The People v. James Sullivan.

the prisoner's room and remonstrated with him. The prisoner said they were his own things and he had a right to do as he pleased with them. Smith then said he must stop, for it was a shame to be making such a noise on Sunday, and he entered the room and seized hold of the prisoner. A scuffle ensued, in the course of which the prisoner's wife, and a female who lived in her family, joined in the attack on Smith, got the mastery of him, and beat him until others interfered and parted them. Smith then went down stairs, and he was seen to be bloody, and his clothes very disordered. He went up stairs toward his own apartment, apparently to fix his clothes, and met the prisoner at the head of the stairs. He almost immediately cried out he was stabbed, and turned and ran down stairs. He bled to death in about ten minutes, having received three stabs.

The prisoner concealed himself in his room, where he was. arrested, no one being in the room but himself. On searching the room some twenty or thirty pocket-knives were found in a trunk, which was easy of access, and a bloody rag was found, as if it had been used to wipe off blood from a knife. The prisoner said he had used it to wipe off blood from it, and on being asked how he could kill the man, answered, “you would have done it, too, under like circumstances."

His counsel insisted the offense was only manslaughter, because there was no premeditated design to kill, but only a killing in an affray, in the heat of passion.

The Judge charged the jury as to the design to effect death, the same as he did at the same term in Clark's case.

The prisoner was convicted of murder.

September 27, 1851, the prisoner was put to the bar for sentence, with three others convicted of homicide.

The district attorney rose and said: "It is now my duty to call for the judgment of the court upon James Sullivan."

The People v. James Sullivan.

SENTENCE OF DEATH UPON SULLIVAN.

The judge, addressing Sullivan, said: "And now, the last act in the painful spectacle which is this day presented, is upon us. It is, indeed, a melancholy spectacle. Eight persons have been arraigned at this term for murder. Five of you have been convicted, and upon three of you the last punishment known to our law is denounced. All of you owe your crimes to your indulgence in the ruinous habit of intoxication. All of you are foreigners, who have sought our soil, that you might enjoy the benefit of our free institutions; and in return for the protection which our laws so freely offer to you, you violate them without scruple, and apparently without remorse, even unto the shedding of blood. The preservation of peace, and good order among us, and the security of human life, admonish us, in a peculiar manner, under such circumstances, sternly and rigidly to enforce the law upon you. You, Sullivan, in particular, can entertain no well grounded hope of any remission of your sentence. In your fit of intoxication and anger, without provocation, you assaulted your wife, and drove her from your presence. You endangered your children, and disturbed the peace and quiet of others, whose misfortune it was to live near you. Your victim interfered no farther than was necessary, or than he had a right to do, to put a stop to your disorderly and unlawful behavior. You, who were alone to blame, thus far - your wife and your female domestic, who had alike fled with your children to others for protection against your violence-immediately assaulted him, and it was with difficulty, and only by timely assistance, that he was able to escape your united attack. You then armed yourself, and waylaid him; and when he approached you, for aught you knew, with a most peaceful purpose, you stabbed him, not once only, but twice and thrice; and you fiinished the picture by attempting, on your trial, to fasten the consequences of your crime upon your wife, that you might save the life which has been forfeited to the offended laws of the country. Under these circumstances, I bid you prepare for the death which speedily awaits you, and that you well and profitably use the time that may be left you. The sentence of the court is, that on Friday, the 21st day of November next, you be

The People v. Joseph Clark and James Sullivan.

hung by the neck until you be dead, and may God have mercy upon you.

The prisoner fervently responded, Amen.

The sheriff stood beside Sullivan, and the death warrant, as in the other cases, was read and handed to him.

The prisoner's wife, who was present with an infant in her arms, wept audibly during the passing of the sentence, and the solemn ceremony of the reading of the death warrant.

SUPREME COURT-IN CHAMBERS.

NOVEMBER, 19, 1851.

Before EDMONDS, Justice.

THE PEOPLE V. JOSEPH CLARK,

THE PEOPLE V. JAMES SULLIVAN.

The effect and extent of the changes in the law of homicide, made by the Revised Statutes, considered so far as relates to the difference between murder and manslaughter.

Where there is doubt as to the construction of the statute defining a crime, and the same has never been passed upon by the court of last resort, it is proper, even in a capital case, to allow a writ of error with a stay of exe cution, until the question can be reviewed.

THE Counsel for the prisoners, in both these cases, having made the same exception to the charge, in both cases applied to Mr. Justice EDMONDS for allowance of writs of error, and a stay of proceedings until the charge could be reviewed in the courts above.

On that application the judge delivered the following opinion:

Upon the bills of exceptions in these cases presented to me,

H

The People v. Joseph Clark and James Sullivan.

this day, I am asked to allow writs of error, with a stay of proceedings upon the execution of the sentences pronounced.

The question raised by the bills of exceptions is a grave one. It involves a construction of the Revised Statutes, and has never been authoritatively adjudged by our highest courts.

It is this whether the intention to kill, which forms an element of the crime of murder under our Revised Statutes, must be a design previously formed, or whether it is enough that it be formed on the instant the homicide is perpetrated? The Revised Statutes made very important alterations in the pre-existing law of homicide.

Before their enactment, a class of cases were held to be murder, where there was manifestly no design to kill; like the case of the school-master, who whipped his pupil so that he died, or that of the chimney-sweeper, who in extricating his boy from a chimney, did it so cruelly as to cause his death. The law implied malice aforethought, or an intent to kill.

On the other hand, there was a class of cases, where though there was an intent to kill, it was held not to be murder, but manslaughter, such as sudden affrays, in the heat of passion, and on sufficient provocation.

The Revised Statutes adopted an intention to kill, as the chief line of demarkation between murder and manslaughter, and the first class of cases I have mentioned, where there is no intention to kill, have been regarded as mitigated to manslaughter, and the last class of cases, as aggravated to murder.

In the case of The People v. Austin, I had, in a carefully considered opinion held, that in all cases (except one class which is not involved in these cases, and was not in that) there must be an intention to kill, to constitute the crime of murder, and that where there was such an intention, whether formed on the instant, or previously entertained, it was murder. I so charged the juries in the cases now under consideration.

If I had any doubt upon the question, I would have reserved it for the consideration of my brethren, but I had none, because I could find in the statutes no resting place for the killing of a human being, with an intention to kill, even 36-vol. 2.

The People v. Joseph Clark and James Sullivan.

though on a sudden impulse, except under the definition of murder. The counsel for the prisoners, who was assigned as such by the court, and who has himself occupied a prominent position in the administration of criminal justice, entertains doubts of the correctness of my ruling, and desires to obtain the decision of the higher courts.

In order to do that now, the execution of the sentences must be stayed. I ought not to refuse it, unless I am disposed to give to my decisions a finality, and an authority that does not properly belong to them. If either the Supreme Court in bank, or the Court of Appeals should differ with me in opinion, the consequences would be irremediable.

As, then, the question involved is a very grave one, and has never yet been passed upon by either of those courts, or by any tribunal higher than the Oyer and Terminer, and as it is raised very fairly and legitimately in these cases, it seems to be one that ought to be definitely settled, and by the highest authority in the state.

The same question was argued before the court at its last term, in the case of Carnel, is now under advisement, and will soon be determined.

These considerations have moved me to allow the writs of error, and to order the proceedings to be stayed until the decision thereon.