The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-03-19

diner from the English statutes, except by providing
mtigated punishment for The attempt and Tins dis.
tipguishDg il from the consummated offence which the
FDglish acts did not. (Rev. notes 3R. I'd Ed sl5)
That which would not be attempt 10 discharge gun
In any other than by drawing the unde
The English act would not be attempt dwcharve il
under the Revised this State The yery oues
tion made here decided in Reg v. Lewis 70 e. and
p 523) by Aabbn Sergeant, after consulting with Pat
tessn, and the jury were instructed that 70 saetau
an Indictment for attempting to discharge loaned blum.
oerous AZ the prosecutor there must be so1netiases
more imam the mere presenting Of the biunderbuss
shd act INST be shown 70 have been done by
the prisoner 70 satisfy the jury that be did fact at
20 discharge the buLderbuss The object OF the
as our osn statute Is the same % pansh prox
10 the dMcharge OF loaded arms (Reg Il Gtorre0 c.
ano = 400 Il not an attempt 70 discharge loaded
gun or pistol 70 put ooesef in atuation in connection
with the qua or pistol that it may oe discharged 4
mere getting II IN readiness TO discharge is not on at
tempt 70 discharge IT, Upon the trial an assault with in
tent TO kill was nounded with the spaciac sa.narv
and entirely dirleIt offence charged an attempt 10 DIS
charge loaded pistol ~th the like intent rha sct tn,
attempt 10 commit which ma te offence was the
ciscbarfe Of firearms. No tier what other offence
eommg agsins. me laws, or the psrscn q the officer
II this offence was not committed, the Or isoney was
wrongfuly convicted II is far from certain that any
offence was committed BY the PRISONER, but Of thai
upon the present conviction. The prisoner nav be- as
was very strenuously urged very bad man. but he /,
TO be judged and acquitted condemned by tbe same
rules Of evidence aud OF law which applied ia eyerv
o'ner case IL VIII not tend 10 make bad men better TO
convict and punish them without or 40 ,inst Law Tho
Laws and the admnistrati Justice will not he moro
respected 10 nave IL understood that rules Of aw and
CONSTRUCTIONS OF statutes be To bend To the
exgencies Of particular cases. that men can be-
demned Tor general bad character than upon proof
Oh specnc offences In passing upon evidence Judging
Of acts and inents, and deciding, question OF fact
up the gcilt or innocence Of party, character IL an
important element and in a doubtful or balanced case
may properly turn the scale, but not so i'm Messing
upon legal questions They TO ben decided as 40
stract questions, and penal statutes are to he
construed by the same rules whatever may be.
the character Of The individual to be affected
Dy the decision There may have been an assault With
intent TO do bodily harm 70 kill Hays vs. rhe Peo
ple Hill, 35l II i. be concededs'ha the prisoner
could nave been convicted OF attempt TO kilt by rea
son OF having done an act preparatory taken one step
toward TO the commission Of the offence IL s doea mt
Follow that he has attempted dschsg the nsto He
might be said TO have attempted muruer hal he soi
cited another person to shoot officer but that would
not pave been an attempt TO discharge the pstosthe
pie Bush, nIi ias Antte%ps l. an end.syo res
DO an act carried beyond preparat n but falling
short of execution of the ultimate design (ouvers law
Die b. - Loading pistol would be a preparation 10
shoot, but not an attempt to discharge. So to get
ana 70 point II, would be preparation TO
discharge it, but not an attempt 10 discharre
It, may not always be easy 10 determine
wnere the line which separates preparation TO per-
Iorm given act from an attempt to perform the act
but the act which au attempt must be
proximsto to the principal thing to be accomplished
means to the end and the pointing pistol unlocked Ii
NOT an attempt TO discharge It, punishable under sta
tute Firearms are usually discharged By drawing a
trigger but they may be discharged any way by which
the powder can be igned and explode and the
attempts TO- discharge be diversified as the means
OF discharge are various, but only be by some act
wnicn, carried out and perfected will result in q dis
charge The conviction must be reversed and trial
granted.
J. T Brady for plaintiff in error Nelson j. Waterbury
District Attorney, for the people.