Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-02-07

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life, although without premeditated
design to effect the death of any indi-
vidual. On. Y. Penal Code, 1873 The
killing was murder in the second de-
gree if it was committed with design
to effect death, but without elaboration
or generalization. IN. Y, Penal Code,
l84.) While it is necessary to murder
in the first degree, under the statute, that
there shall be both elaboration and pre-
meditation, in addition to the intent to
kill, all that the law requires is that the
killing shall not be the instant result of
impulse, and it is sufficient if there is
some thought and reflection on the act,
and a choice and determination as the
result of such mental action. (People
v. Hawkins. 100 N. y. 4Os; People V.
BARBER, 149 N. Y. 1885, q Cyc 1876 }.
Under the supposed facts and cir
cumstanoes of the killing it seems clear
that there can be no question as to man
slaughter. At common law, a homicide
is not murder, but mans1anghter only,
although Intentionally committed, if it
is committed in the heat of passion
caused by adequate provocation; but
passion, however great, is not sufficient
to reduce the killing to nians1angfter, if
the provocation isFnot in its nature ade-
| qtlate in the eye of the law, or if there
| has been time after the proyoeation was
given for. the passion of a reasonable
| man to cool, whether it does in fact
cool or not, since the safety of the COM
munity requires that persons shall rea-
sonably control their passions. And,
although there has been some tendency
to leave the question in such cases to
the jury, the law has long been settled
that mere suspicion, or even actual
knowledge, on the part Of husband
of past or even continuing illicit rela-
! tons between his wife and another man
IS not such provocation as will reduce
/ his killing Of the man from murder to
i nanslaughter. (21 Cyc. 751-753 "A
4 fort1ori, suspision, or even knowledge
on the part Of man that his wife is
being pursued or annoyed by another
would not be such provocation as te
i reduce homicide to manslaughter
4 Furthermore, under the present statute
in New York, homicide cannot BIZ
classed as 1nanslaughter, except wher
there was no design to effect death,
when that purpose is present the crime
4 is murder in one of its degrees, unless
i it is excusable or justifable. IN. Y
Penal Code, 1873, 189, 1893; People v
Beclswith, 1O3 N. c. 1907 III
/ Nor was the homicide excusable Of
4 justifable either at common law or I'm.
4 der the New York statute, for, to bt
excusable, it must have been committed
I BY accident in doing a lawful act, anc
to be justifable, it must have been ii
the lawful defense of Thaw or his wife
when there was reasonable ground te
apprehend a design on the part Of Thu
4 person slain to commit felony, or te
4 do some great personal injury etc, ane
when there was Imminent danger Of
such design being accomplished On
Y. Penal Code, 2Os, 205. See q cyc
794, 812, 1867
With respect to the defense Of insan.
! ity, if Thaw was insane when he killed
i White, he not only cannot be punished
but he was guilty Of no crime, and thi:
is true although he may have been sane
before he committed the act and may b
sane now III Cyc. I65; 81 Cyc $685.
4 Whether or not he was insane is Of