The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-24
Judge Andrews, Decision.

pend 1t in fun.
Judge Andrews Decision.
Upon the conclusion of the testimony the prisoners
requested the Court charge the Jury that upon
ss
x 's" @
sSsrss siihe1 ts:e ana Ibis ne
only question argued BY the learned for the pris
and no I the e of the
t. ss ss ppSaa be The Court charged
CONVICTED OF MURDER
Il The tDs Il ted
Of such hs enc WHs
proposons Of the prisoners counsel and BY the Charge
h the of the a ss &c
convicted Of murder in the second degree and decided
ss h s5y hi ss to ct he
asnce Is was the province Of the jury to
s SSssSSs' tact s5s"s Sss%
intent might be found and yet the facts might Justify The
.ns Court bound the Of the
as a1s 81 sT Il ss ssse h %
iiundamenia and essential to the administration
s feope
Iecon be given TO the jury in point OF law upon the evil
there WAS in this shSw
gree the Court refusing to give the instruction
I ,Ss consider
G n it we mns ees Ta 5 drs murder
der into two degrees was made by the statute of 1862
'."' 100 THE he Killing OF A HUMAN BEING,
without authority o, lazy when perpsred ThSnt
Of b !" the the
ass Se s at srs sn s. in the revised stat
~ the amendment Of 1852 the killing of another bya
n ns Se Ss Ts
he dsdnas Of revised statutes above ctes were
made murder in the second degree The law Of 1852 de-
degree or excHsabie or jutnabe hSm
Ssny, sss made $S.dsT The desTes . ."
That under this statute those cases only were murder in
.nssged At the time in the commission of felony other
The question we are now considering depends there
FORE upon the fact whether the evidence dscloses
Spon Putnam the blow which resulted in his death wSs
e me Re Ss sS S p
Se he
%sd on Ta' OF the op SRen the
gagged in the commission Of any felony in the statute do
Where
shere was inc NO Intention in other words where
the felony intended although not the felony OF homicide
which couse Ss o. sa rsnsGs at sS no,
within the meaning OF the statute
question Of the same character has arisen upon the
The killing human being without design to effect
sssed I'm the perpetra,on Of any crime or m,sdcmeano
Sot amounting to felony shall be manslapghieT il Ihe
given rise to much discussion, and
have been expressed upon by Judges but has never
been % Reo ny s Psats Of vs. baSy
New York, 100; People VS.. Butler, Par, 377(
nal this unless the evidence warranted the in
Or hat s s & %sh ys s s
intended to commit some felony other than the homicide
We think that there evidence that the prisoner
sUsy TSa G a Sss ns
sona injury upon the deceased is admitted. But
y IN h Sn by the
s nosh the n hSs
had elonous intent as an intent to murder or to rob;
was Wished then the misdemeanor was merged in
The Re vsed Statutes declare g r. s. ssS sec $50 that
"every person who shall be convicted of an as
s a gSn the s 1sad d
S SS OeT or ob II an to commit any by
punished by imprisonment in State prison for
The offences described in this section are
denning murder. Z s. 7o2 sec; sSj
felony other than homicide when he struck the deceased
sau, ana battery is not made felony in any
which makes assault with any. knife DIRK dagger OF
isnee SSi iecny Within The statute Al common
law and the act relates To assaults only and with in
sI ss a s% S Gs one used by the prisoner
And we have no comprehensive statute like that of
George w.; chapter 81 which makes an unlawful
felony None Of the specifications in the section the
statute relating 10 ieoDous assaults applicable TO
this case unless the act OF the prisoner could be construed
ASSAULT INTENT TO MAIN
Unless the prisoner was guilty Of an attempt to commit
ferred except that of murder in the rs degree
@ esd Of the w %ap SSw and
with force likely 10 fracture the skull and which in
this evidence and in the absence Of any proof Of snteee
sne S5 s the intent 70 w to- s ha
skull nlure the head and not TO kill and If such intent
main within the statute.
enptber o9the use Of sncb of his menu ,e
bers render him less able hghting either de-
recognized as e., eS g. r s eT S b Of the
Of the same member OF which he had deprived the party
MANNED Menebruu pro genoro a., ca. g., A.,
assigned by Lord Coke Inst, 70 For the
members OF every sape9i are or nne r te anu
to the end man may serve his king and country when
,1 -, special INJURIES which constitute mayhem are
ting OF Or disabling or weakening mans hand or fin
En- or s' sn out hs eyes or tore tooth 81 eastrsng
nose are mot esteemed mains, because they do not
cfown 2Hy Ss &nd BLACK ea sa' an
3nnry res1nn IN permanent disability and SAYS that
thereby the party injured Is tore Yer Disabled from max
ing 20 good defence against future external injuries
ne 0therwise might have donen Bl. 1917
The injury 10 the head is moi spccided nv How.
hins or blackstone as mayhem, The usual conse-
luenee Of such an injury Is either death or temporary
disability II does not seem 20 he within
1n,ton Of that crime as given by these corrmenators
In the definition Of mayhem by Lord Coke The breakYny
the skull Is included. Mayhem says "sipniTeth
CORPORAL
whereby man loseth member by reason whereof no ia
able fight by pulling his bre hing
his skull striking of his arm, hand finger cu,tne %
foot whereby he loseth the auv of his
said members" Coke Lift, 25o And Lord Coke refers
70 al
dehnition Mayhem" says Granville, signifies the break
eng any inurng the head by woundng ahra
sion In such case the accused Is obliged purge him
tefby the ordeaI;hat Is by the not iron II he be
man, by water ii he be rusuc.n Vilanvie, Beames
translation book o. ch 300 See also Britton Nichols
Translation, Liv l. oh. 26 fol a. g. 40. 1913 Some
recognized Instances Of mayhem omitted in Gran
vie's definition and would seem TO include any injury
10 The head however trivial But authority has been
cited subsequent 10 lie tine OF Lord Coke has any