National Republican., 1873-02-05
HOPELESS.
o'BRIER'S LAST CHANCE GONE,

The Appeal from the Criminal Court Over
ruled and the Law Len to Take Its
Course.
In the General Term yesterday Mr.. Justice
Olln delivered the unanimous opinion Of the
court, overrullng the motion Of G. II. OBrien for
a new trial and leaving his sentence In ful force
and to be executed at the time appointed.
Judge olin delivered the opinion Of the court,
and after reciting the proceedings In the case
and the prayers offered by the defence, over
ruled as follows:
l. II the Jury believe that the defendant, At the
| time Of nring the fatal shot, was labOrinR under
such q degree Of excitement arising from the
| proyocation received a. not TO be master Of his
! understanding, or II they have reasonable
doubt as TO whether the defendant had dellb-
/ crate or well-informed intention to take human
life at the time Of firing the fatal shot, their yer
dict will be only manslaughter.
2. And the counsel for the defendant again
asked the court to say to the Jury a. follows, viz:
rhat II the Jury believe that Il was the universal
custom Of the policemen In the discharge OF their
duty TO carry pistols, the mere fact that the de-
| fendant Killed the deceased with one cannot az
| grayate the crime to murder, II otherwise II
| would he granddaughter
.. Aud the counsel for the defendant again
asked the court to say to the Jury as follows, viz!
That II the Jury md that the defendant believed
that his life was IN danger, but they further nnd
that the reasons for that belief were not suclent
aud reasonable, still they cannot nnh him guilty
/
said prayer nrst Ia based upon the Idea that
a man may be thrown Into such degree Of ex-
ctement by mere spoken words a. not to be
| master Of his understanding, and therefore In
capable Of forming any deliberate purpose TO
| take the life Of the offending party, and II he
does take the life OF bis adversary ii Ii at most
but mansaughter. This novel doctrine, that q
man may become excited by mere spoken words
that he can safely Kill the speaker and incur no
other liabilities than the pains and penalties Of
! manslughter, is, so far as am advised for the
irst time seriously urged In a court OF Justice.
10 has been uniformly held that mere spoken
words cannot In law Justify or excuse an assault
or battery Of person. But II II said the ptis-
oner was labOrng under great excitement by
reason Of the language addressed to him by
Cunningham. The plain and proper answer
to this II, that the law does not excuse
or Justify violence which Is provoked BY
spoken wor,ls. and that no man shall be
luences OF his acts resulting from passion
excited merely by words spoken to him or OF him.
still II Il urged that although such Il the law,
a man may he so provoked by language adj
dressed to him, and his passions so excited, as To
render him incapable to form deliberate inten.
tiOn TO take life. This Ia In effect saying that
while the law will not Justify or paate violence
provoked by words II will 30 far palliate or eX.
cuse the act as TO entirely change the nature Of
the crime; that II will, In other words, make that
manslaughter which would otherwise he murder
1t ts, however, apparent from the facts In this
case that O'Bhen lrst used the language com
| nlaincd Of In its most offensive form towardi
; Cunningham, 40 that he brought upon himself By
. MS own words any proyocatOn arising from Ian
guage. lie cannot Justify or excuse his acts b.
/. reason Of q prOyocation which his own conduc
(. produced. such we think is the law.
n the second prayer asked for Ia, u possible
Q still more erroneous than the nrst. The sub
stance o. S y me SS9sT seG SSnRnsnn mi s
" to murder, II otherwise II would he manslaugh
II ter. Let us Illustrate the absuriity OF this pro
Il suppose a the time the Deceased used the ofien
=, sive language he did respecting the prisoner
" wife, and o'Brien, proven TO be powerful an
le athletic man. strikes with his list the decease,
N q small and feeble man as compared wit
VI O'BHen, the blow occasioned the death OF Cur
lie bingham. This would have been clear case
G. manslaughter, but scarcely one Of murder. An
y Why's Because death under such circumstance
" was not the usual or natural consequences {
lie such an act, ard II could not he presumed thu
r used were moi suCh as would usually and natl
rally produce death. But when q man takes
loaded gun and aims II at vital part, discharge
In IT, and death ensues, the law and common sens
a say he Intended to Kill the man, because he use
ID the means best adapted and naturally calculate
'. TO produce death. God alone can look into IN
human breast, fully know the motives and u
tentions which control human conduct; but "
ls can only Judge Of the intention and purpos
G. Of men by their language and actions, and u
70 rule that lies At the foundation for ascertalnln
ID the motive Il that men shall he presumed to haV
O Intended the natural or ordinary consequence
= Of their acts.
&c Tue third prayer II Is hardly necessary to dI
1t cuss. The point In substance Is that II ma
d unreasOnably y-that Is, without any reason-b,
T. leves his life to be endangered, he may shot
g, down the victim OF his senseless suspicion, an
II he only guilty OF mhnslauRhter. No man ca
/, Justify or excuse a homicide except upo
u grounds OF reasonable belief that his life Ia
a peril, or that he Is In imminent danger of grei
J. bodily harm. II the principle asserted In thl
~ third prayer he law, II Is as good defenc
against the charge Of nanslaughter as that {
e murder. This prayer, we think, was very proI
y erly denied.
70 We have thus shown, we think, there was n
e error In the refusal To grant the three prayer
II before mentioned. hut the instructions OF III
= court or charge TO the Jury IL set out In full.
Ie These Instructions cover all the questions
the case which could arise upon the facts reclte
a proven In the bills OF exception; and II IL propt
n here to say II there was any error on the part
the Justice In refusing to grant any or all Of n
II three prayers asked, the error was cured by N
instruction Of the court to the Jury, II these II
y structiOns were right and covered all the grOun
a or the legal principles involved In the praye
o This, we think, the charge fully does. II WI
u hardly seriously cOntended by the counsel Il
IA the prisoner that there was anything In the II
structlons Of the Justice to the Jury which wei
y erroneous, II was indeed, cOntended that N
J. law he truly declared ought To he otherwise tha
II II IL. II that were no We cannot help II. We eaI
c here to administer, not TO make law.
g We have looked over the instructions Of N
!, presiding Justice to the Jury with that earnei
u and careful attention which the interests OF IN
u public and those OF the prisoner demand, an
a our conclusion Is that no error was committed
the Justice In his Instructions TO the jury pTeJud
cial to the rights OF the prisoner.