48 Barb. 548 | N.Y. Sup. Ct. | 1867
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 pre
■ 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.]