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

depraved mind. regardless of human
life, although without a premeditated
design to effect the death of any indi-
vidual IN. 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 On. Y. Penal Code
51S4. 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 determine tion as the
result of such mental action (People
VI Hawkins. 189 N, T. a0s; People Vi.
BARBER, 149 N. Y. 1885, 21 Cyc. 1876 j
Under the supposed facts and cir
cumstances 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 aranslaughter 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 rlianslanghter, if
the provocation isNnot in its nature ade-
qnate in the eye of the law, or if there
has been time after the proyocation 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
immunity requires that persons shall rea-
sonably control their passions. And
although there has been some tendency
4 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 mar
is not such provocation as will reduce
his killing Of the man from murder tc
nanslaughter. (21 Cyc. 751-753.) "A
fortiori, suspision, or even knowledge
on the part of man that his wife il
Il being pursued or annoyed by anothel
. would not be such provocation as Il
reduce a homicide to nlanslaughter
4 Furthermore, under the present statut
& in New York, homicide cannot b
}, classed as nanslaughter, except whel
there was no design to effect death
4 when that purpose is present, the Grim
is murder in one Of its degrees. unles
lit is exeusable or justifable. On. Y
4 Penal Code, 188 189, 1893; People i
Beclswith, 103 N. c. $780,
Nor was the homicide excusable O
I justihable either at common law or Tin
der the New York statute, for, to b
II excusable, it must have been committed
J. by accident in doing lawful act, an,
to be justi6able, it must have been ii
!. the lawful defense of Thaw or his wife
/ when there was reasonable ground K
apprehend design on the part Of TIL
4 person slain to commit a felony, or t,
( do some great personal injury, etc, an,
when there was imminent danger 0
( such design being accomplished On
!. Y. Penal Code, 203, 205. See 81 Cye
], 7s4 8l2, 1861
With respect to the defense Of insan
I ity, if Thaw was insane when he kille,
q White, he not only cannot be punished
:. but he was guilty Of no crime, and thi
!. is true although he may have been san
/ before he committed the act and may b
sane now. (12 Cyc. 165; 81 eye. $685.,
I Whether or not he was insane is 0