#### THE STATE v. MATTHEW THOMPSON.

Murder — certifying indictment from Common Pleas — caption—doubt—evidence—malice__ drunkenness — insanity—trial—conviction—sentence.

The pr-oceedings-on an indictment for-murder certified from the Court of Common Pleas, will not be quashed, because the clerk in recording the indictment in that court has omitted to record the caption or the marginal venue; nor for the omission to certify that the person acting as foreman of the grand jury, was appointed such by the court.; nor on account of the delay from March to May, in filing the papers in the Supreme Court.

The trial in the Supreme Court is upon the original indictment-, not on the transcript of the record in the Common Pleas.

Where there are several counts in the indictment varying only in the way of describing the offence in unessential words, they are all the same in legal effect, and the jury may disregard the difference.

Drunkenness is voluntary madness, and aggravates lather than excuses crime.

The burthen of proving guilt rests on the state, the prisoner is presumed innocent until his guilt is proved. v

The degrees of murder and manslaughter defined.

Indictment for the murder of Charles R. Green, by a blow upon, the head with a club.

*J. Woods,*for the prisoner,

moved to quash the proceedings. ■ He objected the want of conformity in the copy of the indictment, &c. certified up, with the original indictment and the law.

1. That there is no caption in the certificate.

2. That it does not appear that the person who signed as *foreman*of the grand jury, was appointed foreman.

3. That thereys no venue on the top margin.

4. That the transcript was not filed immediately.

*Mason*and *Lowe,*contra.

W right, J.

The law directs the clerk of the Common Pleas, in case of an election by a prisoner to be tried in this Court, to record the indictment, and to certify to this Court a transcript of the record, with the original papers. The trial here, is upon the original indictment, not on the copy. If the original indictment should be *618lost, this Court would not proceed, because the copy confers on us no authority. ' It is not easy to discover what particular object the legislature had in view in requiring this record and transcript, with the *original*papers. We consider the provisions merely directory —and though it is the duty of the clerk to conform to the requisition, we cannot see how the omission to copy into the record the mere introductory part of the indictment, wholly immaterial to the *charge*against the prisoner, can be of such consequence as to require of us to quash the proceedings. The indictment, so far as substantial and copied, conforms with the original — the variance results from omitting to copy the caption and marginal venue into the record.

The proceedings in the Common Pleas advise us that an indictment was returned by the grand jury, for the murder of Green; that the prisoner was arraigned on it, and elected to be tried here. So far, all is right — these things are certified; but the clerk has not certified who were the grand jury, or who was appointed foreman. Of what consequence can this omission be to the prisoner.

An indictment was returned a true bill — the prisoner was arraigned upon it, and elected to be tried here. The original indictment is here properly found, and endorsed, and signed by one describing himself *foreman.*The *fact*of his being foreman is not contested; but it is urged to us, that the clerk has not certified the *fact of his appointment.*We cannot think this matter of such consequence as to'require the Court to quash. We feel less reluctant to decide so, because all these matters are open on the record, and the party can present them after verdict, if he deem it necessary.

It is further objected, that as this indictment was found in March, 1834, and the transcript and papers were not filed with the clerk of the Supreme Court until May, they have not been filed immediately under the statute, and the Court cannot proceed. The law requires the Clerk of the Common Pleas immediately to record, and afterwards to make out a transcript, and transmit the papers to the Clerk of the Supreme Court. We think the statute has been substantially complied with, as it regards this matter.

The motion is overruled.

The prisoner being arraigned, pleaded not guilty. Seventy-three jurors were called, out of which twelve were sworn of the jury.

On the part of the state a number of witnesses were called, who proved that the night before Green’s death there was a fire in Dayton — Green was a fire warden attending, whose duty it was to form *619asid preserve the lines, to pass buckets — Thompson was standingly, occasionally making sport of the proceedings — Green peremptorily ordered him into the ranks twice or thrice, and he refused — when Green struck him with a piece of a clapboard he had in his hand, knocked his hat off, and sallied him a little over. He recovered1 and went off. This was about midnight — about daylight he was seen by several at the groceries and at the markethouse complaining of Green and threatening to kill him, and was dissuaded from it.About ten o’clock, he went to a justice for a warrant for Green, for the assault and battery, was dissuaded from it and señt away from one justice. He went to another, was dissuaded and a warrant refused -till he paid the costs. He went for the costs — and said he did not want to punish Green, but merely to get him there where he could give him as much as he had given him. Before the warrant was issued, Green being notified, came in. He and Thompson conversed about the blow, and after a moment or two, Green became Irritated and said he would do the same again, and if Thompson said mueh he would knoek his heels oyer his head. At this time he turn-, ed and walked a step or two from Thompson, who slipped his right hand down to about the middle of a three feet club, one and one-half inch in diameter that he had partly concealed and seizing the end of it with his left, struck an upward blow on the parietal bone ■of Green’s Head; he fell and died in about four or five hours, of a compression of the brain. The skull was not fractured. The prisoner was intoxicated at night and through the day till the blow was given.

Woods, *Helfensiein*and McNutt,

argued to the jury for the prisoner, and

*Mason*and *Lowe fox*the state.

On the part of the prisoner, evidence “was offered to prove that the defendant had been occasionally delirious. It was proven that he had been long in habits of intoxication, and had occasionally exhibited symptoms of *mania-a-potu*— and on the morning of the day of the blow, looked wild and appeared strangely. His head was cut by the blow Green gave him', and had not been dressed until after he struck Green.

Wrioht, J.

to the jury. The indictment contains three charges, or what you have heard called *counts*in the argument. The

First is, that Thompson on the 10th of September, 1833, with a club held in both hands, *feloniously*and purposely, of his *deliberate*and *pizemeditated malice,*gave Charles R. Green a - mortal blow on *620the right side of the-head, above the ear, of two inches long and one and one-half inch deep, of which he died.

The second only varies in laying the blow to have fallen *‘on the upper part of the temporal*bone, *near its juncture with the parietal bone.''*

The third is like the first, except that it does not particularly describe the size of the wound. .

These charges against the prisoner are denied by him as. untrue —the charges and denial make the issues — which you have sworn to try on the evidence given you in court.

As the state makes these charges, it is incumbent on the state to prove to your satisfaction every material allegation contained in them. The prisoner is only upon his defence. You take him protected by the presumption of law which attaches to every one in our community, *that he is innocent of crime*until proven guilty. If the proof falls short of convincing you of the guilt of the prisoner —if the evidence fairly weighed, and. carefully examined and reflected upon by you, with the single purpose of drawing nothing from it but. the *truth,*shall leave your minds unconvinced, or in *doubt*as to the general guilt of the prisoner, or if you are left in doubt upon any one of the essentiaL ingredients of the crime charged, *such*doubt, according to the humanity of our law, entitles the prisoner to a verdict of acquittal, for it is much better that the *guilty*should go *unpunished,*than that an *innocent person*should be *wrongfully punished.*The doubt, however, which influences a verdict should be honestly entertained. With a sincere desire to find out the truth of the matter submitted to you, you should carefully examine the acts committed by the prisoner and complained of, with the attending circumstances, and, as you are satisfied they establish the truth, so you should find — so you *must*find, if you regard your duty, whether the result shows the *guilt*or the *innocence*of the prisoner. You are required to say, whether in point of fact, the crime charged upon the prisoner was committed by {rim. With the consequences flowing from your verdict upon the prisoner or upon society you have nothing to do. What is to follow after your verdict is not confided to you, but is ,by law left with the court. You answer to God that you perform your duty — the other ministers of justice answer to the same *Great Being,*for the manner they perform theirs. But as the result of your finding on the facts, *may*be to take the life of a fellow creature, you should proceed with greater caution, and more scrupulously examine and. compare the circumstances. If convinced of the prisoner’s guilt, however much you *621may regret it, and wish the fact were otherwise, you must, though you do so reluctantly, pronounce him guilty. If the evidence convince you of his innocence, or leave you in doubt of his guilt, you will gladly pronounce him *not guilty.*

The several counts in the indictment, are not materially different —the three charges are, in legal contemplation, one and the same, and you need not trouble yourselves with the difference between

them. The real questions presented to your consideration by the issues are these:

1. Is Charles R. Green dead?

2. Did he come to his death by means of a blow given by Thompson on the head with a club in Montgomery county?

3. Was the blow given by the prisoner?

• 4. Was he, when the blow was given, of sane mind?

*5.*If so, was the blow given *purposely and maliciously,*of *deliberate*and *premeditated malice ?*or was it given *purposely*and *maliciously,*but *without deliberation and premeditation ?*or was it given, *withoutmalice*upon a *sudden*quarrel ? or was it *unintentionally*given, while the prisoner was engaged in an unlawful act?

You may find it convenient'to proceed in the consideration of these propositions in the order I have stated them. . In the order presented I intend to submit uf>on them a few remarks, with the design of assisting you in understanding the law of the case, and in the discharge of your duty.

1. Then, is Green dead? Of this there is no dispute before you, and no confliction in the evidence.

2. Did he come to his death by means of a blow on the head given by the prisoner in this county ? You have before you evidence of the. circumstances attending the various transactions between' the deceased- and the prisoner, and the times and places of their occurrence. The nature of the blow and wound, the time the deceased lived after receiving it, and the opinions of the attending surgeons who dissected the head after death, are before you. From this evidence you will determine, whether the blow was given by the prisoner in this county and whether it occasioned his death. If you are satisfied of the death of Green, by the blow of the prisoner, then,

3. The next question is, was the prisoner when he gave the blow of sane mind? A person without the light of reason is not capable of committing crime, or the subject of punishment. It is urged in behalf of the prisoner, that satisfactory proof has been made, that when this blow was given, the prisoner was not of sane mind. It is *622sought to establish the' derangement of mind by the evidence, that at several times heretofore the prisoner had manifested an alienated mind. The fancying that his feet were glass; that snakes and mice were passing through and under them — the notion at another time, that persons were in the field, and about his premises, with intention to do him harm — his efforts at several times, to commit violence upon the horses and other property of his neighbors, in revenge of imaginary injuries — the attempt to force his own child into the canal, under the mistaken idea that a log lying there was an ox, or a horse, that required assistance — and other circumstances have been detailed to you. It is also urged that the blow given by the deceased upon the head of the prisoner, was of sufficient violence to derange his intellect. To establish this, evidence has been given of the character of the blow, and the nature of the wound, and its situation on the head. The conduct of the prisoner when found by Houser in the street after the fire — his moaning after he returned home that night, and his wild looks and singular conduct the next morning before he met Green, — all have been detailed to you by the witnesses. It is proper that you should weigh all these facts. If they satisfy you that when the prisoner struck the deceased he was laboring under insanity', or, such an estrangement of mind as left him without discretion to discern the difference between good and evil, or unconscious that he was doing wrong, he should be acquitted *altogether.*But, on the other hand, if his mind was such, that he retained the power of discriminating, or to leave him conscious he was doing wrong, a state of mind in which at the time of the deed, he was free to forbear, or to do the act, he is responsible as a sane man. So too, if his madness was artificial, voluntarily brought upon himself by intoxication, the law looks upon such phrenzy as an *aggravation*of the offence, not as excusing its commission. It is not allowed a man to prepare by one crime an excuse for committing another and a greater one. Yet if a man is laboring under a confirmed madness, he is not accountable, and the cause which produced the delirium is immaterial, unless it be brought upon the person by his own wrong immediately antecedent to the act committed under its influence. If you find the death resulted from a blow given by the prisoner while in sane mind, you will then inquire,

5. Whether the death-blow was given *purposely,*of *deliberate*and *premeditated malice ?*Does the evidence satisfy your minds the blow was given with a desigra to kill the deceased? The design or purpose to kill, you must gather from the circumstances attending the transaction, the instrument employed, the place of the blow, and the *623manner of inflicting.it; all the circumstances, and their natural and ordinary tendency to destroy life. You may also deduce the purpose of the prisoner from his declarations at the time of the transaction and those previously made. But in considering the declarations of a prisoner, detailed by witnesses, you should sift the evidence carefully, and critically examine the circumstances under which they were uttered, and heard, and are detailed. Declarations made by a prisoner, when agitated either by excited passion or depressed spirits, should not have much weight given to them — they are often thoughtlessly made; are imperfectly heard; inaccurately remembered; and most carelessly detailed in evidence. There is danger, that the witness may substitute his own words for those of the prisoner, and convey to the jury ideas never within the contemplation of the prisoner. You will examine this branch of the evidence then with caution. If, however, the blow given in this instance, was palpably calculated to destroy life, the law presumes the perpetrator intended to produce that effect, and holds him responsible for it. If you find the act done purposely, the next inquiry is, was it done *deliberately,*with *premeditation.*

If the prisoner meditated upon the purpose to kill, deliberated upon it, and coolly, or when only heated by voluntary intoxication, formed the design to kill *at any time before he struck the blow,*the law holds the act *deliberate*and *premeditated.*It so holds, also, where there has been provocation and consequent heated blood, if from lapse of time or other cause, passion has subsided and reason resumed her empire, before the offence was perpetrated. These matters should be judged of reasonably, according to the lights of experience. If the provocation were slight and the retort greatly beyond, it weighs but little in conducting to the belief, that the ordinarily deliberate operations of the mind were interrupted by that cause: so if considerable time elapses between the provocation and revenge sought, as it is not usual for the passions to. continue excited or the blood heated so long, it is unreasonable to suppose the .excitement and hot blood the cause of the subsequent act, without the deliberate aid of the will.

If the act was done deliberately, was it the result of *malice ?*Malice is an evil design, a mind bent on mischief — it is not essential that the design of mischief should be directed exclusively against the party injured. The law adjudges that feeling malicious, which impels its possessor forward into acts of aggression, evincing a heart beyond the control of social duty, and bent on mischief. If *624the act of the prisoner was the consequence of a corrupt motive, and an evil design to injure, it is in the eye of the law *malicious.*

If you find the act done, but *without*malice, you will inquire if it was done in a *sudden*quarrel, under such provocation, as, making allowance for the infirmities of human nature, to exclude the idea of deliberation or malice? If not, was the act *unintentionally done*while the prisoner was engaged in some unlawful act. As to the *sudden*quarrel and provocation, evidence has been introduced to show that Green gave the prisoner irritating language at the justice’s office just before the fatal blow. I feel bound to say as to this evidence, that in law, mere words are not regarded a sufficient provocation to justify even an assault and battery, and much less can they be relied upon to excuse homicide, jit is urged on the part of the state that the lapse of six or eight hotírs between the only material provocation, the blow at the fire, before the fatal blow was given, precludes the idea of continued heat and passion. It is also urged that a cool and deliberate purpose of mind is conclusively evidenced in the prisoner, by his inquiries and continued efforts to secure a suitable club to inflict the blow, and in expressing his object to procure a legal warrant, as a means of compelling Green to come within his reach. You will examine all the circumstances in evidence and from the whole judge.

The law which determines the offence of the prisoner, if he is guilty, is found in our own statute book, and it is unnecessary to follow counsel in their discussions upon the laws of other countries. He must be condemned by our own laws, or not at all.

If you find the death occasioned by the prisoner *purposely, of deliberate and premeditated malice,*our law pronounces him guilty of murder in the *first degree,*and you should so find.

If the blow which occasioned the death was *purposely*and *maliciously*given by the prisoner *without*deliberation or preconceived design, or was ah act upon which his mind had not previously resolved, our law defines the offence *murder in the second degree,*and you should so find.

Malice and the purpose to kill are essential ingredients in both the degrees of murder — the difference between them is determined by the presence or absence of *deliberative purpose*or *premeditation.*

If the blow was given without malice or purpose to kill, in the heat of a sudden quarrel, or, without intention to strike the deceased, while the prisoner was engaged in an unlawful act, then our law declares the offence to be *manslaughter,*and you should so find.

You will have the statute with you — if you find the prisoner *625guilty of murder, you must say in your verdict, whether he is guilty of murder in the *first*or *second*degree. If you find him guilty of *manslaughter*you will say so, and need say no more.

If the proof fail to satisfy you of the prisoner’s guilt, or leaves you in doubt of it, or satisfies you that the blow was given by the prisoner, while his mind was so deranged as to leave him without discretion to discriminate between right and wrong, or unconscious of crime, you will find that he is not guilty, and no more.

The jury returned a verdict of *guilty of murder in the second degree.*The prisoner being afterwards set at the bar, and having nothing to say why sentence should not be pronounced, was addressed by Wright, J. as follows:

Matthew Thompson! You have been found guilty by a jury of your fellow-citizens, who have patiently listened to your case, of the murder of Charles R. Green, and we have no doubt, that you did the deed. Yielding to the suggestions of evil passions, you have nursed, cherished, and stimulated them, by a continued indulgence in intemperance, until they obtained the entire control of you. You have friends, a wife and children; yet, by a continued indulgence in the use of ardent spirits, all the duties of friendship — all the holier ties and duties of parent and husband, have been disregarded, and you have progressed day by day, and step by step, in your downward career. Debasing and hardening yourself as, you advanced, you have sunk deeper and deeper, from vice to crime, until you have taken the life of your fellow-man,' and plunged your family and friends into ruin and disgrace, and are brought to end your own days in prison. Cut off *forever,*from society, or the hope of restoration, you will *live*a spared monument of the clemency of your country’s laws; but you will live without civil rights, *as one*dead— *your wife a widow, and your children fatherless.*Will you not be persuaded to reflect upon your condition? You cannot tell how long you may be permitted to live, and can you appear at the bar of Heaven with your sins unrepented of. Your crime is certainly great, but *God is*merciful. Be persuaded then to make fervent supplications to God to change your heart, that you may repent, and have faith in the merits of the Redeemer. In this way you may acquire strength to bear your confinement with meekness; and, when you die, hoping for mercy, you may die in peace. ¡

The judge then sentenced him to the penitentiary for life.