The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-01-30

mitted by accident misfortune in the heat Of pas
sion, upon any sudden and sufficient provocaon, q
upon sudden combat, without any undue advantage
being taken, Or dangerous weapon used, or not in
cruel and unfeeling manner. Thelearned counse
Tor the defendant, who opened the sase in The
| summing up, Observes that the words "by
accident or misfortune" in this case are sur
pluss ages unnecesary-have no meaning.
cannot adopt that construction. l cannot tel
you that You must reject the words "by acc
dent az misfortune" as surpluss ages-havlng no
no meaning. On the contrary, as ! remarked
| to hun, In the course of the argument, that
would bring II exactly within the fourth de-
gree OF mans!aughter For that section OF the
statute would then read thus-"In the heat oil
passion, upon any sudden or sufficient provocaton,
or upon sudden combat, without any undue adj
vantage being taken, and without any dangerous
weapon being used, and not done in cruel or unc
feeling Manner Whereas, the fourth degree of
manslaaghter would be the involuntary killing Of
another, by any weapon, or by means neither cruel
nor unusual, In the heat of passion. Now, IN con-
slderlng this, you observe, certain circumstances
must concur There must be sufficient provoca-
tIoa. Now, has been held that mere words, how
ever irritating, are not sufficient TO aulhorse the ia
king OF life Therefore, whatever words Adams
used, did not authorize Colt to kill him. On the
other hand, II has boon held in England, that any
personal indignty of provoking character, which
appeal TO a mans feelings of manhood, aroused
the anger of his nature, such pulling his nose or
s'cS'nS h.n, was sufficient provocation; and II q
person killed another under those circumstances the
law pronounced him blameable, indeed, but excusa.
BILE But two things must concur IT must not be
done IN cruel or unusual manner; and secondly,
not with design to take life So differ with the
prisoners counsel 10 his view of what is cruel and
unusual manner. The gentleman gave two ilustra-
hons of what he deemed cruel and unusual homi-
cIde,. In both OF which concur The one is an
English case, where park-keeper found boy com.
uniting resspass, and tied him to the tail Of his
horse, and dragged him about, and SO killed him.
In England, this was held to be murder at
any rate, death by cruel and unusual man
ner. He also mentioned an American case, which
fastened to boat and lowed to Tarrytown., !
take these words, then, in their meaning; and if
you believe that in this case, although the prisoner
had sufficient PROPAGATION, that the homicide was
done in cruel and unusual manner which may be
inferred by the use of this weapon, if the wounds
were aggravated beyond all reason, why then it
cannot form case OF excusable homicide, and the
defendant does not bring himself within that clause
OF the statute We new come, then, supposing
that you come to the result that it is not OF
JUST able or excusable homicide to the point that
1t Is {. crime. And it is one Of two knds-murder
or mansaughter. AS to murder, there are no de-
grees in it. Ifhomicide amounts to murder, there
are no shades i'll the eye OF the law In that
offence. On the contrary, if it he manslaugh-
ter, the law has divid ed il into four species,
forming descending scale, with different degrees
Of criminaiy, and to each, punishment proportion
ed to their supposed intensity have been affixed |;
gradually diminishing in extent. First-Let US take
murder Murder, says the statutes, is OF three kinds
first, it is the killing OF human being Gum
less it be homicide or manslaughter) when, per-
petrated with design TO effect death -
Second-When perpetrated by any act emminenty
dangerous to others, and .evinclng a depraved
mind, regardless Of human life, although not with
the desiga to effect the death Of any individual.
Third, when perpetrated without any design to
affect death by person engaged in the commission
ofany felony In this latter case. if he kills person
is murder, although he did not design to kill him,
because he was engaged in an unlawful act. The
bring il within that clause This must come either
under the first or second clause, if it be murder at
all. We may illustrate the second degree by the
case Of person firing pistol into crowd; if that
takes life it is locked on as case Of this descrp
ton; or throwing shell, it you please, or petard
into crowd; this is regardless of human life, and
evinces depraved mind; or discharge wild beast
from his custody. tiger from his inenagerie, let
loose a mad dog, or ride an unruly horse into
crowd in al these cases the act was supposed to
evince depraved mind, and was deemed murder
Il may be, in considering This statute that the de-
PRAYED act may be gathered from the weapon used,
as for instance, il should take pistol, not know
ing whether it was loaded or not, and point it al
a person, and shoot it of, although I had no
design to take his life, yet il woud. be depraved
act, and the jury would be authorised in finding me
guilty of murder do not know that this case
comes within that; it is developed in tenfold mys-
terry, but there is no pretence, so tar as know that
comes within this case, It, then, ,murder at all,
it comes within the fist clause, and was effected
with premeditated design to take the life of Sa-
muel Adams. Now, as to that there must be pre-
medated design. Aud here differ from the Dis.
trict Attorney on the utmost reflection which
have been able TO give to the consideration of
the principlegof law which did exist before the
Revised Statutes, and in England. II was said
in England, that if homicide were committed by
person, and no account given Of il, that was
in itself evidence of malice AS, for example, if
person goes up at noon day, as a man did come
time since in Broadway, and cuts the throat of
other-that, the District Attorney says, implies
malice in the eye Of the law. Now, | do not hold
that. 1t might be ground from which the jury might
infer pre-meditated design if a person in the full
possession of his senses goes up TO an individual
and takes his life, and provided he is not insane,
why Jury might, perhaps, be justified IN finding
fact within their province that there was pre-
medated design But cannot say that il was evil
dence OF that malice, which as a matter of law,
constitutes murder. You have therefore right TO
find in this case that there was pre-meditaied de-
sign on the part of John G.. Colt 10 take the life Of
Samuel Adams; and if 80, you will find him guilty
of murder But in order to obtain this result, YOU
must find whether there was this premeditated de-
sign or not. Now with respect TO it, no definite
time ia fixed by law in which it may occur. 1t
might have occurred before Samuel Adams entered
the room Of John c. Colt he might have been
brooding over il for weeks; he NIGH, have con-
ceived it tie day before on the morning of
that day; or even after he entered the room, if
blood, or the result Of fracas or contest But II
after Adams entered the room, he did form that
design, then he is guilty of murder, But supposing
not Then the qSestionis, 10 there any other crime
in which the law includes this offence THIS
brings me to the consideration of the last Of the
three branches Of crime l AIMED in the beginning
MAEsLAuGHrER-of which said there are four
degrees This division of manslaughter is, per.
haps, not the wIsest which might be made. il a
person mi yht make so bold remark Neyerthe-
less as it is deviation from the common law, per-
haps may be justified in so speaking. Still il is
our duty to follow it. And yon must bring this
fes it, The killing Of human being, without a
design TO effect death, by the act Of any other
while one is engaged in the preparation of any
crime or misdemeanor not amounting to felony. In
where il is murder at common law, il is man.
slaughter in the first degree. Let me explain this
here the law says, when engaged in amisdemeanor
| something less than felony. If a boy should
throw a stone, or man and that should xii
h. l.