The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-11-27

between it aud murder ana thar in point of fact if this
death Was effected without the heat OF passion the guilt
was greater and therefore, be held that the Of
lence does not come within this degree. But there may
be mistake about that. killing may be donein cruel
ana unusual manner and may not be done in the heat
OF passion and yet may done either accidentally by
msadvenure, or in the nature and character the act
more nearly to that act than is supposed by the
dehnton OF manslaughter in the second degree here
given At any rate, Gentlemen, the legislature have
thought at to incorporate in this definition that the killing
should take place in the heat Of passion; and, hence
unless this killing done according to the
definition here, the Court are of opinion that
of that degree Of mapssurbter i' You oe, have a
right however gentlemen being the judges both the law
and oil the FACT to weigh this point and yeu believe the
ing it. II is not contendei that case of
ter in the Sd degree need not therefore read the defn
ton oil that as It would embarrass rather than enlghen
you Then come to the 4th degree OF hter-
will read It again. Sec l9 r. s. Every other killing
OF human osng by the act, procurement, or cupabe
negligence oil another where such killing justifa-
BILE or excnssbeo is not declared the chapter Murder
or in the title mansaugher OF other degree shall be
deemed manslaugher IN the fourth degree" Now gen.
tlemen that is the definition of in the 4h degree
aud 1t is that in the 'pinion of the Court under hch
this comes if offence at ALL Manslau gbter in
the LIST degree punishable by imprisonment the State
Prison for term not less than 10 years and that
tend to Imprisonment during life. The 81 degree pun.
shable by term OF imprisonment the State Prison not
less than years and not exceeding The Sd deg
punishable by imprisonment in the State Prison
not more thai years or l-ss than . The degree is
punishable by imprisonment in the State Prison for
years, in the County Jail for term exceeding one
year. or fine not exceeding $1,000 or both imprisonment
aud fne This gentlemen is the law this branch of
the subedt far be necessary for the
place it beorey would say, however that it has
been stated here by counsel for the prisoners that
slaughter at Common law abolished by this statute
the court do not understand it The offence still
MAINS T. is only altered changed by reducing some
cases formerly classed murder, mansaughter the
first degree And perhaps gentlemen that substantial
y all the change that has been made in it, excepting that
is divided into different degrees for the purpose afford
ing gradatons in the punishment and leaving so
much to the discretion oil the court formerly when
siderrd all OF degree and when the punishment
OF necessity have reached from long term
Of Imprisonment to nominal penalty
The offence of manslaughter remains was offence
law but the punishment prescribed by the
statute But it is still governed by law whose
rules and principles remain unchanged. question has
been raised as to the suffciency of this indictment
question. probably fitted for the decision of the
Court than yours, it is question
and if the with respect their Judgment ON H.
the party has right to take the higher court
have no doubt gentlemen and the court has none that
this Indictment is sufficient in ITSELF 1t contains an in
dctment for mansaughter in the first degree and
is express provision in the statute which authorizes
conviction for any inferior degree when the indictment
degree, has given the prisoners right to perempory
challenges but the public prosecutor has right ask
for any inferior degree Of punishment Something has
also been said in relation to the form in which this ndic
ment drawn and in relation to the necessity stating
the manner in which it proper to draw 1t against
these defendants by whom Mccoy did not lose his life
He to his death by the hands of Lilly and not by
the hands of the prisoners and their counsel contend
so the indictment should have been drawn. The court
have examined that objection and think there is nothing
in it. Now, in what circumstances did this take
place And how far are the prisoners at the bar
Cd with the fact of McCoy's death There
blage of people at hastings, at prize fight The life of
human being taken there during the fight its
close According to the common law as set forth in the
best authorities 10 which the court resort that
blage at Hastings was unlawful one There is great
reason to believe, also, gentlemen that under
stood by the prisoners at the and by the proper
ton of the people who assembled there 1t rumored
for some length Of time before that there be prize
fight 1t publicly advertised in the papers But the
al W. I'm
result OF design for the purpose Of preventing the public
officers OF the from having opportunity of pre-
venting 1t, is matter which may be submitted to your
consideration. believe it is almost if universally
understood that these assemblages unlawfulthat
prize fighting is unlawful There is certainly evi.
dence of this in the conduct OF Sullivan at least But the
magistrate who present in the hearing of il not
all who were present, informed them that this meeting
was unlawful and ordered them to disperse. The fight
then, between these parties though by consent still
unlawful. Large sums we all know, are betted on such
asions. Various persons become interested. They
the thus interested of his own
championeach Wiling that the fight should terminate
until they ascertaned who was the victor All interested
in bringing this breach of the peace to nal and
frequently be- fatal conclusion. prize fight brings
gether vast concourse OF peoples and believe it is not
gamblers, and the bulles AMI the swearers, and
backlegs and the pickpockets. and the thieves and
semblage OF the de disorderly vicious absolute people
people who live by violence--people who live by
able people probably there, doubt that
there were great numbers OF such those whose char
i
fuence which such sssemblage likely exercise on
the public peace aud morals and taste you there
fore estimate correctly the proprety and necessity othat
law which forbds their existence Upon that then
one can hesitate to sayeven had no fatal result
ed-ihere were collected body ferocious and democrat
lied The assembage was in itself indicable unlaw
full Now gentlemen the parties coming together for
any such unlawful purpose by very prudent pro.
pes provision of the aw-one the wisdom Of which can.
not think, be for moment questioned, by any sensible
manau made responsible for whatever mischief crime
happens in the of the prosecution Of the original de-
SlOn nj tha hlona Eua .la
meeting does at his hazard and risk Of these
have ended fatally until his the law
has slumbered them, perhaps because
took notice Of them But undoubtedly the reach
them and it Is high time that eectua stop be put
their recurrence repeat these are unlawful assemble
ges and every individual attending them responsible for
whatever mischief and crime may result. This may
law, but all events gentlemen one
absolutely necessary to enforce. know reason,
gentlemen why the law laid down by Chief Justice
Littedale in England should be reg the
here. Judge r. hers cited the the King VS. Muir.
ply in which the prisoner found guilty of man.
slaughter for being present and aiding in fatal prize
fight The is reported in the vol OF Darlington
and Payne's Reports The Coult gentlemen, no
to doubt the correctness Of that law in fullest
extent No doubt if person attend prize fight from
mere notion Of curiosity and without perhaps
fleeing on the consequences oil his going there,
there is doubt that il such an offender
were brought the bar of the Court AID be convicted of
manslaughter that the Court would look his with
leniency But then il persons permitted assemble
in that andf those who do encourage such
by their presence culpable then the law would
be good for nothing and responsibility to the results
would be iet by any one Although have said, Gentle
that the casual spectator attracted by curl
osy would probably be treated merciiuy ye. certain
ly such plea be offered by the prisoners if the evil
dence be believed In the first place McCleeste
Of Lys seconds There can be doubt, therefore, of
his aiding and abeting the fight because the very object
and purp of his presence to attend upon his
to enable him fight the battle-to prepare him after
every round to commence the next-to assist and
aid him in conquering his opponent, and in gaining the
battle II that be not aiding and abettng, do not
know what is Neither can there be any doubt of the
guilt Of McCoy's seconds and their guilt may be of a
higher order. But the fact that they guilty cannot
and ought not TO affect McCleester's in any way
whatever Now, gentlemen, If these principles be
applied to the then the next thing you do is
to examine the evidence shall makcino remarks relative
to the degree of evidence to be attached any the
witnesses You will decide upon that WHAT'S the evidence
nth respect to Sullivan He went up with Lilly to the
fight and returned with him. He at the ground
early the morning THERE'S evidence his acting