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operation. Patients often die from the inflammation occasioned by it who might have recovered from the injury it was intended to remedy. The coagulated blood, referred to by Dr. Willet might have been occasioned by exposure to the air, nor would its coagulation prevent it from being absorbed. Cannot decide with certainty, even had I performed the operation myself, whether the death was occasioned by the monachie
or by the trepanning. Did not see the patient. Have known a rupture of a blood vessel from extreme passion. Persons of violent temper are liable to apoplexy from a surcharge of blood to the head.
Dr. Valentine Mott. Performed the operation of trepanning the deceased in the hospital; his head was broken and his death was occasioned by the injury, and not by the trepanning.
Mr. Anthon and Mr. Price addressed the jury, stating the laws of manslaughter and self defense as set out in the books.
Dr. Graham. Gentlemen of the Jury: The Almighty, of his infinite goodness, has given to one man ten talents, to another five talents, and to a third one talent. If I were to bury my talent in the earth, or lock it up on this occasion, I should not only do great injustice to the prisoner at the bar, but should also consider myself as sinning against the bounty of Providence. Therefore, as one of the counsel for the prisoner, I shall now have the honor of addressing you in his behalf.
The prisoner is indicted for the crime of manslaughter, in causing the death of Albert Robinson, by giving him a blow on the right side of the head with a stick attached to his cart, commonly called a monachie, on the evening of the 17th of October now last; to which charge the prisoner has pleaded not guilty, and put himself upon God and you, gentlemen of the jury, for trial.
I congratulate the prisoner and the public, that the constitution and laws have wisely placed in your hands the trial of this cause: knowing, as I do, the character of our New York jurors being proverbial for wisdom and sound discretion-lovers of liberty, humanity, and justice, and, generally speaking, men possessing undeviating integrity, and of high and delicate honor.
Having, with great deliberation, examined and considered the law and the facts—the principles which ought to govern in this case, and the tribunal which is to decide the fate of the prisoner, I have made up my opinion and fear not the final results. Of the law, as well as of the facts, you are the judges, and I shall draw on you, for my client, your verdict of acquittal. As discreet men, jurors, you will always pay the greatest deference and respect to what may fall from the lips of a learned judge, especially when it comes from one whose life has been devoted to philosophical and juridical studies; but remember, that the greatest lawyers and the greatest judges often differ in opinion, as much as in their looks, on the subject of homicide, which by the books is divided into three kinds, justifiable, excusable, and felonious. I contend, that instead of the prisoner having been guilty of manslaughter, as charged in the indictment, the act is excusable homicide, se defendendo, or in self defense.
To establish my defense for the prisoner, I shall confine myself principally to the law and the facts, since eloquence is necessary to defend a bad cause, and a good one may easily be supported by the logic of common sense, and the rhetoric of unstudied expression. Gentlemen, time, place and provocation, are all important in the investigation; thereupon hangs the very gist of this indictment; and this case, like all others, must stand or fall on its own merits. The learned counsel associated with me have read to you the law from Blackstone, Hale's Pleas of the Crown, East's Crown Law, and some other authorities which ought to govern in this case. I subscribe fully to the doctrine by those gentlemen so ably, forceably, and eloquently contended for, whatever may be the opinion of the court to the contrary.
Let me call your attention to the two great laws of human society, from whence all the rest derive their course, force, and obligation; they are those of Equity and SelfPreservation; by the first, all men are bound alike not to hurt one another; by the second, all men have a right to defend themselves. The civil law says, “It is a maxim of the law, that whatever we do in the way, and for the ends of self defense, we may lawfully do." This principle of the civil law has been fully recognized in the fifth section of of the act, passed the 14th of February, 1787, by our legislature, declaring that persons killing in self defense, or by misfortune, shall be therefor fully acquitted and discharged.
All the laws of society are entirely reciprocal, and no man ought to be exempt from their force; and whoever violates this primary law of nature, ought by the law of nature be destroyed. He who observes no law forfeits all title to the protection of law. It is wickedness not to destroy a destroyer, and all the ill consequences of self defense are chargeable upon him only who accasioned them. To allow a license to any man to do evil, with impunity, is to make vice triumph over virtue, and innocence to prey to the guilty. The law of nature does not only allow us, but obliges us to defend ourselves. It is our duty, not only to ourselves, but to society. If we suffer tamely a lawless attack upon our person, property, and fortunes, we encourage it, and involve others in our doom. And Cicero says, “He who does not resist mischief when he may, is guilty of the same crime, as if he had deserted his parents, his friends, and his country.” So that the conduct of my client, in defending his person and his property against the unlawful and wicked attack of the deceased, is, I contend, excusable homicide in self defense, by all laws human and divine.
Again; the motive from which an action springs ought never to be overlooked, and it would be against natural justice to condemn a man to punishment for what is owing rather to his misfortune than his fault. The prisoner could have had no motive bụt merely to defend himself and his property. The deceased, a total stranger to him, seized his horse by the head and stopped him on the public high road when my client was in the peace of God, in the peace of the people of the state of New York, and about his law. ful business This is a very important fact, and calls for the most serious consideration; and it ought to be most carefully weighed by every juror on the panel. Suppose either of you, gentlemen, had been stopped on the high road, just at the dusk of the evening, by a stranger, as was the prisoner by the deceased—your property seized by force—your person most greviously insulted and injured, and you had no alternative but to submit to the insult and outrage, or by defending yourself and property against the mischief intended you? Your own good sense, and knowledge of cause and effect, will instantly give the answer.
The counsel who preceded me in summing up this cause, having gone minutely into the testimony, I shall not trespass on your time by recapitulating the evidence, as the same must be fresh in your minds. I would ask, then, can you consign to a state's prison, for years, a worthy citizen, who, unfortunately, to save himself and his property from destruction, was driven of necessity to give the blow which has since proven the death of a man whom the prisoner believed at the time, was a lawless desperado? The prisoner deeply laments the deceased; but he feels no remorse-no disquieting dread of God or man, because his conscience whispers to him that what he did on that occasion was only in self defense.
The honorable the district attorney, in withholding from the jury the examination of the prisoner taken in the police immediately on his arrest, I must say, nothwithstanding my friendship and esteem for that gentleman, does not comport with my idea of justice and humanity; and to my mind, it is self-evident Mr. Maxwell intends to press all sail that he possibly can to convict the prisoner. I therefore most earnestly request of you to banish from your ears the charms of his eloquence, and with your oaths upon your consciences, make to this tribunal and your God, your sol
emn verdict. Gentlemen, in the name of your own interest —your own honor—and your own glory, I call upon you, by your verdict, to pronounce judgment on yourselves, because a singular misfortune may some day, by the providence of God, happen to some of you. If the authorities and arguments my learned associates and I have used have not been convincing, you would not be convinced though one should arise from the dead. Justice and humanity revolt at the idea of a verdict of guilty against the prisoner; and should you, by your verdict, pronounce the horrible word guilty, I should blush over this departure from those characteristic features of moral rectitude in the gentlemen who fill the panel, and tremble at the impending vengeance which awaits your future destiny.
Mr. Maxwell argued in behalf of the people.
The RECORDER charged the jury, in which the prominent facts were recapitulated, and the law relative to manslaughter, and the distinction between it and chance medley in self defense, was stated and explained with precision and perspicuity.
The Jury, in about two hours, returned a verdict of Not Guilty.