Morning journal and courier., 1882-06-13
Sonrnal an0 Oourtet.
Tuesus y nsrniue. June 13. lsn2.
The "Chip'' Smith Hearing.

Arguments Before the Supreme Court
 Yesterday Afternoon--The Last Effort
 in the Unfortunate Mans Case.
 Before the Supreme Court of Errors yes terday afternoon at ? o'clock Messrs Blyden- burgh and Fox appeared to argue the motion in error in the case of James (''Chip") Smith vs the State of Connecticut. In the morn. ing counsel for Smith filed motion amend, ing the writ of error before the Supreme
 Court by striking out that part of the allega-
 tion that the judge did not file with the clerk
 his charge and 8 request of the defendants to
 charge on certaiI points. The sole question
 that remained to be argued was whether the
 omission of the word 'premeditated" in the
 indictment invalidated it for anything but
 murder in the second degree. As counsel
 for the condemned man had urged the pres
 ence of full bench (five), Judge Sanford
 filled the place of Judge Granger, who has
 not sat this time owing to the Malley trial.
 Mir Fox then proceeded to read from the
 authorities, previously reading the indict-
 ment, which he alleged was defective, and
 the State attorney presented his answer, as-
 suming that there was nothing defective in
 the indictment or in the record complained
 of
 Mir. Fox then proceeded at length to quote
 authorities in support of the position that
 the writ was defective. At $50 Mr. Fox
 finished citing authorities Lawyers, he
 said in the Legislature argued as against 8
 communication when appealed to, that the in
 dicIment was defective, that there was
 in rtS hot
 fcre, from which the Supreme Court derived
 it's powers, deferred mercy until justice had
 been used up" Mir. Fox appealed for jus
 tice and mercy for the unfortunate man |; let a hundred guilty men escape rather than have one innocent man suffer. He acknoWl- edged he felt shaky" before the State at torney, grown gray in the service, and hoped
 the court would not rush the prisoner, God forsaken though he might be, to the gallows MT Doolittle for the State, upon the issue in zL0 est e17atu21a, set forth that the statute prior to 1946 relating to the crime of murder was follows
 ''Every person who shall commit murder and be thereof duly convicted shall suffer death.''
 The statute of 1946 did not change the l crime, but simply modified the punishment if the jury found as matter of fact, not law, that the guilt was in second degree There fore, as no new crime created the indict ment must remain as before the statute ot | 1846. Three years after this was passed the l Supreme Court of this State found "that il was not the design of the Legislature | to create any new offence," or change
 the law applicable to murder save SC 1 far as the punishment was concerned 1 Estate vs Dowd, 19 Conn, 391] In the same case the court says the degree of crimi | nality must be determined as 8 question of | fact. The adjudications of New York and ] Massachusetts are conclusive 'An indict I ment charging the offence of murder to have 1 been committed wilfully, and of malice afore- thought, emitting the words with premedi- | tated design is sufficient to sustain the sen l tence of death " People vs. Fitzgerald, 37 N. Y., 413. Decision unanimous "An in l dictment for murder in the common law ! form, charging the killing with malice afore thought, is good, notwithstanding our l statute has divided the crime of murder l into different degrees, and verdict l finding the accused guilty as charged in l the indictment is 8 conviction of murder in | the first degree.' ''The statute is not 8 rule | of pleading, but guide to the conduct of a | trial, prescribing the proofs requisite to a
 conviction" People vs Kennedy, 39 N Y, 1 245. In Massachusetts the court says in l Green vs. Commonwealth, 12 Allen 162, that l 'the conclusion is unavoidable, that inas- | much as an indictment for murder in the l common form does not include and duly | charge the commission of the crime in the first degree" etc This case which has been made the subject of diatribe by man l who writes for personal gain has been reaf- 1 firmed in Connecticut vs. Devlin, 126 Mass | 253. "Felonously, wilfully and of his mal- l ice aforethought did kill and murder,' D is the manner in which murder in the first degree
 is charged in New Hampshire, Maine and Vermont The statute from which ours was copied was enacted in Pennsy ylvania in 1794, and the courts repeatedly held the same doctrine before the passage of our | statute. Our Legislature therefore adopted | the Pennsylvania interpretation as we'll as the statute itself Nine decisions were cited sustaining this D int The case of the State | vs James Smith, indicted for murder in the | first degree at the March term of the Supe rior Court in this county, 1870. was cited to l show that the Supreme Court in the 3Sth of Connecticut held that the indictment. drawn | after the common law form, was in
 the usual form Mir. Doolittle made his last point follows: This court | decided in 1879, in the case of | the State vs. Hamlin, AZ Connecticut, I 117, that ''the common law form of indict I ment which charged the defendant with com | mitting the homicide 'fe1oniously, wilfully and of his malice aforethought there l fore sufficient to sustain 8 verdict of murder | in the first degree :" The prisoner was ex pressly charged in this indictment with mur- der in the first degree It would seem that the attorney for the State might rely upon this decision and draw an indictment just as the Supreme Court have recently told him | to do, end that the court should be stopped from say ying anything to the contrary. Judge Bl. denburgh followed with the clos ing argument, the main points being given in tke COURIER yesterday morning
 The judges reserved their decision.
 Court adjourned until this morning at 10
 o'clock.