Year: 1871

Summing zap of the Prisoners Counsel


Weak Defense.


From the NJ Y. Express, last eUerfng.


Judge Stuart, turning to the jury, said that he
would first speak, and then his associate. l de-
sire to converse with you on the subject OF the
homicide. / have not the ability, and certainly
do not desire, to move your feelings OF stir your
passions. | know too well the integrity aud
honesty of the men / address. All that can
say to you is to state the facts. Yesterday the
District Attorney said to you that killing was
murder; but all law of every country tells you
that murder is only killing with intent to kill.
Manslaughter always was involuntary, uninten-
tional killing while the person was doing some
other unlawful act, no matter what that act was.
Murder is killing with intent to kill or whilst
in the commission of felony; but mansaughter
is killing unintentionally, or whilst doing some
wrong act not felony under the law. Under
the law of 1869 man killing another in the
heat of passion, with contemplation and pre-
meditation, that is murder in the first degree;
but if the killing takes place


WITHOUT FERMENTATION,


it is only mansaughter If Foster murdered
Mr.. Putnam he did it with premeditation and
with an intent to kill. But if Foster did not kill
Mr.. Putnam with premeditation, he cannot be
found guilty on the Indictment presented in this
court of murder in the first degree. He may
be guilty of murder in the second degree, or
manslaughter in the third degree, but not of
murder in the first degree.


After stating the law to the jury in detail on
the differents counts he said, am telling you
what the common law is, and don't care
whether it is tor or against my Client 1t is for
you to decide which of them be is guilty of. Up
to the time when he had the misfortune to COM
NIT the deed for which he is now before the BAR
he was


GOOD MAN,


quiet, peaceable citizen. Nothing can be laid
to his charge until that moment. He drank
somewhat previous to the occurrence, and on
the night in question got on this car


WITHOUT EVIL INTENT,


and with no mind to kill. With regard to the
conduct OF the prisoner the testimony is con
fictlng; the ladies say he did act improperly,
the driver did not think he did; the prisoner
himself does not remember whether he did or
not but does not believe he did; Mr.. Putnam
went out and spoke to him; no doubt what he
said was offensive; the answer of Foster showed
it:-'I paid for a seat and must have it," that
tells clearly that something must have been said
offensive to him. When Foster came in and sat
down he said to Mr.. Putnam, "How far are you
going up?" and "When you get off I'll give you
hi" He did not say I'll kill, or anything
like that but he used that vulgar expression,
which meant


than that he would assault or beat him; surely it
did not mean that he would kill him, and If
there can be any doubt as to the meaning of the
words, that doubt should be given to the prl-
soner, especially when the life of human
being is at stake on the one side, and that
expression on the other. Well, the car stopped
came round and struck him one blow-one
blow, gentlemen; for, no matter what the testi-
mony was, there was only one blow, gentlemen;
the wound itself shows that; there was only enc
81 wound and one blow. Now, do you think, did
y he intend to kill with that one blow?
NO, HE DID NOT;


you cannot believe it. After that he went and
had some more drink and then went home,
scarcely able to get up stairs, and fell into a
drunken sleep. You must be sure that he did
intend to kill, and If you do not believe that he
did, you cannot under your oaths convict him OF
murder in the first degree. Suppose you shall
say there is some doubt, then you must say that
you cannot convict of murder in the first degree,
whatever else you might do If 1t is not muir
der, what is it? You remember what told you
of the law. If Foster had taken rife or q
pistol and put it to his head and blew his brains
out, that would be murder; for the means used
would necessarily cause death. The act itself i;
its evidence of intent. The instrument
must be made to kill. slungshot or dagger
being used would necessarily show that the
killing was intended.


THIS cAR-HooK


is not such an instru ment; it was made for other
uses than life-taking; 1t was an instrument un
fortunately at hand; it proved nothing excep
that Foster used it to assault Mr.. Putnam, bu
with no intent to kill. So much, then, abou
the instrument. This is a conversation, l say
Let there be no ceremony here. Say somethin!
to me. Let my learned adversary PROFOUND {
question, and will answer him.


MANS LIFE is AT STAKE,


and let nothing be left undone to save it. You
gentlemen, are here as judges, high in Office
ministers of justice, high above the Court ant
the DlstrlcL Attorney ana pleaulHS counsel
You have power greater than any potentate
that of allowing creature to live. / ask yo
to think on this case and give verdict of acquit
tai if you can. have nothing to say of


MRS. DUvAL.


You have heard all she said of herself; that
all you know of her, or all know of her. How
ever, Foster knew nothing of her, and 1 there
fore did not inquire whether she Virtuou
or vicious and did not, as / might have, el
amined more into who she was and what wei
her character and relations to Mr.. Putnam.
saw nothing about it, but let it remain unel
planned asked Mrs. Foster to go ON the stan
merely to tell what was the condition of ht
husband when he came home that night, but
was not admitted. My learned friend might as
why / did -


himself on the stand; l will tell you why.
was because he did not remember sufficiently
the facts 10 give any distinct statement OF then
This is whv did not place him on the stan
am not pleading for mercy, but


ASK FOR JUSTICE.


The indictment for murder was 10 admoni'
other eyil-doers that IL would not do to praetl
evil deeds. If this man had not been kille
what would have been this mans defense
Assault and battery, with Intent TO do oodl
harm-and he would merely get hve years
the state Prison-merely misdemeanor, not
felony. You can say that Foster was In v
nernetration of a crime and that he unlnIe
honalIv killed Putnam, and that tWould