New-York tribune., 1873-05-08

TINS rule Is &c Ps,srsdorf 500 Note, it is remarked
tho intention OF party nftsn an N" essential ingre
dent in IT, and when II Is so iorso M 1uss so,t,nS no
Mclean sS 0nS sSat URSs Foreign
mani With whom we were peace. 1t was hed tna the
criminal intent must be inow" SsVo laid hold Of the crcum
stance Of the Killing to do away with the OF
malice Of the common 9s Ss aS Justice Shaw that
the doctrine Of Yorks was tnai p detendanf
nd obna rher s shown the presumption OF law Is
that IL was malicious and act OF MURDER. nS
was inappcsbe the where the tbe iury
were fully shown by the evidence He enarseub beV sV e
in that that II upon all the , boncide was
committed with malice then it was murder 1ut S Ctn'J
wise IL slaughter The case anuu Not "a where
Shaw was the Commonwealth aRt YORK % Stg % on bot6
there IA pretty full discussion OF the question on Si
sides 1t win be seen that ch. Shaw @
onnioD in YoEs case To witt that whom the facts anu
circumstances accompanying no nr,ne ia murder or
"a to he decided upon the evidence, ana
| not upon any presumption nom lue nero ""' -
In Maher agt People, 10 Mch 22, 2ia, Christian On.
j. observed: "To give the homicide the iegai , V hve
of murder all the authorities agree that ~ Inu.
been perperated with malice PreDense OF W gbc
This malice Is just essential an 1So1t M tbe
Ofense as the act which the death Wltnous 'o
concurrence OF both the crime cannot emst; a H, 81
nan is presumed to be innocent 10 OF NE S ety this
presumption must apply equally 10 Dotn iu5 h Iin1
the ofense-to the malice as wen as e 70 % hecn some
Hence, though the principle seems 70 na'e % zach rests
times overlooked, the burden OF PROOF as W t1 90
equally upon the prosecution; sne otber malice in
not being susceptible OF direct pIOo D ~ h
be established by inferences more or less strons lin
drawn from the facts and circumstances connecteu WIN
the killing, aud which indicate tue diSpo'HiOn VI ''
OF mind with which 1t was done'
MURDER IN THE FIRST DEGREE.
Bisbop condemns the common law rule of nferring
malice from the killing q Grim. Prac 62Ol. Under the
existing statute OF New York relating to tho subject
may be briefly stated that to constitute murder In the
first degree, IL appear that the killing was Hom
premeditated design TO effect the death OF a human
being OF that peTpetrated by an act mmnently
dangerous to Others eyincng depraYed mind, regard
less of human he; when committing tue cflme ot
in the Commission of any other felony would be mur-
der in the second degree only ANY other speclr OI no
eide would be mansauRher or excusaOle or lusthaoie
In the case Of People sgt. White the late Court OF
Errors held when indictment charged the kling
TO be felonousy wlfully Of malice aforethought, and
from design to effect DEATH the prenedl
Court Appeals appears have approved the doctrine
in Fitzgerald ag People, 81 y r. ~ Inc CIAmGs.Gp % m
indictments every fact circu instance which is
necessary Ingredient 10 constitute he 0fhnse or whch
Is material 10 the Identity must bo correctly set out ana
must be proved substantially as charged" Again. aG
page 537 " In the case under consideration, the lnc
inent having charged the murder To have been COM
mtted with malice afcrethought which embraced every
prisoner upon upon proof bringing the case
within either OF the statutory definitions 0t murder
with malice afOrethOught.
senator Edwards 10 the same said but In order
to convict under the first count II appears 10 me he DIS
bound 10 prove premedltated design
the part OF tho prisoner 10 murder fIzPatrtck ne
having 50 charged ana tins being tne GI tno
said IL the public prosecutor gives par
tcuar description OF crime 1t has been held no must
prove t a. he lays it," Verplanck In his opinion
In the remarks: "NOw 1t Is very clear that
whether there was evidence TO support charge OF
general malice aforethought the King i'm
mnenty dangerous 70 others or not There was no eF
whatever to support the charge o1 prenedtated
design against the prisoner" All evidence in tais
went either 10 prove only mansiughtef or the k
lug without design to effect death IN tue neat OF pas
SION or else that species OF murder deled beng per-
petrated by act inmnonty DANGEROUS to others, al
though without any premedtaed design 70 enect Tue
The distinction of unjustlnable killing, with premed
tated design OF the particular classes falling
under the general head OF malice atOretOugh and quite
distinct from malice implied IN tue killing III tue com
mssion of act dangerous 10 human nfe or other
wise is an old one and may be found IN all the books OF
our statue has, in defining aud elias; ying the several
species Of murder placed III he nrst class as dlsn,
that il has sadhe doctrine OF the Court or Errors,
in "a Wend 500 wasthat the pleader, by introducing
the words with premcdated desgn, &c, had adopted
them as descriptive OF the speclnc act charged and as
ma. description he had made them material though
the words necessary to the validity OF the m
dotment; Woodrnn j.. "a 81 y. H. i2og Yet the
obtained broader meaning than belongs TO premeda-
ted design tbs statute requires IN order to conviction
of murder under the nrst suDn'Soh Tue existence OF
The existence of such Intention must therefore be
proved on the trial sustain such indictment under
subdivision. The result Of the case most clearly
is. the crime Of murder Is sieienty Gn.gen whea al
thought But, In order TO prove the crime tue proofs
must establish within the requirement OF the stat
ue in one subdivisions ana the party in
dicted Is entitled TO the benefit OF IT.
In Wilson agt. People. Judge Wright, an eminent
and able jurist, review at General Term similar
says The effect OF our statute Is to explode
the whole common law doctrine Of,implled malice
Either the put jury would at least have
been prima Jreie MURDER for llicc would have been
implied from the act tser ana the burden OF proof TO
explain reduce the grade OF the OfeDse TO manslaugh
Tor would have been shifted on the accused; but under
statute another ingredient granted TO constitute
the crime Of murder with an actual Intention at the n-
at liberty to infer this intention In proper case from
the itself upon the salutary rule Of the common law
that ia held TO intend that which in the ordinary
course OF things would be the natural result OF his acts
but legal implication OF feOniOus intent can now
arise to throw upon the accused the bur
den OF explaining the innocence of the transac-
ton, or reducing the ohense to nanslaughter,
malice malice IN fact must be established by the
evidence to constitute m1rder in the first degree first
other words the premeditated design must exist and
the onus OF proving is on the prosecution The jury
proper would be at liberty to infer the design
from the circumstances attending the killing but It is
not an Inference which the law deduces trom the mere
act OF killing. When, therefore, application for a
writ OF error and stay OF proceedings was made In this
case to my learned brother mr Justice DAVIS his acute
portion of the Judges charge uUder consideration
and he was called upon by controlling considerations
official duty and proprety allow tile writ and grant
the stay, that tue point could be deliberately
viewed at General Term.
TIE PRISONER NOT HARMED BY An ERROR.
further task remains. II being shown that portion
charge OF the learned Judge at the trial
neous should the Judgment be reversed for that error
III be possible that the prisoner injured by the
error, there should be trial, and thnk the rule
Is that Il is not for Kim TO show how or to what extent
he prejudiccd The existence OF the error prtHd
Jdce establishes his claim 10 relief In order tO sustain
the judgment Il must appear that the could not
aud did not affect the verdict III no harm was done to
the prisoner by the error be cannot complain.
The rule Is well settled that the charge or other de-
clsion of the Court below be erroneous still II the Court
above can clearly see that could not prejudice the
rights of the party Obectng TO 1t the verdict Will not DO
aside, and this rule applies well to bill OF eNcep