The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-02-17
The FOSTER CAR-HOOK MURDER.
Decision Of the Supreme Court, General Term,
Upon the Writ Of Error in Fosters Case.
Conviction of Murder in the First Degree
Affirmed by the Court.
Opinions of Judges Ingrahaln
and Brady.


deepen as the denouement draws near. In the first
inquisition-tne public attention was reused to
pitch OF most absorbing interest. ike engrOssng
Interest felt in the second act-the trial of the
prisoner his conviction OF murder in the first degree,
and the sentence OF death passed upon him.
These acts came in quick succession. Then the
curtain fell for a while ana then followed o long
intermission Public interest was distracted
thereby. In the busy bustling life about Us, how
ever other dramas OF even more exciting character
were put upon the stage. Foster In his prison cell.
has been for a time forgotten. This may may not
be part and parcel of our vltlated ideas Of the
value Of human life and the propensity Of making
the blood shedder the hero of the hour, at the ex-
pense OF his poor victim. but it Is lamentaby the
truth, Notwithstanding. Seven months OF an
intermissiOn passed, and yesterday the cur
tain again rose, at the opening Of the
third act-the decision upon the appeal
to the Supreme Court, General Term, upon the stay
OF proceedings granted by Judge Pratt on writ OF
error. The Court refused to grant new trial and
affirmed the Judgment OF the Court below. There
were not q half dozen persons present In Court to
hear the result OF course the next act will be car
rying the case to the Court OF Appeals. We give
below In full the opinions OF Judges Ingraham ana
Brady. Judge Barnard, who constituted one OF the
but presented no written opniOn:-
OPINION OF JUDGE INGRAHAM.
The prisoner convicted the Oyer Termner Of the
crime q murder In he first degree writ Of error was sued
question presented arising the refusal the
the Judge TO charge requested bv the prisoners
hook
Jury that on ns I'm t'y n sSsa
He then requested to charge the that the ndict
This
ns 1ns uas ssp By an
upon him with deadly weapon with the intent to MAIN the
would be the degree rms was refused
to question Whether the evidence wsrranc the charge
that the might convict OF murder the second degree
Sch Ens % Without
G y ia se @ s
ed By the COUNSEL that The prisoner only
statute applied case the Judge erred ii refusing
TO The question to be
term "any felony" and whether Il can be the
which produced the death This examined seve
s %s'sa % SfT 4 d Ses g.
although the ease was decided on other grounds judge
engaged in riot other msdeneanor amounting
k Ne other the aessd y hs be
deceased That was what he Intended to ao and whether
holding the desired inappcabe t. the
Such sharEe could only be where the &C
some other oneHcs that Of neaionsi v io''
s0n prisoners on Se
relating to manslaughter which declares that aing
human being wilhoG design TO effect death, while the
u engaged in the OF any crime not
the first degree only applies to that eIass OF
where the accused, while engaged committing
or msadventure and without any intent 10 do HIM bodily
NO APPLICATION
where an attack either with witnog an intent to kan is
statute wai again uq as Ssysw in The People Butler
prisoner Killed his wife BY violent means, doub,
~ ,ae Of An assault and battery
OF the act itself which constituted the principal charge
than that which Is an Ingredient in the npnted oIence
otherwise that par, Of relating to an attempt
skeehan 4s Babne 27) the prisoner convicted
because evidences show
that the accused engaged IN the commission OF any
@ In Tne People vs. Thomp.oa III Rep wa Se
w pon the ere a %
tons were taken to the ruling on that point was admit
ing that the prisoner could convicted Of murder in the
that the aeedant was not at the time he caused The
Bailey engaged in the commission of any felony &c.
these with VS. The fecpe 20 New
io'A' R sSI XppoIsTHp APPLICABLE TO THIS CASE.
FiysTha when an accused is indicted for murder in the
Of the same offence including that Of murder in the second
aa hs ceu sa9S 80 instruct Inc
Of murder In the second degree he should request
Tha"Tha Il would be error TO charge Jury that the nc
mansaucher in the first degree where The only felony or
misdemeanor proved caused the death
fayaNfhss the Instruction asked for in this
prisoner engaged in the commission OF some other
felony than the act which caused a,s the death
DECISIVE OF THE QUESTION
the decease which urged by the prisoners
10 blow which the Of the ecenssd
In regard to that blow the Jury had been instructed that
fore striking The blow II they did not Believe that Foster
pREMFpIrArEp INTENT TO BILL
then the charge OF murder In the first degree falls They
any degree aud If they had DOUBT to the
gree 4 was Their duty to convict OF the lesser degree We
could required Of the Court under the evidence that
there error In the refusal to charge upon the point
judgment should be auirIned.
JUDGE BRADY's OPINION.
justice presiding on the ,ra herein charged that 4 the
not more than mansaugher in the hrst degree,
convict Of murder in the second degree declined to
s % b ss seeoo %
charge that If the prisoner killed the by
S without a% Ss an1 fssay 10 s ns
in the second degree The theory which
Ia that If the prisoner, when ne struck
intended only tho skull of the deceased did
intend to kill but to mann and intending to maim he
an fracture OF the skull by violence
relang 70 murder in the second degree i must be distinct
from the killing part the act by which
accomplished the which constitutes the principal
charge. think fair criticism upon the proposition OF
the prisoners counsel to say that an
INTENTION TO BREAK THE SKULL
and to kill almost identical 1t is true that men injured
such fracture have recovered but that depends much
upon character OF the wound that expert manipulation
attempting the experiment. with all the aid that science
could furnish could not ~ violence well planned and wei
executed per orm u with any certainty that would not
DEATH The chances violence IL exercised
with n design without skill and without considers alton
the In which It 10 TO be with anger and
bad impulse would be ana make the act 50 ex
emey hazardous that 1t ought not to be coun'enanced
ELEMENT OF CRIMINAL JURISPRUDENCE
IN the connection suggested An intention to commit an act
inmineny dangerous in itself should not DE allowed
separate and distinct place IRON the intention 10 kI ~
should be quite Sufficient In such case to eay ihe
the jury whether intended 10 euect uetn ana
In that TO him the benet OF any doubt that might
exist that subject The prisoner had the bene o. scn an
Instruction. also that under the Indictment tue Jury
might find him guilty OF murder In the second degree con-
therefore, In the conclusions at which Chief Justice In
graham has arrived
PROPER INTERPRETATIONS OF THE sTArUIE
and statement OF the result of this cases 10 whch he refers
Think be said ALSO with great proprlcy that the
the prisoner as the facts and the
warranted, that he not entitled to the nstruc