The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-07


deserved But the rule has it is believed received
the sanction Of the court after argument general
term or IN bench IL does not correspond with the spirit
of the day, actuatng not only but all parties
tnat the penalties of the law should be mtgacd and
that by this the object the law In securing
tainty OF conviction where guilt is proved is more eec'
tually accomplished IL was argued that the words used
by the Judge in his charge were intention mot design
TO kill formed at the instant of striking the blow and
that intention always implied and the result Of pre-
meditation. The court below would be unwilling to
adopt this argument or to allow jury to be much
misled they would have been by this charge if
meaning were intended That court have themselves de-
fined the word by their of il. They speak OF the
intention and say il is enough though formed the
instant ofstking the fatal blow. The intention there
fore that they spoke such could be formed at
the instant and needed generalization This part Of
the charge material TO the case and although in the
case OF Clark there are from the
tion be raised whether it ought not to be left Jury
say whether he not guilty under the second subd-
vision ofthe section. STILL that matter not left to
them and which this court ought not to take from them
soft the intent Of the accused is pro-
baby in other respects and question which the
do not now wish to pass upon. new trial should be
cases.
The People $. Joseph Clark Roosevelt 1.-THE pri-
soner Joseph Clark convicted at Court of Oyer and
Termner held in September last Of the crime of murder
and sentenced to be executed in November following
stay OF proceedings having been obtained for the purpose
his case now brought before the Supreme Court for
view, on certain points of law raised at the trial and
which his counsel insist were erToneouy decided against
him 1t appears from the bill Of exceptions which, il
should be born in mind does not bring up all the facts
that time in July last about hour after midnight
some eight persons including the prisoner and
one John ID Brown were together in Oliver street. that
there great noise and indications of fight between
two sailors having taken of his that police
officers Sullivan and the deceased hearing the noise,
which they did leaving Brown and the prisoner however
whose lodgings Immediately opposite to the
disturbance remaining two also then request
ed by the officers TO home which 1t Is contended they
were not bound to do They did not refuse but Brown
hesitang deceased took hold of him gently by the arm
TO lead him TO his boarding housean for which
also contendod the policeman had authority At all
events Brown resented it, and clenched the deceased
when Sullivan interfered and separated them After
going few steps further another conching and
separation took place Deceased continued to urge
Brown along and al length got him, according to
the testimony. far the alley way to the house in
which he boarded when third clenching took place
Brown trying to throw the deceased Sullivan again
terfered and in the scufe struck Brown with his club
The prisoner now procured cart ruDg and to the
defence OF his friend striking the deceased violent blow
on the head and repeating the blows three times after
he had fallen. He then went into his lodgings De-
ceased was removed to the hospital where he died the
same night The conduct OF the deceased policeman
it is in testimony mild and forbearing and there's
no conceivable motive for prisoners assault upon him.
unless it be the one intimated by him immediately
after reaching his lodgings-that. seeing officers
beating sailor he knocked one Of them down. On
the trial the defence rested mainly on two points first
that there premeditaton and secondly that the
act although unjustfaby Defensive and that
in either view the of mansaughter and not
murder The Court among other things charged the jury
that under the evidence in the there su-
Gent shown for the violent interference of the pr
eoncr that the fact of Brown and the policeman Sui
Ivan being engaged in the alleged quarrel shown the
evidence was not sufficient to justify the assaults upon
ana tnat lar deceased concerned, 1t
did not appear that he had given offence to any
The Court further charged that the jury believed that
the killing produced by the prisoner with nten.
ton to kill though that intention formed at the in
slant Of striking the fatal blow it murder and that
the jury might infer such intention from the crcum
stances OF the case and among other things from the
nature Of the weapon and the wounds given by it
The first part Of this charge, upon more deliberate
review hardly be said do full justice to the posi-
ton of the parties 1t assumes that Brown and the
liceman. Sullivan. alone engaged in the QUARREL
whereas proof shows that the deceased from the kind
Brown gently it is true, but STILL the resentment of
the latter shows extensively sullivan and the deceased
clearly cooperated and although Sullivan used the
club. beth in judgment of law responsible for that
act. lawful or unlawful. Had death ensued to Brown
both must have been tried for the homicde and such
trial both must have been required TO prove that they
engaged in the discharge Of legal duty. and that
the act however deplorable. was necessarily committed
in overcoming actual resistance Was it. then the legal
duty of the policemen after the gathering had dispersed
and quiet restored to compel by force the two
manning persons standing the sidewalk in front of
their own homes to go in. whether willing or unwilling?
If it not what must have been the result OF such ri
all verdict of mansaughter in one or other OF the
four degrees would seem TO have been very probable
Brown however. although thus assaulted. and witha
dangerous weapon in point of fact not killed but
only severely wounded. But did the circumstances fur
nsh for interference in his fayor Habit been
the of wife parent child master mistress
want and there had been reasonable ground Comprehend
imminent danger Of some great personal injury the
law would have justified interference. even 10
the point of killing Although Brown stood in
pether of these relations to the prisoner aud have
been as far as we know mere stranger yet the spirit of
the law. in degree at least may certainly be invoked
to mitigate what otherwise world seem TO be not only
atrocious but utterly motiveess and inexpcabie deed
Next to the prisoners intention TO ki-this clearly
could not be inferred from the nature Of the weapon
alone unless back and apply the same rule to the
Of the club by sullivan upon the head of Brown The
club and the Iung alike dangerous weapons Death
might result from the use of either But the prisoner
il is said after interval repeated his blows and did
Sullivan Admitting however that there paation
that there actual intention to klbu that such
intention only formed at the instant Of striking the
fatal blowwas the act manslaugher calling for incarce
ration in the State prison it murder to be
plated only on the galows The law says that killing
without authority. when perpeterated from premedi
tated design TO effect the death Of the person killed or Of
any human being murder 4 then an intention formed
on the instant premeditated design! Consulting merely
the popular acceptaon Of language the dcton
aries in general must certainly answer that il is
SO from being Synonymous these forms Of
preston generally employed to convey directly
opposite ideas. An tempore discourse i understood
to be the antpode Of a premeditated one The words
premedate and design both import forehought careful
reflection. deliberately arranged purposeideas all in
volviDg in their structure the essential element Of time
We nmy not perhaps be able. in every or in any case,
10 define The precise number Of hours or days but.
still there must be time, reasonable time-mc for re-
ection-tme to survey the contemplated deed IN all its
bearings and probable results ana to conrive and
range If decided the and method and occasion
Of It's deadly accomplishment How then can II be said
without shocking all notions of speech whether
mon or cultivated that an intention 10 Kill formed on the
instant Of striking the fatal blow i the same as pre-
meditated design 10 commit the crime Of murder The
present law Of homicide. II must be remembered Is in
this State, written and recent code 1t is composed
by selected 10 give utterance to the more humane
spirit Of the age and in Language adapted least in
tended 10 be adapted to the general understanding Of
those whose conduct il to regulate This condera-
ton therefore must furnish the rule for its nterpreta-
ton and with such rule. without it. it i'm
possible to believe that the Legislature in treating the
subject Of homicide and measuring it criminality and
punishment intended to place sudden impulse upon the
footing deliberate malice To do so instead Of
softenng. would have been to ngqavate the
harsh features Of the common law. and 10 vio
late the almost universal sentiment of the community
But says the District Attorney If the crime of the pri
land great crime i admitted 70 be- Is not adj
judged 70 be murder the criminal contrary all just
notions of the adaptation Of punishment will escapewith
the comparatively slight penalty assigned to mansaugh
ter in the fourth degree not exceeding two years con
fnement Ia the State prison IL this result were 70 fol-
lowa necessary consequence Of reversal OF the judg
rcnt Of the court below. IL would afford reason for
hanging the offender IL would merely show that in
framing system II written law oversight not very
uncommon in such cases had occurred 10 be remcdicd
not by the judiciary but by the Legislature IT, how
the meaning above ascrbed to the word design
as used in the statute be the true onef it imply fore