People v. Randall
Opinion of the Court
Slawson and Griffin then attempted to force open the front door, but failed, and then went round to the back door, forced it open and entered the house. Slawson proceeded through the entry, and had placed his foot on the third step of the stairs, when the prisoner* at the top of the stairs, with a hatchet in his hand, and moving forward down the stairs, towards Slawson, exclaiming as he came, “ out of my house, or I’ll split your brains out.” at the same time brandishing his hatchet. Slawson said to him, “ Mr. Randall, don’t do that, I am a peace officer.” The prisoner followed him within a step of the back door, and as Slawson and his companion were retreating, the prisoner hit Slawson a blow on the arm, aimed at his head and wounded him dangerously.
Slawson and Griffin made the best of their way-out of the house. Griffin put Slawson in the hands of a surgeon,
Disbrow;, Griffin, and two or three others, whom Dis-brow had pursuaded to go along with him, went to the house, they spoke to the woman at the window, and Dis-brow forced open the door, which was fastened, without asking or demanding admission; and as they passed through the entry, Disbrow observed, “ here is the old scoundrel’s axe,” and picked it up, and as he approached the foot of the stairs he laid the axe down and pulled off his coat, and said, “ you old scoundrel, give yourself up.” The prisoner threw hot water upon them, and said if they came near the stairs he would split their brains out; but they, nevertheless, proceeded up stairs to near the top, when the prisoner, with a hatchet, began “to hack on their heads,” striking them four or five times, and reached down after them, still striking, or attempting to strike them. The officers came immediately down, and Disbrow, exclaimed, “ for heaven’s sake, he has split my brains out.” He was taken away, and upon examining the wound, it was found that the brain had been penetrated about two inches, and a very vital part of it wounded. The deceased lived until the Friday following, when he died.
His Honor, William W. Van Ness, Justice presiding, after a full review of the facts, decided, “ that forcing the “door, in the manner before detailed, by Slawson and “ Griffin, was unlawful, even if a levy and an inventory “ had been made and left in the hands of the prisoner.
“ That after Slawson and Griffin had broken open the “ door, in the manner before stated, the prisoner had not “ only a right to order them out in the peremptory man- “ ner he did, but also to use a reasonable force to turn them “ out.
“ That the conduct of Slawson and Griffin could furnish “ no justification for the violent assault upon Slawson, he “ was retreating, and had retreated to the door, and. no “ danger to the person or property of the prisoner could “ have been reasonably apprehended at the time the wound “ was given.
“ That Disbrow, or any private citizen, after a danger- “ ous wound is given, had a right to arrest the assailant “ without a warrant, to prevent his escape from justice.
“ That undet the ciscumstances of this case, neither Dis- “ brow nor any other person had a right, either with or “ without a warrant, to force open the outer door, without “ a personal demand and refusal.
“ Yet after such forcing the door and entry into the “house, if the deceased had been engaged taking off his “ coat, and the prisoner had Come down while he was in “ the act, and inflicted the mortal wound, he could not be “ considered as acting in defence of his person or his pro-
. ,• , “ That if the jury believed the prisoner was frequently “ admonished to surrender ; that the deceased,- at the time “ the mortal wound was given, was taking off his coat ; ‘‘ that the axe was laid down; that there was time to re-- “ fleet; that if, at the time, he was actuated by a murder“ous intent, notwithstanding the house was illegally en- “ tered, it would be murder.”
Note.—Murder, as described by Sir Edward Coke, adopted the author of the Commentaries, 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.
A short analysis of the law of murder, and some of the most prominent decisions that have taken place both in England and in this country, are herein set down.
It is laid down in the books that there must be
1. An actual and unlawful killing. 3 Inst. 47.51: East, P. C. 214.
2. The killing must be malicious. Ibid.
3. The agent must be of sound memory and discretion. Hawk. b. 1. c. 1. 5 1.
4. The person must be a reasonable creature. Ibid.
There must be an actual killing. But it is not every killing that amounts to murder. To kill a person by working up his imagination or passions, is not murder; althoug it was done with a malicious intention, and although the sufferer immediately died. 1 Hale, 429: 4 Comm. 204. No. 5.
There must be an actual y]]jngn^aW^
If a sheriff has suffered a voluntary escape, he cannot lawfully arrest the prisoner again on the same execution, and if the officer be resisted and killed, in an attempt to do so, it will not be murder. 4 Mass. T. R. 391.
Nor is it murder where the party who gives the mediciné is not a physician, if the intent was to cure, and the person dies. Mass. Rep.
And if the wound is not mortal, but by injudicious applications becomes so, and it can be shown- that the medicine and treatment caused the death, it is not murder or even manslaughter. But where the wound was .sufficient, and the natural conclusion would be that it would produce death, it will be murder, notwithstanding it may be doubtful that a recovery could have been effected by proper medicine and attendance. 1 Hale, 438. Nor is it murder if the party survives a year and a day from the wound received, or the injury inflicted ; and the day on which it is done is always reckoned as one. 4 Blac. Comm. 197.
There are a thousand ways the crime may be committed, and which are ' all equally criminal; poisoning, shooting, stabbing, striking, starving, or drowning, or any other mode of death the wicked can devise, or .the unfortunate suffer.
It is unnecessary the death should be the direct and immediate result of the act; it may be indirect and consequential. The cases in the books are numerous and satisfactory.
Where death does not proceed immediately from the act, but is a final consequence of it.
The case of the unnatural and cruel son who carried his sick father in a cold and inclement season, from town to town, for the purpose of easing himself of his maintainance, and against his will, and in consequence of wanting proper sustenance and attention died, it was held murder. 1 Hale, 431, Palm. 545. So of the mother who left her new-born infant in an orchard, covered with leaves, and in which
Malice is the dictate of a wicked, depraved, and malignant heart; me disposition a faire me chose, mal and is not said properly of spite or malevolence to the accused in particular, as an evil design in general. 4 Comm. 198.
-j¡le jc¡n¿ng must be maliC10US*
Express ma* lice-
Malice is of two kinds, express or implied. Express malice is where . one, with a sedate, deliberate mind and formed design, doth kill another, which formed design is evidenced by external circumstances discovering that inward intention ; as lying in Wait, antecedent menaces, former grudges, and concerted schemes to do him bodily harm. 4 Comm. p. 198.
Implied ittzi*
Malice implied is, where an officer is killed in the lawful discharge of his t ... duty. Fost. 308. Or even where a private citizen interferes to prevent the commission of a felony, and is killed. Ibid. It is also implied where death happens in the execution of an unlawful act or design. Fost. 258: 1 Hale, 466. And, lastly, where even in heat of blood, where the weapon or violence is such as might naturally cause death. 1 Hale, 454, Kel. 64.
It is important, what kind of instrument, and the degree of violence with which it was used.
Express malice, from the weapon used
^ park-keeper found a boy stealing wood in the park, and tied him to a jo horse’s tail and beat him, the horse ran off and killed the boy, it was held murder. 1 Hale, 454. And also, where a schoolmaster stamped violently on the belly of one of his scholars. Ibid. 473, 474. And it was also held murder where the master struck his servant with an iron bar, whereof he died. Kel. 64. But where the instrument is " proper for correction, and the provocation great, a father had received frequent complaints concerning his son who had been guilty of stealing, and in his anger chastised him with a rope, it was held, after great deliberation, manslaughter. IP. C. 261. And where the owner of an inclosure found a person committing trespass, and in the heat of the moment beat him, and by accident killed him, itwasheld manslaughter only. And in the case of the shepherd who, being provoked at his boy, threw a stake at him and killed him, it was decided to be manslaughter only. 1 Leach, 378.
Where death X&K6S pl&C6 Up on the spur of the occasion.
gvery i£¡]iing ¡g supposed to be felonious, and it lays upon tíre party char- „ _ ed, to prove it not so. Fost. 255. If one, with a sword drawn, make a pass at another whose sword is undrawn, and a combact ensues, if the former be killed, it will only be manslaughter in the latter; but if the latter fall, it will be murder in the former, for, making the pass before his adversary’s sword was drawn, he evinced an intention not to
Where the provocation is great and the irijury attrocious, and no actual violence used, malice will not be presumed. Where a man finds another in actual adultery with his wife, and in the heat of passion kills him, it is not murder. Fost. 296. But if the first transports of his passion have had time to cool, and he then kills him, it will be murder. Ibid.
Malice will not be preSumed.
poison, &c.
Malice is implied in every case of wilful poisoning, although no evidence of a quarrel or epmity is proved. 1 Hale, P. C. 455. To kill another without any provocation, or without some provocation, malice is implied. 1 Hawk. P. C. 82. To kill an officer in the faithful execution ofhis duty, is murder, and the law will imply the highest malice. 1 Hale, P. C. 465. So to kill any private person in endeavoring to suppress an affray, or to apprehend a felon, malice will be implied. Ibid. Malice will also be implied where the party was in the act of committing a felony, and accidentally kills another. Ibid. 465. If one shoots at A. and kills B. it is murder. So where poison is laid for A. and it is taken by B., and proves fatal. Ibid.
If a sheriff has suffered a voluntary escape, he cannot lawfully arrest the prisoner again on the same execution, and if the officer be resisted and killed in an attempt to do so, it will be murder. 4 Mass. Rep. 391.
If the act of killing be in itself attended with probable dangerous consequences to the deceased, and be committed deliberately, malice will be presumed, unless some sufficient excuse or provocation should be shown; for the law infers that the natural probable effects of any act, deliberately done, were intended by the agent. Ibid.
To counsel another to commit suicide, and he does commit it in consequence of such advice, the adviser is guilty of murder. 13 Mass. 356.
Every act which apparently must do harm, which is done with intent to do harm, and without provocation, and of which death is the consequence, is murder. Addis, 148. ^
Unlawful killing, with a design to kill, is murder in the first degree ; if with a design only to hurt, it is murder in the second degree. Ibid. Ü 283.
Wherever it appears, from the whole evidence that the crime was, at the moment, deliberately or intentionally executed, the killing is murder in the first degree. 1 Brown’s App. p. 221. It is sufficient to constitute the crime, if the circumstances of wilfulness and deliberation were proven, although they arose and were generated at the period of the transaction. Addis, 257. If the party killing had time to think, and did intend to kill, for a minute, as well as an hour or a day it is a deliberate, wilful, and premeditated killing, constituting murder in the first degree. Smith’s Trial, Pamphlet, p. 231; O’Hara’s case.
4 Dali. 146.
Drunkenness does not incapacitate a man from forming a premeditated design of murder , but as drunkenness clouds the understanding, and excites passion, it may be evidence of pasión only, and want of malice and design. Addis, 257. See further, where malice will be implied. Post. 256,7: 2 Roll. 461: 2 Ld. Raymond, 1487: 1 Hawk. 127: Addis, 148—161—256.
The agent sound memory and dis-. cretion.
-p^g application of those rules that determine the exemption or acconntability of persons for murder, is precisely the same as those relating to other crimes and offences,
, pai f killed must be a reasonable ke'ng alive & pence = S
"We have no statute similar to the 43 Geo. 3. c. 58 in this State. The crime, therefore, of administering drugs to a pregnant woman, or by blows, or any other means destroying her child before it is born, is only a misdemeanor.
It is murder to shoot or otherwise unlawfully kill a person committing a misdemeanor, although he could not otherwise have been taken. 4 Comm. p. 201.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.