Is there any such Crime as Murder?

New Zealander, Volume 7, Issue 511, 8 March 1851, Page 2

Is there any such Crime as Murder?

The question not only seems but undoubtedly is a strange one. Our local readers will be at no- loss, however, to understand at once why we propose it. For the information of readers at a distance we must state that it is suggested by the verdicts in two cases tried at the Criminal Session of our Supreme Court this week. Those verdicts were returned by Jurors who come fully up to the average of our Jury List in qualification for the office. We know some of them personally, and would not hesitate for a moment to confide the arbitration of matters in which our own interests might be involved, to their intelligence and integrity. With regard to those with whom we are not ourselves acquainted, we have never heard — we have no reason to suppose that there exists — anything to cast a shade upon their characters. Theie is not one amongst them against whom we would insinuate even a suspicion of intentional tampering with the sacredness of an oath. Their decisions ate therefore entitled to respectful as well as serious consideration j and it is only a sense of duty which we dare not subordinate to private feeling that impels us to make a few comments upon them. We have suggested the inquiry, Is there any such crime as Murder 1 ? Our meaning will be made evident by a brief statement of what, in the judgment of the Juries referred to, is not Murder. A non-commissioned officer stationed in our garrison, on the evening of a day during which he has been under arrest for drunkenness, rises from his bed, on which he had been lying for some hours, advances to the table at which a private soldier is quietly sitting filling his pipe with tobacco, (thus singling him out from several in the room) exclaims "You have betrayed me !" and instantly, — without another word being spoken on either side, — follows up the accusation by plunging a knife into the breast of his victim. The wound penetrates to the region of the heart, and causes death to ensue in a very short time. Subsequently, the perpetrator of this act asks, "Is McKeoavn dead 1 ?" adding, "//he is not dead, 1 will kill him." These facts are proved by an accumulation of testimony ; indeed no

i attempt is or can be made to contradict them. The evidence clearly shows that there was not at i the moment— that there could not have been, for horns before — nny quarrel or provocation, to lead to violence. — But, according to the I sworn judgment of the Jury, there was no Wilful Murder in this case. Again :—: — a man comes up to three persons who are sitting at their food ; a few words, apparently of the most common place and inoffensive character, are interchanged j he takes up a large axe, (a weapon which was I produced in Court, and as the Attorney Genej ral observed, was fitter to fell an ox than tostrike a human being,) and inflicts — with a force not only verbalh described, but represented in j action with frightful distinctness by the witnesses, — a blow which breaks in the skull of one of the men sitting peaceably at their meal; after this injury the victim languishes for four or five days and then dies — unquestionably in consequence of it •, the homicide afterwards admits (lie could not deny) the deed, and says that he killed the man " on account of his money," meaning a few shillings which he : had lent the deceased, and probably found some difficulty in getting repayment of-, no rebutting or qualifying testimony of any kind is adduced ; but here a'so, a jury declare on their oaths, that Wilful Murder has not been committed. May we not well ask — Is there any such crime as Murder, if Muider was not perpetrated in these cases ? If the verdicts which placed these acts in the class of only "Manslaughter " were right, will any man «vho thinks so tell us what combination of circumstances would be sufficient in his estimation to constitute Murdei . It will naturally be asked — Must not something have appeared in the course of the trials to invest the pnma -facie atrocity of the deeds with at least a show of mitigition and extenuation ? In the latter instance, there was absolutely and 1 terally nothing. The previous character of the prisoner was not spoken to by the witnesses, and (now that it cannot affect the adjudication in his case we may state) we are informed on unquestionable authority, had it been gone into it would have militated greatly against him. In the case of Corporal Butcher there undoubtedly was somewhat more of complication. He had been drinking, and on a former occasion intoxication had brought him into a delirious state, in. which coercion was necessary to prevent his doing violence to himself. But no principle of law is more conclusively laid down than that voluntary drunkenness does not release a man from responsibility for his actions ; else, as the Attorney-General put it, a man intending to commit a crime need only get drunk beforehand in order to secure exemption from its fatal consequences ; or, as the Chief Justice yet more tersely expressed it, every sober man's life would be at the mercy of every drunken man. But this ground was abandoned by the learned Counsel for the defence, who contended that the prisoner had not indulged to such excess as to account for his conduct, and rather urged that he was under the influence of temporary insanity. Now, admitting (without at all granting) that the evidence sufficiently supported this hypothesis, still the verdict would be inappropriate. If Butcher was re'ully mad when he stabbed McKeown, he should no more have been convicted of Manslaughter than of Murder. In. that case, we apprehend, the verdict clearly should have been u Not Guilty, on the ground of Insanity." When the Jury could not, or at all events did not, take this view, we submit that their deliverance might have been " Wilful Murder," with a recommendation to mercy. There would have been satisfactory reasons for such a recommendation, especially taking into account the high testimony borne by the prisoner's officers and comrades to his former quiet demeanour and general good-conduct; the issue would most probably have been the same to himself, as we have little doubt the recommendation would have been favourably considered in the proper quarter ; and the administtation of the law would have been saved from the anomalous and uncertain position in which, we cannot but think, the verdict actually returned, has, so far as its influence extends, placed it. To what then can we attribute the findings in these two memorable cases ? Believing, as we sincerely do, that the Jurors were upright men, we can only conclude that they permitted themselves to be carried away by their benevolent feelings into a practical forgetfulness of the nature of the duty they were called on to discharge. It is most likely that in their humane reluctance to be instrumental in conI signing fellow-creatures to possible or probable \ death, they lost sight of the consideration that in the Jury Box they had nothing to do with the consequences to the prisoners which might result from their decisions, or to any views they may have formed on the general question of Capital Punishments ; — but were, simply and solemnly bound, as standing between society and those prisoners, to say whether the legal charges preferred against them were or were not proved by legal evidence. If they had had any doubt as to the facts they would have been bound to give the prisoner the benefit of those doubts. This, however, would have been rather justice than mercy. It can seem a hard saying only when the whole subject is not comprehensively viewed, that

Jurors, a<s such, are not to be governed by emotions of mercy, but are sworn to decide according to evidence. If mercy is to be exercised, it is to come subsequently and from another quarter. The injurious effect which any breaking down of the boundaries between Wilful Murder the highest crime which one man can commit against another— and the lesser crime of Manslaughter, is calculated to produce on the public mind, is the most serious aspect of the subject, and is that which has chiffly led us to undertake so disagreeable a task as offering these remarks.* On this the Chief Justice spoke in his charge to the Grand Jury with a strength and precision which might almost seem as if he foreknew these verdicts, and by anticipation pronounced his opinion of them. His Honor's words were^so weighty and appropriate that we cannot more fitly conclude than by repeating a sentenc or two of his Charge as published in our last. They convey our meaning not only clearly, but with the force of an authority under which we are glad to slvlter the comparative insignificance of our own judgment in such a matter :—: — Perhaps, also, it may have happened to some men, that the extraordinary atrocity of the outward acts and chcumstances attending some murders of late years. has taken off the thoughts in some degree from the intrinsic malignity which belongs to minder in every form But however this may he— aid whatever be the defectiveness, or want of proportion in our present scale of punishments— and whatever a!so may be the remedy for such defects as may exist— yet surely thus much is clear that the remedy is not to be found in confusing these two classes of homicide, and declaiing a criminal act to be extenuated by reason of en or or infirmity in cases where, in truth no such extenuation exists. For to say this, is to injure the public morality by laying down au unsound rule, as to the duty and accoimtableness of human beings. For every decision on a question of this kind affecls our public morality ; j n part it expresses that morality, in part it even creates it.

* We look at this especially as affecting the minds of the Natives. A gentleman living at the Bay of Islands, and intimately acquainted with the circumstances connected with the fatal transaction there, assures us that the Maories were so indignant at the act, that they declared they would themselves kill Hkke. (or " Ake " as his name properly is) if the Pakehas had not taken his punishment into their own hands. How is the veidict likely to operate as a mode of training them into an understand ing of British jurisprudence and a veneration for it ?