Year: 1873

criticism can be made on their action in
granting Edward S Stokes new trial, and
whatever may be our opinion as TO the de-
gree Of guilt of the homicide, that he should
have fair and impartial hearing is indis-
putable. The case, however, shows in a
striking light the ineficiency of the law
in New York. For long months Stokes
has languished in the Tombs, alternating
| from hope to despair, while his cause has
been carried from Judge to Judge, from
court to court. In the meantime, a score,
we had almost SAID, of murderers, lewd
fellows of the baser sort, who had neither
money nor influential friends, have been
tried, convicted and executed. Stokes,
having both requisites, has been respited
thus far, and now, we are told, has no doubt
of his ultimate acquittal.


The opinion of the Court of Appeals was
unanimous. Two opinions were written,
one by Judge Groverand the other by Judge
Rappallo. The charge is held to be
erroneous on the point that the law
presumes murder from the fact of the
killing, and calls on the prisoner to
mitigate. or justify also there were errors
in excluding proof Of threats by the de-
ceased to kill the prisoner also an error
in permitting Mrs. Morse' to contradict
Jennie Turner in a collateral matter called
out in the cross-examination,- namely,
as to whether she left Mrs. Morse's
against her wish and because detectives
were said to be after her soon after the
homicide. Other points were discussed, but
these are the principal ones.


We append an abstract of the able opinion
delivered by Judge Grover


The opinion discusses at some length the
jury law, under the operation Of which the
trial was held. and under which the preyi-
Gus formation OF expression an opinion is
not to operate as n sufficient ground of chal-
lenge for the principal cause, provided the
person proposed shall declare on oath he
believes he can render an impartial verdict
according to the eyidenc E. This act is held
to be constitutional. The opinion then
goes on to say that during the trial counsel
for the accused offered to prove that the de-
ceased short time before the occurrence
had made violent threats against him. such
as that he would " beggar him first and
then Kill him. = go prepared for him
All ,he time " 30 sure as my name Is
Ji m Fisk | will kill him" | would kill
lin as soon as | would a ferocious dog"
: This was objected to by the prosecution and
objected by the court, TO which the counsel
for the accused excepted Threats TO com
init the crime for which a person is upon
trial are constantly received as evidence
against him as circumstances proper TO be
considered in determining the question
whether he has in fact committed the crime,
for the reason that the threats indicate an
intention to do it. and the existence Of this
intention create a probability that he has
in fact complitted it. The testimony Of
fered was competent and the exception to
Its exclusion well taken. The error was
one preludi cial to the accused by depriving
him Of the right to have competent testi
mOny in his favor considered by the jury,
and canno he overlooked by the court The
opinion continues Jennie Turner was in
trGduced as a witness by and gave material
testimony for the accused. With a view to
impair the credibility of her testimony. she
was asked by the prosecution upon cross
examination whether she had not left
Mrs. Morse, by whom she was employed,
without her knowledge or consent, and
whet ner she did not take things not belong
ing 20 her when she left. The prosecution
was permitted to prove by Mrs Morse that
her testimony in answer to these questions
WIS untrue. to which the counsel of the ac
clised excepted. This was an error. Upon
cross-examination the prosecution had a
right, for the purpose Of lmpalrlng the
credit of witnesses, to ask questions as to
those collateral matters, but having asked
and obtained answers, must abide by the
answ ers given. Other witnesses could not
be called to prove such answers untrue. 1t
canlot be said that the accused sustained no
mi Try from this. The direct tendency of
the incompetent testimony was to impair
th' credit given to the testimony of his wit
ne sses. We think the minutes of the grand
jury, showing that the Indictment had been
ordered by that body against the accused
upon the complaint of Fisk for blackmall
ing, were improperly received. There was
not proof tending to show that the prisoner
had any knowledge of any such action by
the grand jury The evidence had, there
fore, not a tendency to show motive of the
prisoner for the killing of the deceased.
The prisoner had testified that he. Fisk had
been trying to get him indicted for, as he
understood, a conspiracy with another to
blackmail him, but that, as he understood,
he had failed to procure one. The prosecu-
ti0n could not give evidence tending 10 show
that tb e prisoner had been guilty of any
other crime than the one for which he was
on trial. The only effect of the minutes
that | can see was to satisfy the jury that
there was evidence Of his having committed
some other crime of such cJgeney a. to IL
duce the grand jury to indict him therefor.
The prosecution had no right to give such
evidence. Had the prisoner known of the
action OF the grand jury it would have
been competent to show 4 motive for killing
the deceased, and being proper for any pur-
pose there would have been no error in re-
ceiving it. Numerous other exceptions
were taken by the counsel for the prisoner
on the trial, to the rulings of the court on
on the admi sSibility of the evidence. We
have examine these, and arrived at the
Conclusion that none of them require dis
cussiOn


Near the conclusion the Judge charged
the Jury as follows: The fact of the killing
in this case being substantially conceded,
it becomes he duty of the prisoner here to
satisfy you hat it was not murder, which
the law would imply from the fact of killing
under the circumstances, in the absence of
explanation that 1t was manslaughter in the
third degree or iustifiable homicide
because, as / have said, the fact of killing
being conceded, the law implying motive
from the circumstances of the case, the
prosecutors case is fully and entirely made
out, and therefore you can have no reason
able doubt as to that unless the prisoner
shall give evidence sufficient to satisfy you


that it was justifabe under the eircum-
stances of the case To this portion of
the charge the counsel for the prisoner ex-
l l. ~ L.. > 41..es


n0cence Is presumed until the contrary Is
proved. To constitute crime there must be
not only the act but also the criminal in
tention, and these must concur, the latter
being equally essential with the former.
The intention may be inferred from the act,
| but this principle is an inference of fact
| to be drawn by the jury and not an impli-
cation of law to be applied by the court.
! But the question is case is not what was the
rule of the common law as to the implica-
| ton of malice from the act. The question
arises upon the statute of the State by


which homicide is made justiiable or ex-
cusable, murder in the first degree or
second degree, or manslaughter In one Of
! four degrees, ,determinable by the intention
and circumstances of its perpetration under


the statute. 1t is obvious that mere proof
that one has been deprived Of life by the
act of another, utterly fails to show the
class of the homicide under the statute.


Section three of title two of the statute de-
clares in what eases the homicide when


perpetrated by an individual shall be
! iustifable. Section two, OF title one,


as amended by the act of 1862, pro-


vides that such killing, unless it be man
slaughter, excusable or Orjustifable homicide,


shall be murder in the first degree in the


following cases: First, when perpetrated


from premeditated design, to the effect


that the death of the person killed or OF


any human being. 1t was under this pro-


vision that the prosecution sought to con-


yict the prisoner. To justify such con-


vietion it was necessary for the prosecution