The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-02-16
The Convicted Murderer Of MIR. swnnston.

scuos TRIAL, rsy riss of rSroyicsrloS.
SUPREME couRr-aEsERAL TERN.
Before Hon. Judges Davies, Clorkc and Sutherland.
rrn. 15-Jdmes Rogers, P,dintg in Error, vs me Pco.
pl, Of the STATE Of Nee Fork, Defendant, IN Error the
plaintiff lies under sentence OF death for the
alleged murder Of John Evanston, the 1Th day Of oeo
ber 1857 The prisoner was indicted and arsgned for
trial on the 2sd day OF October, 1857 He tried be-
fore City Judge Russell the Isth day OF November,
1857, and sentenced the 22d dry Of November,
1885,, The evidence shows-ThAi the prisoner
red or used any knife excep, ordinary pocket ktc
Usi q the time Of the alleged murder The -, ceer wsi
intoxicated 10 sac an extent rs Ia Sc deprived Ct h, rei
sou and faculties. Ts, this iacxeaton was induced by
his companions
First rolnt-Tne cou,: Erred IN admitting Me tes -,oy
Of David Scott, because was mA,crai irrelevant and
nsufcicnt--the persecution cnieavoring thereby
meet the prisoner with a knife short lime before the
killing and remote evidence OF such nature the proof
of collateral matters, should not be SLOWED 10 form
link 10 the chain of testimony
second PointThe Court erred in admit as evidence
the communications Of the prisoner 10 the witness Lei
ierts because the prisoner was under arrest auG 10
custody the times the manner Of the officer and
form Of his questions improper, and OF tEtm ves
constituted threat intimidation, and would noe etiy
operate the fears OF the prisoner The aimsns arc
not voluntary within the meaning o. the rulo for " the
DUTY Of the officer and the right Of the prS 10 be 10
formed that hts statements might be used evidence
and only aiter such caution admissions voluntary to
that exten, that trey may be used as evidence.
Third point The Court erred in the charge because,
Il the prisoner ntemperatcly used ostr ament not in M
ratuYe deadly weapon, while Intoxicated such intoxca
ton might induce The jury TO less strongly Infer mali
cious intent When the question Of intent premedta
ton concerned evidence Of drunkenness n material In
determining the precise degree Of guilt The ntoxcaton
l. swsys 10 be taken INTO account when provocaon has
been given ne first blow struck because drunken
s more easily excited 10 passion than sober The
uioxcation 81 Rogers Of the degree ot iosulpabe
Justly attributable 10 of$cyy, Hale (page 63D
presses "he cont vance of evil minded persons The
whole conduct Of Rogers the night in question was
that OF boy maddened by liquor TO which he uaus
Dot voluntarily but "hcupabe and bis conduct that OF
mailman without purpose or motive. The common law
characteristics OF murder preserved, except when al
tered by statute. Our s'aiu have substituted preme
ditaed dcs 10 effect death, fos "mace aoretbought
but TO the and status The language Of the elder
style prevails, az when man ~ sound sense, NC. The
cour, erred in limiting the nioscson Total deprvs-
ton Of reason by reason ~ ~ whereas " clouds tho
reason ard party assaicd weapon and kills his ad
verssry, his offence n only nsnslaurhter.
Fourth pontThe verdict Is against the evii ence, DO
appears that the death OF SWANSON caused
in mutual corbs', that the movtsl blow struck in the
heat Of passion and without any premcdated design 70
kill.
Oecscn reserved