo o,er viii H9f find I him gty
The second theory upon which this case Is pre-
that this intent to fire was formed after he had placed
himself at the head Of the stairs Now the intent TO take
before the firing takes place or the blow struck. II
you believe the evidence OF the witnesses who have been
nn VgI hnVg4 lg rDp
intent was made up then to take the life Of Fisk unless
you lind it was justiiable homicide.


MURDER DEFINED.


Murder in the first degree except in Of ustifable
or excusaDle homicide or cases of mansaughter,
slss in taking THE life OF human being without the
authority Of the law and perpetrated with malice afore
thought and with premeditated design TO take the life Of
the deceased now inclined TO direct your alton
lion 10 the question whether you find in the commission
OF this crime thai 1t was perpetraed with the design 10
taSe the e OF tne person; WhetheI ~ was 19sna9ie OF
far the defense is concerned. / am inclined to
murder You must be satisfied that the prisoner before
firing that shot had determined TO take the life OF the
deceased. If. before be came TO that hotel he had
formed the design to take the life of Fisk, and went
there for that purpose II after he went there and
got the stairs before he fired. and saw Fisk aud
then determined TO take his life and fred in either
he is guilty of premeditated murder. Now pro
pose few remarks TO in regard to the state
Inent OF the prisoner. II you believe his statement in
preference to that of the prosecution, then different
rule of law must apply He states that before he fired
he had intention kill, and that until he Fisk at
coming
there He that he did not expect TO shoot when he
did fire. and that was the reason OF his firing that he
this pistol drawn by Fisk, and he redin his de
fense. want you % lay aside for moment the iustih
cation theory because il does not come in these remarks
here Exclusive Of that and reserylng tha whether he
would be justified not the prisoner should possible
have avoided a conflict. His duty escape and TO
and not remain 10 make contest If he could have
capped IT, He had right TO protect his life as shall tell
YOU hereafter; hut exclusive of that, when two
so1 IN be tSe 2T of one m i 70 retire before
lie % IA
be done.


MASsLAUGHTER DEFINED.


The old expression that he was to retreat
to the wall" do put it in that form, his
duty to avoid contest he could go away, aud pass Off
In other direction. The evidence shows that the
passage of FIVE steps either way would have suf
feed pass out of sight OF the stairs and wOnld have
ample passageway through the halls by which he could
have passed of and averted the consequences Of attack
from man who was at the foot OF the stairs If he
could have avoided this collision instead of allowing 1t
10 take place 10 his duty 10 do But instead of
mat ne remains ana IA tDe neat OF passion toOk the
life OF this man, without any previous intent TO do IL,
slaughter in the third degree. 1 am asked
by counsel TO charge that under these circum-
did not 90 THE, as 1 have before stated, and his
reasons ief hot GoSg t SO ae I'LL ti IN, ne GT & ho tnnk
n was his duty before taking life 10 do all in hs power
10 avoid IT, and his right OF attack for the purpose OF
selfdefense does arise until has done what in
power 70 avoid such necessity. The definition OF
passion without lie i@,ent to commit murder. If you
lind there wes moi an intent to commit MURDER but
that tbeTe was neglect to do what he could have done
hnsau ghter in the third degree instead o. murder In
saa s 1 60 eold 1 not ayod it, because he feared Fisk in
tended him, and that if he didn't shoot Fisk
dence affords you sucent for believing that he
attempted TO avoid II, it is for you TO say


THE MEDICAL TREATMENT.


Asfo the opium poison IL is eOnteDded the part OF
the defense that doctors killed the deceased and not
the prisoner AS understand the evidence as TO the
uuauty which has been given, it Is that thirty drops
were introduced by operation under the skin' and
forty-sx OF its equivalent. administered by the mouth
understand that to be Substantially the teStmony OF
fhe physicians who know anything about H. Mhether
that too much or too little IdQ NOT KNOW lou hust @
governed by the testimony OF the p as 70 tne
act that may have been too much or IL may nave Deeh
more than proper In regard to the physicians VINO
have testified here they are al with the exception OF
two physicians who attended FISK at hrs-men not O0
ected by counsel on either side as being men OF sK
and ability. Those examined on the part or the prose-
eutiOn have testified that Il was proper treatneni,
That treatment aith0ugn ~ iSmts sr d" The eeect ~
narcotics, in his Judgment 1t was enough TO pro-
auGe zee emo1V Of DE- Csrnoehsn and the testimony
DIR sayre am disposed TO discard it altogether as they
otber The testimony Of Dr. McCready If that it was
had aud be has no doubt but it had its effect in causing
he mart of the defense testified TO somewhat similar
state things But the ply sicans VINO attended hi'
stated their opinion that lac dd not dle from that cause
will leave that also IN your hands Is IN IedeecI 70 Pt ef
there is one fact-one great fact IN TINS case Ihee
NOT any one of the physicians either the part OF the
prosecution or the defense, who speak OF TINS wOusd
ceased could have recovered. Most of the ply
sicisns have said that they considered IL very
dangerous wound, and DR.. Buck added that IN
ali 5robSbity it would produce death There is no in
saee as far as can recolleet in the testimony OF any
- the nhysicians who stated that IN his Judgment the
deceased could have recovered from IT, The rule IN re-
gard 70 this OF the case Is that If The wound was
not mortal wound and examination OF this case you
Aud that the doctors did opium enough to cause
the death OF this man. you viii acquit the defendant
,ut N nm that broad way II you are satisfied that the
,yonnd was not mortal wound and that the death was