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THE Court was opened on Tuesday the 25th day of November, present*
The Hon. THEOPHILUS PARSONS, L. L. D. Chief Justice.
Thomas Handyside Perkins, Esquire, Foreman, Samuel Emmons, George Paine, Daniel Tuttle, Joshua Davis, Jedediah Parker, David Townsend, Jonathan Kelton, Moses Gardner, Joseph Francis, Mitchell Lincoln, Samuel Sturgis, Charles Vose, Stephen Gore, Gamaliel Bradford, William Harris, William M’Neil Watts, Daniel Dennison Rogers, William Walter, William Shimming all of Boston, and Caleb Pratt of Chelsea, the Chief Justice delivered a learned and impressive charges from which the following extract, as having more immediate relation to the subject of this Report, is copied by permission.
- Felony affecting life is either murder, or manslaughter. Murder is the wilful killing any person of malice aforethought, either expressed or implied.
The malice is express, when there was a premeditated intentiou to kill. Malice is implied, when the killing is attended with circumstances which indicate great wickedness and depravity of disposition, a heart void of social duty, and fatally bent on mischief.
Formerly if the husband was maliciously killed by his wife, or the master by his servant, the offence was adjudged to be petit
* It was understood that suggestions had been received from the Attorney General, that he had some legal objections to the return of the Jurors from Boston, upon which it was desirable to have the opinion of the full Court; and that these suggestions were the occasion of the presence of the other members of the Court besides Judge PARKER, to whom this session had been assigned. The objections being considered and overruled by the Court, but one Judge sat in the trials after the first day, except in the trial of one indictment for murder.
treason ; but by virtue of a late Statute it is now considered only as murder, and as such is indicted and prosecuted.
And every man who kills another, in a duel deliberately fought, is a murderer.
Manslaughter is the killing another, either wilfully, or through gross negligence, but not from malice aforethought.
Homicide from accident is excusable from necessity it is either excusable, or justifiable—when for the advancement, or in execution of public justice, it is justifiable.
Observing in the list of prisoners, returned by the Gaol-keeper, that two persons are in custody charged with felonious homicide, it may be useful to you, in your enquiries, to mention some principles of law, relating to this subject.
In every charge of murder, the fact of killing being first proved against the party charged, to reduce the offence below that crime, by any circumstances of accident, necessity, or human infirmity, he must satisfactorily prove these circumstances, unless they arise out of the evidence produced against him,
When the act which occasions the death is unlawful, yet if malice either express, or implied, be wanting, the killing is not murder, but manslaughter, the act being imputed to the infirmity of human nature.
Neither words of reproach, however grievous, nor contemptuous or insulting gestures, without an assault on the person, are sufficient to free the party killing with a dangerous weapon, from the guilt of murder.
An assault is any attempt or offer, with force and violence, to do a corporal hurt to another, as by striking at him, or even by holding up the fist at him in a threatening or insulting manner, or with such other circumstances as denote an intention and ability, at the time, of using actual violence against his person. And when the injury, however small, as spitting in a man's face, or unlawfully touching him in anger, is inflicted, it amounts to a battery, which includes an assault.
Any assault made, not lightly, but with violence, or with circumstances of indignity, upon a man's person, if it be resented immediately, and in the heat of blood, by killing the party with a deadly weapon, is a provocation, which will reduce the crime to manslaughter; unless the assault was sought for by the party killing, and induced by his own act, 10 afford him a pretence for wreaking his malice. To illustrate this exception, a case is stated of the falling out of A and B- A says, he will not strike, but will give B a pot of ale to touch him; on which B strikes A, who thereupon kills B. This is akurder in A, notwithstanding the provocation received by the blow from B, because A sought that provocation.
A man may repel force by force, in defence of his person, against any one who manifestly intends, or endeavours by violence, or surprise, feloniously to kill him. And he is not obliged to retreat, but may pursue his adversary, until he has secured himself from all danger; and if he kill him in so doing, it is justifiable self, defence. But a bare fear, however well grounded, unaccompanied by any open act, indicative of such an intention, will not warrant him in killing There must be an actual danger at the time. And, (in the language of Lord Chief Justice Hale,) it must plainly appear by the circumstances of the case, as the manner of the assault, the weapon, &c. that his life was in imminent danger; otherwise the killing of the assailant will not be justifiable homicide.
But, if the party killing had reasonable grounds for believing, that the person slain had a felonious design against him, and under that supposition kill him ; although it should afterwards appear, that there was no such design, it will not be murder ; but it will be either manslaughter, or excusable homicide, according to the degree of caution used, and the probable grounds of such belief.
These principles have been recognized by the wisest and most humane writers on criminal law.
After a due and impartial enquiry into the several cases, that may require your attention, you will ascertain the facts, and afterwards apply the principles of law, to obtain a just and legal result.”
On Tuesday, December 2d, the Grand Jury returned into Court, and, amongst other bills, presented the following indictment against Thomas Oliver Selfridge, Esquire :
COMMONWEALTH OF MASSACHUSETTS.
for the Counties of Suffolk and Nantucket, on
The Jurors for the Commonwealth of Massachusetts
their oath present, that Thomas Oliver Selfridge, of Boston, in the county of Suffolk, gentleman, otherwise called Thomas Oliver Selfridge of Medford, in the county of Middlesex, gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fourth day of August, in the present year, with force and arms, at Boston aforesaid, in the county of Suffolk aforesaid, in and upon one Charles Austin, in the peace of God and the said Commonwealth, then and there being, feloniously, wilfully, and of the fury of his mind, did make an assault; and that he the said Thomas Oliver Selfridge, a certain pistol of the value of five dollars, then and there loaded and charged with gun powder and one leaden bullet ; which pistol he the said Thomas
Oliver Selfridge, in his right hand, then and there held, to, against and upon the said Charles Austin, then and there, feloniously, wil. fully, and of the fury of his mind, did shoot and discharge ; and that he the said Thomas Oliver Selfridge, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth as aforesaid, the aforesaid Charles Austin, in and upon the left breast of him the said Charles Austing a little below the left pap of him the said Charles Austin, then and there, with the leaden bullet aforesaid, out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, so as aforesaid, shot, discharged and sent forth, feloniously, wilfully, and of the fury of his mind, did strike, penetrate and wound, giving to him the said Charles Austin, then and there, with the leaden bullet aforesaid, shot, discharged and sent forth out of the pistol aforesaid, by him the said Thomas Oliver Selfridge, in manner aforesaid, in and upon the left breast of him the said Charles Austin, a little below the left pap of him the said Charles Austin, one mortal wound, of the depth of six inches, and of the breadth of one inch, of which mortal wound aforesaid the said Charles Austin then and there instantly died; and so the Jurors aforesaid, upon their oath aforesaid, do say, that he the said Thomas Oliver Selfridge, the said Charles Justin, then and there, in manner and form aforesaid, feloniously, wilfully, and of the fury of his mind, did kill and slay, against the peace of the Commonwealth aforesaid, and the law in such case made and provided.
A true bill.
T. HANDYSIDE PERKINS, Foreman. JAMES SULLIVAN, Attorney General.
The Defendant, being soon after brought into Court and arraigned upon the foregoing indictment, pleaded Not Guilty. Being enquired of by the Court* at what time he would be ready for his trial, he prayed for a postponement of it to some future day in the term. He stated that he could not at that time name the day, as he should have occasion to send to a considerable distance for witnesses, whom he believed essential to his defence, of whom he had understood that one was in the District of Maine, and another in the state of NewYork.
On the motion of his Council that he might be admitted to bail, which was not opposed by the Council for the government, he was ordered to recognise, himself in two thousand dollars, with sufficient surety or sureties in the same sum for his appearance de die, in diem during the present term, &c.
On Tuesday the 23d day of December, which had been previously assigned by the Court, the trial commenced before the Hon. Mr. Justice PARKER.
* The Hon. Judge SEDGWICK was then sitting in the place of Judge PARKER