New-York tribune., 1873-03-06


determining whether could properly lay before
your Exceeney any considerations favorable TO com
mutation OF Fasters sentence Of capital punishment. Ior
the punishment Of imprisonment for hie' un
dertook the service two conditiOns: nrst tnat
would IN no case receive any fee for W and second tnat
must limit my inquiry solely to the legal points m
Justice. The result OF my Investigations eonduetd ia
this spirit, to satisfy me that Communication OF d
sentence will accord with the legal right OF the case anu
tend the maintenance OF the authority OF the puoo
Justice. The grounds of this conclusion now peg
TO place before yOu for such influence IN ad OF y0I y
decision upon grave question as your responsIoe
Judgment may md them 20 deserve shall 90 so1 TINS a.
briefly as possible, and with avoidance OF mereE,
technical DISCUSSIONS. slal also omt All Iopios - %
favorable bearing on the character ana m
bic affect your Excelencys decision OF the qussmn ~
before you but they do no not enter INTO the inquiry "
which have limited myself. . 10.
Tine circumstances OF the crime far they develop
i.s nare NAV he very shortly stated Foster brought
for the first time, In Broadway car Foster was hSo @
Gated and a quarrel between them arose. Upon Put
nam's leaving the car, in the course of few nomoha
Foster pursuing an angry resentment whcn .S t ,nc
drivers "carhoOk" which he seized at the moment IJ
the purpose. This blow resulted IN Putnam Is, e9a nm
less than three-eighhs OF incn I'm diameter. INC I'M
plement used with this effect was not deadly
ducing a mortal wound, E the fact disclosed.
or the homicide thus occurring tne crime OF mnruer yer
our law predcah hle only "whrn perpetrated from pre-
medtated design 70 effect the death OF the person
The crime OF murder in the ssoond degree is not pun
ishable capity. but by term III the state prison uoe
less than 10 years This crime has two definitions Dy
our statute ana homicide falling within either Of the
definitions Is murder IN the second degree. . .,
First. "rhe killing OF human being without the lh
thOrty of law" Is made murder IN the second degree
Whenever such killing is not "murder in the hrst De
gree, manslaughter or eXcusaDle or Jusunaoie noun
eide" as several homicides art defined by the
BY This definition, murder IN the second degree
tncndes every homicide not carried, by its necessary
TRAITS dDrBdoey INTO the higher or the lower grades
Second. A homcide II also made murder in the second
degree. Independently OF ths comparative ciss1caLon
of hOnicdes, by separate and ainrauNe definition ol
the statute homicide is murder in the second degree
when perperaed cltou any design 10 effect dc1th Dy
person engaged in the commission OF any ielony."
rhe statutory crime OF mansaughter, IN the four de
grees INTO which u Is divided may be- referred % for the
principal traits Of the different grades OF the crime
In the first degree OF mauslaugher the homicide must
be committed without design 10 effect death, wnle the
guilty party is engaged IN perpetratng or attempting 20
perpetTate any crime or msdemeanor not amounting %
feLony ,-..,,
must be without design 10 effect DEATH IN The hed "
passion. but in cruel and unusual manner
In the third degree OF mansanghter tue homcide nus'
be design TO effect death, IN the heal Of PsO"
,vtM a dangerous ccdpOn.
tighter the fourth degree comprehends every
homicide. not iusdable or excusabe, and not covered
by statutory definitions Of murder or OF the other
The scheme OF this whole treatment of the crime OF
homicide by the statute seems 20 me essentially TINS
First. That murder punishable by the penalty oil deltl
f i tSe nTryoes of The present ease must include "a
premeditated design % effect the death Of the person
killed" II TINS be wanting IN the affirmative nuuhS Vi
the jury, the penalty OF death is not lawfully 10 Oe IN
flctcd upon the convict Foster.
Second: That mans augher in the three first degrees
shulld be accurately aud aftirmatiyey defined.
Third That murder in the second degree, not pnnisha-
bic DEATH nut necessarily by severe penalty oI
,nprisoument should De 80 framed as 70 take in all
hoincides heinous than murder IN the first degree
las strictly detiDedl and more helnOus thin ihdh
slaughter (as strictly dehued).
Fourth: That mansiaughter IN the fourth degree
should secure the punishment Of every homicide cJn-
sidered criminal and falling below the strict dennuOhs
Of the higher grades OF mansiaugnter.
qenerui authoritative injunction OF the statute
preceding and covering al grades OF homcie whether
murder
manslaughter excusaDle iusthabe homicide, must
& nUI oe b,r,9n hem, IL elmer murder IN
the rrst degree, murder in the second degree. man
10 tie faets and circumstances Of each cdse"
Now upon the Iacts ana ercumstinces OF rosters
case the homicide OF which ne was the author, ana ~
nam the victim 20 be assigned its place as murder
in the degree murder in the second degree or man
der proper instructions OF the Court.
manifest that the facts and circumstances OF the
case admitted OF the jury hndug elther D thdt thc
blow was given by Foster from premedltded design
10 effect the death Putnam () that the homicide
was perpetrated without any design 20 effect death
by Foster, while engaged IN the commission Of cruel
would have been a felony But II Is impossible 10
how the Jury could found upon the tIcts and
cumstnces OF thus homicide h1t II possessed Tie traits
of either OF the degrees OF manslaugAtcr
IL could not fall within the FIRST degree OF manslaugh
made feLORi0us assault, and not an assault "HOs
amounting 10 a felony" go
dangerous weapOn"-withln mauslaughter IN the third
degree but the qualifying moral element or the neat
But the jury having in fact found Foster guilty OF
murder IN the drst degree must be held 20 have found
hn guilty all elements Of tnat crime, including
the premedtated design 70 effect the death OF Put
nam" unless the instructions OF the Court constrained
them in Their freedom OF finding what crime Foster was
In fact guilty OF, by shutting them up between false
alternatives, ana thus gave definition OF murder IN the
first degree contrast which would dispense with the
sential guilt OF premedltated design without which
moral element OF the crime, the statute peremptOry
refuses the inhctiOn OF death.
Now tins very error injurious TO the convict, and
40 subversve of the public Justice was 10 seems 20 me-
Jury. 50 long "a he confined himself 10 abstract IN
strucOns necessity and the OF the element
of "premeditated design essential 10 conviction
murder in the first degree, punishable with DEATH
the learned Judge observed the rights Of the prisoner
and maintained IN all It's integrity the vital principle OF
the statute But the mOmenJ ne brought the subject
within the grasp OF the practical Intelligence OF the jury
by impressng upon the facts and circumstances OF the
case criterion, for the hnal decision OF
the jury the safeguards OF the statute and OF LIS pre-
vOns charge ~ me 70 have quite disappeared aud
with them all active force Of the element Of the pre-
meditated design, as condition Oi the lnctlon O The
The learned Judge charged the Jury, II you DO not
believe that Foster had premedated intent to XIII MI
Putnam then tue principal charge, murder
the first degree flls, and MS crime IS reduced 70 some
Grade Of mGnsiQgheT, which 10 Will become your duty
TO deslnate :" aud the learned Judge then read the
sections Of the statute defining mansauhter saying to
the jury tha they were 10 Apply tne Idcs Ol the case 20
the sections read an1 say within winch you think the
Judges refusal 70 charge as he was asked to DO oy the
prisoners counsel that upon this indictment and upon
the evidence TINS case the jury convict OF murder
t the SECOND degree, We perceive at once the argument
atve under which The jury found the verdict or
guilty OF murder IN the hst degree W because the fa7
reduce the crime mansaugnter, and 2) the in
OF the Court precluded their finding verdict
OF guilty the second degree ana 90 they
told that the facts, II they could ind the
manslaugher, the law pronounced murder
in the trst degree
| can aserioe other just effect than this to the
charge, and the refusal 70 charge combined Wncu the
learned Judge said to the jury hat II not murder In the
rst degree the crime was some degree OF mansangher
aud definition Oh The several degrees what
this their apprehension, what wls IL logically, but
saying them II you do not upOn your Oaths ind air
mativeIy that this nothing heinOus than
granddaughter, then you must nna. by pcfemptOiy M
OF the law, that 10 nothing less heinOus
than murder in the first degree.
But how could the jury find that an assault with
dangerous weapon simple assault aud, not ielO-
ny Yet, unless they found they could not md the