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Browsing: Legal Papers of John Adams, Volume 2


Docno: ADMS-05-02-02-0010-0001-0003

Author: Paine, Robert Treat
Date: 1770-04

Paine's Minutes of the Trial1

Suffolk. Supr. Ct. April 1770.

Dom. Rex vs. Ebenezer Richardson and George Wilmot
S. Quincy.
Wm. Gray, day before Some mention of Effigies. R said he hoped if these was before Importers Doors there be a Dust beat up, wish'd the 14. Regiment there. They would Cut up the d——d Yankees. Some time before he said he would give the Devil a Supper of them if— He has also said he would not hurt any body unless they hurt him.
Deb. Warner. I was Looking out of my Shop door, I saw R by the Eff[igy]. He came by with the Gentlemen and cry'd out Perjury Perjury, and said not you. Went into his house, and then came out and he came out in a great Rage, doubling his Fists and <called> challenged the Gentlemen to the Door. Said it should be hot enough before night. This brought the Boys from the Eff. The Boys threw light stuff. He came out with a Stick, and threatned and then went in the Step of the Door and went in and a brick Batt came out of the House and struck a Man who took it up and threw it in and that was the first of the Windows being broken.
On saying Perjury, he said it shall be hot enough before night.
Before Window broke he swore if they did not disperse he [would] make a Lane thro them.
Front Door open when the Gun fired. No body had attempted to { 417 } enter; months ago, I have heard R say Let 'em come on me I'm ready, for I've Guns loaded. I said I am not safe.
Hannah Warner. The first I saw, R. was with Gentlemen called P.P.2 Challenged em up to Door. Boys came, R in great Rage. He ordered em to go off. They said they would not, Kings high Way. He said he had a Gun loaded and would fire. Swore by G— he would make a lane, no Men.
Edwd. Procter. I was coming from No[rth] 1/4 past 10, with Some Gentlemen to see Pagentry before Lilly's Door. R cry'd Perjury, Perjury. I said what do you mean. He said by the Et[e]r[na]l G—d I'll make it too hot for you before night. I withdrew. I saw the brick strike [Soldier?]. He returned it and broke 20 Squares. Soon after the Gun fired. R. doubled his Fist and said Damn ye come here I'm ready for you.
When the Boys threw, I don't remember any Men among 'em.
Saml. Appleton. I heard Boys huzza. The first I saw by Lilly was R. He spake to Mrs. L——, then spake to Country man with Waggon. R. shoke hand and said Perjury. Knox asked him what he meant. He said damn your blood come here, I'll make it too hot for you before night. Boys got to the Door, threw things. Woman came out. Egg struke Woman.
R: came out and said if you dont go away I'll blow a hole thro you enough to Drive a Cart and Oxen.
At the back Door, I saw R. and W's. Guns. R said Dam their Blood I don't care what I have done. He had a Cutlass drawn, and resisted. He said he would resign himself to proper Officer.
Nathl. Noyes. I saw R. level Gun and snapt it at the Door, and went into the House. No Glass broke at that time. Then Boys threw Sticks. At first Snapping Boys were playing elswhere.
Saml. Lock. I was in Town to sell milk. I saw Boys bringing Show. I was at Lillys, read it, saw People at the Door. He said begone to the Boys. 3 or 4 of us stood before R. Window. Saw 'em thro',3 no Windows broke. He said if they did not go off he'd make it too hot for 'em, as sure as there was a G— in heaven, he'd blow a Lane thro 'em. He flashed a Gun in the House pointed to the Street.
Robert Paterson. I went up to R, and I saw R fire the Gun, from within the House. The Boy fell. The Shot went thro' my Trowsers.
Charles Atkins. I saw him walking in the Room with the Gun on { 418 } his Arm. Saw him pull the Tricker. Syder was stooping to take up a Stone as I thought, and was Shot down. 60 or 70 Boys.
Jona. Kenny. The first I saw was 4 or 5 Stones flung out of R. Windows. None had been then flung at the House. I saw R knell down and point the Gun out of the Window, and I saw him shoot.
Syder threw nothing stood looking.
One stone struck me.
I was by Syder 5. minutes. Saw him throw nothing.
John Home. Woman run out and whipt the Boys. Then they threw Sticks; I saw him load, saw him point the Gun and fire.
When he loaded the Gun no Window broke.
R. came out swore by G— if they did not go away he'd make a Lane.
Robert Bricks. Heard R. cry Perj:, your a pack of perjd. Villians. Knox come here. R. presented the Gun out of the Door.
<Robert Hews>
David Bradley. Windows broke when I got there. I saw 3 or 4 Stones come out of the Window. I saw one or two Men in the Room with Guns in their hands. R put a Gun on edge of Window. I heard the Gun, and run to the back of the house. R clapt the Gun at me.
The Boys ceased throwing till R. threw again.
Wilmot was there. He said it was not I but R.
Robt. Hewes. After Guns fired, I saw R at Window. Boy threw. He presented again. Wilmot said he was assisting him. Wil: presented his Gun out of Window and said Stand off or I'll fire.
Phil Ridgaway. I saw W. at Rs.
When I first came, no Windows broke. Large Stones thrown from house. Then Saw W and R in Yard with Guns. R. said I don't care what I've done when they told him he had killd a Boy. I took from W. a Gun loaded with 179 Shots. 17. Swan Shot. The rest Goose and Duck. She looked as if flashed. Wilmot said he could not have fired for the Screw pin was gone.
Some men laughed, 10 or 15 Stones thrown by Men with violence, but remember none in particular.
Thos. Young. 4 Wound mortal.
John Loring. Wound mortal.
Black. Anal. 119. Murder and Manslaughter.5
{ 419 }
Hales Pl. Cr. 31: Murder what, if the act unlawful.6 44. If a man do an act by which Death must ensue, consider, if intended.7 45. An Intention of Evil tho not against a particular Person.8
F.C. Law. 255. The fact proved, prisoner must excuse.9
F.CL 291. §2. The Weapon. Murder.10
HHPC. 451. Def. of Malice in fact.11
2 Ray. 1489. Malice express, if a Man do an Act that must do harm.12
Pris[o]ner.
Sarah Richardson. Mr. Knox and Capt. Matchet followed Father up to the Door and said come out you damn Son of Bitch, I'll have your Heart out your Liver out. Boys came there. Knox, Procter and Machet stood behind the Boys. Dont know how long. They threatned to kill us all. I staid till no Lead, no Frame, and then went away.13 Stones hitt my Father, hitt me, could not tarry without danger of Life. Outer Door shut when they threw Stones. Broke Cieling. They broke Doors open. Stones hit Mother. Wilmot said he would stand by { 420 } him as Long as he had breath. Wilmot asked if he had any Gun. R. said he must get his Gun.
Kezia Richardson. Knox, Matchet and Procter Challenged my Father. Knox challengd him and he said he'd have his Heart and Liver in his Hand. They broke the Door open. It was locked. Mother and father Wounded with a Stone. The Wall broken. Father desired Wilmot to [ . . . ].
John Codman. School Boys Surrounded R's House, throwing Dirt and Stones at the House. They said he had Snapt a Gun at us. Not large Stones. A Man said to me you dont know What provo[cation] the Boys had had. Windows broke when I came. Men did not seem to have any Concern. The Doors open. Girls there, unconcerned. A Stone came from the back of Richardsons House. It could not come from Boys.
Mrs. Ann Caldwel. The Boys were assembled and said they were a going to have a Frolick. More than 50 [ . . . ] The Side of the House battered.
Katherine Winch. My back Yard and R join. I saw the Boys throw Stones after R apprehended Wall broke.
Lee Esqr. I saw R. Windows broke, Codman reproving the Boys. Man from other side way came and said he did not know the Provocation. Only Boys active. Little or no throwing while there, 15 or 20 men in Sight of R. house. I saw no Body in the house. No Passion in any Body.
Willm. Eustice. I saw Boys thro. Stones. Sailor threw short clubb broke the Lead. The Gun went off. 200 men before firing.
Andrew Tewksbury. The Boys said R was an Informer. They threw Limon Peels then Stones. Some Men looked on Boys and they threw faster. Men shew'd no signs of Approbation but laughing. No Glass broke when I got there. 200 or 300 Boys and Men, 20 or 30 men over the Way. Large Stones. None from the House.
Dr. Hill. I was there before Stones thrown, 1 1/2 minutes before Gun fired. The Windows were demolishd. Not broke when I first went. The affair intirely among the Boys. Men not concern'd.
Dr. Perkins. Some Glass broke when I got there. Some Boys threw Carelessly. Not there more than a minute.
Elias Dupee. The boys carried the Pagentry. I tarried till all Glass broke. I spoke to the Boys. A man said the Town will pay for it tis none of my Business. A brick bat thrown out of the Window and a Soldier threw it back after Stones were thrown. I saw a Gun pointed and fired.
{ 421 }
David Pulsifer. R. said if ever a mobb come before my house, call away your Friends. The Girls said Wilmot ask'd R. where his Arms and Ammunition was. Some Men about in the Street. Did not heard any threats, but Matchet, Said they deserved to be hang'd 7 years ago.
<H. Laughton>
Freeman Pulsiver.
Quincy.
A man of universal Bad Character, apt to be prejudiced. @ Danger of its Working tother Way.14
Theocracy of Jewes. @ City of Refuge.15
4 Blackstone [191]. Manslaughter is killing without malice.16
HHPC. 449. Murder and manslaughter. What. A sudden falling out.17
FCL. 273. Injured Person may justify when known Felony intended. 277.18
Keyling 51: The case of turning out of Tavern Room.19 60. The Circumstance to reduce to manslaughter must be some striving.20 2 { 422 } Ray. 1301. Where the Liberty of one Subject is invaded the Liberty of the whole is affected.21
@. Fost. 312. Tooleys case denied.22
2 Inst. 51; Malice must be with a calm deliberate mind.23 57. Manslaughter where it happens on Sudden Shuffling.24
12 Co. Boy with bloody nose.25 Mem. Foster Contra. 295. 326
HHPC 445. A comes to enter, with force.27 485. Killing those who come to [do] Injury to the House.28 486. Come to Take Goods a Trespasser.29
5 Co. 91. Semaines Case, attacking a House.30
11. Co. 84. Bowles Case, a man may call other to defend himself in his house.31
{ 423 }
Hale PC 40, if a man come to enter.”32
HAPC. 72.33
Cro. Car. 537. Cokes Case, killing Bailiff.34 Vid. it was ruled Manslaughter because he might have resisted him without killing him. Ergo were it not he was a Bailiff and broke the House it would be Murder.35
Kelynge. 131. Pulling nose, and running thro with Sword.36
HHPC: 458: had it not known him to be a Bailiff no felony.37
Fos. 298. 99. An officer push'd into room to arrest.38
HHPC: 442.39
Fost. 261. When a Blow aimed at one Person killeth another, but where the first is evil it is murder.40 292: Lutteralls Case.41
HPC. 81. 27.42 83. 39.43
{ 424 }
Fos. 350. 5. Accomplice.44 391. bottom. D[itt]o Plummer Case.45 35346
Haw. P.C.: 193: Libel whats provoking.47
A Man's house his Castle a Doc[trine] highly approved.
The Pagantry must not be considered as Lawful.
A Crime of this Sort not to be presumed. @ R. must Excuse.
A man no[t] obliged to fly from his own House. @ When the assaliant is in his House.
Snider was among Trespassers and therefore not murder to kill him.
HHPC: 441. Woman killd by throwing a Stone.48
439. 440. Accomplice.49
New Trials50
5 Bac. 244.51
{ 425 }
Str. 1106.52 1142. Evidence on both sides.53 887.54
May be granted when Defendant found guilty.
Str. 104. 968. 1106.55
Bla. Com. 354. The Jury have an unquestionable right to determine on all the Circumstances and to find a general verdict.56 2. Hal. 310.57
1. In Robert Treat Paine's hand. Paine Law Notes. As usual in Paine's legal MSS , the handwriting is hasty, careless, and often cryptic, the punctuation chaotic, and the meaning, therefore, sometimes obscure. Some editorial regularization has had to be imposed to make the notes intelligible; doubtless some misreadings remain.
2. That is, “Perjury, Perjury.”
3. Either the witness saw the boys throw at the window, or saw Richardson and Wilmot through the window.
4. Dr. Thomas Young (1731–1777), one of the patriot leaders. See Edes, “Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2 (1910).
5. William Blackstone, Analysis of the Laws of England 119 (Dublin, 5th edn., 1766):
Manslaughter is the unlawful Killing of another; without Malice, express or implied. This is Felony, but within Clergy; except in the Case of Stabbing.” “Murder is when a Person of sound Memory and Discretion, unlawfully killeth any reasonable Creature, in Being, and under the King's Peace; with Malice aforethought, either express or implied. This is Felony, without Clergy; punished with speedy Death, and Hanging in Chains, or Dissection.”
6. Hale, Pleas of the Crown (Summary) 31: “But if the act be unlawful, then death ensuing, Manslaughter or Murder.” Id. at 32: “So that an unlawful act, without an ill intent, Manslaughter; with an ill intent, Murder.”
7. Hale, Pleas of the Crown (Summary) 44: “Malice implied in the manner of doing. . . . If a Man do an act that apparently must introduce harm, and Death ensue. . . . But note, that if it were with an intention to do harm, then Murder; if without such intention, Manslaughter.”
8. Hale, Pleas of the Crown (Summary) 45: “For an Intention of Evil, though not against a particular Person, makes a Malice.”
9. Foster, Crown Cases 255: “In every Charge of Murder, the Fact of Killing being first proved, all the Circumstances of Accident, Necessity, or Infirmity are to be satisfactorily proved by the Prisoner, unless they arise out of the Evidence produced against Him: for the Law presumeth the Fact to have been founded in Malice, until the Contrary appeareth.”
10. Foster, Crown Cases 291: “And it ought to be remembered, that in all other Cases of Homicide upon slight Provocation, if it may be reasonably collected from the Weapon made use of, or from any other Circumstance, that the Party intended to Kill, or to do some great bodily Harm, such Homicide will be Murder.”
11. 1 Hale, Pleas of the Crown 451: “Malice in fact is a deliberate intention of doing some corporal harm to the person of another. . . . Malice in fact is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized.”
12. Rex v. Oneby, 2 Ld. Raym. 1485, 1489, 92 Eng. Rep. 465, 468 (K.B. 1727): “Malice express, is a design formed of taking away another man's life, or of doing some mischief to another, in the execution of which design death ensues.”
13. That is, she remained until the window lead and frame were destroyed. The Knox referred to is Thomas Knox. See indictment, SF 102009, where he is listed as a witness.
14. Paine apparently used “@” to denote counterarguments or answers to points made by his opponents.
15. Numbers 35:14–33:
“Ye shall give three cities on this side Jordan, and three cities shall ye give in the land of Canaan, which shall be cities of refuge. These six cities shall be a refuge both for the children of Israel, and for the stranger, and for the sojourner among them: that every one that killeth any person unawares may flee thither. . . . Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die. Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest. So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.”
A similar reference appears in Rex v. Goodwin (SCJ, Falmouth, 1772), Adams Papers, Microfilms, Reel No. 185. See also No. 63, text at note 8 165 , and No. 64, text at note 14 135
16. See also note 5 121 above.
17. 1 Hale, Pleas of the Crown 449: “Murder and manslaughter differ not in the kind or nature of the offense, but only in the degree, the former being the killing of a man of malice prepense, the latter upon a sudden provocation and falling out.”
18. Foster, Crown Cases 273: “In the Case of Justifiable Self-Defence the injured Party may repel Force with Force in Defence of his Person, Habitation, or Property, against one who manifestly intendeth and endeavoureth with Violence or Surprize to commit a known Felony upon either.” At 277, Foster discusses the difference between manslaughter and excusable self-defense.
19. Ford's Case, Kelyng 51, 84 Eng. Rep. 1078 (K.B. temp. Hyde, C.J.): killing a man while defending one's right to possession of a room in a tavern held justifiable.
20. Lord Morley's Case, Kelyng 60–61, 84 Eng. Rep. 1082 (K.B. temp. Kelyng, C. J.): “[W]e held that such a provocation as must take off the killing of a man from Murder to be but Manslaughter, must be some open Violence, or actual striving with, or striking one another.”
21. Reg. v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q.B. 1710): “[W]here the liberty of the subject is invaded, it is a provocation to all the subjects of England.”
22. Foster, Crown Cases 312: “The Doctrine advanced in the Case of The Queen against Tooly and Others hath, I conceive, carried the Law in favour of Private Persons Officiously interposing farther than sound Reason founded in the Principles of true Policy will warrant.”
23. Probably 3 Coke, Institutes *51: “Malice prepensed is, when one compasseth to kill, wound, or beat another, and doth it sedato animo.”
24. Probably 3 Coke, Institutes *57: “Homicide is called chancemedley or chancemelle, for that it is done by chance (without premeditation) upon a sudden brawle, shuffling, or contention.” Id. at *55: “There is no difference between murder, and manslaughter; but that the one is upon malice forethought, and the other upon a sudden occasion: and therefore is called chancemedley.”
25. Rex v. Royley, Cro. Jac. 296, 79 Eng. Rep. 254, 12 Co. Rep. 87, 77 Eng. Rep. 1364 (K.B. 1612). See note 20 106 above.
26. Foster, Crown Cases 295: “[T]he Accident happened by a single Stroke with a Cudgel not likely to destroy and . . . Death did not immediately ensue. . . . I observe that Lord Raymond layeth great Stress on this Circumstance, that the Stroke was with a Cudgel not likely to Kill.” Id. at 293 is a discussion of Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722). See note 21 107 above.
27. 1 Hale, Pleas of the Crown 445. See note 5 91 above.
28. 1 Hale, Pleas of the Crown 485, treats “what the offence is in killing him, that takes the goods, or doth injury to the house or possession of another.” See also note 14 100 above.
29. 1 Hale, Pleas of the Crown 486: “If a man come to take my goods as a trespasser, I may justify the beating of him in defence of my goods, as hath been said, but if I kill him, it is manslaughter. But if a man come to rob me, or take my goods as a felon, and in my resistance of his attempt I kill him, it is me defendendo at least, and in some cases not so much.”
30. Semayne v. Gresham, 5 Co. Rep. 91, 77 Eng. Rep. 194 (K.B. 1605). See note 6 92 above.
31. Bowles v. Bury, 11 Co. Rep. 79, 84, 77 Eng. Rep. 1252, 1260 (K.B. 1605). The reference appears to be an inadvertence for 11 Co. Rep. at 82, 77 Eng. Rep. at 1258. See note 7 93 above.
32. Hale, Pleas of the Crown (Summary) 40: “If one come to enter into my House, claiming Title, and I kill him, Manslaughter. If A. enter wrongfully into the House of B. riotously and forcibly, B. and others endeavour to fire the house, A kills, Manslaughter.” See also note 11 97 above.
33. Apparently 1 Hawkins, Pleas of the Crown 72, which discusses justifiable homicide.
34. Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1639). See text at note 12 98 above.
35. The two preceding sentences were inserted in the MS in a very small hand, not Paine's. They refer to the court's ruling that the killing was not excusable, but “manslaughter, because he seeing and knowing him, shot at him voluntarily, and slew him.” Cro. Car. at 539, 79 Eng. Rep. at 1064. As to the contention that if it were not for the fact of the house-breaking, the killing, being voluntary, would be murder, compare 1 Hale, Pleas of the Crown 485. See text at note 14 100 above.
36. Reg. v. Mawgridge, Kelyng 119, 84 Eng. Rep. 1107 (Q.B. 1707). See note 16 102 above. The reference appears to be an inadvertence for Kelyng 135, 84 Eng. Rep. 1114.
37. 1 Hale, Pleas of the Crown 458. See note 13 99 above.
38. Foster, Crown Cases 298–299. See note 19 105 above.
39. 1 Hale, Pleas of the Crown 442. See note 26 112 above.
40. Foster, Crown Cases 261. See note 25 111 above.
41. Rex v. Reason & Tranter, 1 Str. 499, 93 Eng. Rep. 659 (K.B. 1722), discussed in Foster, Crown Cases 292. See note 21 107 above.
42. 1 Hawkins, Pleas of the Crown 81, §27:
“And it hath been adjudged, That even upon a sudden Quarrel, if a Man be so far provoked by any bare Words or Gestures of another, as to make a push at him with a Sword, or to strike at him with any other such Weapon as manifestly endangers his Life, before the other's Sword is drawn, and thereupon a Fight ensue, and he who made such Assault kill the other, he is guilty of Murder; because that by assaulting the other in such an outrageous Manner, without giving him an Opportunity to defend himself, he shewed that he intended not to fight with him, but to kill him, which violent Revenge is no more excused by such a slight Provocation, than if there had been none at all.”
43. 1 Hawkins, Pleas of the Crown 83, §39:
“Also it seems, That he, who upon a sudden Provocation executeth his Revenge in such a cruel Manner, as shews a cruel and deliberate Intent to do Mischief, is guilty of Murder, if Death ensue; as where the Keeper of a Park, finding a Boy stealing Wood, tied him to a Horse's Tail and beat him, whereupon the Horse ran away and killed him.”
44. Foster, Crown Cases 350, 355, treats the law of accomplices and abettors.
45. Foster, Crown Cases 351–352, discusses Rex v. Plummer, Kelyng 109, 84 Eng. Rep. 1103 (K.B. 1701), in which the court held that the shooting of A by B, where both were members of the same gang attempting over the physical opposition of a Crown officer to export English wool contrary to law, was not murder in C (another gang member), it not having been found that the shot was discharged against the officer.
46. Foster, Crown Cases 353–354:
“A general Resolution against All Opposers, whether such Resolution appeareth upon Evidence to have been Actually and Explicitly entered into by the Confederates, or may be reasonably collected from their Number, Arms, or Behaviour at or before the Scene of Action, such Resolutions so proved have always been considered as strong Ingredients in Cases of this kind. And in Cases of Homicide committed in consequence of them, every Person present in the Sense of the Law when the Homicide hath been Committed, hath been involved in the Guilt of Him that gave the mortal Blow.”
47. 1 Hawkins, Pleas of the Crown 193: “[S]ince the plain Meaning of such Scandal as is expressed by Signs or Pictures, is as obvious to common Sense, and as easily understood by every common Capacity, and altogether as provoking, as that which is expressed by Writing or Printing, why should it not be equally criminal?” This citation indicates that the defense argued that the criminal nature of the sign or “show” at Lillie's rendered the whole affair unlawful and that Richardson had been justified in attempting to destroy it.
48. 1 Hale, Pleas of the Crown 441, setting out Mansell and Herbert's Case, Dyer 128, 73 Eng. Rep. 279 (1556–1557), concerning an attempt by a “great multitude of men” to take goods out of a house. A woman who came out of the house unarmed was struck and killed by a rock thrown by one of the multitude at another. Held: Murder (according to the headnote—the report itself is less clear).
49. 1 Hale, Pleas of the Crown 439–440, a discussion of accessories to felony.
50. The MS page on which the immediately preceding citations appear is left three quarters blank. On the next page is set out (with some alterations) Isabella's speech from Shakespeare, Measure for Measure, Act II, scene 2, commencing “Could great men thunder.” On the page after that, upside down, appears the material on new trials ending Doc. II. The rest of that MS page is blank, and the following page commences with “SC. Augt. 1770.” (See Doc. III.) What role, if any, Shakespeare's lines played in the proceedings, the editors cannot presently say.
51. 5 Bacon, Abridgment 244, concerning new trials, which cites the cases in the two footnotes next following. For a discussion of Bacon's authorities, see No. 12, text at notes 50–55.
52. Smith dem. Dormer v. Parkhurst et al., 2 Str. 1105, 1106, 93 Eng. Rep. 1061 (K.B. 1739): “[T]he point upon which the new trial in this case was denied was, because they said the evidence was doubtful, and in such a case a verdict at bar ought to stand,” even though the finding had been against the weight of the evidence.
53. Ashley v. Ashley, 2 Str. 1142, 93 Eng. Rep. 1088 (K.B. 1741):
“The Judge who tried this cause (which was upon a promisory note for £5000 which the defendant insisted was forged) certified that the weight of the evidence was with the plaintiff, and he thought the jury would find for the plaintiff; but they found for the defendant. Et per curiam, As there was evidence on the part of the defendant, the jury are the proper judges which scale preponderates. It cannot be said to be a verdict against evidence, and therefore we will grant no new Trial.”
See also Smith v. Huggins et al., 2 Str. 1142, 93 Eng. Rep. 1089 (K.B. 1741), decided the day after Ashley v. Ashley: “[A] new trial denied; though there was but a weak evidence for the plaintiff, and the Chief Justice summed it up strongly for the defendant.”
54. Rex v. Huggins, 2 Str. 882, 887, 93 Eng. Rep. 915, 918 (K.B. 1731), reported somewhat more fully, 2 Ld. Raym. 1574, 92 Eng. Rep. 518. This was an indictment against the warden of the Fleet Prison for the murder of a prisoner by a servant of the deputy warden, who had confined the deceased “six weeks without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common shore.” The jury found specially: that the servant had kept the deceased as alleged, whereof he had died; that Huggins knew the condition of the room at least fifteen days before the deceased's death, having seen him there and then having turned away. But Huggins' guilt or innocence they left to the court. Held: No finding of Huggins' consent to the deputy's acts, the circumstances of Huggins' presence
“were they ever so strong an evidence of consent, they will not be sufficient for us to ground a judgment upon: we are to determine upon facts, and not on evidence of facts. . . . It would be the most dangerous thing in the world, if we should once give into the doctrine of inferring facts from evidence; which is the proper business of a jury, and not of the court.”
2 Str. at 886, 93 Eng. Rep. at 917–918, per Lord Raymond, C.J. The Crown lawyers argued that inasmuch as the courts, since Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Rep. 465 (K.B. 1727), note 12 128 above, had not required the jury to find malice, the judges could as well adjudge the consent as a matter of law. This, Lord Raymond rejected, noting that “malice is matter of law arising from a legal construction of the act, . . . but consent is an act of the mind.” 2 Str. at 886, 93 Eng. Rep. at 918. Finally, the Crown contended that the verdict was too uncertain to found a judgment upon, and the court should therefore require a new trial. Noting first that “no instance could be produced where, in a criminal case, it was ever done for a fault in the verdict itself,” Lord Raymond went on to hold the verdict good.
“There is no incertainty as to the facts that are found: the only fault is, that there are not such facts found as will amount to murder. The consequence of which is, that the defendant is Not guilty of murder; and it would be endless to send it back to a jury, till they find facts enough to make it murder; besides its being contrary to law, in exposing a man to a second hazard of life.” Id. at 887, 93 Eng. Rep. at 918.
55. See notes 20 193 , 21 194 , below, and 52 168 above.
56. 4 Blackstone, Commentaries *354–355:
“But an open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. That is where they doubt the matter of law, and therefore chuse to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths. . . . Yet in many instances, where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench. . . . But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first.”
57. 2 Hale, Pleas of the Crown 309–310:
“But what if a jury give a verdict against all reason, convicting or acquitting a person indicted against all evidence, what shall be done? I say, if the jury will convict a man against or without evidence, and against the direction or opinion of the court, the court hath this salve[,] to reprieve the person convict before judgment, and to acquaint the king, and certify for his pardon.”
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