The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-11
Act of 1893 Relating to Murder.

ACT OF 1885 Relating 70 murder.
To the Editor The recent discussion by
the Supreme Court Justices in State VS.
Cole of the Act of General Assembly OF
1893 changing the law as to the crime OF
murder, together with increase in homi-
cides in the State, has directed public at
tention to that legislation. 1t is well that
the 'laymen" should understand what the
change consisted in and then consider
whether it is wise to repeal it as some sug-
gest The Supreme COUNT Justices must,
of course, construe the law as their cor
science dictates. They cannot be expected
to set at naught the acts of the General
| Assembly consistent with the Constitution.
Their decisions bind us. Prior to the act
of 1893 the malicious killing of a human
being was a capital felony. The killing
with a deadly weapon was presumptive
evidence of malice and placed on the de-
PENDANT the burden of justifying or ex-
cusing it.
| In State V. Gadberry the Supreme Court
declares that "the Act of 1893 created an
era in the law of homicide in this State >,
| Our State, following the example OF
New York, Pennsylvania and other States.
divided murder into two degrees. The
first is capital felony death being the
penalty. The second degree is punishable
with imprisonment in the Penitentiary
from two to thirty years
To convict a person of murder in the
first degree tne State must prove beyond
a reasonable doubt that the killing not
only was malicious, but that it was per
petrated by means of poison, lying in wait,
Imprisonment, starving, torture or by any
other kind of wilful, deliberate and pie
meditated killing
Where the killing takes place is the
effort to convict felony it is murder in
the first degree.
Where it takes place in the effort to
convict any unlawful act not a felony
such as an assault, trespass or the like,
| it is murder in the second degree.
In 1895 and 1896 in cases of Gadberry
and Locklear, the Supreme Court placed
construction on that act which gives to
juries in all cases the exclusive right of
determining of which degree of murder,
if any, they viii convict in any case.
! 1t is not my purpose to criticise these
or any other decisions of our highest court,
to whose mandates we all owe obedience.
| Whether it is the part of wisdom to re-
peal this Act is a troublesome question
and should be seriously considered before
! it is done.
/ / have known some criminals to escape
| the death penalty in consequence of this
Act who ought to have been hung. Cad
berry was one. His case reported III n
c. page S12, win repay perusal by those
interested in such discussions.
On the other hand 1 have sentenced a
number of guilty men to the penitentiary
for long terms, who, think would have
escaped but for Act of 1893. have no
doubt that other judges have had similar
experience. 1t is generally very hard 10
induce jurors to bring in a verdict of
guilt.
Editors may write, and critics may
gather on the corners and ''tell what ought
to be done" in the matters that come be
fore the courts but it is most stubborn
fact that when men are solemnly sworn
and placed in the jury box, knowing that
verdict of guilty means death, they
hesitate long before they will convict in
many cases where it would seem to out
siders they should not hesitate This is
so because mercy is one of the very
strongest sentiments that moves the hearts
of good and generous men.
1T is enthroned in the hearts Of Kings
It is an attribute to God himself,
And earthly power doth then show likest
Gods
When Mercy reasons Justice"
Writers on Sociology have taught that
crime is more apt to be suppressed by Ger
tainty of conviction of. the many criminals
rather than by the severity of punishment
inflicted on the few
Since the Act of 1893 became law a per-
son may be indicted for murder in the
first degree, but tried before the petite
jury for murder in the second degree only.
This is an advantage to the State. per-
son on trial for murder in the first degree
is allowed twenty-three peremptory chal-
lenges. This very great advantage is
given the defendant because his life is at
stake. When the defendant is tried for
murder in the second degree only, he has
only four such challenges The solicitors
all recognize the great difficulties they
have to contend with in order to convict
of murder in the first degree and there
fore in many cases they wisely, although
having a bill for murder in the first de-
gree, announce at commencement or a
trial that they viii prosecute for murder
IN the second degree only By so doing
they deprive the defendant Of his many
challenges and frequently obtain conyic-
tions when they would otherwise proba-
bly, fail
1t is very difficult to account for the
increase in the number of criminal often
ces in the past few years.
1T is not confined to our State alone.
Criminal statistics show an increase all
over this Union out of proportion to in
crease in population, in States where old
common law prevails as well as where it
does not g. II. BROWN, JR.
Washington, ". c., June 8th, 1903