National Republican., 1873-03-26
O'BRIEN'S COMPUTATION.
A LETTER FROM GEN. BENZ. F BUTLER,

Case.
Gen. Batter has written the following letter to
tho lion. wm. Il. Chandler upon the O'Brien case:
wA,nSeroS, March 70, isia
DEAR sn: You asked me day or two since
" knew the reasons which induced the Presi-
dent TO commute the sentence Of Chas. 0Brlen.
answer you frankly that do not, because
have never communicated with the President on
that subject; but beg leave breny TO state to
you the reasons which would have induced me
10 ask his communication, n the President had
failed TO act in hls case.
suppose all will agree that for any crime,
however heinOus, the accused Il entitled TO an
impartial trial according 10 the principles Of
law-that Is, that the law can only take the lic
Of man after all It's requirements have bccn
fulnlied. Such do not believe to have been
done in the case Of OBfIcn, and, without lmput-
ting blame to any one, allow me to give you the
reasons for that belief.
There is but one degree Of homicide which, under
the principles Of the common law which prevail
In this District, is punishable by death, aud that
is murder, which Is defined In the law to be the
Killing Of = human being with malice afore-
thought, OF as II Is sometimes expressed, pre-
meditated malice. All other homlcides are
either mansaughtcr eNcusable or justtnable
homicldes.
How dense Is the ignorance upon this question,
especially among newspaper writers, who are
bowling for mems blood without any knowledge
Of their rights, will be seen when call to your
mind publication In a recent morning paper,
commenting upon the case Of o'Bricn, which
grayely declares that "theFc are very few mur.
ders In which there "a any malice !" while, In
fact and In law, there never was murder with
out malice af1rothought being expressly found
by the Jury under the Instructions Of the court
The act for which ODrien Is now suffering,
and must for his life, seems upon the evidence TO
have been this: ho was q soldier, with good
rccorl and fair character, lnsomuch that he was
appointed 4 police Oficer Of the District, lie
had a friend aud acquaintance named Cunning
ham, with whose family he had lived In intimate
relations. Cunningham had applied 10 O'Dren
for an appointment a. watchman. on day In
September last, at plcuic an hour and half
after some conversation had occurred between
OBrien and the wife Of Cunningham, Cunning
ham accu5ed OBricn Of having lnsulted his wife.
This OBrien denied. High words occurred be-
tween them, In which they mutually accused
each others wives OF unchastity In very coarse
language. \ scunie and blows then ensued,
when the lieutenant Of police interfcred,
took OBrcnS baton and badge, and or
dercd him away from the place, which
onleT O'Brien obeyed. Some ten minutes
afterwards O'Dricn was returning 10 the pavilion
WIN Nit"t as uo VI bNtlbk AhN htu
tenant Of police. Before be started he had been
informed, as was In testimony, that Cunningham
threatened TO Kill him before he left the grounds,
using a very opprobTious term. on his way to
md the lieutenant he met Cunningham, and
there was no evidence but the meeting was an
unexpected one. There was conflicting evidence
as to what first took place upon the meeting,
some witnesses tcstifying that the opprObrtous
language was renewed by Cunningham, and that
q scurie ensucd. There were other witnesses
who testified that they heard no such language;
but the weight Of testimony would seem 10 be
that the alteration In words, n not in blows,
was renewed. There was no evidence Of any
previous threats on the part Of OBrien against
Cunningham, although there was evidence that
he was labOrng under great state Of excite
ment up to the time he met Cunningham. There
was evidence tending to show that Cunningham
made motion as II to draw pistol upon O'Bncn;
but this Is In dispute. In that condition Of AZ.
fairs O'Brien drew from his pocket the pistol
that he was accustomed TO carry, and had with
him a. a policeman, and shot Cunningham q
single shot, which caused the death.
Was this death, then, beyond reasonable doubt
the result OF premeditatcd malice or malice
aforethought? This was the very fact In dispute
before the jury. The homicide was not denied
The pTOyOcatiUn, the Information that O'BrieI
had received that Cunningham had threatened
his life. was before the jury. This question o
fact, OF the malice aforethought, was solely
question for the Jury, and II 1t had been left Il
them, under what believe as a lawyer correct
constructions Of law by the Court, | for one
should never have intcrfered.
Ny attention was called 10 the case after the
trial, and after certain exceptions had beer
taken and argued, by the mother and wife o
U'Brien, who came NO me, suppose because
hal I,aa oil
and was In trouble. That call In proper case
have never neglected. Upon examining the
charge Of the Court found that the Jury had
been Instructed that mallc7 afOrethOught was
presumption Of the law from the fact Of killing
and the intent 10 Nil was presumed as q matter
Of law from the killing ITSELF THIS instruction,
IN effect was that II the Jury found that O'Brien
Killed deceased with pistol, which fact was not
In dispute, the law Inferred from the killing and
the weapon premeditatcd malice.
7 also found that there was no instruction in
the charge Of the judge, which was taken at
length by a shorthand writer, that the burden
Of proof was with the prosecution to convince
the jury beyond reasonable doubt Of premedl-
tated malice. IL seemed TO Inc that this took
away from the Jury the only question I'd the
case. The killing with the pistol was admitted
The instruction In fact was, that that being ad.
mitted, the law inferred that 1t was done with
malice Aforethought, and the Jury had nothing
10 do with that question unless the defendant
could prove to their satisfaction that he did not
have malice aforeIhought.
drought this question before the court upon
motion for writ Of error, which was argued
before four judges only OF the court; the NTH
having sent his resignation TO the President
not sitting In the case. The court, by a major
ity only, oyerruled the motion; the chief justice
giving dissenting opinion, In which he adopted
the view Of the law which have set forth, that
malice afOrethOught was to be proven as
fact, and not inferred by law in case OF homl-
eide where the method and circumstances at
tending the homicide were known and In eyi-
tlence before the Jury; and, secondly, that the
Jury ought to have been instructed that the bur-
den Of proof was upon the prosecution to prove
beyond reasonable doubt to thOm the fact that
the killing was done with malice aforethOught
II may occur to you, as lawyer, that the law
does, In some cases, infer malice afOrethOught
That is true; but II Is only In case OF secret hOn-
icde, where the facts and circumstances accom-.
panying the killing are not known. II may not
be inappropriate that recall TO your mind the
history Of this presumption OF law In case OF
secret murder After William the COnqueror
had subdued the English people, number Of his
Norman soldiers were found murdered In secret.
To prevent this he caused the law to be declared
that where man was found 10 be killed In secret
the law should presume three things First, that
the deceased was Frenchman; secondly that
the slayer was an Rngllshmln; thirdly, that the
deceased was slain with malice AfOTethOught,
and that the hundred or precinct In which the
body was found should be amerced In a nnc,
which was called mUrirDH, from which we have
the term murder. The humanity of law has got
rid Of the presumption that every maL slain Is a
Frenchman, aud that every man killing Is an
Engishman, but still retains In case Of secret
homicide, the presumption that II was done with
malice AfoTeth0ught, as it eanuot be known how
It was done. This presumption In case Of secret
Notwithstanding It murder II circumstances or
evidence point out the slayer 10 the iuTy--thc
court, II seems to me, enormously imported into
the case Of O'BriCu where all the circumstances
were known; and Of this opinion was the Chief
Justice Of the Supreme Court Ofthe District.
You remember that O'Brien was tried almos
Immediately after the homicide when the COM
munlty was greatly excited, and when there was
Ageneral demand, especially In the newspaper
press, for a legal victim; and under the circum-
stances he hardly could have had a fair trial,
however deslTous both court aud Jury might
have been not to yield to popular pressure and
what Is usually sCnsCless camOr.
Believing from the evidence that O'BHen was