Ruloff's Case
Opinion
By the Court.
If you [the prisoner] were there, why then I think that everything that transpired upon that occasion, and every material of evidence that is found there, would be admissible here by way of illustrating the character of the transaction. If the people fail in the subsequent evidence to make the connecting link, or if the evidence shall be so light and unreliable as not to be a sufficient foundation for a verdict, the jury will disregard it. They must find the prisoner guilty beyond a reasonable doubt. All that is to be determined in the ultimate disposition of the case under the charge of the court to the jury. If they fail in showing this connecting link, the court will give you the benefit of it in the final result.
Hopkins, to establish the identity of the drowned men with certain persons named Dexter, alias Davenport, and Jarvis, asked a witness, after he had testified to having seen Davenport on a previous occasion—
Have you seen, through the aid of a glass, a picture taken of the drowned men ?
[Objected to.]
Hoplcins offered to prove that one of these men was the same Davenport who was afterwards drowned, and whose likeness was shown.
[Objected to, on the ground,—
First. That it was premature ;
Second. That it was immaterial, irrelevant, and incompetent.
[252] Third. That the likeness was the substitution of one fact for another, and not allowable in criminal practice.
The Court.—I don’t know ; they could not keep the dead men above ground.
Fourth. That the witness would not be speaking from facts which had fallen directly under his own observation.
Fifth. That his testimony would be mere matter of opinion; and that these photographs were not taken until after these bodies had lain in the water two days and a night, and not until the next day.following the time they were taken out of the water, and had become swollen and bloated and disfigured.]
Tibe Court.—I think the evidence is admissible.
The coroner who held the" inquest upon the bodies of drowned men, and who, on that inquest, had examined the prisoner, was called as a witness, and stated the examination of the prisoner. The coroner was then asked as follows: “ Did you say to the prisoner that if he would tell you any man within the State that knew of him (the prisoner), and would explain his whereabouts, you would send after that man and bring him before the coroner, at the expense of the county.
[Objected to as immaterial.]
The Court.—I do not think it immaterial, and it is part of the transaction that occurred there at that time.
[Objection overruled, exception taken.]
Q. “ Did he say that he had no money ? ”
“Yes, he said he had not money enough to carry him through.”
A police ofiicer was called- who testified that he went to Ruloff’s last place of residence in the city of Yew York, and learned that Ruloff had been absent from there about six weeks ; that he searched the house and Ruloff’s apartments, and removed the contents of a [253] secretary or desk there found. To the question what he found in this secretary, he replied:
“I found two or three skeleton keys, one or two lock picks, a racket drill for boring, with places to put in bits, a portion of a saw used for cutting iron, a dark lantern and a vice.”
[Objected to.]
The Court.—I think I did say before that some of these articles, were scarcely admissible, but I have a little doubt as to whether I decided rightly at that time; of course, some of the instruments were plainly admissible, for instance, some of the bits and braces which were fonnd there, and which were similar to those found upon the person of one of the dead men; but part of them being in on evidence, I am rather inclined to think the whole may be.
[Objection overruled, exception taken.]
The same objection was afterwards taken to the introduction of certain newspaper slips found in the same place.
Drs. Bassett and Thayer, who had been called and examined for the people and had been cross-examined, were, after the taking of other testimony, called by the prisoner’s counsel, but did not respond or come forward, whereupon the counsel for the prisoner moved that the evidence of these witnesses be stricken from the case.
The Court.—What do you wish to prove by these witnesses %
Becker.—That the hair of this murdered man was not scorched and burnt, and that therefore the pistol could not have been held close to his head.
The Court.—The motion cannot be granted. In the first place, these witnesses have not been examined as to this fact when on the stand. In the next, pains have not been taken to procure their attendance at this time, and they had probable reason to suppose they were not [254] wanted further. In the next place, the evidence tends to show already that the hair of this young man (Mirrick) was not scorched. Ido not see that the evidence of the physicians would add anything to the strength of the uncontradicted testimony upon that subject, and therefore, them testimony is immaterial.
Beefier.—Will the prosecution concede that ?
The Court.—It has been proved by one witness, I think, Mr. Halbert, that he did not see anything like scorched hair. I deem the evidence offered immaterial, and, therefore, the motion to strike out the former evidence of these men is denied.
[Exception taken.]
Beefier here moved for an acquittal, since it appeared that the killing of Mirrick was not murder or manslaughter as charged in the indictment, but at most only a special form of manslaughter in the second degree, under the statute;—“Every person who shall unnecessarily kill another, either—
1. While resisting an attempt by such other person to commit any felony, or to do any other unlawful act; or,
2. After such attempt shall have failed ;
Shall be deemed guilty of manslaughter in the second degree” (3 Rev. Stat., 5 ed., 661, § 11).
And because no count in the indictment charged an unnecessary killing, under the statute, or upon which the trial could proceed.
The court decided that upon the indictment the prisoner could be lawfully convicted of manslaughter under the statute referred to, and denied the motion.
To identify Dexter, alias Davenport, a photograph was produced. The photographer testified as follows :
Question.—“These are just as they were taken out and set up against the barn % ”
“Yes, sir.”
‘6 Are they correct likenesses ? ”
[255] “ They are perfectly correct as the bodies were at the time, except that the colors may not be exactly like they were at that time ; but otherwise they are as perfect as a machine will make them.”
The Court.—“It makes perfect likenesses?”
“ It is considered so, sir.”
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By the Court.
If you [the prisoner] were there, why then I think that everything that transpired upon that occasion, and every material of evidence that is found there, would be admissible here by way of illustrating the character of the transaction. If the people fail in the subsequent evidence to make the connecting link, or if the evidence shall be so light and unreliable as not to be a sufficient foundation for a verdict, the jury will disregard it. They must find the prisoner guilty beyond a reasonable doubt. All that is to be determined in the ultimate disposition of the case under the charge of the court to the jury. If they fail in showing this connecting link, the court will give you the benefit of it in the final result.
Hopkins, to establish the identity of the drowned men with certain persons named Dexter, alias Davenport, and Jarvis, asked a witness, after he had testified to having seen Davenport on a previous occasion—
Have you seen, through the aid of a glass, a picture taken of the drowned men ?
[Objected to.]
Hoplcins offered to prove that one of these men was the same Davenport who was afterwards drowned, and whose likeness was shown.
[Objected to, on the ground,—
First. That it was premature ;
Second. That it was immaterial, irrelevant, and incompetent.
[252] Third. That the likeness was the substitution of one fact for another, and not allowable in criminal practice.
The Court.—I don’t know ; they could not keep the dead men above ground.
Fourth. That the witness would not be speaking from facts which had fallen directly under his own observation.
Fifth. That his testimony would be mere matter of opinion; and that these photographs were not taken until after these bodies had lain in the water two days and a night, and not until the next day.following the time they were taken out of the water, and had become swollen and bloated and disfigured.]
Tibe Court.—I think the evidence is admissible.
The coroner who held the" inquest upon the bodies of drowned men, and who, on that inquest, had examined the prisoner, was called as a witness, and stated the examination of the prisoner. The coroner was then asked as follows: “ Did you say to the prisoner that if he would tell you any man within the State that knew of him (the prisoner), and would explain his whereabouts, you would send after that man and bring him before the coroner, at the expense of the county.
[Objected to as immaterial.]
The Court.—I do not think it immaterial, and it is part of the transaction that occurred there at that time.
[Objection overruled, exception taken.]
Q. “ Did he say that he had no money ? ”
“Yes, he said he had not money enough to carry him through.”
A police ofiicer was called- who testified that he went to Ruloff’s last place of residence in the city of Yew York, and learned that Ruloff had been absent from there about six weeks ; that he searched the house and Ruloff’s apartments, and removed the contents of a [253] secretary or desk there found. To the question what he found in this secretary, he replied:
“I found two or three skeleton keys, one or two lock picks, a racket drill for boring, with places to put in bits, a portion of a saw used for cutting iron, a dark lantern and a vice.”
[Objected to.]
The Court.—I think I did say before that some of these articles, were scarcely admissible, but I have a little doubt as to whether I decided rightly at that time; of course, some of the instruments were plainly admissible, for instance, some of the bits and braces which were fonnd there, and which were similar to those found upon the person of one of the dead men; but part of them being in on evidence, I am rather inclined to think the whole may be.
[Objection overruled, exception taken.]
The same objection was afterwards taken to the introduction of certain newspaper slips found in the same place.
Drs. Bassett and Thayer, who had been called and examined for the people and had been cross-examined, were, after the taking of other testimony, called by the prisoner’s counsel, but did not respond or come forward, whereupon the counsel for the prisoner moved that the evidence of these witnesses be stricken from the case.
The Court.—What do you wish to prove by these witnesses %
Becker.—That the hair of this murdered man was not scorched and burnt, and that therefore the pistol could not have been held close to his head.
The Court.—The motion cannot be granted. In the first place, these witnesses have not been examined as to this fact when on the stand. In the next, pains have not been taken to procure their attendance at this time, and they had probable reason to suppose they were not [254] wanted further. In the next place, the evidence tends to show already that the hair of this young man (Mirrick) was not scorched. Ido not see that the evidence of the physicians would add anything to the strength of the uncontradicted testimony upon that subject, and therefore, them testimony is immaterial.
Beefier.—Will the prosecution concede that ?
The Court.—It has been proved by one witness, I think, Mr. Halbert, that he did not see anything like scorched hair. I deem the evidence offered immaterial, and, therefore, the motion to strike out the former evidence of these men is denied.
[Exception taken.]
Beefier here moved for an acquittal, since it appeared that the killing of Mirrick was not murder or manslaughter as charged in the indictment, but at most only a special form of manslaughter in the second degree, under the statute;—“Every person who shall unnecessarily kill another, either—
1. While resisting an attempt by such other person to commit any felony, or to do any other unlawful act; or,
2. After such attempt shall have failed ;
Shall be deemed guilty of manslaughter in the second degree” (3 Rev. Stat., 5 ed., 661, § 11).
And because no count in the indictment charged an unnecessary killing, under the statute, or upon which the trial could proceed.
The court decided that upon the indictment the prisoner could be lawfully convicted of manslaughter under the statute referred to, and denied the motion.
To identify Dexter, alias Davenport, a photograph was produced. The photographer testified as follows :
Question.—“These are just as they were taken out and set up against the barn % ”
“Yes, sir.”
‘6 Are they correct likenesses ? ”
[255] “ They are perfectly correct as the bodies were at the time, except that the colors may not be exactly like they were at that time ; but otherwise they are as perfect as a machine will make them.”
The Court.—“It makes perfect likenesses?”
“ It is considered so, sir.”
Cross-examination.—“ Were the faces and heads of these dead men badly bruised ? ”
“They had that appearance, but I did not examine them close.”
“ Do you think they had the appearance of having been in water some time ? ”
“Yes, sir.”
“Was not the clothing on these persons wet ? ”
“Yes, sir.”
“Did not their faces have a bloated and distorted appearance ? ”
“I think they were bloated and discolored in places.”
“They did not look natural ? ”
“ They looked as natural as could be expected under the circumstances. ’ ’
“ I asked whether they looked natural ? ”
“I never saw them previous to that time, and I could not tell you.”
“Did they have the natural appearance of dead persons?”
“ They resembled dead persons very closely, I should judge.”
“Didn’t they show exposure of several days ? ”
“ I don’t think they showed they had been exposed for days.”
“ Would it not change the countenance of a dead person to lie in water three or four days ? ”
“ I suppose it would cause them to bloat, and any one thus bloated would look unnatural, but still would look like themselves.”
[256] “ You can tell who a man is who is bloated, for all that?”
“I think they were put upon some boards by the undertakers.”
The Court.—“ Was it the same day they were taken from the river ? ”
“Yes, sir.”
“ How long after they were taken from the vrater ? ” “ I took them about nine or ten o’clock; I think they were taken out some time near six o’ clock in the morning—I heard so; I did not know that.”
“ Where had they been lying from the time they were taken from the water till you commenced taking the photographs ? ”
“I was down, I think, about seven o’clock, and they were at the building at Mr. Traver’s; I did not get a chance to see them at all; I don’t know how much they had bloated ; I undertook to look in but couldn’t do it.”
“ Were they stiff? ”
“ I do not know how stiff they were; they raised them up.”
“Why didn’t you put them in a sitting position ? ”
“ I thought it was quite sufficient to take them.”
“Are the faces of these two persons lying at this angle as natural as they would be if they were sitting or standing?”
“ If they were alive and sitting in the proper position you would get a better likeness of them, sir.”
“You would get a better likeness if they were perpendicular?”
“The angle at which they were lying is not as favorable.”
“ It is not as favorable for you to take quite as natural a picture?”
“No, sir.”
The Court.—“ How were these taken ?-”'
[257] “ They were arranged on boards from the ground at first, and they proposed to set them up, and they tried it; but I noticed they slipped off, and they could not doit.”
“Do you think they sat at an angle of about forty-five degrees 2 ”
“ I don’t know, sir.”
“ Is that your impression 2 ”
“Yes, sir.”
“Was it a sun-shiny day 2 ”
“Yes, sir.”
“ How far was your camera from the bodies 2 ’
“ As near as I can judge, I should think it was within eight or nine feet.”
“ With a da guerrean camera can you take a photograph in the open air, with the light entirely around it, as well as in a room 2 ”
“I think not.”
“ In your room you usually have the sunlight peculiarly arranged by which the light is brought to bear upon a human face 2 ”
“Yes, sir; we arrange the light to produce lights and shadows.”
“ The more the light is concentrated upon the face, the better the photograph 2”
“I think not, sir.”
“ Don’t you usually have the person photographed sit back in the shade 2 ”
“This is not essential, since we can shade the lens ; we usually have a cloth thrown over the lens, this simply to give us a better light to look through the lens.”
“ If you were to take the photograph of two persons, and should take one in the room, and the other one in the open air, would you consider one as naturally taken as the other 2”
“ I should not consider it so, sir.”
[258] “You also say you would take a more natural picture if the figure was erect 2 ’ ’
“ Yes, sir; if the figure was erect.”
“ When the person lies at an angle, don’t you take the face at an angle 2 ”
“Yes, sir; naturally.”
The Court.—That is very obvious.
“ Why didn’t you turn these bodies upon their sides and take them in a natural position 2”
“ I didn’t think of it; if I had done so the features would have been more prominent.”
“Would you get a more correct picture in that way 2 ”
“ The features would have been more prominent.”
• “ Would they not have been more correctly taken 2 ”
“If the features were more prominent it would, make them more natural.”
“The expression would be more natural. While there was no expression to this at all 2 ”
“ The faces were swollen 2 ”
“ They had that appearance.”
“Were the faces discolored 2 ”
“Yes, sir.”
“ What was the color 2 ”
“Black and blue; there were bruises on their faces.”
“ Where there were no bruises was it discolored 2 ”
“T couldn’t say it was.”
“ Was it the natural color 2 ”
“It was the natural color under the circumstances.”
“Wasn’t the whole face, aside from the bruises, discolored by the action of the water, and light and heat 2”
“ Certainly it was ; they were dead.”
“Had they been personal friends would you have [259] been able to recognize them as readily as if they had not been lying in the water at the time ? ”
“If they had been personal friends, I think I should ; of course, they would not have looked as natural to me when I first laid my eye on them, but I think I should have known them.”
“The discoloration is not reproduced on the plate?”
“No sir ; we do not draw colors at all; we take light and shade, that is all we do.”
Direct examination resumed: “Theywere taken at the west side of the barn, they were at the north side of the livery stable, that is, the west side of the building? ”
“ Yes sir.”
Cross-examination: “Do you say these pictures are as natural, and could be as readily recognized as if standing, or sitting perfectly erect, or standing in this way?”
“Yes, sir ; to me, I think, in this posture and under these circumstances ; and I recognize them just as quick, I think.”
“ They would be just as natural ? ”
“Probably if I was acquainted with any of the circumstances, I should recognize them.”
The Court.—“Was it a correct likeness, for persons in the position they occupied?”
“Yes, sir.”
“If they were sitting up, they would be horizontal to the instrument ? ”
“Yes sir.”
“If at an angle, they would present the same appearance to the naked eye in that position ? ”
“ Certainly they would.”
Exceptions were duly taken to the rulings objected to. ■
The charge of the judge was as follows
[260] Gentlemen of the Jury:—We have now arrived at the close of this protracted investigation, and the fate of the prisoner is about to be committed to your hands. The testimony has all been taken. You have listened to it with patience and attention. The arguments of counsel have been heard. The court is about to submit to you a few remarks in regard to the law and the facts of the case, and then the solemn duty will remain to you to pass upon the life or death of the prisoner. He has been indicted for the murder of Frederick A. Merrick, on the seventeenth day of August last, in the store of the Halberts’, in the city of Binghamton, and it will belong to you to determine the fact as to whether he is guilty of that crime or not.
■ Under this indictment, he may be convicted of the crime of murder in the first degree, or of murder in the second degree, or of any of the various degrees of manslaughter ; and before I approach the brief consideration which I propose to devote to the evidence, it may be desirable to give to you the law on the subject of these various crimes, and to define them, so far as they may have any legitimate application to this case.
Murder in the first degree, so far as it is applicable to the facts and circumstances before you, is the killing of a human being, when it is not manslaughter, or justifiable or excusable homicide, with a premeditated design to effect the death of. the. person killed. This premeditated design must exist, and it must be completely formed before the killing takes place. Ho particular time is necessary to precede the act, except that the design must be complete and perfect, and fully formed in the breast of the prisoner. If thus formed, and the fatal blow, or the fatal shot, follows the execution of the perfected design, and that design be to take life, the offense is murder in the first degree, and the punishment is death.
[261] Murder in the second degree is thus defined in the statute: “Such killing, unless it be murder in the first degree, or manslaughter, or excusable, or justifi able homicide, as hereinafter provided, or when ”— I will call your attention to this part of the definition, —“ or when perpetrated without any design to effect death, by a person engaged in the commission of a felony, shall be murder' in the second degree.” If you find in this case the various ingredients of this crime, under this indictment, the prisoner may be convicted of this offense. It must be perpetrated by a person engaged in the commission of a felony ; and the prisoner was so engaged, if he was present at the scene of this transaction, having burglariously entered the premises, and undertaken to commit a larceny. But the offense must be perpetrated without any design to effect death. If perpetrated with that design, it is murder in the first degree. If perpetrated without any design to effect death—if this bullet was sped upon its fatal errand without any design to effect death, the prisoner may be convicted of murder in the second degree. “ The killing of a human being, without a design to effect death, in the heat of passion,”—or, in the first place, I will call your attention to another section: “The killing of a human being, without a design to effect death, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any crime or misdemeanor, not amounting to a felony, in cases where such killing would be murder at common law, shall be deemed manslaughter in the first degree.” “The killing of a human being, without a design to effect, death, in the heat of passion, and in a cruel, unusual and inhuman manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.”
[262] “ The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon, in cases except such wherein the killing of another is hereinafter defined to be justifiable or excusable, shall be deemed manslaughter in the the third degree.”
I will call your attention to another section of the statute, because it seems to be one on which counsel for the defense rely: “Every person who shall unnecessarily kill another, either, first, while assisting an attempt by such other person to commit any felony, or to do any other unlawful act; or, second, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.”
The distinguishing characteristic, you will observe, between murder and manslaughter, at least between murder in the first degree, and of manslaughter in any of its various degrees, is the presence or absence of premeditated design to effect death.
Murder always requires the presence of malice— intent to kill—premeditated design. Manslaughter does not require this. It must be killing without an intent to effect death—in the heat of passion—in a cruel or unusual manner—or by means of a dangerous •weapon, to constitute it manslaughter in the second or third degree.
The application of manslaughter in the second degree, as claimed by the counsel for the prisoner, I will bring to your attention directly, when I come to speak of the facts of the case. The definition which I have given you, very properly preceded a brief consideration of the important facts which bear upon the present investigation. It is, of course, a most solemn and interesting one, for the life of the prisoner is at stake. ■Such an investigation can never be had without being of a solemn and responsible character. It has become so in the present case, on account of the circumstances which surround this transaction. The character of the [263] prisoner—his previous history—the stealthy entrance into this store—the noiseless step — the gathered plunder—the sudden appearance of the felons at the bedside of the clerks—their arousal from sleep—the grapple for life—the retreat of the two burglars— their quick return—the encounter with Mirrick—the shots fired by the third felon—his reappearance—his approach to Mirrick—the shot—the death—the flight— the retreat to the river—the unseen and probably instantaneous engulphing of two of the felons in the waters of the Chenango—the retreat of the third burglar—his non-appearance unless he is here in the person of the prisoner—the flight of Ruloff under the cover of the night—his arrest—his attempted escape— the bodies of the dead burglars presented before him— the scenes upon that occasion—the circumstances that were from time to time developed —the revelation of this man’s identity with Ruloff, through Judge Balcom —the public excitement—the crowds which attend upon this investigation, all tend to give this case a dramatic and thrilling interest seldom seen, and are likely to make it one of the most prominent trials in the annals of criminal jurisprudence.
I will call your attention briefly to the facts of this case, as they have presented themselves to my mind. Not with a view of influencing your action, not with a view of indicating my own opinion, but with the view of leading your minds to the consideration of some phases of the evidence which it may be desirable for you to consider as connected with the law of the case.
The corpus delicti, as it is called, the body of the offense, or fact of the killing, is clearly proved; that is, it seems to me to be so, and as one upon which you could scarcely doubt. That this store was broken open on the night in question ; that it was entered from the rear ; that there were three persons present upon that occasion, you will scarcely doubt. The important ques[264] tion is, was Ruloff one of them ? and to that, of course, as the great question in the case, most of the testimony has been directed. The only positive testimony upon that subject is that of Burrows, the surviving clerk, who testifies to the circumstances which took place upon that fatal night; and I need not recapitulate them here. They are fresh in your memory, and they have been commented upon by counsel. He had a special encounter with one of these felons, and the two having retreated, one returns and grapples with Mirrick ; the other, as he says, was about to ascend the stairs, and delivered two or three shots from a pistol at him, without hitting him. This third burglar finally encountered Mirrick, who was engaged in a conflict with the other burglar, and apparently having the advantage of him. This third felón approaches (according to the testimony of Burrows) these two persons thus engaged, and seizing the person of Mirrick, discharges a pistol into the back of his head. You will scarcely have any doubt that the discharge of this pistol shot was the cause of his death. It seems to me very idle to say that he might have had a heart disease, or he might have had a very delicate constitution, or a nervous organization ; nothing of that kind is in proof. We have here an apparent and sufficient cause for death. We must treat these subjects in a practical light. We must take facts as they come to us. There are no mathematical certainties in a court of justice. Mere possibilities, unproved possibilities, must be laid out of the case, and we must take the case as it comes to us in the light of the evidence. Is there any doubt that this pistol shot was the cause of this man’s death ?' Is there any real doubt that it was fired by the third burglar, who having discharged other shots at Burrows, and having been appealed to by the second burglar for help, came up and discharged this pistol into the head of Mirrick ? But whether it were the one or the other [265] (and upon this subject you are to exercise the same practical common sense and sound judgment which you bring to bear upon all the ordinary transactions of life, not being frightened at mere possibilities, but taking the evidence as it comes home to you), if these men were felons engaged in a common object, having a common felonious intent, designing to bring about the same result, having already committed burglary, prepared to perpetrate a larceny (and it is for you to say whether such men stop at murder to prevent exposure or detection), if these men had all these common purposes, the act of one is the act of all.
Each is responsible for the acts of the other, because they are co-conspirators—because they have a common purpose, and that purpose is one disowned by the law. But can there be a real doubt that this shot was fired by the third burglar, whoever he may be, whether he was the prisoner or not ? Burrows says he fired the shot, approaching him closely and delivering the contents of the pistol into the head of this unfortunate young man. Who was this man ? Was it the prisoner at the bar % Burrows thinks it was. He is the only living witness produced upon this occasion who survives to tell all of that transaction. Mirrick has gone to his last account. The prisoner, if he was present, has not been sworn, and Burrows is the only person who relates the incidents of that night. He says that the third burglar in his opinion was the prisoner. Of course, he was under some disadvantage in regard to observing critically and carefully the persons of these men. The scene was a most exciting one, and he would have been more than human if he had not participated in that excitement. The light was more or less dim, not affording the best opportunities. The felons, at one period of the transaction, at least, were masked, and, of course, their faces were not wholly open to observation, and yet much , might be done, or something [266] might be done in the way of general observation, and more or less of particular observation.
This clerk had an encounter with one of them, and the form and figures of the rest were seen by him. He could observe their general appearance, the contour of their persons, and if he heard a voice he would have been likely to remember it; and all of these circumstances, so far as they were open to observation, must have been impressed upon his mind indelibly. He thinks, under the solemnity of an oath, that the prisoner was the man. He had the best opportunities for observation and for knowing that fact, of any living man, except the prisoner himself, if he were there, and he gives you the results of his observations.
Of course, you must take this testimony as you take that of all others, viewing the man—regarding his position—his opportunities of observation—the great excitement under which he labored—the difficulties attending the transaction—and give to his testimony such weight upon this subject (as upon all others), as you think it deserves. Of course, it is more or less a matter of opinion.
Questions of personal identity are questions upon which parties are sometimes mistaken, and yet the testimony is admissible and competent, and even reliable. It may be contradicted, but we must take such testimony as we have. If you are satisfied with this testimony, with this identification, with this proof that the prisoner is the man, then you are not to dismiss it unceremoniously; and then the question is whether your investigations are not brought to a close—whether you are not prepared to render a verdict.
The prosecution, however, have very properly determined to supply additional evidence ; because, in a matter of this magnitude, affecting the life or death of the party accused, and affecting also the pure and certain administration of justice, it is highly proper that [267] corroborative evidence, if it exists, should be brought before you. Is there such evidence ? Now, these felons left certain articles of property behind them that we may assume to have belonged to them, for they did not belong to the proprietors of the store, nor to the clerks in it, and they must have been, I think we may infer, in the possession of one or the other of the felons. The first question is whether, among these articles, there is anything that tends to identify the prisoner. Of course, the question is not so important in regard to the two that are dead, if they were there upon that occasion, except as that testimony reflects light upon the fate of the prisoner at the bar. But it is proper to consider all of these articles of property left there at that time. Among these articles was a pair of shoes, said to belong, and sworn to belong, to one of the dead men, and to have been worn by him. This fact, if such man were living and on trial, would come home to you with great effect, as tending to establish his presence upon that occasion. There was a cap, said to belong to one of the persons. There were two pairs of shoes at the foot of the stairs, doubtless taken off to prevent noise when this transaction was going on. One pair of these shoes is claimed to belong to the prisoner at the bar. This seems to me a most important item of evidence ; for, if they did belong to the prisoner at the bar, what must be the inference you are to draw from that circumstance % Now, it is sufficiently established, you will probably conclude, that he wore, formerly, such a pair of shoes —in 1869, at Cortland, and in 1870, at New York, where he lived—that he was more or less in the habit of wearing such a pair of shoes; that they were somewhat peculiar in their form, either originally made so, or acquiring that peculiar form from the character of the feet. The indentations at the toe of one of the shoes, and the protuberance at another part of it, is claimed to fit exactly the foot of the prisoner, and to have been [268] [ tried on by him, and fitting him as the witnesses state. To whom do these shoes belong ? If they were the prisoner’s, what is the inference ? If they were not the prisoner’s whose were they? Is there any other, person to whom they are proved to belong ? If they were not the prisoner’s, where are the prisoner’s shoes? Are they in Hew York ? They are not. What has become of them? If these belong to the prisoner, the question is answered ; they are here produced before you. Since August 15, these shoes have not been seen in the city of Hew York. Since August 16 or 17, at least, the prisoner has been here. Where are the ¡prisoner’s shoes, if not here? That is a question for I you to answer. That is a very important element in | the investigation of this case. Was Ruloff''here on I August 16 ? Spaulding claims to have seen him on the railroad bridge, with halting gait, wearing these shoes, or shoes like them, with an umbrella and a bag or satchel in his hand, like the umbrella and satchel which were discovered upon him at a subsequent night. Did Spaulding see him upon that occasion ? If he did, Ruloff was in this neighborhood. What was he doing here ? Ho explanation is given. Mr. Stone claims to have seen him at the Lewis House. J. B. Lewis thinks he saw him at his store about ten o’clock at night, with this peculiar hat on, with slits in it, designed, doubtless, to adapt itself to a larger or a smaller head as occasion might require; that he called for liquor, and was furnished it, and went away ; and although having some doubt on the question, he is inclined now to think that that was Ruloff, rather than anybody else. Of course, a largo amount of testimony upon such a subj ect is not probably to be obtained. These men, if they came here to do this burglary, probably did not make themselves very public. They had a felonious intent. How they obtained the knowledge, if they did so, that this store was more readily accessible; whether they had [269] any accomplices in this neighborhood or not, it is not, perhaps, important to inquire; but it is obvious they had a motive for concealing themselves in this neighborhood on August 16. On August 15, two of these men were occupants of the house 170 Third-avenue. Shortly after that, both were found here, one a drowned robber, the other the arrested Ruloff. They have not returned to the city of Hew York, either of them, having disappeared about the fifteenth. Where did they go ? Did they come here ? I shall presently call your attention to the fact that Jarvis was here, and was one of the drowned men, as a matter of reasonable inference. These are, however, all matters for your determination, not mine. And Dexter was here, who also disappeared from the city of Hew York some time in the early part of August. Was Ruloff here? On the night following, or the early morning following the night of this burglary and murder, Ruloff is shown to have been here. He was arrested. He was stealing away under cover of the night.
He was apparently avoiding public observation. He was retreating by the railroad, not in a railroad car, not in company with others, but secretly, in the dead of night. The third felon has been seen by a lady in the neighborhood, or she saw a third person after the two retreated to the river and were engulphed in its waters. The third felon was seen winding his way stealthily along a wall on the flats, in the rear of this building. You can scarcely doubt that there were three men; and on the very night following this burglary, Ruloff was arrested. About twelve o’clock at night, he was commanded to stop—refusing to do so—endeavoring to escape—retreating to an outhouse—avoiding observation—detected —arrested—taken to this place and examined—refusing to disclose his name, or giving a false one—sometimes George Williams, sometimes Leurio, sometimes Howard, some[270] times Dalton, sometimes Charles Augustus, now, Edward H. Ruloff. He refused to give an account of himself. Why, in the dead of night, was he traveling away from this place % What was this man of scholastic pursuits and domestic and retired habits, doing here upon that occasion ? He refuses to own the shoes. To several of the witnesses he says he never wore shoes. He cuts up his hat and throws it into the sewer of the jail; he tears up his shirt and disposes of a part of that in the same manner.
He disavows wearing shoes ; ignores any knowledge of the other felons ; said he had no acquaintance with them ; gives no satisfactory account of them or of himself, or of his friends, or of his presence here, or of his travels. All of these things are proper subjects for consideration by you. It is true the prisoner is not bound to be sworn. It is true, the prosecution is bound to make out their own case, and must satisfy you by evidence on their own part; but all of these things -you have a right to consider, and draw your own inference from them. If he was here on the night of the seventeenth, or the early morning of the eighteenth, within twenty-four hours after this murder was committed, where was he on the night of the sixteenth ? Had he come into Binghamton during the day % If so, what, motive for concealment % Where was he during the twenty-four hours preceding that time ? If he was here on the night of the seventeenth, is there not some reason to infer that he was here on the night of the sixteenth ? He left Hew York on August 15; that is, he left the premises where he had lived, and has never been seen there since. Letters arrived there for his companion. One addressed by the sister of Jarvis to her brother, post marked Rensselaer county, on August 15, and arriving at that place within a day or two afterwards, dated on the fourteenth. What were these men doing here at that time % I say these men,— [271] the question is, whether two of them are not clearly proved to have been implicated in this burglary, and is there any doubt that Jarvis was one of them, identified by several witnesses—through the photographs, and wearing a coat which is recognized—having upon his person (I think it was he), some bits, the like to which were found in New York, and fitted the brace which opened the door by which this store was entered. I need not recall to you all of the evidence which tends to fix upon this man, his presence upon that occasion, because you scarcely doubt, I think, that Jarvis sometimes went under the name of Thompson, and sometimes went under the name of Curtis, and was one of the persons who entered that store. Perhaps there is as little doubt that Davenport was another, whose real name was Dexter. He is recognized by his brother— recognized by Mrs. Brady—recognized by the coat he had on—recognized by the keys in his pocket, and recognized by the book which the little boy brought him when he was in Cortland jail. These two men, you will probably assume or infer, were two of the burglars present upon that occasion. Who was the third? That is the important question for you to solve from this evidence. He is partially identified by Burrows—wearing shoes much like those found on the premises—his own shoes, if they were not the same, not produced here to contradict them. Disappearing from New York about the same time as the others— proved to be here—proved to have had in his possession, and in this secretary in New York (or at least proved to have been found there), burglar’s tools. It is for you to say whether they arrived there after his departure. He is proved to have had in his desk, pieces of newspapers which match the residue of the paper found in a satchel in a swamp in this neighborhood, containing, at the same time, articles of wearing apparel, belonging to another of these men. He is [272] proved to have had in his possession, keys which open both of the doors at Ho. 170 Third-avenue ; one of which was ordinarily kept by Jarvis, and the other by him—as found on the night of the seventeenth, both in his possession—both sets in his possession, one in his pocket, the other in the satchel. These are the principal circumstances. There are doubtless others—the short-hand writing, and other facts to which I do not deem it necessary to advert, and which are relied upon by the prosecution to connect this man with this crime, and to prove him present on this occasion.
I will recur, in this connection, to the ground taken in reference to the prisoner, assuming that he was present, which is claimed to exculpate him. For it is said that he was at most, guilty of manslaughter in the second degree, and he is protected under this provision of law: “Every person who shall unnecessarily kill another while resisting an attempt by such other person to commit any felony, shall be deemed guilty of manslaughter in the second degree.”
How if we understand the argument of the counsel and of the prisoner himself, it is claimed that Mirrick and Burrows were attempting to commit a felony—that is, to kill one of these burglars—and that this man killed Mirrick ; the prisoner, or the party, whoever he was, killed Mirrick, to prevent the execution of such a crime. Well, gentlemen, we must look at the circumstances of this transaction as they are. Here were two clerks, manly and faithful sentinels over the property of their principals, endeavoring to protect the store from robbery, and its contents from plunder, suddenly confronted in the dead of night, by these burglars, three to two. Are we to weigh with scrupulous care the violénce which these clerks are to employ lest they, should be charged with unnecessarily killing a burglar? Must they wait to have the store plundered and themselves killed, before they do any[273] tMng in their own defense? It is for you to say whether burglars, who break into a store and rob it of its contents, and are exposed in the act; detected, and likely to be arrested, will not commit murder to prevent exposure and conviction. What inference should these clerks draw, except that these men who engage in a felonious act had a felonious purpose, and were probably willing to do further crimes to consummate their intent ? Were they, I say, to wait for further demonstrations on the part of these men, before they resisted or attempted to overcome them ? Will you then require that they should be‘particularly careful not to kill the attempted felon? Of course, there was no necessity to kill. Do you believe these men, these burglars, had relinquished their design ; and was this man coming back with the peaceful purpose of preventing injury to his comrade, relinquisMng all attempts to plunder the store, and all fear of exposure; was he coming back simply to rescue Ms comrade’s life from the attack of Mirrick? Xo; but, gentlemen, a person who unnecessarily kills another, while resisting an attempt by such other person to commit a felony, is himself guilty of manslaughter in the second degree. But before you shall hold these clerks responsible for crime on that night, or convict them of a felonious purpose, you should be careful to investigate the facts, and bring your mind satisfactorily to such a conclusion. Burglars who break into a store are not entitled to have the most innocent construction put upon their purposes. Burglars who appear at the bedside of sleeping clerks are not entitled to the most careful handling of their persons lest some injury be done to them. It was proper for the clerks to protect their own lives. It was proper for them to protect the property of their principals ; and it is for you to say whether it was not proper for them to judge from appearances [274] as to the ulterior purposes of these men, found under such circumstances in this store at night.
How, gentlemen, I have alluded, I think, to the main circumstances of this transaction, and the case is now to be committed to you. It is a case, independent of the testimony of Burrows, mainly depending upon circumstantial evidence ; that is, upon facts 'and circumstances proved by different witnesses, tending to show items of evidence which bear more or less upon the probabilities of the case. The body of the crime having been proved, it is entirely proper, if the proof be satisfactory to you, to prove the residue by circumstantial evidence. Circumstantial evidence is admissible in all courts of justice. Sometimes it is of the most satisfactory character, for in a multiplicity of incidents, and the various items of evidence thus brought together from every quarter, and often converging to a single point, you find a body of facts which bear with irresistible force upon the matter in hand. And thus circumstantial evidence, when the circumstances are numerous, and when they tend directly to a single point, often furnish a body of evidence of the most satisfactory character. Of course, they must have these characteristics, in order to have weight, or to determine your minds conclusively in a particular direction. But if they are of that character —if they go to support and corroborate the positive evidence in the 1 case, they are often of that nature which will lead your minds inevitably to a particular conclusion. With these facts and circumstances thus developed in evidence to lead your minds to a particular result, they furnish but another illustration of the great truth, that “truth is mighty and will ultimately prevail.” She may be for a time defeated and overcome—she may be obscured by the clouds of ignorance, of sophistry and of falsehood, but she will ultimately assert her supremacy, and shine forth in the [275] undiminished brightness of her nature ; coming from God as her source—returning to him as her ultimate aim, she meanwhile walks majestic and serene in all the pathways of human action ; bringing light out of darkness, and order out of confusion, and sooner or later asserts her irresistible power in all the transactions of men.
The case, gentlemen, demands your most patient and solemn consideration. You are to regard it as unproved until it is established to you satisfaction. This prisoner is to have'the same benefit that other alleged criminals have, upon the question of doubts. This crime must be proved, before you convict, beyond a reasonable doubt. Your minds must be brought to a solemn conviction of the guilt of the prisoner before you find a verdict against him. You must be convinced beyond a reasonable doubt—beyond a reasonable doubt. Not necessarily beyond the possibility of a capricious or imaginary doubt, but you must look at this subject as reasonable men, and bring to it the best faculties of your nature and the highest intelligence you have—the utmost conscientiousness—the most careful deliberation, and then you must declare the result. Mathematical certainty is unattainable in a court of justice—a possibility of mistake always exists: but we are to treat this subject, as all others in courts of justice, in a practical way—as sensible men. A body of evidence must appear which brings your minds to a certain and satisfactory conclusion. If in this investigation that conclusion is favorable to the prisoner, it will be your appropriate and pleasing duty to discharge him from imprisonment, and leave him to the admonitions of his own conscience, and to the impressive lessons of this hour. If, after the same patient attention to, and solemn consideration of the testimony, you shall be obliged to bring your minds to a different result, and declare his guilt, I have no doubt you will [276] do it with the same solemnity—the same fearlessness— the same impartiality, which should characterize in all eases the notions of men placed under the solemn responsibility under which you act.
In this confidence, gentlemen, I commit this case to you for its final disposition.
Becker, for the prisoner, thereupon duly excepted to so much and such parts of the said charge and instructions given to the jury as submits to them to find as a fact, whether or not the prisoner was guilty of murder or of manslaughter in any degree as charged in this indictment.
Seymour, of counsellor the prosecution, requested the court to charge the jury :
1. That to constitute murder in the first degree there is no specific time required to intervene between the completion of the design to take life and the carrying of such design into effect.
The Couet.—I so charge.
[Prisoner’s counsel duly excepted.]
2. That if the design to take life was complete, even for an instant, in the mind of the actor, before it was carried into effect, it is all that the law requires in that respect to make out the crime of the murder in the first degree.
The Couet.—I think it is. Gentlemen, you must be satisfied that the design was perfect and complete, and fully possessed the mind of the prisoner before the act was done. If it was so complete, and the shot was fired in execution of the consummated purpose, and the killing resulted from that, it is murder in the first degree.
[Prisoner’s counsel duly excepted.]
Prisoner’s counsel also duly excepted to that portion of. the charge and instructions to the jury wherein the court said, in substance, as follows:—•
[277] “Mirrick has gone to kis last account. The prisoner, if he was present, has not been sworn, and Burrows is the only person who relates the incidents of that night.....It is true the prisoner is.not bound to be sworn. It is true the prosecution are bound to make out their own case, and must satisfy you by evidence on their own part, but all of these things you have a right to consider and draw your own inferences from them.
The Court.—I supposed those were remarks in your favor; but you have the right to except to them.
To the Jury.—I should state to you, gentlemen, that there is no law requiring the prisoner to be sworn, and there is no inference to be drawn against him from the fact of his not being sworn.
Beals, of counsel for the prisoner, requested the court to charge the jury as follows :—
1. That if the person who fired the shot fired it not to take life, or with malice, or a premeditated design to take life, but simply to rescue his companion—and the jury may infer this from the shots fired over the heads of Mirrick and his adversary, and lodged in the wall—if they infer it was fired by the one who shot Mirrick, then the jury should not find a verdict of murder in the first degree.
The Court.—That is substantially the law. You must find a premeditated design to effect death. You must find something more than a mere attempt to rescue, before you can convict of murder in the first degree. I have given you the rules which should govern your action upon that subject, and I have no occasion to change.
Prisoner’s counsel continued the requests to change, which, with the responses of the judge, were as follows :—
2. If, from the fact that the burglar who was prostrate and stricken by Mirrick and Burrows, and called for help, and the person who fired the fatal shot re[278] turned to render such help; and all that he did subsequently was intended to render such help, and to rescue his endangered companion; if from all this, the jury believe the object of the one who fired the fatal shot was not simply to kill, then the verdict should not be murder in the first degree.
The Court.—I charge substantially that, as I understand it. You must pay attention to these “requests,” and see that the facts are not misstated. If the object was simply to rescue his companion, if he was there with no felonious object, with no intent to kill, no intent to do bodily harm, beyond rescuing his comrade from the embrace of Mirrick; if under the evidence in this case, you can reach such a conclusion, the prisoner is not to be found guilty of-murder in the first degree.
3. If the first flight of the burglars and the missiles thrown at them by Mirrick, the call for help, and the endangered condition of the prostrate burglar, the return of Ms companion in response to his call, the interception of them by Mirrick and Burrows, the firing of the shots on the stairs, the clinching of one of them by Mirrick, and their struggle, and- the apparent advantage of Mirrick over his adversary, and the desire to avoid detection and arrest of any of the burglars, or their death at the hands of Mirrick—if all these aroused and heated the blood of the one who fired the fatal shot, then, under the statute, the prisoner cannot be convicted of murder in the first degree.
The Court.—If these are the circumstances attending the commission of this crime, in the' manner indicated in the request to charge, and if, from all that transpired, you feel at liberty, consistently with your consciences, to draw such a conclusion, the prisoner is not to be found guilty of murder in the first degree.
4. That the jury must be satisfied, by the evidence in this case, that the prisoner’s hand fired the fatal shot wMch produced the death of Mirrick.
[279] The Coubt:—They must be satisfied that the prisoner’s hand fired the fatal shot which produced the death of Mirrick, or that he was acting under the influence of a purpose common to all, for the promotion of a bad cause; that the others were co-conspirators with him, and that they had the same object in view, and that the same purpose actuated the breasts of all, before they can find him guilty of murder.
5. That the jury must be satisfied by the evidence in this case, that, if such death was produced by a shot fired by another hand, that there was such an actual and overt concert and complicity to effect that precise object.
The Court.—Substantially, that is so.
6. The jury must be satisfied by the evidence, that the death of Mirrick resulted directly from the shot by and from the bullet found in his head on the post-mortem examination.
The Coubt.—That is true.
7. The jury must be satisfied from the evidence, that the death of Mirrick resulted from no other cause than the shot fired into his head.
The Coubt.—I think so.
8. The jury must be satisfied, beyond a reasonable doubt, that the death of Mirrick resulted from a shot fired from the hand of the prisoner.
The Coubt.—Yes, I think so ; if fired in the way proved.
9. The jury must be satisfied, beyond a reasonable doubt, that the death of Mirrick resulted from the bullet found in bis head, and from no other cause.
The Coubt.—I think so.
10. If there is any reasonable doubt in the mind of the jury as to the cause of the death by the prisoner, or as to the hand which produced it, they should give the prisoner the benefit of that doubt by a verdict of acquittal.
The Court.—I have already told you, gentlemen, and I repeat the charge, that if three persons were co- [280] . conspirators and felons, acting for a common object— a common purpose—willing to perpetrate murder to effect their object, then, in my opinion, the act of one is the act of all; but of course you must be satisfied of the facts, whatever they are, in all of the elements which make up the crime beyond a reasonable doubt.
11. If the jury are satisfied, from all the testimony, and from all the circumstances, that Burrows was excited on the morning of the fatal occurrence, or that he had made contradictory statements relative to the matter, and that his testimony thereby has been impaired, they should give to the prisoner the benefit of any doubt resulting from such excitement and contradiction.
The Court.—Of course, gentlemen, you must be satisfied, before you give the fullest confidence to any human testimony, that it was honest and that it was correct. And if there are circumstances which impair either the honesty or credibility, or accuracy of the testimony, you must make a proper deduction, and give the prisoner the benefit of any doubt arising from such circumstances.
[Prisoner’s counsel duly excepted.]
12. That there is no evidence whatever to show that the prisoner knew of any burglar’s tools in his room in New York, down to the time that the prisoner quitted that room for the last time ; but from the testimony of young Jakobs, and his sister Pauline, the contrary inference must be drawn, and that nothing suspicious was in the possession of the prisoner, or in his room.
The Court.—I charge the first part of that request, and decline to.charge the last part of it. I am aware that there is no express testimony, that up to the time the prisoner left New York he knew that there were any burglar’s tools in his room. I charge that from, the evidence in the case; but I do not feel at liberty to [281] charge that the contrary inference must be drawn. You must act according to your belief; you are the judges of fact. These tools were found in that room ; when they were placed there is a matter of fact for you to determine. There is no proof that I know of that they were there before the prisoner left; that is, nobody swears to it, but I will not charge you that you are not at liberty to infer that they were there. There is no proof in regard to it.
[To which the counsel for the prisoner duly excepted.]
13. And that they must infer that from the evidence submitted to them in this case.
The Court.—They must infer that from the ' evidence and circumstances developed by the testimony of the witnesses. Whether these burglar’s tools were there or not is to be determined by you upon a consideration of all the evidence. I give you no information as to the inferences you ought to draw one way or the other. If they were put there after the prisoner left, of course they have no bearing whatever upon the guilt of the prisoner.
[Prisoner’s counsel duly excepted.]
14. That if the prisoner and his companions, on the occasion of the homicide, entered upon the premises of Halbert with the common purpose of larceny, in stealing the property of said Halbert, and that the violence of the prisoner’s companion was merely the result of the situation in which he found himself, and that he proceeded from the impulse of the moment, without any concert, then the prisoner will be entitled to an acquittal.
The Court.—I decline to charge in that way.
[Prisoner’s counsel duly excepted].
15. That to make the prisoner a principal, the jury must be satisfied that when he and his companions went out with a common illegal purpose of larceny, [282] they also entertained the common guilty purpose of resisting to death or with extreme violence any person who might end'eavor to apprehend them.
The Court.—I decline to charge in that way.
[Prisoner’s counsel duly excepted.]
Becker, of counsel for the prisoner, requested the court to charge the jury as follows:
1. That in no view of the cáse can the prisoner be convicted of more than manslaughter in the second degree under the statute ; and that upon all the facts in the case, the killing of Mirrick was not murder or manslaughter, as charged in the indictment; but was, at most, only a special form of manslaughter in the second degree.
The Court.—I decline so to charge, and will leave the disposition of the facts in the case to the jury, according to the law, as I have laid it down.
[Prisoner’s counsel duly excepted.]
2. That the killing of Mirrick was not done in prosecution of a felonious intent, but was done in suppressing unlawful violence, and in resisting a felonious attempt unnecessarily to kill, and to do great bodily harm. .
The Court.—I decline to charge that as a matter off law, and will leave that to bé determined by the jury, upon the evidence.'
[Prisoner’s counsel duly exceptéd.]
3. That the right to take life in the first instance, and at once to kill an offender, is confined to cases of “known felony,” committed with force or by surprise, in which there is an urgent necessity, admitting of nO delay, or a felonious attempt in imminent danger Of being accomplished.
The Court.—My impression is, that the request is substantially correct; but I would not say, absolutely, that there are no cases in which the right to take life exists, because I do not feel called upon to ex[283] ercise my ingenuity or recollection in the determination of a case in which that right exists. I have given the law as applicable to the facts of this case, as I understand it.
[Prisoner’s counsel duly excepted.]
4. That when two of the burglars had withdrawn, and the third was powerless, the mere presence of that third upon the premises, neither offering violence, nor in a condition to do so, was not such “ known felony,” as to justify holding him down, and inflicting upon him the violence proved to have been inflicted in this case, by two men who had him completely in their power.
The ■Court.—I will leave these facts, gentlemen, to you. You must find the facts. If they exist, as contained in that request, there was no special necessity for any extraordinary violence upon this first burglar. I don’t exactly see the bearing, however, which it has upon the guilt of the prisoner in this case. That man is not here for trial, and precisely what we should do in his case, I am not able to state.
[Prisoner’s counsel duly excepted.]
5. That whether the prisoner can be convicted of manslaughter in the second degree, depends in the first instance, upon proof whether the killing of Mirrick was done in prosecution of a felonious intent, or whether it was done in performance of an act which was lawful and right.
The Court.—I think that is true.
6. That if the fatal shot was fired upon a sudden impulse, in the heat of excitement or anger, it does not amount to murder in the first degree.
The Court.—It does not. It must be fired with a premeditated design to effect the death of the person killed, in order to constitute murder in the first degree.
7. When two of the men had withdrawn, and the [284] third was powerless, extreme violence was no longer necessary, a reasonable opportunity was given for milder measures, and Mirrick should have acted accordingly.
The Court.—If those are the facts, then the conclusion is right; but whether the facts are so or not, I leave you to determine. You must not assume the facts to be so because they are contained in the request. I don’t think that felons who break into a store and plunder it, are generally entitled to the most merciful construction of their motives.
[Prisoner’s counsel duly excepted.]
8. The return of the two men who had previously withdrawn, is not proved to have been made in furtherance of the original design to steal, or to have had any other object than simply to suppress the unlawful violence of Mirrick and of Burrows, and to rescue their companion from imminent peril of his life.
The Court.—I decline to charge that as a matter of law. I leave that for the jury to determine upon the evidence before them.
[Prisoner’s counsel duly excepted.]
9. That in itself, their, return for this purpose was lawful and right. It was, in fact, an act of duty to. assist and rescue their comrade, and it became criminal only by the excess of violence employed on their part in suppressing the violence of Mirrick and of Burrows.
The Court.—I hardly know what to say upon that subject. A mere attempt to rescue a person from death, is generally lawful and right, and I don’t know but it would be in this case. I am inclined to think it would, if the return was simply for that purpose, and with no felonious intent, and with no design to do anything except to take their comrade out of their way.
10. Whatever the excess of this violence, it was, at least, employed in resisting other violence, in preserva[285] tion of the peace, and in the prevention of a felonious attempt unnecessarily to kill an intercepted felon, or to do him great bodily harm.
The Court.—I don’t know whether it was or not. I leave the jury to determine that one way or the other as they shall think proper. I do not think I am called upon to do it myself, as a matter of law, upon the facts of the case.
[Prisoner’s counsel duly excepted.]
11. That even if fully and satisfactorily identified as belonging to the prisoner, it does not necessarily follow that these shoes were still in use, or that they were worn by the prisoner on the night in question.
The Court.—I don’t know as it does, gentlemen, but I will leave that for you to determine. It wordd strike me that there was a very strong probability of it; but there is evidence from which you must determine for yourselves.
[Prisoner’s counsel duly excepted.]
12. That the probability of guilt arising from this circumstance, is so far qualified by reasonable possibilities of innocence, as to afford no sufficient ground for any definite presumption against the prisoner
The Court.—I decline to charge that.
[Prisoner’s counsel duly excepted.]
13. That the killing of Mirrick, as shown by the evidence, was not murder or manslaughter in any degree, as charged in this indictment, but was, at most, only a special form of manslaughter in the second degree.
The Court declined so to charge and instruct the jmy-
[The counsel for the prisoner duly excepted.]
Last.—That if the killing of Mirrick was necessary, in order to prevent him from unnecessarily killing another, it was not murder in the first degree.
The Court declined so to charge and instruct the jury.
[286] To which decision counsel for the prisoner then and there duly excepted.
The Jury rendered a verdict, “ guilty of murder in the first degree.”
February, 1871. Supreme Court. The cause was removed by writ of error, to the supreme court, in the third department, third district, at general term, where after argument the conviction was affirmed, the following opinions being rendered.
Footnotes
11 Abb. Pr. 245 (Ruloff's Case) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.