New-York tribune., 1842-01-26
Indgc Remt,s GpInioH.


After an examination of the point raised last
evening careful as the shor,nes= Of time will al
low, have come TO the conclusion that the eyd-
ence preferred BY the prosecutions admissible an
der the Indictment.
l. is proposed byt the District Attorney to adduce
evidence tending prove that the death OF Samuel
Albums was caused by bullet proceeding from a
pistol; and this he seeks 80 do under Indictment
two counts OF witch ucge the ,leo,l, have been
caused by a Ratchet, and of which the two other
Courts alege tha, the prisoner did strike and cut
the deceased /" with an instrument TO the Jurors
unknown.
1t is impossible 10 glance ever the decisions in
the English books the construction OF indict-
incnts, and The adaptation to them OF evidence
without feeling amounting almost 70 indignation
at the excessive subtety and refinement which
have been SO often permitted to obstruct the course
OF Justice and violate The dictates OF reason and
common sense. Until, however, the Legislature
shall apply remedy, it is the absolute duty of
the Cour, carry unshrlnkingy into effect the de-
cisions and established principles of the Crlmna!
Law but in the present instance II Is believed
that the evidence offered is fairly within the spirit
OF the
Under the t~o counts of the Indictment cnarg-
ing the death 20 have been caused by haichet, II
appears 10 me tina. the doctrine oievenihe earliest
ana stricrcst writers permits evidence to DC gwen
OF death caused by shooting, Thus Hawkins SAYS
(Bk 2,5ctap 46 \ 81 il one be indicted or=lIn-
pleaded for killing anocherwith a SrogG, and upon
evidence it appear that he killed him with stai,
Ratchet bill, or hook. or any other weapon with
which a wound may be given he oughtf 70 be found
guilty. for he substance Of the mater IS ~hsther
he gaze Ike party roand q srhieh he died; and
Ityp for
forms sake it be necessary to settorth particular
weapon.
Yet, Che adds, it seems clear that evidence OF
poisoning. burning or furnishing, orany other Kind
OF killing wherein no weapon is used, will not
maintain Indictment ar appeal OF death by KILL
ing with weapon, and that evidence OF Killing
with u weapon will not ualntalIa an Indictment or
appeal of poisoning, &c. because they are ditier-
ent kinds of deaths.
This extract, setting forth plainly Inc reasonable
distinctions OF the early#cases contrasts most la
vorabIy Tits simplicity ana cearness with a nod
ecn Easlish Nisi#Prus cns--ReN ". Hughes lin
) Darlington X Payae, 1860 which, IN its=uii.
meaning sophistry seems 10 sci reason and justice
al ceiance.
Hawkins is supported, Rex Us. ,Iackslly, 9 CO.
81 a; Gilber,,s Evidence, PSI,
Russell. in his treatise OF Crimes, adds azother
striking illustration: ''ltzwil be sufficient II the
manner OF the death proved agree in substance
with .hat charged Therefore, II II appear that the
party were Killed b. different weapon IRON that
described. il VIII maintain the indic;ment-as II g
wound or brui-e alleged 70 have bven given with I
wooden staff be provedio have been given with q
stone. | Russell, 467
In Massachusetts case (ci:ed The American
edition OF Ru,sell's treatise, p451 note ana winch
have not had time totrace 10 the original reports,
the doctrine and the reason OF n. distinction are
recognized and expires scd. The Indictment IN this
case-,he Commonwealth rs. Bo:e.,trled IN June,
lS29-sllegesi the mortal wound. 10 have beaa IN
ilcted with an ak. Ii was doubtful, upon the e"l-
dencr, whether they were made oy an az saw,
broom or some other instrument. The Ceus; IN
s.ructed the Jury thatlt the death was caused BY
the t1ounds mentioned n the indictment, II was
immstsria whether The proof showed that the
instrument used for the purpose was an ak, II they
we're given by some deadly weapon
There may be ground for the distinction teai
If the death be caused BY means entirely differ nj
in their nature and application, and Involving an
essential difference in the time, place. mode ana
other circumstances o. their developement, tror
those charged in the Indictment, That TIE lattei
is no, supported by the evidence. There may Dc
Justice in the complaint Of a prisoner charged
With s,abbing only against evidence beng pre-
duced OF poisoning the deceased. tsr the latte
is secret operation often slow in etiectlns is De
sired object, and after long intervals OF time III
NAV be surprised by the evidence, and surprise !
,ha only rnsritorious basiszoi the distinction 6.l
tho nr;soper can hardly in any supposable case D