New-York tribune., 1842-01-26

WITH q Dagger may DC proved 10 nave ai!ied Win
/ budgeon-it one charged with having killed with
club maybe proved to have killed w;tha stone
il the substance OF: the matter Is in the language
/ OF Hawkins) whether he gave me party wound
Of which he died. what principle whould support
distinction which Shall prevent charge Of Kill.
lEg with Ratchet being supported By killing with
/ pistol
The mode in which the principle /. laid dowain
the books enforces this view: If the species of.
death be different, 81 il the Indictment gllege
/ s,abbug or shooting AID the evidence prove
poisoning or strarelirs tie variance would be ia
tai Archbod Criminal Pleading, 382 See also
Rex w. Martin ). Darlington t=Paync l28.
But il not lis evidence admissible under the
two couats alleging tba; the prisoner gave the
mortal wsund BY striking and cutting with an in
strument TO the Jurors unknown
In the argument, the counsel for tho prisoner.
observed that the words striking and cntttng"
did not apply shooting as the force in the latter
case was the result of an Intermediate agent. 2.
the gln-powder, which was only ignred BY the ac-
tion of'he prisoner. Such least understand
! his argument 10 be.
believe the lsw Of sl-ading regulating ndict-
n1ents only requires the weird striking 10 be IN
serted nthe Indictments the otker word cutting
is Unnecessary. Blu, the word striking. per-
appropriated the description of external violence.
CLAW kins Bk 2@Ch % Sec 81. Sd Chuys
Criminal Law 80 Note D.
Bucitis especially clear that the word striking is
used and i alone sufficient in these Indictments
which describe. with particularly too, the murder
as caused By shooting with firearms, (Sce all the
zprecelents OF indictments for shooting and wound
ing. , Gritty. Com. Law, 752..S c.)
If then. there IS nothing in the word striking
which precludes evidence OF shooting. but the rord
is correctly used by the pleader' for the purpose,
why s,ay@no evidence l'c gwen under the count
describing the wound as caused by unknown
instrument
Inc court is surely defensible, If the Juror, can
rot ascertain how the wound was givcn-the idea
il no, to be tolerated that if Gaze OF homicide
shall occur OF which the operating cause could not
be coniecturcd. therefore, it should 60 tln-
punished And if such an indictment be good,
under such circumstances. will it rot be supported
by evidence which! sho.ld subsequently discover
the means which we're unknown
The pleader may describe the wound as inflicted
by an ax, and prove i, to have been done with
stone maycharge it as committed with sfilot;o,
and prove it 10 have been committed with broom.
This Is settled law. May he Not then, according
to this fact charge tito have been done with some
unknown instrument, and then the trial, by the
aid of scientific skill or the developments OF time.
prove the rea! Instruments
IF surprise uron the prisoner be the controlling
reason, how much more Justly may the latter case
be supported than the former
The prisoner Charged to!1den verot5-with hiii--
ing the deceased with sword-may much more
plausiy complain of the admission of proof Of kill
ing by#a=club. as an offence he had not notice to
resist and which coatIadcts expressly the written
obi m iDIi N
which tn. prosecutor admits his ignorance of the
Instrument OF death, to proof of the weapon with
which this wound was inflicted. He was not mis-
led By the last -large-ho may have been by the
first.
The Court adnit,he testimony offered.
Mr.. sE1DEy complained that the Court had d.
rected their attention 10 oay single point. The
only question discussed was whether The wound IN
hic,ed wa. one which might be inflicted by differ
cnt instrument than that described by the indict-
rsent Where the indictment sets forth that the
death ~a. cause, BY one wound, and then going to
prove thu, it WA cau.ad BY another, he thought
wax nadmissible
He only wished it understood that the question
had been raised by the prisoner counsel, as II
might become important al q future stage OF the
proceedings He did not wish TO DC considered
a. having lost the ground by the Courts having
discussed only point in dispute.
The C9UR1 said the only point decided vas
that th, evidence Is admissible.
MIR EMMETT wished the Court to understand
them as excepting 10 this opinion.
Examination Of lWr. Wheeler rssnmed-l
think on September 18th, in the evening, Mr.
Colt came into nay room after O'Clock, and IN
the course of conversation spoke of his brother;
asked if the inventor of the patent hre-arn was
his brother he said he was and asked me i'll
had scsn any OF his pistols replied that had
not. He said he had one in his room, and ne
would sio,s il TO tna.ZHe went in and broughtt
into nv
It had pearl handle, and was very beautiful
specimen OF workmanship. II had either FIVE or
six barrels in a single cylinder He also exhibited
vcry ingenious apparatus for loading. took the
pis;o! into nv hand; the barrels were aboat tour
inches long | think il had his brother name on
he said his brother made il. / never saw II atet-
ward | mad no conversation win MIN as 70 rs
efficiency.
Cross-eramiasl by Mr.. selden.-When saw
the person through the key-hole think his back
ives toward mv.feIding-door, aud think near the
centre Of; the room NORM and south. / think sa"
the back of the head think the revolving cyi!a-
der of the pistol was an nctl and malt II dame
ter; did Tot particularly observe the size OF the
pistol.
The whole pistol, handle and all, should saF.
pose wa. aboa, eight and hall inches n length.
ltcou!d noi have varied one quarter from this IL
was in M rom for from, zen 10 ft;een rainutes
was freq -envin Colt. room. and ne wa occasion
i ellv in nine was before the Grand Jury vas
not questioned with regard 10 this then, and BE-
+ Ieve did not communicate any ming TO them OF
The pistol! | stated il 10 Mr., Whiting trst Oh last
4 FRIDAY; believe it spoken OF IN presence OF
Justice Taylor.
l think spoke OF II to Justice Taylor soon alter
T -.