
    TERRITORY vs. MATHER.
    The crime of estabbing with an intent to murder, intends murder of the first degree.
    
      This was an indictment against the defendants for stabbing, with an intent to murder.
    
      The Attorney General, Duncan.
    The frequency of this crime, and the facility with which offenders escaped from justice, induced the Legislature, in the year 1806, to specify and add it to our criminal code, and make it the subject of capital punishment. Our statute enacts, that whoever "shall shoot or stab any person, with " the intent to commit the crime of murder, such person or persons so offending, on conviction thereof, shall suffer death." 1806, c. 29. The dangerous practice also, which obtained in this country, and which still too generally obtains, of wearing concealed weapons, ready to carry into effect the irascible, malicious, and vindictive feelings of their owners, had its influence with the Legislature, in annexing to this offence so severe a punishment : and, though the person so shot or stabbed, might survive the attack, or recover from his wounds, yet such a fbrtuuate escape, or accidental recovery, was not thought sufficient to free the assassin from his incurred guilt, or shield him from his merited punish-xnent. In England, we find, that even stabbing with an intent only to maim or disagure, is punishable with death; and the statute of stal6ing, as it is called, made at the accession of James I. ousted of clergy, the manslaughter which might have ensued; this statute, like our own, being principally intended to stop the outrages frequently committed, by persons wearing concealed dirks, poignards, or daggers. The English statute, commonly called the Black Act, also contains provisions similar to our own ; and in the Spanish Criminal Code we also find a similar law, and annexing to the same offence, the same punishment.-It is the province of the jury to aid the legislature in their intentions, and carry into effect the provisions of a salutary law ; and certainly, the man, who shoots or stabs another, with an intent to murder him, can derive but small alleviation of his guilt, or extenuation of his crime, from the accidental escape or recovery of his victim.
    In this crime, as well as that of murder, the. intention forms the principal ingredient ; and the same frame of feeling and disposition of mind must be she~vn to exist in both cases ; for, tho' the offence of murder be not actually committed, the intention to commit it must be distinctly proven. The definition of murder will 8hew what this intention must be. Murder is the unlawful killing of any person, with malice cfore* thought, either express or implied. 4 Bi. 195 If, therefore the prisoner at the bar made this stab or thrust with malice aforethought, the crime is completed though no death ensued, and he is subject to the punishment, however severe, inflicted by the law: and this malice aforethought, as all the books tell us, is not to be taken in a narrow or restrained sense; it need not be shewn to be any particular spite or malevolence against he nersoa so killed; it is enough, if it be an evil design in general; if the fact be attended with such circumstances as shew it to be the dictate of a wicked, depraved and malignant heart as flowing from a wicked and corrupt motive, and denoting a wicked, perverse and incorrigible disposition. 4 Bl. 198, 199. Fost. 256, 257. It is therefore implied from any cruel act against another, however sudden. 1 East P. a 215. From an attentive examination and review of the circumstances attending the present case, the jury will determine whether this malice aforethought exist, and if the thrust were made by the prisoner at the bar, with an intent to comrnt the crime of murder. (The Attorney-General here introduced the testimony of the territory.)
    Ellery, for the defendant.
    By this indictment, the prisoner stands charged with stabbing,not with an intent to kill, but with an intent to murder. This is an important distinction and must be carefully kept in mind ; for though there should even be evidence sufficient to shew an intention to kill, yet, if it be not satisfactorily and beyond a doubt proven that the intention was to murdcr, the prisoner is entitled to a verdict of acquittal The malice prepense or aforethought necessary to constitute the crime, with which the prisoner is charged, must not, as in cases of murder, be implied, it must here be proven. The general rule is, that all killing or homicide is malicious, and of course amounts to murder ; and when the homicide is proven by the prosecution, the malice is implied by the law; and it is for the party accused to rebut this legal presumption ; to disprove this implied malice, by shewing circumstances which may justify, excuse or alleviate the homicide. But here express malice is of the essence of the charge ; it constitutes the crime there is no killing, from which it may be implied; from a mere woundiag it cannot be; for then any wound, however slight, would indicate murder ; it is, therefore, incumbent upon the prosecution, fairly to make out, distinctly to shew, and satisfactorily to prove the existence of this malice, and of these murderous intentions.-In other offcnces, the act and the intent must be coupled together, in order to complete the crime; lint here it is the intent alone.-And the law itself, upofi which this indictment is founded, appears both singular and severe, and such a one as will make a jury require more proof of the crime charged under it. It is in fact a law punishing intentions with more severity than would be Punished the execution of these intentions. The attempt here to commit the crime is tuade more criminal than the crime itself. By our statute, murder is divided into that of the first and second degree. The act says ; " all murder which " sha11 be perpetrated by means of poison, or by " lying in wait, or by any other kind of willful, " deliberate and premeditated killing, or which " shall be committed in the perpetration or at " temp to perpetrate any arson, rape, robbery or " burglary shall be deemed murder of the first " degree; and all other kinds of murder shall be " deemed murder of the second degree." The act then declares "that every persoa duly con- " victed of murder in the first degree, shall suf- " fer death; and every person duly convicted of " murder in the second degree, shall suffer im- " prisonment at hard labor, not less thatn five nor " more than fourteen years." 1805, ch. 4. Murder in the second degree, as it may be perpetrated without madce, would here appear to mean manslaughter, had not the Legislature, in another part of our criminal code, p~rticularly specilieci this crime and annexed to it a different and lighter punishment ; viz : fine and imprisonment the fme not to exceed five hundred dollars; the imprisonment at hard labor or otherwise not to exceed twelve months. 1805, ch. 50. Be this, however, as it may, we fiod that murd~r in the second degree is punishable only with imprison-inent ; and what is the punishment for stabbing with an intent to murder ? Death. Thus the intent is made more criminal than the act; and the design to commit the crime, punished more severely than the actual commission of it. Is this not a solecism in Legislation ? The object ot all criminal laws is to prevent the commission of crimes; this, on the contrary, appears to encourage it. The assassin is told to make sure work if he fail in the attempt, he is sure to be hang but if he succeed, the perpetration of the crime may lighten the severity of the punishment. If the law had said "stabbing, with an intent to commit the crime of murder in the first degrees should be punished with death :"-this reasoning could not be supported; but murder, by our law, is made a generic term, and the offence is divided into distinct species and degrees, and the intent to commit murder, by stabbing, is made capital, without specifying the species or degree. The English statute of stabbing, to which this is compared, bears but little analogy to it; This statute was of a temporary nature, and made for a particular occasion, and should hitve expired, with the necessity which produced it ; but under this statute death must ensue ; the crime is that of nortally stabbing, upon sudden provocation, which amounts only to manslaughter, a clergyable offence, but from which, in this case, this statute took away the benefit of clergy. The Goventry act also alluded to, has been but little acted upon; and there, the actual mayhem or disfiguration must be shcsvn, as well as the lying in wait, to bring it within the act. The Black Act is cer-tainiv more similar. But I suspect our own law boasts a Spanish parentage, and seems, indeed, to have been copied verbatim, from their criminal code. vul. Anto Gomez variar. Resol lib. 3. cap. 5, l. 2, 6, 10. The same law also is inserted in the Regulations or Instructions of O'Reilly, in the following words " Celui qui “ blessera ou tuera de guit-a-pens, et de dessein “ premedite, sera condamne a mort, quoique le “ blesse ne meure pas: le coupable sera conduit “ au supplice, attache a la queue d'un animal, et “ la moitie de ses biens seront confisques au pro- “ fit du fisc, ou du tresor royal.” O'Reilly, & 5, ar. 20, p. 27.
    BUT whatever be the origin of this law, or however singular and severe its conditions, we must still be bound by it; though certainly the jury will require more proof of the offence charged under it :-the reasons must be strong, and the'proof great, to carry into effect the severity of its punishment.
    In order to ascertain the character of the of-fence with which the prisoner at the bar stands charged, and to determine if the present case be within our act, we must first see of what species would have been the homicide, if death had en. sued. If this homicide would have been justifiable or excusable, no offence could have beeii ëomrnitted: or even if the homicide would have been felonious, but amounting to no more than manslaughter, still we are not brought within this act. We are charged with stabbing, with an intent to murder, not to kill; and it must be pro. yen to have been such a stabbing, as if death had ensued, the homicide would have amounted to murder. This was the decision of the Chief Justice in Milton's case, indicted for an assault, with an intent to murder. Lord Kenyon C. J., being of opinion, that if death had ensued, it would. only have been manslaughter, directed the jury to acquit the defendant upon the first count of the indictment, charging the assault with intent to murder. 1 East; P. C. 411.
   By the Court,

LEWIS, J.

alone. Surely,if the jury are of opinion that, had the person stabbed died, they ought to have found the de-fcndant guilty of murder of the second degree only, they will acquit him.

Verdict for the Defendant.  