7 N.Y. 385, People v. Clark

Citation:7 N.Y. 385
Case Date:October 01, 1852
Court:New York Court of Appeals

Page 385

7 N.Y. 385




New York Court of Appeal

October 1, 1852

Page 386

[Copyrighted Material Omitted]

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R. H. Morris, for the prisoner, moved to dismiss the writ of error upon the following grounds:

First--That the statute was not retroactive, and was only intended to apply to cases arising after its passage, and that by the record before the court it appeared that the judgment of the supreme court had been rendered before its passage.

Second--That assuming the judgment to have been rendered subsequent to its passage, the judgment would refer back to the time of the argument, which was before its passage, and that the rights of the prisoner were to be considered as having vested at that time.

Third--That the statute was only intended to embrace judgments on demurrer and not cases of this description.

Fourth--That the law was an ex post facto law, and therefore unconstitutional and void.

In reply to the first proposition, N. B. Blunt, for the people, introduced affidavits and a certified copy of the rule for judgment in the supreme court, showing that the word February in the record was a clerical error and that in fact the judgment

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was not rendered until the sixth of May, subsequent to the passage of the law.

To the second, that no right vested in the prisoner until the judgment of the court, and that up to that period he stood a convicted felon.

To the third proposition he replied, that the statute was intended to embrace every kind of judgment except upon acquittal by a jury, and more especially to meet cases of the precise description then before the court. And to the fourth point: that it possessed none of the features of an ex post facto law, but was a mere remedial statute, giving a power of review and conferring for that purpose additional jurisdiction upon the court of last resort. The court reserved the question, and directed the argument to proceed.

N. B. Blunt, for plaintiffs in error.

I. Every intentional killing of a human being by another without justification or excuse is murder. Every intentional act is a wilful one. No specific length of time is required for deliberation. Every case must depend upon its own circum stances. The intention is the conclusion of the mind. It implies a reflection.

II. Malice prepense, malice aforethought and "premeditated design" are equivalent terms. The statute in defining murder has not altered the definition of the crime but simply the character and quality of the proof (Revisers' notes, 3 R. S. 2d ed. 809; People v. Enoch, 13 Wend. 159; People v. White, 24 Wend. 580). Thus to constitute murder under the first subdivision of the statute, express malice must be proved; there must be an intention to kill. The implied malice of the common law where the intention was to do great bodily harm but not to kill, and death actually ensued, now is not sufficient. The question is one purely of intent. If an intent to kill is made out the killing is murder. If it is not made out it is manslaughter.

III. Where the purpose to kill is found, the length of time between the formation of the design and its execution is immaterial.

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The act is murder ( Resp v. Mulatto Bob, 4 Dallas, 145; Wharton's Cr. Law, 237, 281, 288 to 290).

R. H. Morris, for the prisoner.

I. The court erred in charging the jury "that if they believed that the killing was produced by the prisoner with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder." The statute declares murder to be "the killing of a human being without the authority of law, when from a premeditated design to effect the death of the person killed or of any human being." And the common law definition is "when one with a sedate, deliberate mind and formed design doth kill another" (4Black. Com. 199; 19 Wend. 569, People v. Rector).

II. The court erred in refusing to charge as requested by the counsel of the prisoner, viz:

"If Clark had reason to believe that undue and improper assaults were being committed upon his friend (Brown), he had a right to interfere for his (Brown's) protection; and if in his defense he exceeded the power he...

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