The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-04-05


by whom Their no allegation in Il that the drawing
va not uac b apcr Ou ac ng AMI claiming the light to
rSy nnnissi9n, and W.T. H. no ~ cation ma
hni Is tiIpy at ne was COMMISSIONS dur ng ina,
90 mean that he was du jure omnis Toner Consistent.
" with that allegation therefore applying the rulr Of
So upon ali he fs 10 W 70 al Sei 70 ih, .oas
other pc son cit fned Inc occ and was acting At least
u BY al the oicers VINO had relations win nm
rte It soieHemr esse acd dQnec Dv.Cew
ioose o" and ' ulcersln scsa,oa Of 1rfeseary
ami error contained IN the pa 70 fortfy ne CONCLUSION
commissioner was at Last drawn by a d. iaco CON.
would oe as regular as 3e drawn oy Dc lure cemwI,-
noner. decchs case; Howell state lrias 3os. WI
o. The case Of 'Connc We. Regina, supra, shoWshow
hat ne sum Indictment was iound upon the evidence Of
four witnesses and thst hc said witnesses we're not
pecau.e there was avcrmcn in tue plea That the b
who were sworn, besides those who were a.
ana ,o nave oern vaaa n Won o",ms sGorn
been authorized by law to give their evidence npon ~
IN tins plea that the jury not drawn ~ some one
who was acting and charming the right to act. Com
missioner Of Juror.
a DEMURRER PROPERLY SUSTAINED.
In Leechs case. plea in abatement that TIE Grand
S y weTc rsSSGrfl w MA PsIohs maR ~ S
nisht inter that the ersons named acted as de fcio
con. Jude mat The demurrer u the plea was prop.
could not be Convicted Of murder in tic fs degree Sn
der the nrst count On tue ground that that count vas
VOID for oupciy IN setting ~ two distinct on nccs,a
lurgl ~ aud homicide IN some degree That count
20 ~ 10 show that complete offence was commit d.
and then charged that the defendant while engaged N
charged There but one oncuce charged, that OF
a%s T 1873 c6S i r. An aaSSn anaT Xxx
provision OF the stlu!e mus DESERT he felony aud
eng ged In toe commission thereof 1t ccrainy can 10
to the charge he was called upon to answer. that the
offence was described more fully or infinitely Tim
slsncd TO- he CHARGED IN tne COUNT ana no one could
while engaged In the commission VI the felony DE.
1t Is further claimed that the first detective
IN charging that the kililng committed after the
NOT Shic tie accused engaged IN tlc comm. sion
o. the nurslty me ceu lee not Dear th Sos,tus.
thai the accused committed the murder while engaged
burglar XXI nicass into AID dwelling house 6usariousy
Win ne in,en, to steal ne 'nence Is ao9otess com
SAID to be engaged IA the commission OF the crime unt
.cs imncdlate5 connecicd vita his crime he H any
ltu!e MURDER IN tn nrst degree Is described Ia the
sir, Nhep GeTpe'rsaiedl from aeos i ana pre-
trlted by act mnhncaty dangerous to others. a
ALTON h sitSoat any prSmsdiaci design to II e
Der crtci without Any design to fec death by p,r
tou engage ln the commission Of any luny'
cause Il vas got al eseg therein tl' the kil,ns vac
lth Nt aLv design % eject ntu tao nllcsat "a Oh
le ouioas" LIE untou3iei law mt an Indictment
Sauces which constitute tue statute nee. 80 ~ 70
t.c statutes Butt ncca not contain the words OF the
aa Il !, s g suhren, II =, ,gn,an n, sH5
asP CO. fsG ' ,ls n ma Hsa - 5q5
~ i6a OF mdrler mrs. degree under the statute
u 1873. except IA tue nrst DIVISION u section i've Ia
ert SsS ,'' Ws omitted Sp'' '''0'' '''''S
MURDER IN the FIRST DECREE.
In 1850 Chapter iiW murder in the nrst degree
" All murder hich shall be perpetrated by means u
siiiG icnhsr,ie and preaci itas,d Siuins or ah.c6
snall lie committed In ne repatriation. OF the attempt
N any atem to escape from imprisonment, shah Dt
In 1879 Chiotrr 1871 le definition Of murder con
taincd ia me Revised statutes, vac applied 10 murder
sctIou o. wa, altered 10 read As fonoNs: When per
ss re,, 10 '''''''"- ''' ''0 u "'O" !" '"e H'''
Uuicr the Gr.t subdivision Of section s. In order TO
constitute murder in the nrst degree, the killing must
nave p,e4 f.om ri nOerate anu prcineiitat,d design
ira.t Mia the lst to maze any SLING while engaged
IN 'e t 81 GSay Ifi t H. tHS zane ne qs
purpose OF tue NOT without sny purpose to ef
il caSSo, be sappo,sG Ia the feitae me- to re-
H1ire PROOF IA suSa ~,1 'at sv sa- ~ss ADO 2
sue proof 20 make II murler ia the nrt degree where
10 make ia homicide DO lower degree. rrder the
aeseG 81 ea a d %ch H. ns %oua
tnaa sa sS Sa. ''H'sf ar re ds s:s an Il,
change soi.ut 70 De- elected by tlc statute
~ 1873 wa. 70 remove the limitation a C.
. tho sneclfed Tel tiles, ani TO max" klini
murder In the nr-t degree, n done war
aged in thc commission ~ any Felony II would b
qu a1sur4 10 o. c4nsirus the statute Ne 60 enable
o. charged ttu fAurl"r under ttc tird suhdiy
ilu II section 10 lh-n defence hy proving fha
ne dcsiauc1 trc murder. We IRE therefore ~ opinion
the INST count " the Indictment fuy Ges, rlbe,
the offence OF murder iu the hrs degree 10y 10 exng
proper ri- That the defendant NiiulB ami Eel ia.
OIsly hlilcd Nur Nlls As engaged Ia TIE commits
= | zion VI tn felony Of burglary.
We thus. with the care the importance OF tn
case requires, cOusl trcl anl dispose of all ne qnes
Il ms ich Wcre orally discussed ter We nayi
also carefully considered all the allegations OF error
contained pun.ed brief submitted 70 u, AID 10
sutiir saj them that they clearly withuu
foundation, AEd Wtrs sufcieniy cousd.rcd ana prop
triy ~ pos. % 800 the Upiu ~ thl supreme Court
The judgment must be affirmed.
Al cJACui, fuser, j. absent.
Gro. {. FLnRfuGR.
Clerk to JuQges Court 81 Appeals.