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

II as our fathers Intended II should be sub
mitted 70. We have Union in name. we
are willing TO abide by this test and submit
to the duties which imposed He made other re-
marks Of patriotic character which applauded in
The Senate went into executive sepn soon afterwards
and adjourned
A New Trial Granted for Mulligan.
SUPREME COURT-GENERAL TERN.
Hon. Judges Cerke a. ~, Ingraham and Sutherland
presiding.
MARCH 18-Tn the case Of william Nulligan Is. the
Pecple-The Court delivered an opinion reversing the
judgment, and granting new trial to the prisoner who
is undergoing punishment in Sing Sing.
The following is the opinion Of the Court
ALLEN, 1.-The plaintiff in convicted of a.
tempting to discharge loaded pistol at Oliver with
intent to kill him. and sentenced the State prison for
four years. upon which conviction brought to
this Court Several questions arise upon exception the
rulings and decisions Of the learned Judge the
Of the trial. which will not be necessary to consider IL
my brethren with me upon the main question pre-
sented by the record. The prisoner in common
gambling house, Of which Morrissey one Dancy and
Others were .proprietors, and, while conversng
house by Morrissey. Not leaving in pursu.
ance of the request, Morrissey procured the
lice Officers Of the city Of New York and h@
to remove the prisoner from the premises The prisoner
refused TO- or did not leave at the request Of the officer
and the latter advanced toward him with view TO eject
him from the house. The evidence tended show thai
the prisoner retreaed the officer advanced and took
from his pocket loaded pistol and pointed the OFF,
Ger, using threatening language, indicating intent
discharge II II the officer put his hand on him or ad-
vanced toward him. The pistol not cooked. The
against the law and not liable TO arrest by the officer
and there resistance TO Oliver officer While
attempting to re move the prisoner from the house, Oh
yer not In the line Of his duty member OF the Do
lice The house was public gaming house TO which the
prisoner had on other occasions resored for play, and
aside from the license implied from the character tho
house, the actual permission before given the prisoner
to be and remain IN the house invitation aud ex
press license to him TO enter IL at and all times until
the license should be revoked He not therefore,
uespasser guilty OF breach by entering the house
the time of the alleged assault But the hcerse
voked he could neither lawfully enter upon the
premises notwithstanding the illegal aud offensive cha
misses and the possession Of the propretos under
the protection OF the law, and had the right TO
ntrude upon them against the wishes OF the owners
There is come evidence that the officer considered
the business OF the house we'll as the house
itself under the protection of the law, and
tie proprieors entitled the aid OF the police force TO
preserve order In carrying the busuess rather than
suppresiDg it, and thus eectualy preventing breaches
Of the peace and violation OF the law It proper to say
and its business, Oliver acted without against the
ders OF his SUPERIOR Captain Dks Had he followed the
instructions of Captain Dlks, he would have kept within
the exact line Of his duty Breaches OF the peace resulted
almost necessarily from the character Of those who
drawn together by the attractions of the place. and the
business Of the house nursery not only for those
onerces which come under the head Of breaches
Of the peace, but for every vice aud crime that
infest the community and why this police OH
protect and encourage gambling, and house for
gambling, ms TO interfere with those who not
breach OF the peace merely because presence
offensive to the keeper OF the house, II Is not easy TO
He was literally using his office as "shied" for public
nuisance. The remark Of the prisoner 10 the officer
"Dont you that this Il gambling house-ycu had
better attend 70 this than TO me- very pro-
per ard IL the officer had needed IT, and The direction OF
Capt Dlks and merely done bis duty, offence would
have been committed by the prisoner and this conviction
would not have been had Perhaps even the Metropo-
tan Police cannot suppress all the gaming houses, but
they not bound 70 undertake their regulation
management. AS there no breach Of the peace
SUCH had authority to interfere with modest the
prisoner, and the display Of his |" shield" did not
add 10 his powers All the authority he had was as the
servant OF Morrssey the proprietor Of the house. As
such he could have doneat his request precisely what
Morrssey himself could have done, that Is, upon the
fusa Of the prisoner 10 leave the house. upon being
quested do 3d. he could have removed him. using Just
that Of force necessary TO accomplish that pur
pose snd Tho prisoner could not have ns
dcted for resisting Oliver officer. (Reg Mabel
&c. and p Ala The officer went beyond his duty, a,
SUCH in attempting to remove the prisoner and was not
wheeler v. Whitney ID, 262) But az the servant Of
horrissoy, and acting for him, he had right
the priscrcr and as no question arises upon alleged
resistance TO public officer in the discharge
Of his duty, 50 there is no question
as to the degree Of force used by the
officer in the expulsion Of the prisoner. The
principal and only important question 10 upon tho con
s,rucon OF the act under which the prisoner
vcted and that question was directly presented by the
request OF the prisoners counsel TO the Court 10 charge
Jury that the pointing OF unlocked Colts revolver
person attempt 10 discharge the weapon,
which instruction refused and the jury charged
In substance that for them TO say upon the evi
dence whether the act OF not attempt 10 dis
charge the pistol.
Tbe statute under which the prisoner was convicted de
cares that every person who shall be convicted of
fhootng at another or attempting to discharge any
Kind Of Are arms &C. with the intent TO kll mann 40,
shall be IuntSbad ~ Rs. Goo. JOY. an1 tho
question resented ia whether conviction DO had
Tor an attempt 70 discharge pistol when the individual
charge shoon than to raise aud point tho pistol
cooked Mt the party Threatened There evidence
OF attempt to cock the pistol or 70 pull the trigger,
aud the Jury would have been warranted in Godng that
the prisoner merely raised the pistol and pointed at
the officer making the qualified threat before stated The
instruction properly asked for upon the evidence
The threat constituted no part OF the attempt - dig
choTge the pistol and was only evidence Of the intention
OF the ~ soner The statute quoted does not declare that
every person who shall shoot attempt 10 shoot at
another shall tie punished upon conviction o.
therein prescribed, but II Is that every person who shall
shoot or shall attempt - discharge any firearms, &c 4,
cha he punished, &c, evidently indicating that the
tmpt the act preparatory To the principal act prohibited,
must be pioxnate and an attempt TO do the specific
thing named 10 wit discharge the gun other firearms
The statute rs not aimed at neither IL the indictment and
conviction for an assaut with intent TO kill person
might make IN assault with loaded pistol In HE hand
and yet make no attempt to discharge H. and would MT
be within the provision Of the statute The English
ststuts ne well vict O. SIS as the prior statutes for
VIII that was n substitute, somewhat more marked
and distinct in their language titan our statute rncy
are 10 the eject that whatsoever shall shoot at any Per
shah by drawing trigger in aoy other msnner
10 discharge any kind OF loaded Arms at acy
person NC ehall be liable, &c The principal differences
between our own statute and that 81 Wet that the
latter punIshes !" attempt to discharge gun, &c ,
by drawing a trigger or IN any other manner
and our own Furnishes an attempt TO discnTec
punt The attempt 10 discharge 10 any manner
which " broader than the expression any other man
ner In the English statute. Any act towards The ds
charge aded gun and calculated 70 accomplish this
purpcso would be attempt under the English act and
nothing fhor of this would constitute the offence under
,hc Revised Statutes Orr statute wa not in.cncd to