Manuel v. People , 1867 N.Y. App. Div. LEXIS 35 ( 1867 )

By the Court, Ingraham, J.

I see no error in the charge of the judge.' It was undoubtedly strong against the prisoner, but I see nothing which would justify a revefsal on that ground. The objection that he did. not tell the jury the various degrees of murder in the second degree, and of manslaughter, can hardly be called error. He did tell them, if they had doubt as to which degree of murder he was guilty of, they should convict of the lesser degree, and if they had doubts of the intent to take life, they could convict of one of the lesser degrees. If the jury had entertained such doubts, they would certainly have convicted of some other crime than that of murder in the first degree, and .if necessary would have called for further, instructions on that point.

But while I see no error on the part of the judge who presided at the trial, I cannot resist the conclusion, from an attentive examination of the evidence, that under any view to be taken of the case, the homicide was only one of killing in the heat of passion, without a design to effect death, by a dangerous weapon, and if so was only manslaughter in the third degree. Perhaps, if the definition of this offense had been given to the jury, they would have more clearly seen the distinction between that offense and murder. It was not claimed on the part of the prosecution that there was any premeditation, and there was no evidence to show any intent to take life, except it be inferred from the weapon úsed, and the nature of the wounds. When we consider the facts as detailed to us, viz. the possibility of blows struck by the deceased on the prisoner’s head with a hammer, leaving wounds down to a time shortly before the trial; the fact, that the prisoner had no weapon of his own ; the evident want of knowledge on the part of all when they left the cellar or shop, that death would ensue from the wounds, it is very difficult to say that the jury have not erred in convicting of murder in the first degree.

[New York General Term, April 1, 1867.

■ We are required, in cases of this kind, to order a new trial, if the court is satisfied that the verdict is against evidence, or against law, or that justice requires a new trial.

I cannot say that I am satisfied with this verdict. I think there is such a want of proof of intent, and especially when I connect with it the character of the prisoner, that I cannot avoid the conclusion that the whole was an affray arising out of a sudden quarrel, without previous provocation, and that a conviction of murder in the first degree was not warranted by the evidence.

Under such a view of the case, it is the duty of the court to order a new trial.

Judgment reversed, and new trial ordered, in the sessions.

Leonard, Ingraham and Sutherland, Justices.]