The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-11-14
PICKING A HOLE IN THE LAW.

A Condemned Murderer EndeavOrs to Get
Ont of the State Prison Through ssTechni-
cnlityo of the Law-The Court Of Appeals
Refuses TO Aid His Escape-TcchnicaIities of
the LAW Ignored-A Conviction of Murder
in tho second Degree Under Indictment
for Murder Drawn ms Required by the Com.
mon Law Propcr-Opinion of the Court.
The court OF Appeals has rendered a very import
ant opinion in the case Of william Keefe con-
victed murderer who is now serving out life
sentence in the State Prison, the court refusing
to grant O new trial. The prisoner was charged
with the murder of John Abrahams. in the city
OF New York. In the month OF June, 1885. The
conviction was OF murder in the second degree,
under an indictment for homicide Of the
degree OF murder, drawn as required blythe common
law. The jury, having taken mercilul view OF the
facts OF the case, and having natural adherence to
finding verdict OF the higher degree, which would
forfeiture OF life rendered the above verdict
writ OF error q short time ago sued out, and
the removed into the Court of Appeals for the
purpose OF reviewing certain questions OF law Used
during the trial in the court below. The appeal was
argued by William F. Knitting ana John d. Townsend
counsel for the accused, District Attorney Garvin
appearing upon behalf OF the people. Upon the
argument counsel for the accused contended that
such conviction was erroneous. inasmuch as the
Indictment did not contain averment that at the
time OF the commission OF the homicide the prisoner
was engaged in the preparation of felony, which
Is the statutory definition OF murder In the second
degree the indictment not informing the accused of
the nature OF the accusation with certainty and pre-
cision the accused having been convicted of crime
for which he had never been indicted. In addition
TO reversal OF the Judgment being asked for the
discharge OF the prisoner was sought, the ground
OF his having been once IN jeopardy under the
indictment he could not be subjected to another
trial.
Justice Grover decided that the question arising
upon the record IN the case was whether Q verdict
convlctinR the accused or murder In the second
degree. upon an Indictment containing single
count for murder drawn as required by the common
law, was legal, and whether such verdict authorized
a Judgment convicting the accused and INJECTING
the punishment imposed by statute for that offence.
1t was insisted by the counsel for the plaintiff in
error that the accused could not be convicted OF
murder in the second degree unless the indictment
charged that the death was effected while the
accused was engaged in the commission Of felony,
as specified In the statute, and that the absence
OF such an averment In the present indct-
ment was fatal to the Judgment. After review.
ing the facts OF the case the Judge concluded
MS decision as ollowsIn the present case the pre-
sumption from the record IS that the prosecution
by the means charged in the Indictment, but failed
to prove the act was done with o premeditated de-
white the accused was engaged in the preparation
OF felony. He was therefore rightly convicted II
the evidence OF the latter fact was admissible under
the Indictment. We have seen that the statute au-
thorzlng conviction OF a lower degree OF the same
crime upon an indictment for higher degree makes
the evidence authorizing such convictions competent
otherwise the.statute would be imperative. l the
more readily adopt this construction as cannot
that the accused can be prejudced thereby. He Isl
informed by the indictment OF the particular crime
charged and Of the means used In Its preparation,
and that IL was committed with the intent and
under the circumstances constituting the highest
degree OF the crime He, therefore, comes to his
trial not only prepared to show, If he can that he Is
not guilty OF the particular degree charged, but OF
lower degree OF the crime. II acquitted upon
the indictment convicted In any lower degree than
that charged he win find no obstacle In pleading
his acqutta or conviction In bar to any subsequent
Indictment for the same crime IL exposes him to
no danger OF conviction Of the crime In any degree
not warranted by the evidence. This he may readily
guard against by calling attention TO II In the charge
TO the jury and In case any error IL committed by
the Judge In this respect correct such upon
review by taking the proper exceptions. My con-
clusion IL that the Judgment should be affirmed.
Judgment afflrmed Woodruff, Mason, Daniels,
Hunt, James, Murray, Justices concurred with JUS
tlce Grover.