The Morning herald., 1875-11-22
OYER AND TERMINER.
The O'Neil Case

OF the doors was the occasion for as great a
rush among the curious for seats, as upon
other days since this interesting case begun.
The address of Mr.. Lore, counsel for the
defendant, was listened to throughout with
intense interest. He based the defence
upon four points, namely: Fir st-The want
Of malice on the part of the prisoner.
Second-The utter impossibility of the bull
let taking such course from where the
prisoner stood as to strike the deceased,
where she fell; a distance of two hundred
and fifty yards. Thirdly-The intervening
objects in these distances. Fourthly-The
bullet wound being in horizontal line,
which he said proved almost conclusively
the bullet that caused the wound must have
come from westerly direction and not from
the north. The Attorney General replied,
after which the Judge charged the Jury in
substance as follows
This is case of Importance in more than
one aspect; it is not the ordinary case of
murder; 1t involves considerations which do
not generally arise in cases of violence
where death has ensued. Generally homi-
cides are committed by men in no official
station, frequently by vagabonds desperadoes
and good for nothing loafers. This death,
If at the hands of O'Neil, was occasioned by
an officer of justice, one of the instruments
used for the preservation Of the public
peace, property and person. OF all men
they are bound to be the most cir
cumspectfal. There are duties they
are presumed to understand. There
Is great responsibility resting upon them,
20 too with officers of the State, they have
duties to perform, but they must be done in
a proper manner, and the law will protect
them if they do not exceed their duties.
This is a reasonable principle, otherwise
there is no security for persons and property.
If they do exceed their duties they will be
held to strict account.
Where persons having authority to ar
rest uses proper means and are resisted, and
he be killed, it will be murder by all who
take part in such resistance. This applies
to civil and criminal officers. The course
of this proposition is equally true. He may
repel force by force in proper discharge of
his duties, and if repelled, he is justified in
using proper means. But should he kill
where no resistance is made, it would be
murder. If felon is killed by being pur-
sued, and the officer cannot overtake him, he
Is justified in killing him. When the party
is accused of misdemeanor, the officer
must not kill him, though there be war
rant, ,and cannot overtake him, and if he do
kill him it will be murder. The question for
the jury to decide is whether the prisoner
caused the death of Sarah Doyle. In other
words was he, or not, the agent of her death.
This is the important question in this case.
If he was not, then there is an end to this
case. If you, gentlemen, are satisfied that
the prisoner did fire the shot assuming that
he killed Sarah Doyle, the question Of law
arises, did he commit murder in the second
degree? That is the question of law for
this Court.
Thelfacts are simply these: O'Neil pur-
sues Wingate who is charged with disor-
derly conduct and resisting the police. 1t
seems the warrant has been issued early in
June and was placed in the hands of Scar
gent Sculley. On the fifth of that month
the warrant was shown to him, and yet no
formal arrest was made, but he (Wingate)
agreed to surrender himself. Subsequently
the officer met the man and still made no
formal ARREST.
In truth, Wingate was not under arrest.
They permitted him to 60 at large. If he
had been under arrest it was case of mis-
demeanor, and not felony, and If he had
been charged with felony the officer was
justified in killing him, if he could not
otherwise overtake him.
In case of misdemeanor the officer in pur-
suit is not under any circumstance permitted
to take life. Human life is most valuable,
and it can only be taken as in the charge of
felony, and should the officer use deadly
weapon iE the case of misdeneanor and
death results, he is guilty of murder, where |
it don't touch the man against whom the |
shot was fired but some one else,it is mur-
der. Because the act was feloneous and un- |
lawful, the ball carrying with it the ingre-
dent of malace. A shoots at B an kills G, |
this is as much murder as If A had killed B. |
If according to proof in this cause the pris-
oner deliberately shot at Wingate and struck |
Sarah Doyle. This is murder in regard to a
in as much as If it had killed
Wingate, it would have been murder, malice
in this case is implied by the unlawful shoot
Ing at Wingate. The act intended is an un-
lawful act without justification or excuse,
and in utter disregard of the safety of others,
and carries with it the implication of malice.
have stated no new law, no novelty, no
new doctrine. These are the rules. They
are the principles of the common law laid
down by our English ancestors and uni
formly received with respect in all the
States of this country. If you gentlemen of
the jury, are satisfied that the prisoner shot
ut Albert Wingate, and the ball struck and
caused the death of Sarah Doyle, he is
guilty of murder as indicted. If on the
other hand, gentlemen, you shall not be
satisfied that the death of Sarah Doyle was
caused by the prisoner, your verdict must
be one of acquittal. He, the prisoner, must
% found guilty of murder or no crime
whatever. That question depends upon
he charge of manslaughter. Guilty of
murder or nothing The material nuastion |