The New York herald., 1869-03-26
NEW YORK CITY.
IRE COURTS.
cogaT or APPEALS.

Degree Under an lndlctmcnt Tor inc rirst Dce
sz~e.s-intcrestins Argument OF Counsel
epinion Reserved.
serore the Pun Bench.
A very important question OF criminal law pre-
sented itself before the Court Of Appeals last wednes
day, In Albany, for adjudication, in the case OF
man by the name OF william Keefe, who Is now serv-
ing out life sentence in the State Prison upon
conviction OF murder IN the second degree. lt ap-
pears that the prisoner was indicted by the Grand
Jury for homicide OF the degree OF murder In the
first degree, and was arraigned for trial az the
Court OF General Sessions In the month OF November
1885, The trial lasted several days. resulting in the
the crime and convcting Of the lesser degree OF the
0ncnce. to wit murder in the second degree; where
upon on tue motion OF the District Attorney, the
court inflicted the maximum punishment for the
offence, namely State Prison hard labor for the
term OF his natural life in which institution the pri
soner has ever since been incarcerated.. Several
years have been allowed TO clapse the convic-
ton, when able ana ingenious counsel have taken
hold OF the case OF this unfortunate man, and for
whom much sympathy Is felt, and suing OUT o writ
OF error have removed into the Court Of Appeals his
case thereby hoping, through the technicaities OF
the law, to rescue him from the terrible punishment
he is now undergoing and to secure his restoration
10 liberty The case was reached ts regular order
on the calendar OF the court for argument last Tues
day, there being present fun bench.
District Attorney Samuel b. Garvn appeared as
Eam +. Kintzing and John s. townsend appeared as
counsel for the prisoner As this case s regarded as
test case. the decision must necessarily decide the
appeals In numberg0r other cases now pending IN
tIIs and the supreme Court Besides stating the
points upon which the Judgment Is asked to be re-
we give brief outline OF the argument OF the re-
spective counsel Mr.. Kintzing, in opening the ar
gument. said that the jury erred in convcting the
plantIfr in error OF murder in the second degree
under the Indictment and the judgment must be set
aside because the Indictment not setting out the com
mission OF any felony during winch the homicide was
committed 1t does not support the verdict and
judgment, and that upon the reversal OF the judg-
nptzn Nn nhor I'D
sonment, on the ground that he mas been once in
Jeopardy under the indictment and cannot be tried
the ordinary common law form. The counsel then
went on to say that ever since the passage OF the act
the practice Of Courts to accept plea Of murder in the
second degree and to charge ures that they have an
abstract right to convict prisoner q murder in the
..upcn an indictment for any offence consisting Of
jury may dnd such accused person not guilty OF
the offence IN the degree charged In the indictment,
degree OF such offence interior to that charged in the
Indictment or OF any attempt to commit any degree
ol such offence" e VOL Edmunds' Rev; Stat. p 1861
n was dubious and uncertain under the act OF 1862
that question was settled in the case OF Fitzgerald
enc held tSa vas the fnR wen
without design to effect death by person engaged
the rst degree which Is expressly made murder
IN the first degree Now, In order to sustain con-
vlcion Of tins degree OF guilt the indictment must
charge in appropriate terms that the killing was
pepetrated IN the commission Of some felony In the
ease Of Dedien VS.. The People 22 n. Y. Rep, 1901 IL
WAS said that:-"In this State all offences punishable
by Imprisonment IN the State Prison are defined by
Statute, each separate consist In the commission or
stances and in some cases with particular intent.
An indictment Tor these offences must charge the
deendant with certainty and precision with having
Stances and with the intent mentioned in the
statute. II any OF the ingredients contained IN the
nf fnffnt trad fxnJfp
" fatally defective and the defect is not cured by
verdict The indictment against the prisoner did
mission OF a felony. the act which permits jury
10 ind an accused not guilty OF the offence
.narsed .u and & may lind IND him , guilty Of ..u any
the verdict % AGAINST the he prisoner as was said m
would be proper when the aot proved was the tden.
fica act set forth IN the indictment, and when all
the circumstances descriptive OF the offence OF which
ef the offence IN the higher degree ana where con-
tanned in the Indictment, ana such finding would
not be proper In any other case. Its real meaning
u that upon an indictment charging an offence OF
which the statute has presented different degrees,
she inferior degrees being generic the superior and
the Indictment containing enough TO apprse the ac
cused OF the lesser degree, II the evidence, In the
view OF the jury, bc insufficient to convict OF supe-
rior degree 0 such offence the jury may ind
the accused guilty Of the inferior degree or OF
an attempt to commit the offence charged" Mr..
kntzlng then said that upon the reversal OF the
Judgment the courr should not award a new trial,
but should order the discharge from imprisonment
!
Jeopardy under the Indictment and cannot be SUBJ
jected TO another trial by the constitution OF the
United states Il is expressly provided, Nor shali AL
twice put In jeopardy or limb and life, provision
similar to this Is embodied In the constitution OF our
State. Now, under the indictment upon which the
prisoner was tried the jury most unquestlonably
had right 10 find, provided they convicted one OF
or mansIaughter In the third or fourth degree the
Indictment was perfect in It's framework; had the
prisoner been convicted OF either OF these degrees Of
eutlf f,o v0tto ha cta A. hnff The
seconi degree, q crime for which he was not IN
Tie juiy therefore, virtually acquitted him OF the
carge Tor which he stood indicted and the inferior
degrees OF It, In conc. .usi0n counsel submitted that
where prisoner is tried upon an Indictment not
defective In form, and the Jury are charged with the
prisoner as IN the case OF the prisoner keeie hls life
b undoubtedly in jeopardy curing their deiilera-
ton; anu II. under sucn circumstances, jury
renders q verdict against the prisoner, finding
hun guilty offence FOR which ne s not indicted.
and such verdict IL accepted by the Court and the
Jury oNcnarged, thlt und3r that indictment the ac
cused has been once in jeopardy IN the spirit OF the
constitution, and cannot be subjected to another
trial.
the people, arguing that The indictment against the
prisoner IN the ordinary common law form: that
was perfect IN its framework aud without objec-
tiol exception from the prisoners counsel either
as TO the question OF variance or otherwise. The
ease was put 10 the jury and they found verdict
tor murder In the second degree. The position
or the prisoners counsel Is that the indict-
ment must charge In appropriate terms that the
killing was perpetrateu wmie IN tue commission OF
some felony, following the definition of the statute.
The crime OF mulder 10y our statute consists OF two
degrees and the Jury have the right 10 convict OF
lesser degree. At common law there were no de-
gees OF murder-it was simply murder; and man.
slaughter, the taxing or human lie while la the
commission OF felony, tncn was murder, AMI al
common law the Jury convicted OF that offence with
out setting out that the killing the perpetra-
tion OF o felony In the Indictment. Under such CIR
cunlsances why cannot jury convict now 4
The fact OF the indictment not setting out that
the commission OF felony cannot prevent
the Jury exercising right given to them under the
statute OF convCting OF lesser degree In support
of this view the District Attorney cited number OF
authorities, at the same time admitting tnat the Of
fence must be charged with sufficient degree OF
certainty to distinguish II from other offences. In
this case the Indictment clearly sufficient TO sup
port the verdict and Judgment In conclusion, the
District Attorney SAID that he regarded this az q
very important case. The decision OF this Court,
whatever 1t may be, must necessarily serve a. q
guide in the future 70 those public onicers who
ENGAGED In the administration Of justice.
There are probably from one TO two hun
dred cases just like this where appeals
y,aot, xvtl kn Iou xvha N ms rooI