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VOL. VE :
TRUTHS POWERFUL, AND WILL PREVAIL.
NEW-YORK, SATURDAY, OCTOBER 16, 1836...
NO. 42
ERELAND.
Commussiox Court.—Duntin 28th August 1839.»
FATAL DUEL WITH MR. O’GRADY.
Captain Jobn Roland Smith, and Captain Edward Mark-
ham, were placed at. the bar, to plead to an indictment
charging them with having killed the late Standish Stamer
O'Grady, Esq. ia a duel—they pleaded not guilty. Both
gentlemen were dressed in mourning... Captain Smith, when
called upon to plead, appeared deeply affected.
he, prisoners were dressed nearly alike ; in black frock
« coats aud waistcoats, and white trowsers, with black cravats.
Captain Smith appears to be about 26 years of age, witha
good figure; he is also well-looking, but his countenance is
not expressive. . His comptexionis fair ; his forehead is rather
high, but narrow; aud there is no feature displaying irritable
feelings about him. Ilis demeanour was calm and steady, but
very dejected, and be bore himself like one not insensible in
the slightest degree to the unhappy circumstances in which
he stood, but indifferent to their. consequences; still not reck-
less, but resigned. Captain Markham is, perhaps, about the
same age as his friend, but not so tall and well-looking. His
complexion is dark, and he has expressive, dark eyes... He
Jooked thin, and rather pale, and his manner displayed much
more anxiety and impatience. than that of Captain Smith.
Still he did not want self possession though he seemed sensi-
tive and irritable.
Mr. North proceeded to state shortly the facts
as afterwards detailed in evidence. ’ i
Rev: Johu Darley : Oa the 17th of March last I was ridiag
in company with the Rev. Mr. O’Brien from Grafton street
of the case,
“tewards: Merrion square; my attention was attracted by see-
jag a cabriolet coming rapidly towards me +1 observed a gea-
tleman oa horseback, near the cabriolet ; it was on the same
side with a carriage, which was standing by the flag-way ;
that part of the street is varrew; the horseman was riding
slowly; the cabriolet was driving rapidly; they were comin
- in. opposite directions; the cabriolet was on the College wall
side of Nassau-street ; the person on horseback was between
the cabriolet and the College wall; he was driven by the ea-
hriolet so close on the flags that he was compelled to urge his
horse ov the flag way; when driven up on the flag way 1
observed him rising his hand with a stick iait; I saw no far-
iher collision than what I have stated; the gentleman on
horseback passed by, and rode-up Nassau street ata slow
ace, in the same direction he had been going; I did not
prow any of the parties; the gentleman on horseback was
yoing towards Merrion-square when the officer pulled up his
fiorse, leaped out of the cabriolet he then pursued the gentle-
snau on horseback, and when he came within the- reach of
his gig whip he inflicted some blows upon his shoulders; the
gentleman on horseback pulled round his horse, and when
Jie did so the officer turned round towards his cabriolet, which
was at the coraer of Dawson-street; the person on horseback
overtook the officer at the, coruer of Dawson street; there
were some words exchanged between the two gentlemen, the
import of which I did not at the time understand; the gentle-
man on horseback thea rode slowly up Dawson-street ; the
officers drove ‘towards Grafton-street; when Mr. O'Grady
ratsed his hand it appeared to me as if he were warding off
comething, and not as if making the blow; the motion ap-
peared to me to be a lateral. one, as well as I cau recollect;
there was, I should thiak, astroke given; I could net identify
cither of the prisoners,
Lieutenant Francis Macnamara:1 am lieutenant in the 8th
regiment of Hussars; I was acqainted with the Jate. Mr.
O'Grady ; am a relative of his; L saw him oy the 17th
Mareh; I knew Captains Smith and Markham; I saw them
Loth thatday ; I had seen O'Grady before I saw them ; I saw
them in the Barrack-rgom, at Richmond Barracks; to the
best of my belief I saw Smith first; he was looking out of
the window; I went to the room, and I told Captain Smith
\}was sorry for what had happened between him and Mr.
\O’Grady ; Captain Markham was present at the couversa-
tion; I told him what Mr. O'Grady had told me; that he had
veen riding in Nassau-street, toward Merrion square ;. tuat
he street was very much crowded and a cabriolet driving
yowards him, as if from the square; that he cried out to the
people havea care—have a care, or you will rug me on the
lags ;” that they continued to drive on; that they cid run
tim ou the flags and thatin doing so, his horse sturgbled ; that
ie put his arm out to recover himself from falling ; did reco:
ver, and rode on; thought no more of jt, till he received a
whip across his face from a person in the rear; that he could
‘yt pull up his horse until the person who was striking him
stopped; (this is the substance ef what I said to Captain
Smith); Captain Smith said that Mr. O'Grady struck at
him; I said that I knew nothing about that, further than
what Mr. O’Grady told mo; that I believed what Captain
Smith conceived was a blow, was ‘nothing more than Mr.
O'Grady. striving to save himself from falling; he said,
“ there could be no mistake, it was meant as a blow :” Las-
sured him that Mr. O'Grady did not mean to offend him in
any way; I had then some conversation with Captain Smith
and Captain Markham, but I requested that Smith should
leave the room; he did leave it; I then remarked to Captain
Markham, that I was sorry for what had happened, and asked
him what was the best way of settling it; Markham said be
saw no way of setiling it without fighting ; I said very well as
it must be so, the soouer the better ;” accordingly we agreed
that there should be a meeting next morning to fight; we
settled the time of meeting and the place; I do not recollect
having seea Captain Smith or Markham that evening; 1
went then to Portobello barracks, and saw Mr. O'Grady, and
told him about the meeting ; Mr. O’Grady spent that night ia
aroom at Portobello barracks; the next morning 1 went
with Mr. O’Grady to the ground, in a job coach; no oue
accompanied us; we went to the back ofa field near the
canal; Captains Smith and Markham came in about ten
minutes afterwards; when I saw Capt. Markham, I asked
him how he did; Captain Markham told me they could make
no apology. The day before Capt. Markham remarked to
me and asked me, if one shot would not be enough, and I
said certainly, provided there was an apology made alter-
wards; the day before we rode along the banks of the canal
to select a place; it was there this conversation occurred ; it
was the morning after he said there could be. no apology ; I
said I was sorry for iv’; we then went to the ground ;
measured the ground; Captain’ Markham left it to me: he
asked who would measure the ground ; I said I would, if he
had no objection ; tie ssid very well—he would Icave €
thing to me: he left the selection of the place, aud the gi
the signal to me, but J would not do it; I chose the position
where to put my friend; the signal agreed on was * ready—
fire” ; I saw Captain Smith and Mr. O'Grady placed on the
ground, and fixed in the position I chose; [ told Mr. O'Grady
that the word was to he “ ready—fire” ; Captain Markham,
as well as I recollect, gave the word properly ; I never per-
ceived any mistake; 1 beard there was afterwards; I was
standing to the right of my friend about six paces aud looking
at Captain Smith; Captain Markham was on the left of his
friend; the word * fire,” was given; there was an interval 1
should say of about six sceonds; when the word “ready”
was given, Captain Smith raised his pistol; when I heard the
report and saw the flash, I paused for a second looking at
Smith, and then turned round. and saw O'Grady falling
Markham was before me; he made an exclamation of hor-
ror; he appeared to be very wuch affeeted, as did also Capt.
Sinith; L weut up to Captain Smith, took him by the hand,
and tuld him to be off; he said be could not till he had shakea
bands with Mr, O’Grady, and asked his forgiveness; he did
so, and Mr. O'Grady forgave him; Surgeon Griffin came up
after the shot was fired; we brought Mr. O’Grady to the
Portobello barracks; he wished to be brought home}; it was
Mr. O’Grady made me go away ; lie appeared to be aware
that he was in a dangerous situation ; he said that he thought
Captain Smith should not have fired at him. .
Cross-examined: I am ao officer in a Hussar regiment ;
Tam seven or cight and twenty years of age; I think the
conduct of these gentlemen on the ground was perfectly fair
aod honourable; 1 think that the difference of position, if any,
was in favour of Mr. O'Grady; the pistols of Mr. O'Grady
were detonating: Smith's were flints; the detonating are
quicker than fiuts; O’Grady’s pistol appeared to have been
discharged ; no person knows less of duelling than Ido; I
have been acquitted from this charge myself; 1 heard that
Mr, O'Grady’s brother had been, taken up, as if it were he
that sent the message. .
In answer to the Jury: I did not mean to convey that I
would not have accepted an apology without a shot ; I heard
but one report on the ground, and if there were two shots,
they must certainly have been fired at the one moment.
Mr. Bennett, on the part of Captain Smith, said, that his
client had prepared a statement, which he wished to read to
the court, “ , .
Lord Plunkett said, that as the prisoners had the benefit of
counsel, he did got think the court would be justified in hear-
ing bim. ,
After some argument on this point, Mr. Shicl, on the part
of Captaia Smith, said that he would withdraw bis claim to
bo heard, as the court seemed opposed to jt. . .
Se
FOR THE DEFENCE.
Mr. Whitty Stokes: I was in.Nassan-street on the 17th
March; I saw Mr. O'Grady on that day ; I was about twelve.
feet from the cabriolet and the gentleman on horseback;
when the two officers were passing, | saw Mr. O'Grady strike.
very violently in the face of. the cabriolet; the gentlemen
were not driving very violently; the blow was not at tho
horse but the cabriolet; I should. not think that from the man-
ner in which the blow was made, it was the way to ward off
the cabriolet: the hand was, raised up high: the blow. was
behind the borse : the whip, I think, would not have struck ,
the horse; the person who, made the blow, appeared to have
made it angrily and furiously: 1 did not hear the gentleman
on horseback say any thing.
Major Graham: Tam Major in the 12th Lancers: my
acqaintance with Captain Smith commenced nine years ago :
he was then a cornet in the 16th Lancers with myself: it was.
the opinion of the officers that no finer or better disposed
man ever entered the service.
Robert Dillon :, I know Captain Smith intimately well :
I know him two. years: he was iu the same. regiment with.
me, the 32d: IT was the senior Major: I always considered
bim a kind and good natured, a most safe companion: I
never knew officers more esteemed or beloved by their corps
than the two prisoners at the bar: I havé known Captain
Markham since 1824: he was then a very young man, about
18 years of age. ,
Major Wingfield: Iam Major in the 22d Regiment: I
have known Captain Smith two years: I have always cousi-
dered him a wan of kind disposition and amiable mauuers,
and he has been esteemed as such by his brother officers : I
kaow Captain Markham five years: he is beloved by his bro-
ther officers, and is considered kind and amiable.
Arthur Uume,’ Esq.: I know Captain Smith for fixe or
six years, since be came home from Iodia: far as I have
koswoof him he is an amiable and well-conducted younz
ineo. ee Date yous
Sir John Byng: I know the gentlemen at the bar by chia~
racter: 1 did not know them till tyey came to Dublin: the
commanding officer iatroduced them to ie as gentlemen who
could be introduced to any society: Captain Markbam has
been several times at_my house, and L have the highest res-
pect for him and his fawily, whom I know very. well; Capt.
Smith bas been invited to my house, but by accident he bas
nol come.
Judge Vandeleur then addressed the jury and said: Gen-.
tlemen of the jury, in this case the prisoners at the bar, John
Roland Smith, and Frederick Markbam, are indicted, that
they, ou the 19th March, did wilfully kill and murder Stan-
dish Stamer O'Grady, the said John R. Smith having dis-
charged and shot off against bim a pistol, charged with gun-
powder and a leaden bullet, and that the prisoner, Frederick
Markham , was aiding and assisting the said Smith. The
offence with which the prisoners are charged does not amount
to the crime of murder: itis one subjecting them to an infe-
rior degree of puuishment, and it is ove for which they can-
not forfeit their lives. 1 do not think that after the investiga-
tion that has taken place, and after the detail of facts that
has been laid before you, that I am called on minutely to re-
capitulate these facts to you.
told you to discharge from your minds all that you have
heard of this transaction. The court implores of you to act
upon that advice, and it tells you that you are upon your oath
bound to decide upon nothing but the evidence that bas been
laid before you. The lamented occurrence out of which the
present prosecution has arisen bas taken place under what is
geuerally called the principles of honor. With these, neither
you nor we have anything to say, nor is it by those princi- ©
les that this transaction is to be decided in a court of law.
‘The counsel for the crown bas - .
Whatever may be the rules and principles dictated by what *
is called a court of bonor,.a court of law has nothing to say’
to them The laws of this country cannot encourage them :
for beyond all question, if a man in cool blood kills another, .
and that with, vat sufficient provocation, he can neither justify
nor extenuate his crime by asserting that what be has done
was in strict accoraance, with the laws of honor. | It is by the .
law of the land that you have to decide, aud not according to -
to the codes of honor. To the gentlemen of the bar, to their
relatives, aud to their friends, however satisfactory it may be
to know that whatever was done in this unfortunate transac-
tion was in strict accordance with the laws of honour, still let
me impress on your minds, that with that you have nothing -
to do. ‘The question here, was it according to thelaw! It
is not by the rules of fairness in a court of hogour, you are to
decide, but you are to say wasit in accordance with the laws -
oftheland?’ It is not the fairacss but the legality of the.
transactton you have to determing, Watess tho billing of Mr.