Star. — 1819-08-06 (London, England)

GENERAL ORDERS BY THE COMMANDER-IN-CHIEF.  Head Quarters, Calcutta, January S 5, At an Europe.m General Court Martial assembled at Nagpore on Tuesday, the 22d day of December, 1813, Rots Etty KENYON, Gunner in the Honourable Company's Ist Battalion Madras Artillery, was arraigned tyen the umiermui.ii.oncd Charge: " Roamer KENYON, Gunner in the Honourable Company's Ist Barulion Madras Artillery, placed in confinement, and charged with the wilful murder of Matross John Leviston, of the same corps, at Chandah, on the Bth of ()ember, Had." Upon which Charge the Court carne to the following decision: OPINION AND Sr_ursNcr.—" The Court havinr, duly considered the ey,i4ence brought forward in support of the prosecution, as well as what has appeared in the defence, do acq;.it the prisoner, Gunner H. Kenyon, of the crime of wilful murder; but the Court do find the prisoner guilty of having ailed ;,u an affray (10 which they mutually went to arms, and tired at each other), Matross Joh.-! Levii:orit of Artillery, which act being subversive of order Ara discipline, and in breach Or the rules and articles of war, the Court do sentence the prisoner, Robert Kenyon, gunner Ist battalion Artillery, to be placed in solitary, cominement for the period of nine months, at such station as may be directed I.‘y his Excellency the Moat Noble tha Commander in Chief in  ------Remarks by the Commander in Chief: Though the CoMmander in Chief concurs entirely in the humane and just consideration which influenced the Court, and to which the Court apparently found diflicuttv of giving effect otherwise than by the terms, adopted, his Loreship cannot confirm the sentence as it stands, lest a dangerous misconception should be entertained from it among the troops. Where two *soldiers go out by agreement as in. the present instance, to fight with their fusees, or other roortal weapons, it is not a case of affray which implies unpremeditated contest, but a case of deliberate duel; and in the latter, notwithstanding each party hag voluntarily staked his life. if ore be killed, the survivor is, in the eye of the law, guilty of murder. • As Manslaughter is a distinction peculiar to the common law of England, it is a modification of the crime which a Military-Tribunal. would not be competent to pronounce; but the Court would be confined to laying its sense of the extenuatory circumstances hefot e the Commander-in-Chief. Probably this restriction on the Court occasioned the judgment now in vestion, which, from the foregoing explanation, the Court will perceive to have been incorrect. Agreeing in the essential point with the Court, the Commander-in-Chief writ not subject the prisoner to the suspense and imprisonment during several weeks which would attend his Lordship's ordering a revisal of the proceedings, but directs Ito- • beet Kenyon to be discharged as acquitted of nitii'der. The circumstances, however, which induce this lenity, are to he particularly explained to the men of every Corps ; namely,. that the deceased had, without provocation, wantonly as.:,ailed the prisoner with blows; that tile dteeased gave the immediate challenge ; and that there ova. nut t:me between the irritation from the assault and the criminal act for the prisoner to reflect adequately on the nature of what he was about to do. The prisoner to be released, and to return to his duty, and the Court to be dissolved, should it have no further duty to perform. (Signed) JAMES N Adjt.-Gen. of the *srilly.