Little is to be said by the Court on the law, it being rightly stated by the counsel for the State and admitted by defendant’s counsel, except Sir John Chichester’s Case, which defendant’s counsel think was too severe, and they relied [on] a
It may seem necessary for the Court to say whether this case is (believing all the evidence to be true) manslaughter or not. Every kind of diversion on this occasion more than their duty was folly. You are to consider whether this wanton conduct of defendant followed by such an accident was not likely to be accompanied by such consequences. We cannot help saying that if you believe the evidence, it was a wanton, foolish, and unlawful act that defendant was guilty of with this man. The Court will only mention one case in Fost. 261, where the killing a child standing by at the sport of cockthrowing was accounted manslaughter. Now, whether you call the using a gun in this manner a playful or funny manner, it is an improper and unlawful manner.
If you think on the second point that this wound was not the mediate or immediate cause of the death, you will weigh that matter; it is proper for your consideration. You hear the old woman saying that his principal complaint was a pain in his breast, and the doctor also says his other complaint was the principal one.
Verdict, not guilty.
The Attorney General applied under Article VIII, section 8, for a certificate.
Wilson observed that it was certainly discretionary to certify or not. Even where the court were convinced that there was probable cause for the prosecution, they are not bound to certify, and that in this case a certificate must send the man to prison and to the benefit of the insolvent acts.
We think ourselves bound to say there was probable cause, but the Lxvy Court will perhaps give relief.
Although we certify, I am clearly of opinion that the matter is discretionary even where there [is] probable cause appearing to the Court.