The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-07
LOCAL AFFAIR ..
New Trials Granted for Clark and Sullivan,
Convicted OF Murder
Supreme Court-GeneraI Term.

MAY eve give in erterso two very important opinion
delivered by Judges Mitchell and Roosevelt and
in by the presiding justice Edwards They are the frs
that have been delivered in this city settling the dstinc
toD between manslaughter and murder and defining tn
construction OF the words premedtated design
in the Revised Statutes The of Clark argued
fore the General Term by Mr. II Morris on behalf of III
prisoner and the District Attorney peoples
sullivan was argued by Mr.. John McKeon ex -Distrc
Attorney and r. IL Morris the prisoner and the Dis
trict Attorney IN b Blunt for the people The argu
ments were very lengthy and the decisions are looked FOL
with great anxiety by the legal profession Clark II will
be remembered was convicted OF themurder of Gillespie
the policeman and sullivan for the murder of man who
interfered in quarrel between the prisoner and his
wife
Jsmes sslun plaintiff errcr. against de People d.
PENDANTS Joseph Closk plaintiff in error dgan
he PecrL, defendanss 1ror.-Michell, jim each OF
these the plaintiff in indicted for murder
tried and found guilty In each the Judge at the
Oyer and Termner charged the jury that il they be-
eved that the killing produced the prisoner with
intention to kill though that intention formed
the instant Of striking the fatal blow it murder To
this charge there exception well as to other
parts Of the charge and the question has been very fully
and ably argued whether an intention to kin formed at
e instant OF striking the fatal blow is premeditated
desHn TO hin within the meaning Of the Revised Sta.
tu'e inc REVISED Statutes declare the killing of hui
necessary here TO notce first when it is perpetrated
from premedatcd design effect the death of the per
son killed or OF any human being G. X. s. 657 sec 81
secondly when 1t is perpetraed by an act immineny
dangerous To others and evincng depraved mind re-
gardess 81 human life although without any such de-
Sign against any particular individuals and thirdly when
perpctrated by engaged in the commission of
felony although without any design to effect death The
reyisers in their this section that the great
principle which II is that to constitute murder
there should he an express design to take life (which
sex ms TO be the first case provided for such crcum
sHnces AS 10 induce strong presumption of such
design or such facts occurring in a transaction as
would ordinarily lead to the result of taking life
The two last cases. doubt provided for in the
sencond and third subdivisions They add that this Sec
ton conforms substantially the law PENNSYLVANIA
They also state that there nothing much wanted
IN the criminal law as settled line of distinction be-
tween murder and mansaughter, which were then so
nearly connected and into each other much that
iamentabe uncertainty prevailed which operated
well to screen the guilty to expose the innocent
that the first step such distinction is the definition
of murder 1t is evident therefore that it was their in
tenton to use language which should be clear
move this uncertainty and make it unnecessary
amine the former adudications this subject For if
the former law TO be retained and the former de-
cisions resorted to authority what the present
law should be, all the cd uncertainty still remain
The same motives must have Influenced the Legislature
for this uncertainty but family portrayed by the re-
yisers any will experience who will attempt
concie the old decisions; and there subject which
needed revision more both that account and ac-
count of its vast Importance The revisers accordingly
the technical phrase which appropriated
the description the motive Of the murderer malice
th0ught-and which had, in process of time acquired
legal meaning. different from its primitive meaning, and
substituted the untechnical words premeditaed de-
sign that law in which the whole every indvi
dual in the state be concerned might be understood
by each, in the sense which every professional
not would on the first impression believe IT was intended
TO have Does the xpression premedtated design ad
init OF the meaning given to il by the Oyer and Termner
W
we may safely resort to the illustrations which they
have given of the of words None Of them give a
single illustration Of the word to mediate in which the
idea of considerable space Of time is not contained
intervening during the operation Of the mind. The
word mediate comes to from the Latin, and perhaps
through the French Answorh has collected instances of
its in those Latin authors whose works form the
foundation of education They to forecast
ditate V study how plead cause how speak medi
tate going into exile flight deceit against
another punishment against brother armed
petition into India The illustrations in the dictionary of
the French Academy are-to mediate truth an idea;
rules OF eoquence enterprise; project; the ruin Of
another. good bad action TO retreat from the
comes sometimes TO as happy results 080 - medi-
tated making complete contrast between meditation
and the hay thought which in the instant is fol-
lowed by action. Their definition of meditation makes
the contrast still greater 1t is operation Of the
mind which applies itself to reach the depths of any
subject matter The mind which seeks to reach the
depths any subject that is worthy of rejection must
be long occupied before its wishes be gratied Can
be said to mediate the Punishment of another,
decet the punishment Of another his
flight the invasion Of foreign country if he does not
allow considerable interval to elapse between the first
formation of the design and ts execution Cser said Of
one OF his conquests reni r7d rci; and all understand 1t
Is proud boast that he reached and the
enemys country he conquered it. How completely would
he have reversed this meaning If he had said On
arrival medated on my design and accomplished It,"
The admission that he had medtaed would have showed
that there difficulties which delayed him and required
some management before they could be accomplished
So to turn to the French illustration be said to
have mcditated on an Idea on an enterprise project
the ruin of another good bad action, who per-
formed the action at the very moment the thought
formed So. when nedations on death are spoken
Of do mean the thoughts Of moment. the calm,
deliberate reflections which may have exercised the mind
for hours years the most Of ones life? The
these One is from Washington who says, mediate
pass the remainder OF life in state Of undturbed
pose and the other from that book which Is in every
bodys hands hearing and Of the best
pure English" His delight il in the law Of the Lord and
in his law doth he mediate day and night. Psalm
These show the general and popular under
lis be eri nd OF
standing where technical words not used words
relating TO trade art But here the Legislature has
used still stronger word viz, premedtated design
There be therefore only the design kill but
that design have been the subject of meditation
reflection before the prefix IRE clearly requires Be-
fore what il this premeditatcd design Of killing be
cep before the act THAI medated viz the fatal blow
by which the killing was accomplished The very
qurement that the design shall be thought of and mcd
tsted before the act shall be committed which is the
Of death admits that there interval between
the design intention and the commission Of the
act We have no right TO strike out so material
part OF the word this, which gives peculiar force
TO the ordinary meaning Of the rest Of the This
Interpretation of the word also corresponds with the
expressed views Of the revisers which to have
been 60 coD6ne this part Of the definition OF murder
what frequently called ofexpress malice which
Is thus defined by Blackstone Express malice Is wheu
with sedate, deliberate mind and formed design,
doth Kill another which formed design Is evidenced by
external circumstances, discovering that inward nten-
ton laying in wait anecedcnt menaces former grudges
and concerted schemes TO do him bodily harm.
q Bl Com, 1Pe These external circumstances all
Of nature which show des gn formed before the
ment when the crime perpotrated and the sedate
deliberate mind and formed design descriptive only
Of mind celebrating and then sedatcy carrying out
its design In Tennessee. the term premeditated j.
of those used to define murder in the first degree and in
10 Yerycr SOL Daes the Court said generalization
was design to kill formed before the act In Davis
q Humphrey s39 AZ they say that the employ
ment OF deadly weapon although II implies malice at
the common law docs not imply that the act done
with reconciliation make il murder in the first
degree In Virginia in Joness q Leighs Va Rep.
Dps p Oil the Court say that the death must bc the u
Fermentation Of the party accused sought In early
case IN Pennsylvania "a Dallas 40 Muatto Bob the
court instructcS the jury that the offence wfu de-
berste aud premeditated ths would seem to have been
clear uspaton ofhe province Of the jury the Judge
then admitted that the Statute made reconciliation an
essential ingredient TO constitute the crime yet added
that still the intention remains much the
criterion Of the crime This in is true. The
Intention Is Of the true crtera Of the crime but
the Judge admitted and every else must admit II Il
not the only true criterion for then the intention TO kill
being es,athshed the Jury 20 further and
all intentional killing II murder. though committed in
self defence or against burglar in the act of breaking
into ones dwelling house in the heat of passion in
by the ased without anv undue al