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 was justified in using he would not be guilty of murder, but of one of the degrees of manslaughter" (2 R. S. 660, § 3, subdv. 3).

III. The court erred in refusing to charge as the counsel for the prisoner requested, viz:

"The weapon used is not evidence of the premeditated design."



The defendant was convicted of a murder in the New York oyer and terminer, and sentenced to be hanged on the 21st day of November 1851.At his trial a bill of exceptions was taken and the case was carried by writ of error to the supreme court, where in May term, 1852, the judgment was reversed and a new trial ordered. Upon this judgment of reversal a writ of error has been brought in the name of the people to this court; and we are moved to dismiss the writ upon several grounds.

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The first ground is, that by the record the judgment of reversal appears to have been rendered on the first Monday of February 1852, while the act under which the writ of error must be sustained, if sustained at all, was not passed until March 22, 1852; and that according to the rule established in The People v. Carnal, at the June term, 1852, the statute in question does not sustain a writ of error upon a judgment rendered before its passage. It appears, however, outside of the record by affidavits, that the judgment was in point on fact rendered in May term, and after the passage of the act. We entertain no doubt whatever that upon a question of this sort we are entirely at liberty and are bound to look out of the record to ascertain the true time when the judgment was rendered. Upon this ground we ought not to dismiss the writ. It is also contended that the judgment of reversal in this case does not come within the description contained in the act, of those judgments which are to be reviewed according to its provisions The act says: "Any judgment rendered in favor of any defendant upon any indictment for any criminal offence (except where such defendant shall have been acquitted by a jury), may be reviewed on writ of error on behalf of the people, and the court of appeals shall have full power to review by writ of error in behalf of the people any such judgment rendered in the supreme court in favor of any defendant charged with a criminal offence." That the terms "upon any indictment," do not limit the description to judgments not upon verdict is obvious from the exception which immediately follows, and which would be wholly unnecessary unless the preceding words of description were broad enough to cover judgments upon verdicts as well as upon demurrer. The clause is therefore to be...

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