Evening star. [volume] (Washington, D.C.) 1854-1972, 1873-03-15
UNDER THE GALloWs.
o.BKEE.y; TNR C6.SDR.n.NED MN.
Gen. Butler's Motion for a New Trial
Refused.
Opinion of the Court.


eide the motion made by General Butler on
Saturday last for a reheaIing OF the case OF
Charles III: O'Brien, who Is under sentence Of
death for the murder of Samuel III. Cunning
ham, at Green Spring. near Georgetown, on
the 18th of july last The bar was fully repre-
sentt d, and from IL to II O'Clock there was a
continual buz of voices discussing the case. OF
course all was conjecture. Some were confident
that the judgment would be affirmed with
Judge Cartier dissenting; others were equally
sure that Judges Cartier and Wylie would dis
sent. The opinion that the rebcaring would be
ordered was expressed only by the most san
guiue friends of the prisoner.
About 10 minutes to Il O'Clock the prisoner
arrived from Jail and remained in the witnesses
room until the Judges came in. Court was
opened at 122n p. m, when the prisoner WAS
brought in and took a seat in front of the clerks
desk accompanied by his mother and wife.
After order had been restored Judge Olin an
nounced that the majority of the Court had
come to the conclusion 10 deny the motion, but
his opinion not having been read over to his
Judge Oln then read his opinion.
OPINION OF JUDGE OLIy.
Judge DIN commenced by review OF the
ease ut length, stating that on the trial excep-
tons were taken, and the case came up on APP
peal. This appeal has precisely the legal effect
of writ of error. These writs are abolished in
such writ and brought up the pleadings, Sc.
This appeal was argued at length, and the court
decided that there was no error In the conduct
OF the trial or the rul ngs of the presiding judge.
The judgment of the Criminal Court being in
all things confirmed, counsel not employed or
appearing before the Criminal Court nor in the
before us, as he alleges, in the character of
''dmicUs euride," and applies for a writ of error
called ''coram nobis." In his petition he gives
a, history Of the e.. proceedings IN his case down to
OF exception, the rulings of the justice who pre-
sided at the trial. The historical part of the
ease stops suddenly at this point, and no men,
ton is made Of the fact that the bill of excep-
ton was argued before full court and deci-
sion rendered affirming in all things the iu1g
ment of the justice who presided in the Crimi-
After defining the law, Judge c. says "what
has been argued on this motion was fully ar
gued before the court in banc, or might have
been argued from the facts appearing in the
record. IL win therefore be seen that the writ
OF error ''coTam nObis" should be dismissed in
this case, as il does not bring, or attempt to
bring any fact to the knowledge of this court,
that was not apparent from the record before il.
We might, think, we'll pause here, and put
an end to this proceeding. In the assignment
OF errors accompanying the petition are the fol-
asked First That the indictment of O'Brien
concluded that the murder charged against him
was committed against the form OF the statute
i'm such case made and provided, and against
the peace and government of the United States,
whereas there was no statute of the United
States Furnishing the crime of murder.
This ground of error was properly abandoned
on the argument, for the reasons that the indict-
ment was good in common law, and whether
not therewas a United States statute TO punish
murder IL properly concluded against the peace
OF the United States. and there is a law Furnishing
murder any where the United States has iuris-
dietion. and OF course that law applies to this
District. IL had been held by this court that
IN the place of the several courts existing be-
fore its organization that there was but one
cOslrt of record established until the United
States supreme court had decided otherwise. in
the case of e. porte Bradley. but soon after Com
greSs passed a declaratory law. The Judge then
continued. as follows:
After the lengthy and learned argument Of
the counsel Tor the prisoner upon the distinc-
ton between express or implied malice. it NAV
be proper to say few words, especially as il
was asserted on the argument, that malice was
never implied In law, except III tthoSe cases
in which a homicide has been committed by
lying IN wait, poisoning, sc.
This attempted distinction between express
and Implied malice seems To me neither sound
IN law or sustained by any authoritative occasion
of the courts.
Malice prepense malice aforethou ,ht means
simply this where a homicide is committed in
pursuance of an intention to take life, it is mar
der, unless ii can be shown on the part of the
prisoner that the killing was i'm elfdefence, or
for other justihable or reasonable csuse. OBJ
serve that the necessary ingredient to be proven
in every case of murder is malice aforethOught,
and that il, as have attempted to explain.
simply purpose or intention to take the life Of
IL was admitted in the argument that If the
prisoner laid in wait, took his victim unawares
and killed him, that in such case the killing
hOuiu Dy law a murder, Or
other words, killing with malice prepense, or
from malice aforethOught; or that the homicide
was committed with a fixed TO design to kill.
Judge Olin, in conclusion, said he would not
repeat what he said on delivering the opinion Of
the court on the former occasion, but would
state that this was an atr0cious murder. After
repeating the circumstances of Ii, he said that
1t was useless to talk of cooling time in this case
JUDGE wYLIE CONQUERED
IN the decision arrived at, and expressed his
views; saying that no injustice had been done
the prisoner; the law was laid down by the Judge
in the spirit Of mercy, and reading the PRAYERS
offered, he said the error was on the side of the
prisoner. Taking the whole charge together,
the only errors are those of which the prisoner
has no ight to complain. I.
JUDGE CARTIER DIssENrED
from his colleagues, stating that he maintained
the Impressions he had when he first heard the
The Judge is bound to give the law
lail applicable to the easel to the jury and he
did not think the judge presiding had given the
jury all the law he should He could not concar
either, in the definition OF murder given by his
colleague.
The motion was dismissed,
THE PRISONER
appeared much the same as on last Saturday.
and while Judge DIN was reading the opinion
he listened attentively, but did not betray any
feeling except once or twice his face flushed
ben Judge Olin was concluding O'Brien kept
his eyes towards the floor; and Il was noticed
that both his wife and mother were then much
affected.
The Procession ON Sc. Patrfck's DAY.
rn1rfA nf u, l.