The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-23

tou Is 10 inc quit or Innocence Oh Iuo pibon0h.
This would seem to be good cause for principal |
challenge, within the decision of the courts OF this
State, Fireman vs.. People, DEMO, 50, and au-
thorities there cited The difference between the
cause and challenge to the favor, and the effect is
well defined In Joy on Challenges, p. 221, and the
foregoing case. The challenge for principal CAUSE
the cause being assigned-is question for the
Court The opposite party either demurs or denies
the fact, or may counter plead If he denies the
fact the sufhciency of the cause is admitted if the
cause exists, and the fact as stated" is the sole
question for the Court to determine. Thus, in the
People VS.. Honeyman, 3 Deuio l22, the challenge
was as here for principal cause, tke cause being
that the juror had 'formed and expressed an opin-
ion" On the trial Of the issue thus Joined, the
Court refused to permit any question to be put to
the juror beyond the facts alleged the cause of
challepge-tbis was affirmed on c@tiorari. The
principle is elementary in the law of challenges.
challenge he must take all at once" Trials per
-"if one challenge juror and Il be found against
the challenger, he may not challenge the jsaSr
Lit, 1853 "a Joy on Challengers. p 20, P. ITO:
Again-"The mode and manner Of a challenge"
is Important. "a party cannot make principal
challenge, or challenge to the favor, by giving It
challenge, whether in writing or by parol, must be
in such terms that the Court can see in the first
place whether it is for principal cause, or to the
tried and secondly, whether the facts if true,
sufficient to support such challenge ."Ibd. supra.
Applying this rule, which is not new doctrine, to
the case in hand, the case stands thus" Mason
was challenged for principal cause, The cause. if
assigned at all, is theoretically gathered from his
testimony" He was decided to stand Indifferent
He is then challenged for favor, no cause is as
signed The Court refuse to allow this challenge,
on the ground that he has already been examined as
to his Indifference, and found Indifferent. If
other cause for the challenge existed, why was it
not assigned! The court need not have said any
challenge: People VS.. Freeman, DEMO, p. 81, SO.
The People va. Mather, Wen, 24O. Assuming it,
however, to be for the same cause already decided
the court 80 state No attempt is made to correct
the court, If wrong, and we are bound to assume,
that it was mere effort to try the again.
for the same cause, before another tribunal, the
triers; The People vs.: Rathbun, Wen, 81. The
People VS.. Vermilyea, z Cow, l0S
Again, "the challenge must state why the juror
does not stand Indifferent; he must state some
facts or circumstances which, if true, will show
either that the juror was legally or positively dis
he is not, or may not be impartial.
The former is challenge for principal cause, the
latter to the favor. On q challenge to the favor,
the Court have aperfect right to determine whether
the cause assigned is such as to demand the inter-
position of triers If any cause can be inferred, as
assigned in the present case, it was that the juror
had neither formed or expressed an opinion either
regard? The Court say that, We understand to be
your challenge, that when allowed as hypothetical,
has been found untrue, and you can't try the cause
over on that ground. 1t is enough, however, that
Court had right to disregard It, and bad reason
for not allowing it, assuming the to be bad if
the challenge was not good in ITSELF will not help it,
Second exception is unworthy any other notice than
simply stating it. Third exception. This is to
the refusal to charge, as above stated, except in
the charge, (fo. 49, 1.-THE court were correct
in refusing to charge as requested, other than the
court had already charged. l. No evidence is con-
nj In he of TIM 10 tha
quests, other I" than that evidence was given show
ing that the prisoner was guilty of the homicide of
Charles M. Rousseau
homicide proved is presumed to be murder
unless justified, explained or reduced in degree,
and the burden OF such proof is on the accused We
may take it for general rule that all homicide is
malicious, and, Of course, amounts to murder, un-
l. Where justified by the command or permits
sion Of the law.
2. Excused on account Of accident or selfprsser-
3. Alleyiated into manslau shter by being either
the involuntary consequence Of some act not strict
ly lawful, or, If voluntary occasioned by some
sudden and sufficiently violent provocation And
all these circums of justification, excuse,
alienation, it is incumbent the prisoner to make
out to the satisfaction of the court jury; the lat
ter of whom are to decide whether the circum-
stances alleged are proved to have actually exist
ed; the forme how far they extend to take away
or mitigate the guilt for all homicide is presumed
to be malicious until the contrary appeareth upon
evidence. 4 Bl. Com, POI.
The questions propounded by the Court in the
charge, were all that, by possibility, could be pre-
sent sd;--
I. Did the prisoner kill the deceased
To which the jury answer, he did
2. Did he kill, with intent to kill, or while him
self engaged in the commission Of q felonyl
To this the jury also answer in the affirmative.
This constitutes murder.
3. Was the prisoner insane 7
The jury answer in the negative. But this is not
all. The exception is, to the "refusal to charge
the Eve propositions, above stated, except in
the charge" Now the Court did charge the Sc
coDd and fourth propositions, and that alone is an
answer to the objection. A Bill Of Exceptions, in
criminal case, is governed by the same rules
which apply in civil cases. X. s., p. 736, sec.
81 the People VS. Dalton, Is Wen. The party
must lay his finger on the precise point.
An exception to q whole charge is bad, If any
part of charge is good The requests we're mere
distractions non eonSfot, that there was any evil
District Attorney.
Der. 22-The District Attorney having con-
cluded his argument this morning. Mr.. II. l..
Clinton summed up on the part Of Carmel Deci-
zion reserved.