The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-05-26

The Trial Of Foster and the Verdict.
| Guilty of murder in the first degree, with
our recommendation to mercy" was the YER
dict Of the jury yesterday in the case of Fos-
ter, charged with the murder Of Mr.. Putnam.
This verdict is as anomalous in q legal point
of view as the recommendation in 1t will be
unsatisfactory to the public. In the first place,
the verdict appears to be against the charge Of
the Judge, Mr.. Cardozo. 81 charge, fourth"
the Judge said, s'before the jury can convict
the prisoner of murder in the first degree they
must find from the evidence that the prisoner
had specific premeditatsd design to effect the
death Of the deceased or of some human
being that they must be able to say, beyond
reasonable doubt that such was his specific
design. charge, fifth, if the jury find that
the prisoner, when he struck the deceased,
intended to inflict serious bodily harm upon
the deceased only, the death resulting from
such an assault does not amount in law to
murder In the first degree. charge, sixth, If
the jury have q reasonable doubt, derived from
all the evidence, as to what intent the prisoner
had in assaulting the deceased, they are bound
to give the prisoner the benefit of that
doubt and find the lesser intent" The
Judge then quoted the statutes to sustain this
charge. The verdict does not appear to be in
accordance with it. The argument of his
Honor, If we may so speak, favors the opinion
that there was not q premeditated design to
effect the death of the deceased, and this,
according to the technicality of the law,
might not constitute murder in the first
degree. Judge Cardozo may be right as far
as the strict Interpretation of the statute goes
but the jury had in their minds. evidently,
another law-the common law-the law of
reason and justice, and probably without
knowing 1t when they decided upon their YER
dict; and 1t was the conflict, probably, in their
minds between the strict letter of the statute
as expounded by the Judge and their sense Of
right and justice that led them to append
recommendation to mercy while they found
the prisoner guilty of murder in the first
degree. Their reason told them the crime
was murder, while the statute as expounded
by the Judge might have created doubt.
This, we think, accounts for the anomalous
verdict.
upon reason and justice, is thus laid down by
Blackstone :-"Also if even upon sudden
provocation one beats another in cruel and
unusual manner, 80 that he dies, though he
did not intend his death, yet he is guilty of
murder by express malice-that is, by an
express evil design, the genuine sense of
naalitiG-as when q master assaulted his
servant by an iron bar and q schoolmaster
stamped in his scholars belly, so that each of
the sufferers died, these were justly held to be
murderers, because the correction being ex-
cessive and such as could not proceed but
from bad heart it was equivalent to DELHI
crate act of slaughter" Blackstone is sus-
tanned by Lord Hale in his pleas of the crown.
Again Blackstone says :-"And if man kills
another suddenly, without any or without
considerable prov ocation, the law implies
malice, Cor no person, unless of an abandoned
heart, would be guilty of such an act upon
slight or no apparent cause" Our hair
splitting lawyers may object to these old
English precedents, but they are founded upon
reason and justice. The object of all laws is
to protect society but how can society be pro-
tected if the law could be strained to shield
criminal like Foster, who deliberately and
maliciously struck his victim fearful blow
with murderous weapon? Suppose even
Foster did not intend to kill, it is clear he did
not care whether the blow proved mortal or
not. There was, no doubt, malice and pre-
meditation. The evidence shows this, and
Putnam died from the wound inflicted. We
do not call for the death of this wretched
criminal from a feeling Of vengeance. It is
the safety Of society we plead for. Unless
terrible example be made in this case the
public streets and public conveyances of our
city will be unsafe to peaceable citizens.
Brutal and drunken rowdies will do as they
please, unterrifed by laws that may be
strained to shield them. Better that one man
should die, if he deserves death, than that the
community should be unprotected.
PRESIDENT JUAREz, of Mexico, appreciates
the importance of the American press. He
telegraphs to our correspondent acknowledge
ing the receipt of his Fluctuations on the
completion Of telegraph line, and he (Juarez)
salutes the press of the United States and
directs his prayers to Heaven for its progress.
THE CONVICTION OF MoNEvINs. While the
public have been occupied with the Foster
murder trial another trial, which is of less
Importance only because it does not in its con-
sequences so seriously affect the security of
the more orderly portion of the general pub
lie, was concluded in Judge Bedfords court
yesterday. McNevins, who killed Hynes in
avenue A in November last, was found guilty
of murder in the first degree. The
case is only important because it has