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The People v. David Sherry.

and the prisoner, both of whom were laboring men, both common drunkards, and both then intoxicated, ran against each other in the street. A scuffle ensued between them, which resulted in the deceased being thrown or knocked down, and prisoner was led away by some of the bystanders. He had not gone far before he broke away from those who were with him, and rushed back to the deceased, who was lying on the sidewalk on his back, and with both feet jumped on him with great violence, until he was taken off and put into the custody of the police. The deceased died in a few hours from congestion of the brain, the severest of his bruises. having been on his head and breast.

When told that he would kill the man, the prisoner replied he hoped he had; and when asked why he had done it, he said it was "because he was a damned Englishman."

The Judge charged the jury that the main question was, whether the offense was murder or manslaughter in the second degree. Murder was effecting death with intention to kill. Manslaughter in the second degree was effecting death in a cruel and unusual manner, without an intention to kill.

The only facts in the case from which the jury might infer an intention to kill, was the returning to the deceased after he was prostrate, and then perpetrating the violence, and his having twice said he hoped he had killed him, but whether that was merely the ebullition of a drunken man in his passion, or the utterance of a premeditated design to effect death, was for the jury to consider, but it would not do for the jury to convict for murder unless they were clearly satisfied there was such premeditated design.

The verdict was, guilty of manslaughter in the second degree.

The People v. John S. Austin.

NEW YORK OYER AND TERMINER.

FEBRUARY, 1849.

Before EDMONDS, Justice, and two aldermen.

THE PEOPLE V. JOHN S. AUSTIN.

Where an indictment contains several counts charging the same offense in different forms, the prosecution will not be compelled to elect on which count they ask a conviction. Such election will be directed only when the several counts charge separate and distinct offenses.

It is not collateral, but relevant to the main issue, to inquire into the motives which influence a witness in giving his testimony, and a party examining a witness in regard to them, is not bound by his answers, but may contradict him.

A sufficient foundation is laid for such contradiction if the attention of the witness has been directed to the time, place and circumstances attending an alleged statement made by him, and the name of the person to whom he may have made it need not be mentioned if it was not necessary to enable him to know to what remark his attention was directed. The statute allowing the relative of a person killed to recover damages therefor, it will be no impeachment of a witness, that he, as father of the deceased, had attempted by negotiation to recover compensation from the author of the death.

Whether a homicide was justifiable under the statute, is to be determined by the jury from their conviction whether there was reasonable ground for the accused to apprehend great personal injury, and not from the fact that the accused did in fact entertain such apprehension.

Whether a homicide is excusable or not, must depend in a great measure

upon the nature of the weapon used, and the manner in which it was used. Killing by intentionally firing a pistol into a crowd, cannot be said to be by accident or misfortune.

To constitute murder there must be an intention to kill, in all cases except where the perpetrator is at the moment engaged in committing a felony. Any killing, without a design to effect death, where it is not justifiable or excusable, is manslaughter only.

Implied malice, constituting killing without an intention to kill or murder, is not recognized in our law.

Recent provocation, and the fact that the passions have not had time to cool, do not, under our statute, mitigate a killing with a design to effect death from murder to manslaughter. Such killing is murder, whether the

The People v. John S. Austin.

design to effect death was formed on the instant, or had been previously entertained.

The intention to take life constitutes, under our statute, the main distinction between murder and manslaughter.

THE prisoner was indicted with one Nesbit for the murder of Timothy Shea on the 28th September, 1848, by firing a pistol at him.

The indictment contained two counts. One charging that the pistol was fired by Austin by the aid and procurement of Nesbit, and the other that the firing was by Nesbit, and that Austin aided and encouraged.

After the testimony for the prosecution closed, which tended to show that Austin had fired the pistol,

J. Graham, for the defense, moved that the prosecution be put to their election on which count they intended to ask the conviction of the prisoner. He insisted that the prosecution having now got in all its testimony, was able definitely to inform the prisoner of the precise nature of the charge of which they claimed him to be guilty, and that it was his right to know, so as to determine how to shape his defense.

H. G. Wheaton, who appeared instead of the attorneygeneral, insisted that the right to compel an election existed only when the indictment contained distinct charges, and not where, as in this case, it contained only charges connected with the same transaction.

Edmonds, J.: That is undoubtedly the true rule. Where the two offenses charged form parts of one transaction, yet are of such a nature that the defendant may be found guilty of both, the prosecutor will not be called on to elect upon. which charge he will proceed, for in such case the joinder of counts cannot prejudice the defendant, which is the only ground on which this application to the discretion of the judge can be founded. The right of election is confined to cases where the indictment contains charges which are actually

The People v. John S. Austin.

distinct, and grow out of different transactions. Thus, the prosecution will not be compelled to elect on an indictment charging both larceny and receiving stolen goods, where it appears by the indictment that the charges relate to the same transaction, modified to meet the proof, nor where several counts are inserted in an indictment solely for the purpose of meeting the evidence as it may transpire on the trial, the charges being substantially for the same offense. Such is this case, and the impropriety of compelling an election here is very apparent. If the prosecution should elect to go on the count that charges Austin with having fired the pistol, and it should turn out, on the trial, that it was, in fact, fired by Nesbit, but by the order and procurement of Austin, Austin would be guilty of the murder, yet could not be convicted, because the prosecutor had been compelled to elect, and, in a necessary ignorance of the facts, had elected the wrong count.

The prisoner cannot be embarrassed by being tried on both counts, while the prosecution may be much embarrassed, and, indeed, entirely thwarted, by being compelled to elect.

The motion must be denied.

John Shea, the father of the deceased, was examined as a witness on the part of the prosecution, and on his cross-examination was asked whether he had not offered to the prisoner, or some of his friends, to leave the State and refuse to testify in the case, for a suitable remuneration? To which he had answered "Not exactly that, but "-and was then proceeding to detail what he had said in that regard, when he was stopped by the prisoner's counsel, and told that they had got all the answer they wanted.

On his reëxamination, by the prosecution, he was asked what it was he had said in that regard.

D. Graham, objected.

Edmonds, J.: But you have yourselves introduced the subject, and have obtained only part of an answer. The

The People v. John S. Austin.

whole of it ought to be got out. Besides, you have an answer from which you may call on the jury to infer corruption on the part of the witness, while the matter may be susceptible of a perfect explanation. It will be right to have it all.

Being examined on that point, the witness detailed two interviews with one who acted as an agent of the prisoner in conducting his defense, in which, as he alleged, an offer had been made to him of some money if he would remove from the State.

After the prisoner had entered upon his defense, his counsel offered to prove several acts of this witness, going to show a desire to obtain from the prisoner pecuniary satisfaction for the injury which he had received by the death of his son, and what had taken place between him and the prisoner's agent in that respect.

Wheaton, for the prosecution, objected that the examination of the witness on this subject had been to a matter entirely collateral to the main issue, and that the defense were therefore bound by his answers, and could not contradict them.

D. Graham, for the prisoner, contended, first, that it was not collateral matter, so that the defense was bound by the answer; and, second, that the testimony was proper, independent of what the witness had said on his examination, as it might tend to show him governed by corrupt or revengeful feelings; and it would enable the jury to judge what credit to give him, when they should learn that he had attempted to make money out of a transaction which had resulted in the death of his son.

Wheaton, in reply, said that since our statute of 1847, which had given to the relatives of a person killed under circumstances which would constitute a trespass, a right to recover damages for the injury sustained by the loss of the 8-vol. 2.

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