New-York tribune., 1873-05-08

th,t 'Nr rrlins norton of .ho eh'r~- cop'sinsd
OF were OF no iaPSaoncg & o. uu nos mstaiped no
The Court OF last resort gave late illustration OF tho
principle when they held that criminal conviction WIN
not be reversed where the judge who tried the de-
MED motion TO strike out evidence which was wholly
We are brought therefore, to an important inquiry.
whether in ths case the error in the charge which Is
complained OF was material or prejudcia 10 the pris-
attention and 1t calls for the careful examination
and calm deiberatOn OF the Court Was the jury prop
ery instructed upon the point OF premedated design
Did not the Judge plainly and unequvocay instruct
jury that the burden OF proving premedtated de-
sign rested on the Prosecuton Were the
to the Jury perspcuous and so unequVoca from the
language OF the charge that premeditated design TO
elect death was an essentai eeinent OF tne cIns vi
murder In the frst degreet Ana were tney tolu tne
they must find this element TO exist from the crcum-
stances OF the case upon the evidence gwen D ne prose
cuton before the prisoner could be convicted OF murder
in the first degree II these inquiries are, upon an ex
animation Of the whole charge properly to be answered
in the affirmative, then no prejudice c0ud Dy legii
necessity have resulted the prisoner from tho error OF
the Judge in his remarks as to the inference OF design
from the fact OF killing The ln0ctment Is tnaI
On by the Judge preudiced to the paintn IN
error, and called upon to determine Whetber'
upon the whole charge, such indictment Is repeiled'
carefully reading the entire charge oil the learned
Judge. Of the opinion that the erroneous part OF
his charge which has been above condemned and winch
In fact consists OF single sentence, only mo
menary departure from the general tenor OF the cnase
the subject or premeditated design Ii seems " me
that the instructions to the jury In repeated pas
sges Of the charges we're explicit that Jury could
not be msled. Tney were distinctly told that murder
in the lrst degree the killing OF person with pre-
nediated design 70 eact the death OF rhe person SO
killed with the premedtaed design to effect the death
OF Fisk In this case and that they 70 determine,
even there TWO pistols whether they ma Ia TINS
case the evidence OF preedtated design part OF
the prisoner effect the death OF Fisk In doing that,
said the Judge you have got over the BODY OF TINS owl
dcnce and rease az clearly as possible the position OF
these nartes and whether from the whole body OF the
evidence there s enough 70 satisfy you tat tue prisoner
mad at the time OF firing this design OF killing Fisk.
ANypp pN
This direction was 50 clolr that the jury could not
have misunderstood what question they were TO con-
slider and what finding they must make as to the pre-
meditated design of tho prisoner, before conyctlns
him Of murder in the first degree It's true that after
this explicit dissection the point OF premeditated de-
sipn tbe erroneous sentence above reviewed was enu
ciaed, and the matter might nave oeen ~. ~
had nor the for the prosecution ana the counsel
OF prisoner called attention 20 & tne pC, DO pd DO
ther instructions on the quesuoh OF 49, ~
gn and had not the Judge IN response thereto gwen
further aud final Instructions to tue jury on tnat very
The record shows that at "the conclusion Of the
charge the following urtner instructions MstV Rhon,
Counsel for the prisoner then asked the Court 70 cao
the second proposition as requested D. tnen, III lno
words following: while the law does not uehno any
nartcular len time that shall intervene between
the formation OF such premediated design ana s exc
cuon does require thst tae ay sI9 tna PS s
act of killing deliberate upon the question, auu thae
he had actually formed full and complete intention 70
kill m the Jury are not satisfied then they should not
convict the prisoner OF murder, although nc uSsu
dangerGns ern Se ESapC Court after reading the reque
Perhaps 1t best for me not 70 glV1 any
Court of Appeals nave decided that the question s not
whether a design 20 take life existed; nut the graul
question where there IL an Intention 10 XIII e1sthg ~
the Instant OF striking the blow o. IN the case or pulling
the trigger is such intention, prenedltateu ueslgn
within the meaning OF tue stauCe, lue WVIus %
tated afOrethought. and prepense possess
meaning, being the Latln ana saxon syOnyms
e ,,os force n there be snfcient debsrIon
To form design take life there Is sufficient deDera-
ton to constitute murder no matter wst1et tn9 ,osEn
was formed the instant OF striking the fatdl blow or
whether contemplated for months IL IS enough
that tue intention precedes the act although the ac5 %
lows instantly OT course there must uc
design within that definition. decline to charge Otnel-
wise Tue counsel for the prisoner then excepted 10 Tue
refusal To charge requested by them"
"The COurtI think nave chdrgedlL SuD,tintaly Dut
will do 80. In considering the question: Oi plcIedt-
lated design to Kill, the jay should take llto con'ueId
ton evidence Of the apprehension OF inc prisoner
concerning Fisk the condition Oi me prisoner ind as
disclosed by the evidence hla telPeIal1I aS
existed, the relation between the partles tue prisoner
kuowedge threats made aganst MIN by the deceased,
aud also his knowledge OF tho character OF the uecedel
TO temper and disposition, the parts Oh t,e DVIy
otner evidence in the ease rejecting any lgnt upon o
intention of prisoner, or taken IN connection with
Here was instruction that intention take life
must precede the act. Upon the subject OF promedlt-
tiOn tine Judge properly had that II th.ie De suciet
delberatiOn to constitute murder Whesner tle eslSn
was formed tue instant OF striking the faal blow or
whether it was contemplated for months"
The Judge tLcn adds: "OI course there must be
premeditated design within that dehnitioa" This
direction tue Judge cured his previous error,
that the jury could not az least nave been lef In any
doubt. Finally, clear the matter OF all uncertainty,
the Judge concluded his rearHs 10 the Jury by advising
them what portions OF the evdeuce they We're 10 weigh
considering the question OF pfemedltated design
kill" This portion OF the charge was favorable 10 the
prisoner Ii distinctly instructed the jury TO take into
consideration In the question or unprecedented design,
tbe particular matter testified the part OF the de
fense we the Other evidence lu the case reflect
Ing any g upon tine intention OF the prisoner or taken
In connection with his own testimony"
There seems 20 be say the jury not
specifically and plainly instructed that premedltated
design xiii must be proved and found from the evil
douce 10 exist before the prisoner could be convicted OF
murder in the first degree Ii the jury paid attention to
the instructions the Court they not eft sup
pose that law inferred the design from the Kill
lug out they instructed thar they must them
selves ind the design from the evidence in the case
tnk follows that the legal intendDent Of prejudice
prisoner from the error OF the Judge in portion
OF his Remarks "a completely repeIlei on vie" OF tue
IL was argued by the learned counsel for the prisoner
that The instructions OF the Judge IN tue erroneous por
ZION OF his charge, improperly shifted the burden OF
proof and relieved the prosecution from the necessity OK
part the charge che jury instructed that the onus
was the people TO prove premedtated design OF the
nent OF the prisoners counsel fairly upheld Dy
The charge But when the learned Judge at the trial
"A1urier the irst degree II the killing Of person with
premedaed design TO effect the death OF the person
so killed Z. In this Case you are 70 determine
in the view have suggested, even II you concede that
there were two pistols whether you find in
siao On the part of the prisoner 10
effect the death Of FISK In doing that yon have got 10
90 over the body OF his evidence wncn We nave Deth
for days taking and realize clearly possible the pos
ston OF these parties and whether from the whole
body OF the evidence there enough To satisfy that
he pr oner had the time OF firing this design OF kill
ing Fisk" Then already stated, the Court at the
cson of the charge and his final instructions to the
Jury reverted the question of premeditated design
and poiuted To those portions OF the evidence rejecting
auy light upon the intention OF the prisoner, considered
by the jury determining the question OF premedated
design TO kill. How II possible, view
OF such specific instructions, for the jury
TO accent the erroneous principle that the
law Implied no malice from tse tact the killing aud
the ons rested the prisoner to satisfy them that his
act was nor murder with premedated design 10 kill
The rule OF law the subject OF instruc
ton 10 the Jury considered and stated by tho Court
OF Appeals in The People agt Gonzalez supr, and l