The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-01-26
COL IT'S TRIAL.
Court of Oyer and Terminer'
JUDGE KENT, PREstorse.

e.l S,xrH DAY-TUEspAY, JAN 20
rs ;.t.r..t Of this singular affair still increases.
The Court room was crowded again yesterday as
soon as the doors were opened and so were all the
avenues to the Court Room There were dozen
we'll dressed ladies' present IN Court
The Court met at nine 20 allow the jurors 10 go
home for an hour and meet again at ~ o'clock Dr.
David L. Rogers was in attendance.
Mr. WHITING first called
Mr.. WHEELra.-After Delnoce slept in my
rooms conversed viii Colt about it; gave Colt that
a. a reason why wished him to leave; II was the
day that Colt gave me the books as security Tor the
rent; on the 18th of Sept; on Saturday Sept lSth
after he had returned my key, which nc borrowed,
1 again told him Delaoce slept in my room last
night he said " thought saw light there last
evening"" he Immediately corrected himself and
said, safer came in-but came in very late. p
He had fore said that he was out all the alter
noon: he saw the light, presume, through the
crack.
DIsrarcr ArroRSEY.-I now propose, Mr.. Sell
den to ask this witness if Mr.. Colt did not have
Colts pistol in his possession a short time before
the 18th Of September
Mr. SELDEN objected, and asked Tor the decision
of the Court.
Judge KESr.--My mind ia still open to the con-
vicion Of argument, Sir, but on examining the SUB
jact last night, Sir after adjournment, the addition
al attention I've given to it, has induced me 10 con-
slider the evidence offered by the District Attorney
as admis sible. Pm still rerdy to hear you, how
ever
SELpEN.-Pm perfectly willing to rely on your
1Honor's judgment, in the case, sir
Judge KENT then delivered the following opin-
toa:
JupGH's Orisior.
After an examination of the point raised last evening,
careful the shorness Of time will allow have come
60 the conclusion that the evidence profsred by the pro-
su,Ion is admissible under the indictment
IL is proposed by the District Attorney to adduce evil
aence tending 70 prove that death Of Samuel Adams
waJcaused BY bullet proceeding from pistol and TINS
he seeks do under Indictment two counts OF which
aegerhe death to have been caused by a. hachet one
Of which the two other counts the prisoner did
s<.-L H.. o.I~ tto1a Suit
the jurors unknown
It's impossible to glance over the decisions in the
English books, the construction of indictments, and
the adaptation to themsof evidence, without feeling
rising almost to indignation, at the excessive suotley
and refinement which have been SO often permted 70
obstruct the of justice and violate the dictates Of
reason and common sense. UNTIL however, the legisia
court to carry unshrnkngiy into effect the decisions
and established principles OF the criminal law nu' g
the present instance it is believed that the evidence or
fered is fairly within the spirit Of the cases |
III Under the tive counts of the indictment. charging
the death to have been caused by Ratchet appears
that the doctrine Of the earliest and strictest
writer's prove its evidence to be given OF death
shooting Thus Hekins says Book z, chap, 40, Ssi
srovd and upon evidence it appear that he killed him
with staff Ratchet, bill or hook, any other weapon
with which wound may De given, he oughttc be found
guilty for the substance mailer whser he care me
4ary 'oound whiehh died and not material with
what he gave it, Though for forms sake it be necessary
to set forth particular weapon"
MYet he adds seems clear that evidence OF poison
E or Il or any Ones nina al an ndc
ent or appeal Of death by killing with weapon and
that evidence ofkng with weapon will not maintain
an indictment appeal of poisoning &C. because they
ere different kinds Of deaths.
This extract setting forth plainly the reasonable dis
ncton Of the early contrasts most favorably IN
It's simplicity and clearness with modern English Nis
rrus case-Rex VS.. Hughes lin oth Darlington Payne
1907 which, in its unmeaning sophistry seems to set
reason and justice at defiance. ~.
Hawkinsis supported, Rex Macally, Co. 81 a.
6ilberts Evidence, 23l.
RUSSELL in his Treatise on Crimes adds another strik-
g illustration 20 vii! be sufficient il the manner Of
charged Thereore, if appear that the party were
killed By different weapon from that described, IT will
Legged to have been given with wooden staff, Sc proved
30 have been given with stone" n Russell, Az
a. oass [c,ted in the American edi
aot had time 10 trace to the original reports the doc.
ine and the ofhe distinction recognized and
eoforced. The Indictment in this case-The Common
wealth Boris, trial in June, ls29alleged the mortal
wounds to have been inflicted with an II was
doubtful, upon the evidence, whether they were made
by an axe, saw, broom some other instrument. The
Court instructed the jury that elf the death was caused
by the wounds in tho indictment mma-
serial whether the instrument used for the purpose
an axe, IL they were given by some deadly weapon"
There may be given for the distinction, that if the
death he caused b. entirely different in their
ture and apple alton, and involving essential differ
in the time place. mode and other of
that the latter supported by the evidence There
may be Justice in the complaint Of prisoner charged
oar;1 the deceased; for the latter Is secret crime
operating often slowly and after long intervals of time
H may ne surprised by the evidence and surprise the
only meritorious bond Of the distincton But the pr
souercan hardly in any supposable case be nnrously
surprised dy Evidence Of shooting the deceased when
tas Charge striking with Ratchet Both imply vio
ene Instantaneous In its Simultaneous
II sne.
Bei besides, if person charged with killing with
dagger, may be proved have killed with budgeon-
il one charged with having killed with club may be
proved to filed with asone-ifthe substance Of
matter is lin the language of Hawkin's whether he
sa;~.Se party wound Of which he died what prin
ctle saouti support distinction which shall present
a net frnm holm supp0 taI
0y si.iirg with pistol
Tne mode ia which thu principle is laid down in the
eren' IL the indictment allege astabbng or shooting
sos ss pSonng Or var
Sec also Rex vs. Martini Darlington and Payne l2s.
81 Bat is not this evidence admssable under the wo
wound by striking and cutting" with an Instrument
to the Jurors unknown
that the words striking and cutting" did not apply to
shooting the force in the latter result Of
only gnited by the action of the prisoner. Such, at
i-sst, understood his argument to be.
believe the Law of pleading regulating indictments,
requires only the word striking to be inserted in the
indiei aen-the other word, cutting sunnecessary.
Bat toe word "sf,ikins-' percusst," in the ancient
iion OF external violence tcHawkns Book q CHI %,
sec 81 3D. Chuy's Criminal Law, 7S2, note d.
Ia, it !. equally clear that the word striking is
used aud is alone sufficient in those indictments which
describe with particularly too the murder caused
by shooting with fire arms. See all the prece dens of
762, &c.
IT, them there Is nothing in the word striking which
ptecludes evidence Of shooting-but the word is
rectly used by the plesder for this purpose-why
nay not evidence be given under the count describ
ing Tue wound as caused by an unknown instrument 7
Tee count is surely deiensble If the jurors cannot
sseei'ain how the wound was given. The idea is not
toos tolerated that, il OF homicide should
eur, o. which the operating could not be conjcc-
tuisd tnet therefore should 20 UNPUBLISHED And II
sueh an Indictment be good under such es
would not be supported by evidence which all sub
sequently discover the means which were unknown ,
ne picsdsr may describe the inflicted by an
axe, and prove TO have been done with stone-msy
caargen as committed with stiletto and prove it to
nave been committed with a broom stick This is set
tied law May he not then, according TO the fact charge
- have been done with unknown instrument
aAd then at the trial by aid Of scientific skill or de-