Evening star. [volume] (Washington, D.C.) 1854-1972, 1873-02-04
STILL uspER SENTENCE OF DEATH.
TEE CASE OF O-BRIEN.
The Molten fer New Trial ever.
ruled.


This morning, in the Court in General Term,
Judge Nylie, 5hn. Macarthur and Hum
PETeyS- the court announced its decision in the
cas- of Charles II. O'Brien, convicted OF the
murder Of Samuel Cunningham, at the Green
Springs pavilion, near Georgetown. in july
last. overriding the motion for a new trial
Judge Olin delivered the opinion of the court =,
and after reciting the proceedings in the case
and the prayers offered by the defence, and
cverruled as follows:
LIST. Ifthe Jury believe that the defendant at the
time 81 hrng the fatal shot laboring under such
degree Of excitement arising from the PROPAGATION
received as not 20 be master Of his understanding,
% they have reasonable doubt to whether the
defendant had deliberate well formed intention
60 take human life at the time Of firing the fatal
ID. And the counsel for the defentant again asked
the he fS T , t. say t. the Jury e follow VIZ That i
the Policemen in the Discharge Of their duty 10 carry
pistols the mere fact that the defendant killed the
deceased with one cannot aggravate the crime to
murder, i etherwise i; would be paIslanghter.
jgry find that the beliey Ell that his life
for that belief Were not sueiena and reas"nsh'e.
still they cannot find him guilty of murder, but must
said: prayer first is based upon the idea
that man may be thrown into such a degree Of
excitement by mere spoken tcOrUis as not to he
master of his understanding, and therefore
incapable of forming any deliberate purpose to
take the life of the offending party, and If he
does take the life of his adversary, it is at most
but manslaughter. This novel doctrine, that a
man may become excited by mere spoken words
that he can safely kill the speaker, and incur no
other liability than the pains and penalties OF
manslaughter Is, so far as / am advised, for the
first time seriously urged in a court OF justice.
III has been uniformly held that mere spoken
words cannot in lac justify or excuse an assault
or battery OF person. But it is said the pris-
oner was laboriDg under great excitemen mt
by reason of the language addressed to him
by Cunningham. The plain and proper
ans answer a,on to this is: tina. the law does
provoked by spoken words. and that
no man shall he justified or excused from the
consequences of his acts resulting from passion
him. Still IT is urged that although such is the
law that man may be 80 provoked by language
addressed TO him and his passions SO excited to
render him incapable to form a deliberate in
tenton to take life. This is in effect saving that
while the law will not justify or paliiate vio-
lence provoked by words it will so far palliate
ture of the crime; that it win in other words
make that manslaughter which would other
wise be murder. 1t is, however, apparent from
the facts in this case that O'Brien first used the
language complained of i'm its most offensive
form towards Cunningham, so that he brought
upon himself by his own words any provocation
arising from Language. He cannot justify or ex-
cuse his acts by reason of prOvocatiOn which
his own conduct produced. Such We think is
the law.
The second prayer asked for is. if possible,
stlli more erroneous than the first. The sub
stance OF il is, II the prisoner killed Cunning
ham by pistol shot, that cannot aggravate the
crime to murder, IL otherwise il would be man.
slaughter. Let US illustrate the absurdity of
this proposition by some of the facts proven i'm
this case. SUPPOSE at the time the deceased
used the offensive language he did respecting
the prisoners wife, and O'Brien, proven to be a
powerful and athletic man, strikes with his ii q
the deceased, small and feeble man as com
pared with O'Brien, the blow OccasiOned the
death of Cunningham. This would have been a
clear case of manslaughter, but scarcely one of
murder. And why? Because death under such
circumstances was not the usual natural
consequences of such an act, and it could
not be presumed that the party intended to Kill
because the means used were not such as would
usually and naturally produce death. But when
man takes a loaded gun and aims il at a vital
part, discharges it, and death ensues, the law
and common sense say he intended to kill the
man, because he used the means best adapted
and naturally calculated to produce death. God
alone can look into the human breast, fully
know the motives and intentions which control
human conduct; but we can only judge of the
intention and purpose Of men by their language
and actions and the rule that lies at the founda-
ton for ascertaining the motive is that men
shall be presumed to have intended the natural
or ordinary consequences of their acts.
L lie third prayer il Is hardly necessary TO dis
cuss. The point in substance is that ii mar
unreasonably-that is, without any reason
believes his life tn be endangered, he may shoot
down the victim Of his senseless suspicion, and
be only guilty of manslaughter. No man can
justify or excuse a homicide except upon
grounds OF reasonable belief that his life is in
peril or that he IL in imminent danger of great
third prayer be law, it is as good defense
against the charge Of manslaughter as that of
murder. This prayer, We think, was very prop
erly denied.
We have thus shown, We think, there was no
error in the refusal to grant the three PRAYERS
before mentioned But the instructions OF the
cGIIt or charge to the jury is set out in full.
These instructions cover all the questions i'm the
case which could arise upon the facts recited as
proven in the bills Of exception and it is proper
here 70 say, If there was any error on the part
Of the justice in refusing to grant any or all of
the three prayers asked, the error was cured
by the instruction of the court to the jurv if
these instructions were right and covered all the
ground or the legal principles involved in the
prayer. This, We think, the charge July does.
1t was hardly seriously cOntended by the cottn-
selfor the prisoner that there was anything in the
OF the justice to the jury which were
erroneous. 1t was, indeed commended that the
law he truly declared ought TO be otherwise than
II rs III that were so we cannot help il. We are
here to administer, not to make law.
We have looked over the instructions of the
presiding justice to the iurv with that e:,uesf
arc careful attention which the interests of the
public and those of the prisoner demand. and
our conclusion is that no error was committed
by the Justice in his instructions to the jury pre-
judicial to the rights of the prisoner /
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