The New York herald., 1871-02-28
THE MURDERER THOMAS.
Decision in the Case by the
Supreme Court.
The Verdict in the Court Of Oyer and Ter
miner Sustained.

A decision was given yesterday morning by the su.
preme Court General Term, In the case OF the negro
John Thomas, recently convicted In the Court OF
Oyer ana Terminer of the murder Of Walter John
son, another negro. Judge Ingraham delivered the
opinion of the Court. which, 1t will be seen, fully
sustalns the verdict OF the lower court
THE OPINION.
The Indictment in this case was for murder In the
first degree. The offence was set out In the usual
ayerrlng that the prisoner made an assault upon
the, me deceaseS, the word which should have
Deea aforedlhonght was wa printed aforetanght, 50
make an assault" &c. In lhe rest or or
the indictment the allegations OF firing the pistol OF
properly charged to have been done with malice
aforethought. This error Is now urged Dy the
of the Judgment 1t Is proper to remark that in Tho
sa ssEa S IL e e SSrs sSsw wfe HI Sra hJ ss's
the type part OF the letter IN" being either broken
2G 9T from some other cause deficient. From what.
srsa nnye tho SrsMaea MorS nns 'ns
Pee neen omitted omitted altogether SO as to read that
a mace ai ans wa a ossae eeniSosy ana Or MS
been sufficient as the malice aforethought is sum.
clently charged IN tho subsequent parts OF the
1rs degree without the word applied TO the first
assault. Tne case relied upon dhe People vs.
tain this objecon 1t was said in that case that the
terms 'murder OF his malice aforeihought'; was
r,s arnsolntely necessary In describing the effence
Ihls term Is used IN the present Indictment, and as
] have before remarked, the crime OF murder is
fully set out therein without the word which has
Osen m'sps'A1Ss"i Fl sr1ncrso 1f;s ,lr-, TIE JURY
one Juror was challenged on behalf OF the people.
ins,nns lie Was asked, asked Have you any conscientious
where the punishment is death ana the evi-
GenSe a " would Justify such verdictfn to which he re-
TO n question, 'lr the evidence Justified you In
finding \ verdict OF murder would you feel it your
do my duty, but it would 90 against my feelings,D
aa af ot per Ws TO sSs4aan sst Is ne urc saa anS nG
was reJeoted. It Is evident from the Whole StHe
examination the Juror was opposed to capital
punishment, aud that such Views exercised d suf
fclent influence TO cause bias in the mind OF the
Juror against the law infcttng death. Had the OBJ
leston been tnat tina the ror WAS preudced against
his duty and acquit The prisoner If the evidence
warranted II, such statement would not be enough
prisoner, and he would not be qualified to serve.
What the juror meant by doing his duty does not
Vsfaos 5 auy he s1sncs a
raned il, still 1t Ia apparent that Ia coming t6 q
GonSb[siSSn ba S On sgch EVIDENCE s would be Influenced
punishment, and would require stronger evidence
to warrant such CONVICTION than would be reauired
vol p l,O27, sec. IL does not relate to this obec-
tlon, but 1t Is intended to relieve persons from
serving ON jury who, from religious scruples. are
precluded from finding persons guilty for such o
cause The case OF The People vs. Dawson,
hW u ward S this to jurors
ing verdict Of guilty. when the punishment
Is DEATH In O'Brien VS.. The People, 81 vol II. 81 p.
1858, juror was challenged for principal cause, be-
cause no had CONSCIENTIOUS scruples or this Kind,
and was ser aside by the Court IL tappeared IN that
case lat nc was NOT opposed tocaptal punishment
towards the prisoncr-a fear that he should do him
wrong The Court says;-"lhe fact still remained
fhnf hn hadn tinu md
for them wele OF no Importance. That they existed
was sufficient to exclude him from the panel"
was gwen by Juror in Potts VS.. the Peop.e t32 N.
u, 147-16n. Mr.. Wright Justice, says:-"it IS true
tious would have done, that, II forced to servo
and sworn to render verdict according 10 the evil
dence ne would respect his 3ath but he added that
did not remove the objection to nm." This case is
conclusive as 10 the objection to the Juror.
The third ground on which the prisoners counsel
appeals Is that tho Judge refused 10 charge the jury
'that II they should find from The evidence that the
homicide was done, not from premeditated de-
sIgn TO effect the death OF The deceased heat
Of passion nor under snch circumstances as would
make It Jnstfablc homicide, then the jury will lind
the defendant guilty or murder In the second dc.
grec.n In Fitzgerald VS.. The People t37 New York,
& or mE o % was tners hs a ny
der In the second degree was the killing when per.
petrated without any design to effect death by per-
son engaged In the commission OF any felony other
tnan That OF arson in the first degree. In this def
milton of murder IN the second degree all the Judges
term ''lelony'' used In this section is meant some
other criminal act than the homicide to constitute
the crime OF murder In the second degree. | think
there was error In refusing to Instruct the jury
as requested.
Inc remaining point made in behalf OF the prisoner
Is that the
VERDICT Is NOT WARRANTED by THE EVIDENCE.
II would be SUFFICIENT answer to say that IN 4 case
tried In the Oyer and Tcrmlner no such objection
can be presented appeal. Our power to interfere
with the Judgment appealed from Is limited to errors
OF law occurring in the courts below In this re.
n nU.
ment if rendered In the Court OF General Sessions
In such appeals the statute requires the appellate
trial II the 'rM verdict is against the @ Weight o evidence
or II justice requires that new trial should be
granted We win ada, however that even If we had
the power to review the finding OF the jury upon the
fact the evidence sufficient TO sustain such 1nd-
ing. The evidence shows that before the
Was inqnsng ns for the that Re
uttered threats against HIM; that when they
met the prisoner used threatening language
to the deceased that the deceased told him that he
had been following him the previous night with
knife and asked what he meant to do that the
prisoner fired the pistol and then disappeared. Ii
this evidence is true there was sufficient to warrant
tne jury in finding the intent TO kill, and that the
homicide was neither cxcusable nor justiable. The
case OF Purcell, referred to by the counsel decided
at this time, was distinguished from the present case
By the fact that the parties met unexpectedly with.
out any previous knowledge OF the meeting, and
hat the whole affray was sudden and uDpreme dl.
ated and rendered It difficult 10 find any sniici ont
eUue Se S Wo " a1c been
rcyss Saa y &c asas II .n' plessn' case 70 "S
IL viii be remembered that Taomas was
SENTENCED TO BE HUNG
ON the l7th inst, but that the Governor granted
respite o 10 three weeks s ,nrSe 70 a9W e w1
tho 10th Of next month. Mr.. Goodlctt, the con-
demned mans counsel, does not propose TO let the
for further respite in hope OF being able to take the
case TO the Court Ot Appeals.
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