The Washington times., 1894-11-06
DOOM OF TWO MURDERERS
Charles Hopkins, COIored, Must Be
Hung on the 23d Inst.
JENKINS SENTENCE COMMITTED
In the Former Case the Court of Appeals
Denied the Motion for New Trial
Judge Alvey's Opinion, Involving the
Question Of Identity of 0fense.

The District court of appeals yesterday de-
cided the case of. Charles Hopkins, convicted
OF murder and under sentence of death. The
result afirms the sentence. The opinion is
by Chief Justice Alvey. The decision in
wolves the question what constitutes sufficient
identity of offense TO bar a second prosecu-
ton.
On December II last Hopkins quarreled
with Adam Gordon at the saloon III South
Washington where Gordon was employed and
Gordon struck him in the face with his fist.
Hopkins responded by striking Gordon over
the head with a beer bottle. They were sep
arated and Hopkins went away He was
heard TO say during the afternoon that he
would get even with Gordon and that he was
going to kill Gordon. At $50 that night he
returned to the saloon, and Gordon was sit
ting down with his head on his hand. Hop
kins walked up within five feet of Gordon,
pulled brickbat from his pocket and threw il
at Gordon's head, knocking him senssless.
Hopkins went out and was soon after arrested.
Gordon, after time recovered sufficiently to
walk home
Hopkins was tried on a charge of assault
and sent to Jail for thirty days. Before his
sentence expired, in January. Gordon died
/ from the effects of the wound Hopkins was
at once tried before Judge Cole and was
4 promptly convicted of murder and sentenced
10 hang. The day set was November % next,
and by to-day's decision the execution will
4 take place on that day. Hon. H P. Blair rep
resented Hopkins.
The first error alleged by the defense was
that Judge Cole refused to instruct the jury
that the trial and conviction for assault was
a bar TO trial for murder This was asked
upon Article V, of the Constitution of the
United States, which says: ''Nor shall any
! person be subject for the same offense 10 be
twice put in jeopardy Of life or limb"
This clause of the Constitution, the opinion
recites, Is TO be interpreted in the light of the
| common law.
4 party is not entitled to the protection of
! theCOnstltution unless being twice prosecuted
! for the same identical act and crime. a
! black, com. 1861 There is some diversity of
/ opinion as TO what constitutes identity of
! crime, but the great weight of authority is in
! support OF the principle that when after the
| nrst prosecution a new fact supervenes for
! which the accused is responsible, and this
fact changes the character of the ofTense and,
! together with the facts existing. constitutes
! new and distinct crime, an acquittal or con-
| viction Of the first ofIense is not a bar 20 an
| indictment for the other distinct crime.
The principle seems 10 be clear, Judge Al
yey declared, that il is not sufficient merely
! that the former prosecution was for the same
act, the same transaction, but it must have
| been for the same cffense, the same identical
] act and crime, the same in law as well as in
| fact.
Chief Justice Shaw says in q case of indict-
ment for murder where previous conviction
/ Of assault was pleaded as bar, that the in
/ dlctment for murder necessarily charges the
fact Of killing as the essential and most mate
rial fact, which gives its legal character TO the
/ o1ense. If the party assaulted died within
! year and day, the act which, till DEATH was
4 assault and a misdemeanor Is, by that event,
/ shown TO have been mortal wound. The
/ crime which would have been an aggravated
misdemeanor is thus shown to be "a capital
! felony. Tho facts are essentially different
I and the legal character of the crime is essen
TALLY different
/ The second error claimed was that Judge
Cole refused to charge the jury that ii they
believed from the evidence that the injury
! was only one Of the causes of Gordon's death,
aud if they believed Gordon might have been
/ cured by proper attention, they should acquit.
! Judge Alvey SAYS there is no evidence to sus-
! tain the suggested doubt that it was Hopkins
act that killed Gordon. But even If there
was the authorities support Judge Coles
ruling.
4 The third error alleged is Judge Coles re-
fusal 10 instruct the jury that fourth of
brick Is not a deadly weapon and from its
possession malice is not to be supposed. This
Is disposed Of by saying no proof is offered as
10 the size Of the brickbat, and even if it were
small it became under the circumstances a
deadly weapon
The fourth alleged error-a failure to in
strult on point of self-defense-is met by
saying there is no evidence whatever OF self
defense.
The President yesterday commuted to i'm
prisonment for life the sentence of August
jenkins, convicted of murder in the supreme
court Of the District OF Columbia on July
last, and sentenced to be hanged at the Dis
trict jail Oh the 23d Of this month.
The President in granting the pardon says
that this communication is granted upon the
ground that the proofs tend TO establish such
an alteration at the time of the homicide
as should in connection with other circum-
stances surrounding the case make very
doubtful, at least. whether the premeditation
existed which characterizes deliberate mur-
der
The following applications were denied:
August Schiegel, convicted in the police
court of running au unlicensed bar. fined
$500 or imprisonment for l20 days.
Bridget O'AIellie, fined $3.50 or sixty days
in the workhouse for selling liquor without
license.
H. b. Stembler, convicted of embezzling
and stealing letters from the mails contain
ing money and sentenced to one yenr's i'm
prisonment in the Maryland penitentiary.
The President, in refusing the request, SAYS
that the offense was one which should not be
lightly dealt with. and he cannot persuade
himself that he should do his duty to the gov
ernment il he interfered with the sentence.