New-York tribune., 1873-07-03

,ht aav as have already stated the Legislature en-
acted another. and 10 seems TO me, anu shor''oip
feel constrained 80 instruct you, ycry ma'ellaP
different statute in some important respocw lpoy
i,ered the statute on first subdivision. whIch re
,o vo a, that instead OF reading when perperated
from \ tated design 90 effect the death OF Ihe
,sop rilled" now reads " when perpetrated iIom
do,,,or,te and promeditated dcsign 10 effect death
Drt1nEuArE As WELL As PRENEDirATED'
Tho eIementary books I'm England, from "hch we ne
rive our laws on this subject chiefly or hm poi'o o "
op ~ statutes in this opuntry speak Of nten'iona
murder IA deliberate mUr1er They seem 70 r'S'" '''
presence Of malioe-actnal nalice-inchieo J" '"o ~
s,tion 10 destroy fe as evidence Of dohbeTiuoh 'u
nremsdItaton Some embarrassment tbeIololo' 'uN''
have arisen in considering this statute Iiom ,"' a
that il must have been held that the Legislature ~ u''S
the word deliberate" in connection "lth tnls 9'o~V'
intended 90 use It as it had been used IN Ia" ny "i
an homicide for many yoars; but think was NOT 'oH
Intention and the lntentiog ~ justly deduclOo Ipi"
this statute, may be think found ou'dated oy W"
nroyision contained in the statute. in relation 70 INC
second degree OF murder
In addition TO tho change have just calleo atVon
TO- the Legislature transpO3ed. or uansiorrel' uOi0
.properly speaking the crime OF murder as 10 Wh io
merl stood IN the second degree into the nse ueee
Murder in the second degree under the former statute
was the killing by person engaged IN the couniissio"
of any felony without design TO effect death Ihe
Ieeislatnre by tho new act, have made that ou'hso
murder in the first degree, placing t as the thHu
vision OF the deultons OF murder IN the hrot uesroo
They have then proceeded 30 create now 'ecohu uo
gree Of murder. one altogether now when comPa'ou
with the statute which they changed. inc Pi-
mary intention OF the writer Of this statute soom'
~ nv mind very nanfesty 70 have been. by the crea-
ton os this second degree OF murder 10 intensity ana
mako more plain the intention In the use OF the words
in tho first subdivision Of murder in the hrst desree
The words as have already stated, are from deD
ersto and premedtated design" IT. might nave oe7h
omen TO hold that an Intentional murder from actua'
malice was Justly within these words II there was not
some other expression tho statute which would pre-
cude the Conr from adopting that view or the eecI o'
the law and in creating second degree the Legislature
has therefore said: Such killing, unless 1t be mprder
in the first degree, manslausher,o or eH'usaD'e oF
tustinablo homicide hereinafter provided, shall os
murder in the second degree when perpetntad nten'
tionaily but without deliberation and premodat'h'
INTENTION WILL NOT SUFFICE.
The effect Of that judgment my mind "a that 10 be-
comes the duty Of the Court instruct sou that the de-
liberation and reconciliation required 70 constitute mur-
der in the first degree Is something quite different from
tho actual presence OF intention formed ~ inc in
slant Of the striking Of the blow or hrng VI the pue
II Is essential that should appear In case "hie tho
oenso charged is murder ia first degree, under this
statute that there actual predehDeraIiOHam
prsmed,tation, operating and upon the mind ot 'he
accused in respect 10 the subject matter OF the of
fense, before the actual occurrence Of the act
which il alleged 20 bs done. Ih's may
perhaps be illustrated by the care. the
supposed case OF POISONING where party pr0cnres the
poisgn prepares H. ani ID some form most convenient
as IT NAV be- causes its administration, administers
IT, In su.h case the various steps prcarrangins the
result NAV with great propriey be found by the jury
10 indicate tho deliberate and premedated design
required by this statute And 20, when the oenSe i'
committed any other form, as by shooting or STAB
bing previous preparation for tho onense, such As aru
Ing Oi ones self loading oG the gun, tie going 20 tAe
place. the lying wait, the seeking OF tho mterVe"
and the various steps through prearrangement Of the
rri,oner's mind that are taken with view, IN
tho Judgment of the jury. the accomplishment Of his
end would all very properly, fall within this hrst pro
vision OF the statute. II satisfactorily shown.
Now, you Will observe that in the language Of this
statute deberatlon and premedtatod design are OF ne
oessy always left open questions Of Tact TO the con
dcraton of the jury. The Court has no power or right
90 decide as question Of law, IN case OF TINS und,
what does or does not constitute dellboratOn or pre-
meditation The facts which II Is claimed to exist
are 20 left altogether 10 the plain common sense Of
l2 intelligent jurors. But you will readily see that IN
the application OF this rule TO any given ease the jurors
are called upon 70 exercise their knowledge Of human
nature in various diverse Developments and characerS
tlcs: for what would be dcliberatiOn aud pre-
meditation IN ono might fan very short
OF being such In another. One might require much
more tmeto carry through process either OF reasoning
or OF resolution bringing h5 mind 10 determination 10
destroy life, than another man under the Same creum
stances would require: for the human mind is not alto
gcther according any prescribed formula nor accord
ing 10 any prescribed path. Meo differ physically and
mentally Some men rapidly, require hut little
time TO deliberate and resoye others slowly, requiring
more time; ana under this statute, IL being only re-
oulred that IL bo satisfactorily shown TO the
lury that the act was deliberate and
Nnlg
the Jury should see that under the given characteristics
and circumstances OF a particular particular
indiyidnal did IN his mind. 80 through process OF
deliberaticn and premodtaon reaching 10 the iEteu
ton the intention growing from that process which
the statute requires and, "a said before, one man
may do this with rapidity requiring only moment to
pass through the entire process while another man.
under the same circumstances, the same facts
would act slowly and with greater precauon.
THE CONTESTED QUESTION OF MOTIVE
In this case. II being, shall now presume, under
by you that before the prisoner be convicted
OF murder In the first degree, you must be satisfied that
his alleged oense committed with the dehberation
and premeditatOn required by the statute. a. have
explained the people claim that that state Of facts
complying with the requirements OF the statute, does
exist 1 shall very briefly call your attention TO the
grounds which they clam that the established
far relates 10 this exact point OF premedAton and
olberatOn. and 20 the facts the part Of the defense
upon which IL IS claimed. as understand, tnit the
Ofense, n committed at all TO Oe ylO alton Of the
statute within the first provision, creating murder
the first degree.
La tho first place, it is claimed by the people that
motive which Is the mpusve condition Of things that
sets the mind In motion toward the contemplation and
contamination of crime, existed In this and IL 10
claimed substantially that that fact is shown by the
fact that tho father OF the prisoner, who had been
estranged from him end from all his family for series
of wears was whose violent and bad conduct both
toward the prisoner aud his mother and, IN shOrt, to-
ward the whole his family aud It's circle of relations,
was 80 bad outrageous 90 lead to the contenDa
ti,D Of sueh an ofiense has been committed In "a
crime like this, Of the first inquiries ordinarily,
is with the jury, whether motive exists. aud
jf' the party accused has suffered violence
or been threatened With violence feceiY6d in-
iuries or been threatened with injuries
or believed himself to DO resting under a condition OF
things from which the Jury may the thought Of
lieyiug himself by the commission OF crime: but the