103 N.Y. 360, People v. Beckwith

Citation:103 N.Y. 360
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OSCAR F. BECKWITH, Appellant.
Case Date:October 26, 1886
Court:New York Court of Appeals
 
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103 N.Y. 360

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

OSCAR F. BECKWITH, Appellant.

New York Court of Appeal

October 26, 1886

Argued October 6, 1886.

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COUNSEL

L. F. Longley for appellant. The trial court erred in refusing to set aside, on defendant's motion, the juror, Abner A. New, after he was sworn and before evidence had been

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given in the case. (Code of Crim. Pro., § 371; Livermore v. Bainbridge, 56 N.Y. 72; Jeffries v. McKillop, etc., L. Co., 48 How. Pr. 122.)Where, as in this case, there is evidence of an altercation and attack by the deceased upon the defendant, previous expressions of ill-will on the part of the defendant, even if amounting to threats, will not alone furnish evidence that the homicide was committed in pursuance of a deliberate purpose. There must be some act of defendant indicating his purpose preceding the killing. (Hovey's Case, 29 Hun, 382; Sindram's Case, 88 N.Y. 196; Majone's Case, 91 id. 211; Cornetti's Case, 92 id. 85; Leighton's Case, 10 Abb. N. C. 261; 2 Starkie's Ev. 948.) Under the statute classifying homicide, mere proof that one has been deprived of life by the act of another fails to show the class to which the homicide belongs. ( Stokes v. People, 53 N.Y. 164; Roscoe's Crim. Ev. 964, 965; People v. Sullivan, 7 N.Y. 400; Russ. on Crimes, 524-5; 2 Starkie's Ev. 947, 948.) A homicide ending a mutual combat commenced by the deceased, and not sought or brought on by the defendant, for the purpose of killing, or done with an instrument previously provided for the purpose, should not be adjudged murder in the first degree. (4 Bl. Com. 191; 1 Russ. on Crimes, 513, 515, 521, 526; Roscoe's Crim. Ev. 640.) There is no evidence of any time for passion to cool. (Roscoe's Crim. Ev. 685, 714; Leighton's Case, 88 N.Y. 117; Conroy's Case, 97 id. 62; 1 Russ. on Crimes, 585.) There is no legal evidence of 'the deliberate and premeditated design' required in the definition of murder in the first degree, and which is an element in the people's case necessary to be established affirmatively. (Penal Code, § 183; Russ. on Crimes, 662-3; Roscoe's Crim. Ev. 710.) If Vandercook was not dead when the blow with the axe was struck, then the case comes clearly within the second and not the first of the two degrees of murder. (Penal Code, § 184; People v. Conroy, 33 Hun, 119, 127.)

A. B. Gardenier for respondent. If a fatal blow is struck in self-defense the homicide is not justifiable unless the prisoner

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first retreated as far as possible. ( People v. Harper, Edm. Sel. Cas. 180; Shorter v. People, 2 N.Y. 193.) A man is presumed to intend the natural consequences of his act. ( Foster v. People, 50 N.Y. 609; Phillips' Ev. 632; People v. Conroy, 2 N.Y. Crim. 582; Thurber v. Harlem R. R. Co., 60 N.Y. 331; Morrison v. Erie R. Co., 56 id. 308.) The finding of the jury that the offense was murder in the first degree is sustained by the evidence of the defendant himself. ( People v. Clark, 7 N.Y. 393; Leighton v. People, 88 id. 117; People v. Majorie, 91 id. 211...

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