A Tragedy at No. 88 Mulberry Street

by Marion R. Casey, Glucksman Ireland House, New York University

© 2014 Marion R. Casey.  ALL RIGHTS RESERVED.

 

Catherine Gillen, a widow from Drumcliff, Co. Sligo, opened an Emigrant Saving Bank account in September 1859, recording that she had emigrated on the “Eliza Little” in 1846.  In fact, the ship’s name was the Eliza Liddell and it had been chartered by Lord Palmerston in the spring of 1847 to take some of his starving and impoverished tenants to Quebec.[1]  Catherine and her family had an exceptionally difficult, fifty-four day Atlantic crossing, with typhus and dysentery raging among passengers who had been inadequately supplied with food and water for such an extended journey.  Their condition shocked the immigration agent at the New Brunswick port of Shippagan: “Nothing could exceed the picture of misery and destitution of these emigrants at the first landing.”[2]

The Gillen family included sons Thomas, Michael, Edward and Patrick and daughters Mary and Bridget.  1850 US Census, New York County, 6th Ward.

The Gillen family included sons Thomas, Michael, Edward and Patrick and daughters Mary and Bridget. 1850 US Census, New York County, 6th Ward. Ancestry.com [database on-line]

Like many other Palmerston tenants travelling as assisted emigrants, Catherine, her husband James, and their six children eventually made their way to New York City, settling in the 6th Ward, only a few blocks from the Five Points intersection.  Her address in 1859 was 92 Mulberry Street between Bayard and Canal Street, where she said she was a “housekeeper.” But four years earlier, the Gillen family was living two doors down at No. 88 Mulberry Street in a building which also housed Owen Healey’s unlicensed saloon.  It was there that 19 year old Hugh Donnelly provoked 62 year old Jimmy Gillen, triggering a tragic chain of consequences. [3]

88 Mulberry In a fight in New York-page-001

The story unfolds below, through the eyewitness testimony of many of their neighbors on Mulberry Street.  The case was covered in the New York Times, no doubt because of the lawyers arguing the case:  A. Oakey Hall, District Attorney for the prosecution, and Frederick A. Tallmadge, Defense Attorney for James Gillen.  But readers of the Times would not have been aware of the Gillens’ backstory, nor of their deprivation in Ireland and their extraordinary endurance in America for the eight years preceding that fateful Saturday afternoon in New York City.

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NEW YORK TIMES, 13 September 1855

TRIAL FOR MURDER.

TRIAL OF JAMES GILLEN  FOR THE MURDER OF HUGH DONNELLY.

Court of General Sessions – Sept. 12.

Before Hon. Recorder Smith.

 Yesterday, in this Court, after some unimportant business, James Gillen was put to the bar, charged with the murder of Hugh Donnelly, on the 26th of May last, at 3 o’clock in the afternoon, in the front of the premises No. 88 Mulberry-street.

The District Attorney, in opening the case, explained the difference between murder and manslaughter. He then proceeded to give a history of this case. There was a ruined building in Gillen’s neighborhood, in May last, and the wood and other rubbish belonging there to was conceded to be the property of anybody who would carry it away. Gillen had conveyed some beams to the sidewalk in front of his dwelling, but while he returned for more, the deceased, Donnelly, and some other persons, removed two of these beams, as it seemed, for a joke. The difficulty grew out of this, and after some angry words, a scuffle ensued, in which Donnelly was stabbed. It would be for the Jury to determine from the evidence whether the prisoner inflicted the wound.

The prisoner was ably defended by Ex-Recorder Talmadge.

The District Attorney then read the deposition of Dr. Thomas C. Finnell, who made the post-mortem examination of deceased. It was as follows:
Thomas C. Finnell, M.D., being sworn, says: I have made a post-mortem examination of the body of deceased, at the Sixth Ward Station-house, and found a wound on the left side of the chest, four inches below the nipple, and three inches to the left; it passed upward and inward between the sixth and seventh ribs, and entered the left side of the heart; the left cavity contained about three pints of blood; the effusion in the chest was the immediate cause of death.

T.C. FINNELL, M.D., No. 39 Grand-street.
Taken before me, May 27, 1855
WM. O’DONNELL, Coroner.

 

Patrick Morgan was the first witness examined. He said: I lived at No. 89 Mulberry-street when this affair happened; I live now out of the City; I am a silversmith by trade; I worked for Mr. Gilbert, in Liberty-place; I know the prisoner by sight; I knew Hugh Donnelly; I saw him at the Station house, after he was dead; I saw part of the occurrence which led to his death; I was coming towards Mulberry-street; I met with Donnelly, McCarthy, Neville and Gillen; Donnelly and Gillen had some words; I met them in Walker-street, going towards Broadway; it was near 3 o’clock in the afternoon; I heard them talking about some old wood; I heard Gillen say to Donnelly that he would rip his guts if he did not bring back the woods.

By a juror – They seemed to be well acquainted with each other.

Direct examination resumed – Gillen stood straight before Donnelly; Donnelly seemed to be going to strike him; they were close together; Donnelly had nothing in his hands; Gillen had a knife; he had the knife partly in his pocket; the party then broke up and I left them; I walked right ahead and went home; I remained in the house about ten minutes; I then came out and sat on the stoop; I saw Gillen and Donnelly arguing; they were on one side and I was on the other side; there were about half a dozen persons present; I knew some of them; I saw Donnelly and Gillen sculling; I saw Donnelly get up; Gillen had a knife in his hand which he threw away when Donnelly got up; Donnelly ran a short distance, when he fell; he died on the spot where he fell; I saw them all the time; I ran across and saw the knife where it was thrown; there was blood on it; the scuffle began before I got on the stoop; the noise brought me out; Donnelly had nothing in his hand; the scuffle lasted five minutes; some woman tried to interfere and part them; I don’t know who the woman was.

88 Mulberry Street (2014). Owen Healy applied for an excise license in 1857 according to a notice in the  NEW YORK TRIBUNE  on August  7th. This is the same Owen Healy who open bank account no. 3976 with Emigrant in 1853, then self-described as  a "dealer in bottles" at 103 Mulberry Street. He was from Moneygoole [Moneygold], 1 mile from Grange, Co Sligo,  who had arrived via Quebec per the ship Transit from the port of Sligo, part of an assisted emigration plan implemented by Lord Palmerston for his Ahamlish parish tenants.  His parents were dead but he had 3 sisters and a brother in New York, as well as a brother in Cincinnati.  The 1859 New York City Directory lists one Owen Healy, liquors, 28 Cherry Street, so it appears that he got his excise license after all!

88 Mulberry Street (2014).

Cross-examined by Mr. Talmadge – Gillen resided at No. 88 Mulberry-street; I did not see him saving wood that day; I think I saw wood in front of his door; I first saw him in Walker-street; Donnelly, Neville and McCarthy were with him; they were not conversing in a friendly manner; Donnelly was blind in one eye; Gillen said he would rip his blind guts out; I was standing close by them at the time; they separated then; and Gillen went to his house, which was about a third of a block off; I suppose he threatened Donnelly, and not McCarthy or Neville; Donnelly made a motion as if to strike him; I am positive I saw a knife in Gillen’s hand; I don’t know the length of the handle; I did not see him draw the knife out of his pocket; it projected a very little; I only saw the end of the handle; I do not know that the knife was open; I did not see the blade of the knife at that time; I could not judge what kind of a knife it was; I am certain it was a knife; when Gillen put his hand in his pocket, Donnelly raised his hand to strike him; he did not strike hime, because he was separated.

By the Court – McCarthy and Neville interposed to separate them; Gillen then went towards Mulberry-street, and the others went towards Baxter-street.

Cross-examination resumed – I saw Donnelly in Mulberry-street, opposite Gillen’s house, about a quarter of an hour afterwards; McCarthy and Neville were there also, but I don’t know whether they came in company; they were then fighting in front of Gillen’s door; I did not see McCarthy or Neville strike any blows; I saw Donnelly strike Gillen; I could not see which struck first; I saw both of them down on the sidewalk; they were both clenched; I saw Donnelly strike Gillen several times; I saw Gillen strike Donnelly; I saw Donnelly get up, run across the street, and fall; I did not see Gillen after he got up till Officer Sweeney was taking him away; I saw a knife in Gillen’s hand when he got up; it looked like a fish-knife; the blade was as long as my finger; he threw it down on the side-walk; there were a number of people standing about; I don’t know how many; there were more than a dozen.

By the District Attorney – I was not more acquainted with Donnelly than with Gillen; I was not more a friend to one than the other.

By Mr. Talmadge – I was not in the habit of going about with them.

By a Juror – I saw blood on the knife which Gillen threw away.

By Mr. Talmadge – I saw blood on the knife as he threw it away; I did not examine it afterwards; he threw it about eight feet.

88 Mulberry Jimmy GillenThomas McCarthy, examined by the District Attorney – I live at the corner of Broome and Elizabeth; I was with Donnelly, Neville and some other boys; we took some of the wood which belonged to Gillen, and hid it; it was old wood; Neville took some, and I took some; Gillen’s wife came after the wood; we would not let her have it; we told her we wanted to have some fun with Gillen; Donnelly, Neville and I started down Mulberry-street, and then down Walker-street; Gillen met us and said to Donnelly, “You blind son of a b—h, if you don’t let my wood alone I’ll cut your guts out;” Donnelly ran over to him and said, “Jimmy Gillen, you have drawn a knife on several of the boys around Mulberry-street, and if you draw a knife on me, I’ll knock the Irish head off your shoulders;” I and Neville then took them apart, and I and Donnelly went away; presently I left him, and don’t know what became of him; the old building where the wood was taken from was between Hester and Walker streets; Donnelly had no weapon in his hand; I saw a penknife in Gillen’s hand; he transferred it from his breast pocket to his trousers pocket; he did so when he made the threat that he would cut Donnelly’s guts out; we were going towards the old building , because some people had been killed there, by part of the building falling down; I afterwards saw Donnelly, Gillen, Neville and some others arguing at Gillen’s door in Mulberry-street; I saw Donnelly go towards Gillen; they clenched, and I saw Neville’s eye bleeding; I took him and went down to my house with him; I came back and met a man named Wheeler, who told me Donnelly was dead; I did not see Neville struck, but I understand he was struck with a brick by a woman.

The Court here took a recess of one hour.

88 Mulberry Owen Healy

After the recess, the Recorder entering the Court, the first witness called was

John McGuckin, who said: I am barkeeper to Owen Healy, at No. 88 Mulberry-street; I saw the occurrence; I was standing at the door about 3 o’clock; the man that occupied the basement brought a load of old wood from the building and dumped it on the side-walk; Gillen at the same time brought four old beams, which he laid down; he asked me to watch the beams; he went away, and some young man came and took away some of the wood belonging to the man in the basement; McCarthy was one; McCarthy again came and took one of Gillen’s beams and concealed it up the alley-way adjoining; Donnelly then came and took away a beam, and concealed it up the same alley-way; Gillen’s wife then came out and asked who had taken the wood; somebody answered her, and prevented me from answering her; Gillen then came and asked Neville what had become of the wood; I thought they were going to fight; Gillen then came back and commenced making preparations for sawing the wood; while he was doing so, Donnelly and Neville came up and commenced talking to Gillen; Donnelly then began to quarrel, and attempted to fight Gillen, but Gillen’s wife separated them; Gillen’s wife called Donnelly a thief, which irritated him a great deal, and he tried to get at Gillen again, but was prevented; Gillen kept quarreling in the meantime; Mrs. Gillen also called Neville a thief, and asked him why he did not work as her husband did; Neville threw off his coat, and said he could lick Gillen or any Irishman on the block; Donnelly then jumped up, took off his coat and made a spring at Gillen; they clenched and struggled into the alley-way adjoining the store; they reappeared still struggling and fighting; they fell down; my attention was then drawn to Neville, who had a stone thrown at him, which struck him under the eye; Donnelly and Gillen were still on the ground struggling against the ash-box before the store; Donnelly got up, but fell again, and remained perfectly still.

By the Court – It was possible for another person to have assailed Donnelly, without my perceiving it.

Examination resumed – The ash-box is about four yards from the entrance to the alley; not ten seconds elaspsed after they came from the alley before Donnelly fell; after Donnelly fell Gillen came into the store, he appeared quite cool; his wife and another woman came in; the other woman said, “Jimmy, it’s reported you have stabbed him;” Gillen’s wife said, “’Tis a lie, he hasn’t stabbed him;” Gillen said nothing, but walked out of the store; I did not see him again till Officer Sweney [sic] arrested him; when they came out of the alley they were clenched as close as they could be, and each was trying to strike the other.

By the Court – I did not notice any weapon in the hands of either of them; if they had had any weapon previous to their clenching, I must have seen it.

By a Juror – There was no one fighting Donnelly but Gillen, and no one fighting Gillen but Donnelly.

Cross-examined by Mr. Talmadge – Gillen, when he came to the store, crossed over to Neville on the opposite side of the street; he afterwards came back and commenced sawing the wood; Neville and Donnelly then came over to him, and Donnelly began to speak to him; Donnelly took some of the wood that belonged to Gillen; Donnelly was a young man; he looked about 21; his age on the Coroner’s book is 19; he was strong and powerful; I have not known him long; I know nothing of him; I did not see Neville strike Mrs. Gillen; I think she was thrown on the ground about the time Donnelly fell; I think Neville was the cause of her fall, but I do not know what he did to cause it; all the women about were screaming; I presume they were trying to prevent Donnelly and the others from attacking Gillen; I saw Gillen fall when he and Donnelly were struggling; from my best impression I believe he was under Donnelly; I cannot state positively, but I think Donnelly was on him; one of Gillen’s beams was still missing, which was the cause of the excitement being kept up; I did not see a knife in Gillen’s hand; if he had had a knife, previous to their clenching, I must have seen it.

By the District Attorney – If Gillen had had a penknife, while he was down by the ash-box, I might not have seen it.

Ann Feeny examined by the District Attorney – I live at No. 95 Mulberry-street, next door to the last witness; I was in doors washing when this difficulty took place; I heard the noise in the street; I looked out and saw Mrs. Gillen and Donnelly arguing very loud; Gillen was sawing wood, and Donnelly was sitting on the railing on the stoop of No. 88; I heard Donnelly say to Gillen that he didn’t want to fight with a woman, but that he wanted to fight with a man; I next saw Gillen and Donnelly clenching; I saw no more till I saw Donnelly dead; I did not see Gillen and Donnelly at the ash-box; I say, on my oath, that I did not see either of them have a knife; I am no relation to Gillen.

James & Catherine Gillen, listed with their sons Thomas and Michael, on the passenger list for the "Eliza Liddell." Provincial Archives of New Brunswick, RS 555 Provincial Secretary: Immigration Admission Records.

James & Catherine Gillen, listed with their sons Thomas and Michael, on the passenger list for the “Eliza Liddell.” Provincial Archives of New Brunswick, RS 555 Provincial Secretary: Immigration Admission Records.

The rest of the Gillen family on the passenger list for the "Eliza Liddell." Provincial Archives of New Brunswick, RS 555 Provincial Secretary: Immigration Admission Records.

The rest of the Gillen family on the passenger list for the “Eliza Liddell.” Provincial Archives of New Brunswick, RS 555 Provincial Secretary: Immigration Admission Records.

The witness, McCarthy, who was not in Court at the commencement of the proceedings after the recess, now being present, was placed again on the stand, and cross-examined by Mr. Tallmadge [sic]. He said:

I do not know the meaning of the joke in hiding the wood; I assisted to hide it; several persons saw us take it, and we knew they would tell Gillen of it; Gillen seemed very much offended; I and Donnelly and Neville were in the habit of being much together; at the interview in Walker-street, I saw Gillen take a knife out of his breast pocket and place it in his trowsers [sic] pocket; I do not remember what kind of knife it was; I saw part of the blade, which was closed; I cannot tell the color of the knife; it was a big knife; the handle was about six inches long.

Sarah McGlucken examined by the District Attorney – I reside at No. 86 Mulberry-street; I saw the occurrence; I heard the quarreling in the street between Gillen and the deceased; they seemed to catch hold of each other; after a while I saw deceased have Gillen under him; this was under the window of No. 86, and not by the ash-box; they seemed to be entangled in each other; I then saw Gillen’s wife throwing stones at the crowd, seemingly to get them away; my attention was turned to Mrs. Gillen; afterwards I looked round and saw deceased lying in the street, on the opposite side, with his arms extended.

Cross-examined by Mr. Tallmadge – I saw no knife in Gillen’s hand; I looked right down onthem, and had a full view of them; I did not see Mrs. Gillen throw herself down on Donnelly; I saw her raise her had to get away the persons from her husband.

Charles Wheeler examined by the District Attorney – I came up Mulberry street on the day of the occurrence; I saw Donnelly and some of the boys, and heard them propose to hide some of Gillen’s wood away; they carried one beam and hid it in the rear of No. 87; I saw Neville and Gillen come out of Walker-street; Gillen went back and got his beam from rear of No. 87; Gillen then went to saw his wood and Donnelly came up; then Neville and I went over; Neville told Gillen to come to the yard and he would fight him; Gillen did not go; Gillen’s wife then called Neville names; Gillen asked Neville to go into a room and fight him; Donnelly then got up from the stoop where he was sitting, and pushed Gillen, who fell; Gillen’s wife came up, slapped Donnelly in the face, and called him “a blind eyed skunk;” Donnelly drew his fist back, and said he never did hit a woman, but that if she didn’t get away, he would knock her into eternity; Donnelly then run at Gillen and caught him by the throat; Gillen had a knife in his pocket; he had hold of the handle; I do not know whether the knife was open; they clenched and scuffled; I head some one speak of a knife just as they got by the alley-way.  I saw Neville in the gutter with his eye cut; he got up, and I went with him; I did not see Donnelly fall; there were several women engaged in fighting.

Cross-examined – Donnelly was a very powerful man; their object in hiding Gillen’s wood was to plague him; Donnelly was not particularly a fighting man.

By the District Attorney – Donnelly had large shoulders and a larger chest than the prisoner; he was altogether a heavier man.

TESTIMONY FOR DEFENCE.

There being no other witnesses ready for the prosecution, Mr. Tallmadge called for the defence,

Michael Devins, who said – I witnessed the occurrence; Gillen had some wood, which he was in the act of sawing; Neville stood behind him on the sidewalk, and was arguing in an angry manner; Donnelly had been sitting down, but he got up to make a rush at Gillen; Mrs. Gillen got between them, with a baby in her arms; he made a rush at Gillen again, and again the wife prevented him; the third time they clenched; I stood next door below; I saw Donnelly in the act of getting up; after he got up, he ran out into the middle of the street; I did not see him fall again.

Thomas Towly examined by Mr. Tallmadge – I live at No. 78 Mulberry-street; I was passing by when Donnelly and Gillen were arguing about the wood; Donnelly was going to fight Gillen, and Gillen’s wife got between them, with a baby in her arms; I saw them fight; they rushed into the ally; I did not know their names at the time; I should not know themnow; I heard somebody say that Donnelly was killed.

Thomas Dowling examined by Mr. Tallmadge –I live at No. 94 Mulberry-street; I was standing at my door; I saw boys carry sticks away; I don’t know to whom the sticks belonged; I did not move from my house; I think the fight ensured from the taking of the wood; I told Gillen the boys were only funning with him in taking the wood; afterwards there was a fight, and the report went that a man was killed; that is all I know; I considered that Gillen was attached without provocation.

88 Mulberry He got up and said he could lick any Irishman in MulberryJohn Slavin examined by Mr. Tallmadge – I live at No. 127 Mott-street; I saw the occurrence;  I was in Mr. Healy’s bar-room at No. 88 Mulberry-street; Gillen was sawing wood on the sidewalk; some boys came up and spoke to him, but I did not hear what they said; Donnelly sat upon the stoop; he wanted Gillen to come to Healy’s and fight; Mrs. Gillen told him to go and mind his business; Donnelly then went to strike Gillen; Mrs. Gillen got between them and Donnelly sat down on the stoop again; after that he got up and said he could lick any Irishman in Mulberry-street; he took off his coat; I did not go outside the house till I heard Donnelly was killed.

 Frederick A. Tallmadge. Oil on canvas,  John Vanderlyn (1849). Litchfield Historical Society.

Frederick A. Tallmadge. Oil on canvas, John Vanderlyn (1849). Litchfield Historical Society. Tallmadge was subsequently the Superintendent of the Metropolitan Police during the 1857 riot.

Patrick H. O’Neil examined by Mr. Tallmadge – I am a police officer; I knew Hugh Donnelly.

Mr. Tallmadge said he wished to prove from this witness that Donnelly was notoriously a quarrelsome man.

The District Attorney objected.  He said it would then be incumbent upon him to produce rebutting testimony, and also to offer evidence of the prisoner’s quarrelsome character, which would, apart from the legality of the testimony, open up an endless source of discussion.

The Recorder decided against Mr. Tallmadge.  He said that such testimony could not be received in evidence.  The witness accordingly was withdrawn.

Thomas Gillen examined by Mr. Tallmadge – I am the brother of the prisoner; I live at No. 94 Mulberry-street; I was standing at my door when I saw my brother come down the street with a beam on his shoulder; he went away and I saw Donnelly and McCarthy come along and take it away; then my brother came and enquired about the word; a man touched him on the shoulder and took him to where they had hidden it, and he brought it back; I afterwards saw Neville and Donnelly have hold of him in the alleyway; I saw Mrs. Gillen come along to protect her husband; then Neville got hold of her by the arm; I next saw Gillen fall and Donnelly on the top of him, near the ash box; my sister then came and shoved Donnelly off Gillen and threw herself on Gillen; I saw Gillen get up and walk towards No. 86; then I saw Neville run at him and knock him down again; I looked round to find a policeman to have Neville arrested; I felt sick and did not interfere myself; I afterwards saw Donnelly lying on the sidewalk on the other side with his feet in the gutter; my brother had no coat or vest on that day, nothing but his pants and shirt.

Thomas Gillen and his family listed as passengers on the 'Eliza Liddell' in 1847.

Thomas Gillen and his family listed as passengers on the ‘Eliza Liddell’ in 1847. Provincial Archives of New Brunswick, RS 555 Provincial Secretary: Immigration Admission Records.

This witness was cross-examined by the District Attorney, but nothing material was elicited.  He contradicted the testimony of previous witnesses respecting the presence of Neville at the time of the stabbing of Donnelly; he was also positive that his brother did not wear a coat that day, although other witnesses had testified that he removed his coat before the scuffle.

EVIDENCE FOR THE PROSECUTION RESUMED.

James Sweney by the District Attorney:  I am a police officer – I arrested the prisoner; he had no marks of violence about him; there was a black mark about one of his eyes, but he said that came from a trouble he had had before; he denied having stabbed the deceased.

Mr. Tallmadge objected to the testimony.  The District Attorney explained that he wished to show that with respect to any violence having been used by Donnelly, there were no marks of such violence on Gillen’s person; moreover, that he told contradictory stories relative to having possession of the knife and to using it.  Mr. Tallmadge replied at length, objecting to the production, as evidence, of anything said by prisoner to the officer, who had no right to question him.  The Court decided against Mr. Tallmadge, but the further examination of the witness was not material.

There being no further evidence, the Court here adjourned to this morning at 9 o’clock, when Mr. Tallmadge will address the Jury for the defence.

 

 

NEW YORK TIMES, 13 September 1855

 

TRIAL FOR MURDER.

TRIAL OF GILLEN  FOR THE MURDER OF DONNELLY.

Court of General Sessions – Sept. 13.

Before Hon. Recorder Smith.

 

The trial of James Gillen for the murder of Hugh Donnelly, was continued yesterday.  The Court opened at 9 o’clock A.M.  Another witness was produced by the defence.

James Gilmarten, examined by Mr. Talmadge – I live at No. 93 Mulberry-street; I am a laborer; I have just let my work to come here; I witnessed the difficulty for which Gillen is on trial; I saw two men drag him by the hair of his head; Mrs. Gillen was trying to keep the men off her husband; I went into the street and saw Donnelly dead; the pulling of the hair occurred before the stabbing.

The District Attorney declined to cross examine this witness.

Mr. Talmadge then addressed the Jury for the defence.  He dwelt on the discrepancies in the evidence; on the evident feeling against Gillen manifested by most of the witnesses; on the uncertainty, from the evidence, whether Gillen had a knife in his hand at any time during the quarrel; on the almost total want of evidence respecting the blow which caused Donnelly’s death – there being no proof that it was inflicted by Gillen; and even if it were certain that Gillen did stab Donnelly, what proof was there of premeditation?  Moreover, Gillen had been injured by Donnelly; he had been robbed and insulted by him.  Looking at all these points, he (the learned counsel) trusted that the Jury would find that there was no premeditation, and consequently no murder; that at the worst they would find him guilty of manslaughter.  But he trusted that it would not be inconsistent with their duty, taking into account the provocation received and the absence of premeditation, to acquit the prisoner altogether.  Even if they found him guilty, it could only be of manslaughter in the third degree but in his opinion the charge against the prisoner resolved itself into excusable homicide.

A. Oakey Hall, District Attorney for New York. Photograph by Matthew Brady, circa 1844-1850.

A. Oakey Hall, District Attorney for New York in 1855. Photograph by Matthew Brady, circa 1844-1850. Library of Congress LC-USZ62-109931. A graduate of New York University, he was subsequently Mayor of New York City 1869-1872.

The District Attorney replied.  He would be very brief in his remarks.  Although no witness could say that he was the fatal stab given, yet from the testimony reached, could there be any doubt that the deceased met his death at the hands of the accused?  The prisoner must have exhibited the knife spoke of by the witnesses; the deceased himself saw it, and told him that he had already drawn that knife on several boys, and that, if he drew it on him, he would knock his Irish head off. The deceased had jocularly hidden some of his property, and he, in his sullen manner, intimated that he would exhibit his knife when the other wouldn’t see it.  In all the subsequent scuffle the evidence was conclusive that no violence was used by Donnelly – only wrestling between both of them.  If, indeed, there was violence in the struggle, it was equal on both sides.  Indeed, for a long time the deceased refused to fight, said he took the wood in joke, and did not want to fight.  From the nature of the first interview between the parties, in Walker street, the learned gentleman argued that the design to stab Donnelly was premeditated.  There was the threatened, “If you take my wood again, I will rip your guts out.”  The wood was again taken, and the fatal blow was given.  All the circumstances showed cool premeditation.  It was certain that, on Donnelly’s part, no violence had been used on Gillen.  There were no marks of injuries on his person.  His hair might have been pulled; he might have been thrown down in the scuffle, but there was no violence that left a scar or contusion on his person.  The evidence with respect to the stab having been given by Gillen was both positive and circumstantial, but he would deal only with the latter.  He would refer to Dr. Finnell’s evidence.  The wound was situated that only a man who was holding another could have given it; besides, it was proved that no other parties were engaged in a scuffle but Donnelly and Gillen; nobody was assisting Gillen against Donnelly; there was no promiscuous fight; these two alone were engaged.  Who then but Gillen could have dealt the blow?

THE RECORDER’S CHARGE.

The Recorder  then charged the Jury at great length.[4]  He said: Gentlemen, the prisoner at the bar is indicted for the crime of murder.  The penalty, if he is convicted, is death.  It is unnecessary for the Court to say to you that the position which you occupy in relation to this case is more important than that either of the counsel or the Court.  You are arbiters of the destiny of a fellow-being.  On your verdict depends his existence.  His position in society is of no consequence to you.  The same law that applies to the most prominent man in the community, applies to the meanest wretch charged with crime.  You will, therefore, throw out of the question the position of either of these parties except in as far as that position ma help to afford a clue to the bearings of the evidence.  Character and position are sometimes of importance in reaching a proper conclusion, but are of no value beyond that.  When you have investigated the testimony, you will take the law from the Court as applicable to that testimony.  The security of the citizen has no other protection than a fair inquiry on the part of Jurors.  The certainty of punishment is the great preventive of crime.  Whenever, through the misguided feelings of Jurors, the guilty escape, the result is to weaken the security of the public.

His Honor then reviewed the history of the case, and commenced by referring to the interview in Walker-street between Donnelly, Gillen, Neville, and the witness, Morgan.  After the threat uttered by Gillen he went home and, ten minutes afterward, Donnelly came there with Neville, and a scuffle ensued.  The witness Morgan saw a knife in Gillen’s hand, saw it thrown away, noticed blood upon it.  The next witness called was McCarthy, and his testimony, so far as it goes, corresponds with that given by the witness Morgan.  He, however, varies the words which were used, and the language used  in Walker street was, “You blind son of a b—h, I will cut your guts out, if you do not let my wood alone,” showing that the transaction, whatever it was, or the cause of the provocation, grew all out, as I have already stated, of the difficulty in regard to this wood.  Now, at the time that this remark was made, (and this, too, bear in mind, was in Walker street, because it is important, for these are two separate transactions and should not conflict as to time) Donnelly started up and said: “Jimmy, you have drawn a knife on several of the boys, and if you draw one on me, I’ll knock you Irish head off.”  That portion of the language is heard only by this witness, the others giving no such statement.  And I will here take occasion to remark that in a crowd of that kind, where there is excitement, where parties have no particular reason for remembrance, and where they themselves are not actors in the scene, some may hear words, while others, although there may be half-a-dozen present may not hear them, so as to derail any testimony of the kind upon the stand.  It does not therefore follow that because others do no hear and because others do not see the same thing, that those who have testified that they did see it, are to be discredited.  In one case the testimony is positive; in the other it is negative.  It is also important that you, as Jurors, should bear that in mind because sometimes there is not sufficient stress laid upon the difference between positive and negative proof.  Now, this witness, McCarthy, says that he saw the prisoner take a knife from his breast pocket and put it in his trousers; and this was after the threat was made.  This witness also was present at the time of the transaction in Mulberry street.  He describes the manner in which Donnelly took hold of Gillen.  He took him, as he says, by the throat, and gave him a push and gave a description of the thrust, and said “Go away.”  That was the first of any collision which took place between Donnelly and Gillen.  There we have the starting point.  I have examined this evidence with care, and I find that there is none other of the witnesses here who pretend that there was any collision between Donnelly and Gillen until Donnelly came down from the stoop after the quarrel with Neville, and that he pushed him and said, “Go away.”  There is no pretence that at this time any blow was struck upon either side; but previous to this the evidence of the witness is, that the prisoner had requested Neville to go into the yard and fight with him, which encounter was prevented by Mrs. Gillen.  He then requested him to go into the room and fight with him, and started to go, but was also prevented by Mrs. Gillen, and this took place previous tot the time of Donnelly coming from the railing of the stoop, where he had been standing, and laying his hands upon him, and making use of the expression “Go away,” and pushing him.

Mr. Talmadge – I understood, your Honor, the witness to state that Neville invited the accused to go into the year and fight, and that Neville went into the yard, but that Gillen did not go into the yard.

The Recorder – No; it is the reverse according to my notes.

The District Attorney – They went into Healy’s.

The Recorder – Such is the testimony in the case.  Immediately after this the scuffle commences, and it does not appear here very distinctly what the nature of the violence was.  It seems to have been when he pushed him and there is no statement from the witness that Gillen followed him up with a blow, neither that the blow was followed immediately by one from Donnelly, but that they struggled together.  And it would appear from the evidence that they had hold of each other, and were struggling toward the alley-way.  At any rate we lose sight of them for a moment in the alley-way, and but for a moment.  To use the expression of the witness, the bar-tender, who was the most intelligent, and upon whom I place great reliance, from the clear account he gave of the transaction it was not ten seconds.  They then reappeared from the alley-way, and fell together near this coal box.  Immediately after they fell Donnelly sprang up; he ran towards the opposite side of the street; he fell, got up, ran to the side near the gutter, and fell dead almost instantly.  Now, at that time this blow was struck.  The he died from the effect of the blow of the knife, which, as described by the physician, penetrated his heart, and which did penetrate it, is a fact about which there can be no dispute.  So there is no difficulty in arriving at the conclusion in regard to the mode in which his death was caused. The evidence in that respect is beyond all controversy.  There can be no doubt that he died from the wound which he received, because a man with his heart cut through, as this is described, can survive but for an instant.

Now comes the important question in this case, — and I do not feel disposed to go over the testimony, because there is no conflict as regards the main facts in the case, but what you will be able to reconcile, with the exception of the evidence of one witness who I will by and by refer to – this important question it, by which was the blow inflicted?  It has been very truly said, that a man may be convicted of any crime upon circumstantial evidence alone.  It does not require positive proof in a case of murder, any more than it requires positive proof in the smallest case presented for the consideration of the Jury.  The only difference, so far as the magnitude of the case is, that it behooves a Jury, where life is suspended upon their verdict, to weigh everything with the greatest possible care that human means and caution can bring to their aid; but the role of evidence, so far as regards positive and circumstantial proof, is substantially the same in the one case as the other.  And although no human eye saw the blows at the time it was inflicted, still, if from the circumstances of the case, you can come to no other reasonable conclusion than that the prisoner at the bar, from the position in which he was placed, and all the [  ] circumstances, struck the blow, although no individual saw it, still if those circumstances were of such a character as to produce upon your mind a conviction beyond a reasonable doubt that he inflicted it, it is then your duty to find so.  If you come to the conclusion that the blow was struck by the prisoner, there are three other important questions which arise in the case, and those questions are – Was the killing such a one as in the eye of the law constitute the higher crime – murder? If it was not, does it constitute the lesser crime, that of manslaughter?  If not manslaughter, under the circumstances of the case, is it justifiable or excusable homicide?  If you arrive at the fact that he did not strike the blow, then it is not necessary that you should discuss either of the points I have just presented to you.

His Honor then proceeded to instruct the Jury relative to the difference between murder, manslaughter and justifiable homicide.  If they found that the blow was struck in the heat of passion by a dangerous weapon, without a design to effect death, then they would find the prisoner guilty of manslaughter in the third degree.  But if, on the contrary, when that blow was struck, there was no excuse for it, and there was an intent to take life, it would be murder.  The Jury had to deal justly, and mercy was not their prerogative.  Still, if they entertained natural doubts as to any points referred to, they would allow them to weigh in the prisoner’s favor, and give him the benefit of them.

The Jury were absent about two hours when they returned with a Verdict of manslaughter in the Third Degree.  Sentence was reserved.

 


 

[1] “Catherine Gillon,” List of Passengers on Board the ‘Eliza Liddell’ from Lord Palmerston’s Estate (sailed from the port of Sligo to the ports of Shippegan and St. John, New Brunswick in 1847) in Anonymous. Canadian Immigrant Records, Part Two [database on-line]. Provo, UT, USA: Ancestry.com Operations Inc, 1999.

[2] Tyler Anbinder, “Lord Palmerston and the Irish Famine Emigration,” The Historical Journal, 44:2 (June 2001), p. 458

[3] James Gillen’s age is given as 54 on the list of ‘Eliza Liddell’ passengers which would have made him 62 in 1855.  His age (45) is most likely incorrect on the the 1850 U.S. Census, New York City, Sixth Ward, House no. 262, family no. 825., where his occupation is listed as pedlar, given that his eldest children are ages 31 and 28.  Despite this discrepancy in the official records, the fact remains that this confrontation was between a young bully and a hardened older Irish immigrant in a tough, working-class neighborhood.

[4] The Recorder of the City of New York for the period 1855-1858 was James M. Smith.  In 1857 he became one of the Commissioners of the Metropolitan Police and issued a warrant for the arrest of Mayor Fernando Wood, leading to the New York City Police Riot on the 16th of June.

 

 

 

 

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