Imágenes de páginas
PDF
EPUB

proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appearete. And very right it is, that the law "should so presume. The defendant, in this instance, standeth upon just the same foot that every other defendant doth the matter tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them."

:

There is a case, 1st. Hale's History of the Pleas of the Crown, page 479. It contains a single sentence only, and very short, but which appears to me directly applicable to the present case. It is this:

"A. assaults B, and B presently thereupon strikes A without flight whereof A dies; this is not manslaughter in B, and not se defendendo.” He furtherr adds, in page 480:

Regularly it is necessary that the person that kills another in his own defence, fly as far as he may to avoid the violence of the assault before he turn upon his assailant; for though in cases of hostility between two nations, it is a reproach and piece of cowardice to fly from an enemy; yet in cases of assaults and affrays, between subjects under the same law, the laws own not any such point of honour, because the king and his laws are to be the vindices injuriarum, and private persons are not trusted to take capital revenge one of another.”

One or two other passages in Hawkins, are all that is necessary to trouble you with in opening and stating the law on the subject. In 1st Hawkins' P. C. chap. 28, sec. 25, page 109, there is a sentence which has a remarkable degree of applicability to the present

case :

"However, perhaps in all these cases, there ought to be a distinction between an assault in the highway and an assault in a town. For in the first case it is said, that the person assaulted may justify killing the other, without giving back at all; but that in the second case, he ought to retreat as far as he can without apparently hazarding his life, in respect of the probability of getting assistance."

You will recollect, gentlemen, the scene where this tragedy was performed, and will recollect from that scene, from the circumstances, situation, and possibility of assistance, how immediately applicable the quotation is to the present case.

One other authority I shall adduce, which will have a reference to the Defendant's being master of his temper and in possession of his mind; it is from page 123, chap. 31, sec. 23 of the book last cited:

"And whenever it appears from the whole circumstances of the case, that he who kills another on a sudden quarrel, was master of his temper at the time, he is guilty of murder; as if after the quarrel he fall into other discourse, and talk calmly thereon; or perhaps if he have so much consideration, as to say, that the place wherein the quarrel happens is not convenient for fighting; or that if he should fight at present, he should have the disadvantage by reason of the height of his shoes, &c.”

D

These are the cases and principles which I consider to have a direct referenee to the nature of the cause you have to determine. I have now stated the facts, and the only remaining duty for me to perform is to call the witnesses to prove them. But before I do that, I will give you the usual evidence of the death, or first fact— this I shall do by the inquisition taken by the coroner's jury.

Dexter. We object to the reading of that.

Sol. Gen. I read it merely to prove the fact of the death of the deceased.

Parker J. I never knew it used, but as I have not been much conversant in trials for homicide, I may perhaps be mistaken.

Att. Gen. It has been the practice to use it.

Gore. It was ten days ago attempted and rejected.
Parker J. I do not recollect that circumstance.

Att. Gen. It has been used as evidence of the death, and this before the revolution-it was done in the case of the British soldiers, and there admitted to prove the fact of the death-and it was recently offered in the case of Fairbanks of Dedham-it was there objected to and allowed by the Court.

Dexter. If limited to that simple object, of merely proving the death, we shall not object to it.

Att. Gen.

murdered.

We will go so far as to leave out the words killed and

Solicitor General was then about to read the inquisition, but was interrupted by

Dexter. We are unwilling to be troublesome, but we are told by some of the gentlemen of the bar, not now engaged, and who were engaged in the case of Hardy, that the same evidence was offered the present term and rejected by the Court.

Blake as amicus curiæ. I recollect the objection, and that I made the motion to reject the evidence, and whether the Court decided against it or not, or it was withdrawn, I cannot tell, but I recollect it was not read.

Dexter. Mr. Otis recollects that it was not read; and further that the Chief Justice overruled it; but if offered for no other object, than to prove the death of the deceased, it is really unimportant; there must, we think be some other design in offering it, and therefore we object to it.

Parker J. I really should think it, were there other evidence of the fact of the death, very important, because it might prejudice the minds of the Jury on the subject; have you not plenary evidence of another sort?

Sol. Gen. Yes, but I do it as being the course of the Court, I have no view to create an impression on the minds of the y; we had agreed to leave out all those words which might e had that effect, and to read it merely to show that the death occasioned by the injury received from the discharge of the

Att. Gen. Yielding points will be construed into authorities; if this is evidence to prove the death, we have a right to it, and are not obliged to wave it, the idea of rejecting it because no better is offered is not law; it is either evidence or not, if evidence, then it may be read, if a thousand witnesses to prove his death should be called they may not be believed, or may be discredited; the question is whether it be law, that the inquisition is to be read, to prove the death; if the Court say it is not to be read, then I shall never offer it in any other case, except before a full Court to obtain their opinion.

Dexter. I stopped in my objections because I understood that it was the invariable practice to read it, for we want no law that is not to apply in every other case; but if, in a recent instance, it has been rejected, we are at liberty, to investigate the principles on which its admissibility is attempted to be supported. It is the verdict of a Jury in the nature of an inquest of office, where the party charged has no opportunity of examining witnesses; of being heard by himself or counsel; no Judge to lay down the law or instruct the Jury as to the nature of the offence: is it consistent with general principles that such a piece of testimony should be admitted as evidence? If then there be no usage for it, and general principles are against it, it is clear that it ought not to be received.

Att. Gen. We can show from the authority of Hale and Hawkins, that it is admissible.

Parker J. should like to Att. Gen

As the practice has been, as stated, both ways, I hear some authorities upon the subject.

We will produce the authorities at another stage of

the trial, if they should be necessary.

Sol. Gen.

We wave reading the coroner's inquest for the present, and now proceed to call our witnesses.

Doctǝr Thomas Danforth-Sworn.

Sol. Gen. Doct. Danforth, I understand you examined the deceased, and the wound of which he died; describe what you saw on that occasion.

A. I was desired on the 4th of August, by some person, I do not know who, to step into the shop of Mr. Townsend, and there I saw the body of a dying man, laying on his back; I asked where was the wound? but the confusion of the by-standers would not let me see. The shirt was torn down and the neckcloth taken off when I discovered a wound a little below the left pap, the pulse was gone, there was yet a natural heat on the skin, and I thought some slight remains of life, but no respiration. I waited about a minute, when I noticed the body to give the last gasp, immediately after which it expired. I then proceeded to examine the wound, and introduced my finger into it, and noticed that the fifth rib was cut, this I knew from the gritty feeling of the bone; at the same time Doct. Jarvis came into the shop. I took up a small hammer, and

passed the handle of it about three inches into the wound; I might have gone further, but I saw the direction was such that it must have passed through some principal blood vessel; the wound was upward,and on withdrawing the hammer the blood flowed very freely from it ; every circumstance satisfied me that he died of that wound. Parker J. Did you know the person?

A. I did not at first.

Q. When did you recognize him, to be Mr. Austin?

A. I found it was a young man described to be a Mr. Austin, but I did not know him at first-I instantly after, however recognized him.

[ocr errors]

Sol. Gen. Did you ascertain the direction of the wound?

A. Yes It was oblique and diagonal with the trunk of the body, inclinging upwards towards the right side; it must have passed through the lungs, but not the heart, for it lodged above it.

Parker J. Have you any doubt of the death being occasioned by that wound?

[blocks in formation]

Sol. Gen. From the best opinion you can form, of the nature of that wound, are you of opinion which it would produce-instant death, or a temporary suspension of muscular power.

A. It is a nice question, which cannot be answered definitively or directly; we judge frequently from circumstances which have occurred I should say, that the immense flow of blood would have produced syncope, and death; a wound of a large blood vessel might not be attended with instant death, but would produce syncope, and death afterwards.

Sol. Gen. Is it your opinion then, that if the ball had pierced the heart of the deceased, he would have retained muscular motion, or not?

A. None of the cavities of the heart could have been pierced, as no muscular action could take place after wounding a large vessel of the heart.

Att. Gen. Must not a wound of the kind of which the deceased died, produce spasm?

A. A momentrry one, a sort of convulsive action, but it must be involuntary.

James Richardson, Esq.-Sworn.

Sol. Gen. Please to state to the Court and Jury what conversa→ tion passed between the Defendant and you on the fourth of August last, immediately preceding the death of Mr. Austin.

A. I was in his office some little time before the event happened; he gave me some short account of the cause of the controver sy between him and Benjamin Austin

Parker J. You need not state that.

Gore.

We wish to take the opinion of the Court on the testimo ny of this witness. I was going to observe that it would be improper to go into evidence to prove malice, which I understand from the beginning of this evidence it was meant to establish, when from the definition given of manslaughter, the crime with which the Defendant is charged, there can be no malice.

Parker J. State the facts that are meant to be proved by this witness, as I cannot pretend to judge of the tendency of the evidence until it is heard.

Gore. We understand it is meant to prove the disposition with which Mr. Selfridge went upon the Exchange.

Sol. Gen. We shall prove a conversation which passed about two minutes before he went on 'Change, and three or four before he gave the mortal wound; in which he stated to the witness that every body who knew him, knew that he was a man of not a strong habit of body; that he was a weak man, and not fit for bullying or fisticuffs; that this succeeded the statement of a controversy between the Defendant and the father of the deceased.

Att. Gen. Something further may perhaps be shown. I think he testified before the Grand Jury, that he saw an advertisement in the paper of that day, signed by Mr. Selfridge in which very abusive language was used against Mr. B. Austin, calling him a liar, coward, scoundrel, &c. that he went into the office of Mr. Selfridge and entered into a conversation with him of this nature; that Mr. Selfridge told him, he was informed that B. Austin would lick him or get some other person to do it, that he could not make his way good by fisticuffs but was prepared in another manner, that the witness went out about one o'clock, and that Mr. Selfridge followed him out, and that within two or three minutes he heard the report of a pistol, and found that Austin was killed. We offer his testimony to prove that this was not done on a sudden occasion, but that the Defendant intending to destroy the life of B. Austin, the father of the deceased, or that expecting to meet some one on the 'Change employed by him, or B. Austin himself, the defendant went out with a pistol concealed in his pocket meaning to kill some person, but shot the young man. Unless the Court is of opinion that the position of the opposite counsel be correct, that we cannot offer evidence to prove malice, because it would swell the crime into murder, but if the Court are of opinion that any thing may be shown to prove that the killing was unlawful, then we propose to show what took place before.

Gore. Then from the opening it is plain they mean to prove premeditated malice, which would be murder; if they can do this, it would aggravate the offence to murder, whereas manslaughter is without malice or premeditation. We have shown that without confounding all distinctions they cannot be ad

« AnteriorContinuar »