New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-06-11

the trial 10 the rulings OF the Court upSn the prSe
by Of evidence. We have examined tnese a
at the conclusion that none OF them rePuii0 'N
A FLAW IN THE CHARGE
Near the conclusion. the Judge ohargeu uo yss ,,,,
follows 1.-THE fact of the killing In TINS case VoI"s
stautiay conceded IT becomes the duty OF eno
here to satisfy you that It was not mue"er "",S" ~
law would imply from the fact OF hiins unuer Nno VII
eumstances In the absence OF explanation ou"' y
mansauehter in the third degree or Justhaoe homl-
ae nocarso as have said. the fact Of killing being
conceded and the law implying motive from the cir
pmstonces OF the case the prosecutors case Is fully
and entirely mado out and therefore yon can have no
iSsnce sufficient TO satisfy you that It justi
6ahle under the circumstances OF the case
m ths portion of the charge the counsel orthe prisoner
xcent We have examined this portion Of the charge
10 determine whether the idea intended to be conveyed
yas tht The law implied that the act OF killing was
der when perpetraed under the circumstances or the
present case whether such was the legal Implication
from the proof OF killing In the absence of proof OF the
crcumst OF It's perperaton by when tine case OF
the prosecution was fully and entirely made out unless
the prisoner had satisfied them that IL not murder
which the law would imply from the fact OF the killing
We think careful examination OF the entire portion OF
the charge excepted will show that the latter was the
idea intended to be conveyed, and that the jury must
From the opinions delivered II was so understood by
the justices OF the Supreme Court at General IerIn
This view Is confirmed by te TACT tne circumstance
attending the killing In the present case were eOhro
verted questions TO be determined by he jury irOn eV
dence less conflicting, claimed by the prose
Jury OF ali the facts constituting the crime of murder in
The first degree as claimed by the prisoner such as
would authorize the jury TO find the homicide excusaDe
IL hardly be supposed tbat under sueh proof az W
what the circumstances really were the Judge INTENDED
to charge the jury that the law implied the crime OF
from proof OF killing under the circumstances
OF the case aud upon such proof such instruction
would have been erroneous The instruction in effect
was and the jury must so have understood H. hat te
law Implied motive and consequently the crime Of muir
DER In The rst degree from the proof Of killing the de-
ceased by the prisoner, and that upon TINS PROOF the
should fnd him guilty of that crime, unless he mad
given EVIDENCE satisfying them that 1t was man-
| slaughter excusabe homicide. 49,, ,,,.
This is further confirmed by what immedlatey Ioows
the portion OF the bill excepted TO- me Judge prooeeds
to instruct the jury as follows; Ordnarly, natnrsy
and properly Of this kind ures are disposed 10
and should give the prisoner the benent or any reason
able doubt that may exist in the case, and 90 not
know that this is an exception 70 lhat RUE tne
evidence shall be doubtful upon that subject II you
shall entertain reasonable doubts II the evidence Is
evenly balanced you do not know Where the truth
hes the prisoner would be entitled to the benefit OF that
doubt" 49,. -. -, .bo .,o..o
excepted TO- that the law implied the crime OF murder
in the nrst degree from the proof OF killing only unless
EFT doubt to be given to the prisoner would not
have been restricted 70 their nndng me evidence evenly
balanced, so that they ala not know WneIe tne uuul
lay; the contrary, the instruction would nave Deeh
not to convict OF that crime unless convinced py an tho
evidence in the case that he was guilty ana that II
careful examination OF al inc evidence eI Ia tneir
the prisoner the benefit by an acqulttal TINS lnstrne
| ton was warranted by the common law OF England
p. C., as East r G. "a M. a. T. TO- Regina agt'
wealth agt. York; Metcalf, 49,
WHAT CONSTITUTES MURDER.
This rule can be upheld by authority, only as IL obvi-
ously Is in cOntrayenton OF principle and the anaoges
OF the law Iii maxim in the law that innocence is
presumed until the contrary is proved. How is guilt
established by proof only OF Of the ingredients es
septia TO constitute crlmei To constitute crime there
must not only act but also the criminal intention,
aud these must CONCUR the latter being equally essen
tal with the former Actus facit sed mems IL
maxim OF the common law. The intention may be In
rarred from the act this IN principle inference
OF fact to be drawn by the jury ana not an implication
al law to be applied by the Court But tho question in
this case what was the rule OF the common law az
| to the implication OF malice from inc act whether
such ruie IL dedHeed frOm authority or prlnci-
ne and legal analOgies The question arises upon the
ttatute OF The state By which homicide Is made jusa
be or e1cusabe murder IN the first or second degree or
mausaughteT In Of four degrees, determinable by
the nteutlon aud circumstances OF It's pcrperato
Under e statute IT Il obvious that mere proof Stat
E 10 show the class of the homicide the statute
section g. Of little 2, of the statute, declares in what
cases tie homicide when peFpefaled by an INDIVIDUAL
s9ctioH = of title l. az amended by the act Of 1872,
provides tnat such killing unless II De mansauShier,
excussble or iushabe homicide, shall be murder III the
brst degree ia the following cases:- ...
20 effect the death OF the person killed or OF any human
being 1t under this provision that the prosecution
sonRbt 10 convict the prisoner To Justify such COnvc
oG, a. NECESSARY for The prosecution to prove al
facts 9rGsRg t9e case 5 OF 6 e en %e m
show this. 1t might stu be murder in the second
degIee nnansaugter III some degree or Just!rable or
excusabe homiclde, consistent with such proof
II Was error to sruct the Jury that the law implied
ali these facts from he proof c tho Killing The correct
res OF this mas rarely questioned since the enact
inent OF the statute. Hence there has boon but little
said by the courts the soD but what has been
said sustaius it, People aZt. Clark, ~ Y, $685. FtZ.
gerald agt. People, 81 \. y 4ls; People agt White, "a
Wend $40; Wilson AIT. People, Parker, Go The
General Term were correct tue conclusion that this
part of the charge was err3neo and IN the further
Conclusion that t. obvate the error IL was for the people
TO show that the prs9uST was not prelgdeed ey such
error GEe co AZ e. Peoee at MeyS Hill 49,
We have examined the eitIe charge to determine
whether IT does SO snow We hsd mat tie Judge cor
reety charged ne ly as u the ACT: necessary 70 con-
stitate the cTip murder n tne hrst degree and fur
Their that hs CORRECTLY instructed them that the people
must prove all tie facts 20 Autp0Ize the jury 10 rem
der a verdict conyicting HIM OF that crime. -
But how does this cure tae error Of the instruction
that the law implied all the necessary additional facts
from the proof OF the killing 1t was in effect instruct
ing the Jury that although the people must prove all
these facts yet they had done so by proving the killing
and by that the OF the prosecution fully and
entirely made out and that this proof made 1t the duty
of the prisoner TO satisfy them that 1t was not murder
which the law would Imply from that proof thus in
effect instrucng the Jury that the proof OF the killing
SS a sS Sot murder but mansaughter or 1sabe hom
eide No such burden Of proof was by that cast upon
the prisoner. Lamb v c. and q. r, Co, 40 n Y, 2l
The further instruction 10 the Jury to the effect that
the law required particular length OF time between
forming the design to Kill and the act by which the
death was effected had relation to bearing upon
the point in question me Jury may as q mater o.
itse required constitute murder in the first degree,
truth Of such facts They are to pass upon whole
case nerrng facts from the proof of other facts which
convince their judgment OF the truth OF the facts in
ferred bearing In mind that the burden OF proof
the prosecution TO all the facts necessary to corst
tute guilt during the entire trial. aud that their verdict
ehOud the conscientious expression OF their convic
tons derived from all the evidence.
IL is 10 pass upon any OF the questions
arising upon the offer Of the plaintiff III assign
any error in fact upon tho judgment. As these
will simply remark. that we think they were properly
disposed Of upon the motion for new trial
But for in rejecting competent evidence offered
by prisoner, and in receiving incompetent evidence
against hun, and in the part Of tine charge excepted
the Judgment must be reversed and trial ordered
JUDGE RAPAILo's OPINION.
Rapallo, il satisfied that the conviction in this