The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-23
The Case Of Carmel.
SUPREME CoURr-oKNERAL TERM.
Before Chief Justice Edmonds and Hon. Judges
Mitchell and King


SUPREME CoURr-oKNERAL TERM.
Before Chief Justice Edmonds and Hon. Judges
Mitchell and King.
OCTOBER 2l.-Henry Carmel Plaintiff in Error.
rs. The People, Defendants in En~.-The court
having denied the motion of the District. Attorney
to push the writ of error, MIR. ii. L. Clinton coun.
sci for Carmel, proceeded to argue the following
points the bill of exceptions 1.-The court
erred in refusing allow the prisoner to interpcse
challenge to the favor, after q challenge for prin-
cipal cause had been oyeruled by the court.
Error Book, (Bll Of Exceptions,l fol % to
challenge for principal cause and to the
favor, is recognized by all the authorities.
The doctrine that it is too late to challenge to the
favor, after challenge for principal cause has
been overruled is not recognized by any Of the au-
thonties,. English or American. The contrary
doctrine is distinctly held in Freeman the Peo
pie, DEMO, pages "a and 49, In that case, as in
the present, after challenge for principal cause
had been overrued, challenge to the favor was in
terposed, and the supreme Court held that there
for which the judgment should be reversed, AID
new trial ordered" See page 81. 1.-THE
| Court below erred in refusing to change the fol-
loving , AL tine iats PROVED IN the
of guilt of murder on the part of the accused the
jury ought not to convict Of murder" Error Book.
(Bill Of Exceptions fol. 30 to 81 This is an Gle.
mentary rule of evidence recognized and enforced
by all the authorities. This proposition Is appli-
cable to every case of alleged murder. III.-The
court below erred in refusing to charge the jury
the following proposition of law, "H the jury be-
lieve from the testimony that no malice afore-
thought existed on the part of the accused, and
that he vas not actually ngaged in the commits.
sion of felony at the time Of the commission Of
the homicide in question, the jury have no legal
right to convict the prisoner Of murder" Error
Book (Bill of Exceptions,) fol. 81. In the alb
sencs Of the two iega! ingredients of murder above
| which the law pronounces murder. 2 Rev Stat.
657, sec. g.. Subdivisions /, 2, and 3. In the
first, second, and third subdivisions of Sec. s,
'malice aforethought must exist, in order to con-
| sttute the killing Of q human being murder. In
order to sustain an indictment for murder, under
the third subdivision, it is necessary to prove that
the defendant, at the time Of the homicide, was
! engaged in the commission Of a felony, which, Of
ITSELF is sufficient evidence of malice aforethought.
! The existence Of malice aforethought, on the part
order to constitute the crime of murder. This
constitutes the gist of the offence at common law.
Arch. Grim. Pl ALP, Qast edition.) The common
Law, in regard to the principal ingredient of the
! by our statute. People VS.. Enock, IL Wend l59.
! The expression "premeditated design" in the LIST
subdivision Of section S, has broad and more
aforethought," and the former Inevitably includes
the latter. Ibid per Nelson, j., page 1861
Under the LIST subdivision ofsec. ;, express malice
divisions define implied malice Ibid, page 1853 and
l6f. People vs. Enock, Is Wend. l59. People vs.
| White Ii, Wend. $40. This doctrine is Elaborated
upon and enforced in the People White, by Sc
nator Furman pages 557-S and 9; by Senator YER
plank, from page sos to 573; by Senator Wager
from page $50 to page 5Si; also by Senator Ed
wards, from page 552 to page 555. Also by Sena-
! tor Dix page $40. Instead of charging the I'd pro
position mentioned at fol- Al to Al Of Bill of Excep
tions the Court charged as QUO ws'If the jury be-
lieve that there was premedtased design, then 1t
was murder on the part ofthe prisoner; when man
strikes another with deadly weapon like that
knife, it might be inferred that he intended to kill,
death having ensued, and the blow being given in
deadly par. What could have been the priso-
not to judge of his motives by their own feelings,
for they not to know that the prisoner is on q
condition with them, as to moral standard Of feel
ing. They were bound to ask themselves if he had
any motivel it may be when he entered the room
he had no intention Of taking the life Of the old
man-it may be that when be struck the boys he
did not intend to take the old mans life-it may be
that he didnot intend to strike the old gentleman
until he found himself impeded in his escape-but
it is enough that be formed the design upon the in
slant Now, if the jury thought that there was
before, but that he merely had intention to rob
/ these trunks, and that while so intending, he did
/ take life, that 10 murder" 1. will be seen
that the court did not charge the second
or anything like it. 1t is not enough to oonsti.
tute the charge of murder, that the prisoner en-
tertained design to kill, or even preme ditated
design to take life, unless malice aforethought CO.
I
mansaghter at common law, and under our sta
tute where an intent TO kill exists. That the
Revd Statutes do not constitute the inten. 10 kill
as the dividing line between murder and man
slaughter is clear from the phraseology of all the
sections upon the subject Thus section five, which
enumerates the only three classes of homicide re-
cognized as murder, provides that such killing I'M
less 1t be mansaughter, or justifable, or excusabe
homicide, as hereafter provided shall be murder
in the following cases Two cases Of honi-
eide where an intent to kill exists, which
I l.
in the FIRST degree, are specified First
Deliberately assisting another in the COM
mission of self murder Revd. Stats Col, Sec. z.
I'd The wilful killing Of an unborn quick child;
Ibid, SEQ. s. Two CAGES Of homicide certainly fall
within the description Of manslaughter, in the Sc
cond degree, whether there exists intent to kill
or not. where person unnecessarily kills another.
LIST. While resisting an attempt by such other
person to commit any felony to do any other I'M
lawful act, ord. After such attempt should have
failed. Revd. Stats. 66l, Sec. IL. Section ~,
Of cases Of homicide falling within this section,
without regard to the question whether intent to
kill exist or not, for not word upon this subject
appears in the whole section. II will be seen,
on the subject Of murder and granddaughter, |
that many cases Of homicide are murder, although
no intent to kill exists, while in many, and perhaps
tine majority Of cases Of mansiaughts, such an in
not intentto kill, according TO the Rev Stats, a.
well rs the common law, which divides murder
from mansaughter. IL the homicide be COM
nitted In the heat Of passion, upon sudden provo
cation, and before sufficient time had elapsed for
the blood TO cool, the offence is manslaughter,
whether an intent exist or not Here counsel
cited "Arch. Grim. Pl" Cast edit, pages Ala,
4l6, Az, and AS, and several other authorities
The following definition Of manlsaughter by Lord
Hale, lies at the foundation Of all the adjudged
cases upon the subject " manslaughter or simple
homicide is the voluntary killing Of another with
out malice expressed or implied" (Hales Pl.
Crown, 1867. Blackstone gives the following de-
fnition granddaughter Is the unlawful killing Of
another without malice expressed CT implied,
which may be either voluntary upon a sudden
heat, or involuntary, but in the commission Of an
unlawful act" q Blsc Com, 1917 II would be,
we spprehend, little difficult to comprehend how
a party could voluntarily" commit manslaugh-
ter where intent to kill existed. lV.-The