Karl Heim.

The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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ment recently made by the managements of several teams, that foul play
will not be tolerated hereafter. Only a tremendous pressure of public
condemnation has been able to force these young gentlemen and scholars
to forego the practices of thigs. When a person is killed in such a game
by pure accident it is, of course, no crime. If the accident involve
negligence, it may constitute manslaughter. If the fatal injury was^given



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28 .The Criminal Law Journal. [Vol. Ill

deliberately, for the purpa«ie of disabling the player by breaking an arm or
leg, or other serious hurt, it constitutes murder in the first degree. (Seo
note to New York r. Sullivan, above cited.) In Reg. r. Bradshaw, 14 Cox
C. C. 83, homicide in football caused by recklessness was held to be
manslaughter. But, even when death does not result, the maiming of a
person by deliberate injury is in ii*<elf a crime so heinous as to be paralleled
only by the ancient brutalities of gouging out eyes in the lower order o£
prize fights.

The toleration of all these criminal sports by the public is an evil great
enough to require serious consideration. It is not simply the petty an-
noyance which is suffered by peaceful citizens in the robbing of their
fruit trees, and other'petty thefts, or injuries to other property, not the more
serious mutilations and injuries that sometimes result to private and public
property ; not the nuisance and demoralizing influence of lawless gangs
of students who engage in riots and brutal public fights ; nor even the very
serious and grave personal injuries that may be caused by criminal aggres-
sions in the name of sport. But the most serious side of it all is in the
widely diffused education of the youth, and even of the public at large,
to disregard justice, and condone criminal acts committed by the higher
classes, when the same acts would be rigidly punished if committed by
ordinary criminals. One instance of punishment for robbing fruit trees was
recently reported, but, as one might susppct, the offenders were ignorant
Italians. Innumerable thefts of the same sort in the same city go on con-
stantly ; and any attempt to get the police or authorities to interfere would
simply cause added humiliation to the victim, because the thieves belong
to good families. The vandalism which destroys college property witK
practical impunity when committed by students would create great excite-
ment and stern prosecution if committed by other hoodlums who had not
the advantages of a liberal education. The fostering of a lawless spirit,
(ind the education in criminal ways of well-dressed and well-educated young
fellows, is thus accompanied by favouritism in the enforcement of the laws.
This favouritism feeds the bitter and dangerous belief among the poor and
unfortunate in their maxim that " there is one law for the rich and another
for the poor." It is time for American justice to eliminate theft, arson,
assault, mayhem, and manslaughter from the curriculum of boyish and manly
sports, and to stop tolerating hoodlums and vandals because they are well
born or liberally educated.

Aside from the vicious element of class favouritism, there is the far-
reaching evil of criminal training. What standards of business honesty or
professional honour can be expected of those who, through boyhood and early
manhood, have indulged in crime for sport, have learned disrespect for
ihc rights of others either in property or person, and have come to think
of the restraints of law as intended chiefly for the lower classes ? If, in a



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ToK in] The Criminal Law Journ'al. ^29

game among gentlemen, and merely for the honours of victory, young men
learn not only to cheat at the game by secret violation of the rules, biit
al»o to use foul and criminal means by stealth to disable an opponent, what
restraints of honour, of fairness, or even of law may they be expected to
observe when all their fortunes are at stake in the supreme struggles of
professional, business, and political life ? — The Case ami Comment.



CONSTRUCTIVE MURDER.

There is perhaps no branch of our criminal law more obscure to the
ordinary individual, or less understood by the average juryman, than the
law of homicide. There is, perhaps, no portion of the criminal system
which stands in more urgent need of revision and amendment to bring it
into harmony with modern views.

The distinction between murder and manslaughter, simple though it
is generally understood to be, is probably rarely gra-^ped by any save the
jurist and it is difficult, indeed, even for the trained lawyer to acquire an
accurate conception of the technicality of the subject in it< entirety. The
difficulty of the subject is due to the gradual historical growth and develop-
ment of our criminal jurisprudence.

In his Digest of CAminal Laic^ the late judge, Sir James Stephen^ a
master of this branch of the law, in defining manslaughter and murder,
states that " manslaughter is unlawful homicide without malice afore-
thought ; murder is unlawful homicide with malice aforethouglit." Tlie
very simplicity of these definitions is misleading. Without a precise appre-
hension of the meaning of the expression " malice aforethought " these
definitions convey no meaning whatever, or at any rate a fallacious
meaning. The learned judge met the difficulty by proceeding to define
** maliee aforethought " as meaning any one of four specific states of mind
co-existing with the act or omission by which death is caused, and then
pointing out that it may exist where that act is unprenioditutod. Tliese
statements or definitions represented, as he said, the solution at whicli ha
had arrived after much consideration of one of the most difficult problems
presented by the criminal law — the problem of giving in a short com-
pass the result of a great number of decisions and statements by authorita-
tive writers upon the subject of murder.

It is not our purpose here to enter upon a review of the history of
this interesting but complex subject. The unsatisfactory condition of
the law has recently received illustration in the case of Rex v. Seddon,
a case which attracted considerable public attention. Mrs. Seddon was
in October last sentenced to death at the Central Criminal Court for the
murder of her husband. The pathetic facts disclosed at the trial were
that Mrs. Seddon and her husband had formerly carried on a business
as confectioners at Mortlake, but owing to bad trade they were reduced



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30 The Criminal Law JourkaL. t^ol. ill

almost to starvation. They determined to end their misery, and agreed
together to take poison. The wife handed the poison to her husband an4
he died ; she survived. This, in the present stat^ of our law, undoubtedly
amounts to murder. The old authorities .on the criminal ' law agree that
suicide is to be regarded as a murder committed by a man on himselC
So fully is suicide held to be murder that every one who aids or abets
suicide is guilty of murder. Sir James Stephen illustrated this by saying
that if, for instance, two lovers try to drown themselves together and one is
drowned and the other escapes, the survivor is guilty of murder. Though
this without doubt is the law, it is almost a foregone conclusion that the
humanitariim view so boasted in our twentieth century civilisation will
preclude the possibility of the surviVor suffering the extreme penalty of the
law. Our criminal procedure, in murder cases, however, admits of no excei>
tions. Mrs. Seddon underwent the misery of a trial for murder, was, under
the proper legal direction of the presiding judge, found guilty of murder,
and the formal death sentence was duly passed upon her with all the solem-
nity of its accompaniments. As might have been foreseen, the represen-
tation of the circumstances to the Homo Office resulted in an immediate
commutation of the capital sentence to that of penal servitude for life. With-
in the last few days the further intervention of the Home Secretary has
been announced by the press, and Mrs. Seddon has regained her freedom.

A bare statement of the facts suffices to convince one of the
unsatisfactory, and, we venture to say, even the inhumane, state of the
law and legal machinery which requires a poor woman to undergo what
might be termed the solemn farce, were it not a tragedy, of a trial for
murder and the death sentence under circumstances which, when known
to the Home Office, must almost inevitably lead to her release.

In cases of murder, as contrasted with nearly all other classes of crime-,
the judge has no discretion whatever in respect of the sentence. The pre-
rogative of pardon exercised on the advice of the Home Secretary fulfils
in the case of capital sentences for murder the purposes effected in other
cases by the discretionary power of punishment vested in the judge. Mr.
Justice Steplien was strongly convinced that in regard to capital cases the
judge ought to have a discretion analogous to that which he has in cases not
capital, for the fact that the punishment of death is not inflicted in every case
in which the death sentence is passed demonstrates that murder, as well as
other crimes, has its degrees. Moreover, an improved statutory definition
of the crime of murder would teiid to a diminution of the number of cases
in which interference with the law becomes necessary to satisfy an enlighteur-
ed perception of what is humane and just. In any event it should not
be difficult for the Legislature to prevent the recurrence of cases of the
type to which we have referred.— iT/j^ Justice of the Peace.



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V<J. ni] The Crimtkal Law JoutiNAL. 31

BOOK REVIET^S.

WhartpH on Conflict of Laws. Edited by

George H. Parmele. Published by the Lawyers' Co-operative
Publishing Co., Rochester, N. Y. (U. S, America). Third
Edition, 1905, Two Vols. 2081 pp. Twelve Dollars net.

Pablished origiiffdly in 1870, Dr. Wharton's work on the " Conflict
of Laws'* has held it* own as a work o£ some authority in the United
• States. Its second edition— ^vised by the eminent author himself — was
published in 1881^ Xhe present edition has been presented to the public
by Mr. Greorge H. F^rmele, ^me of the able and learned members of the
Publishers' editorial staff. • ui '

During the tweqty-four years, which had elapsed since the publication
of the second edition, 'the English and American decisions oh many impor-
. iant questions of interstate commerce had vastly enriched the interstate
law. Xhe editor of the present edition has incorporated all these decisions,
and broi\|||bt the citations up-to-date (1905). These decisions serve as
apposite illustrations ^f the abstract principles masterly discussed by Dr.
Wharton* Jii its present form the work presents the theoretical as
well as th^ practical uhases of the specific questions of private interna*
tional law. Jt is (fivi^d into XIV Chapters which cover seriatum :
the Preliminary Principliw ; Personal Capacity ; Marriage ; Parental Re-
lations ; Gi]|flird^Qship ; Law of Things ; OUigations and Contracts ;
Succession, WilU and Administration ; Foreign Judgments ; Practice ;
Bankruptcy ; Criminal Jurisdiction and Extradition.

A recent reviewer, in the Harvard Law Review, is of opinion that on
several questions the statements of law as given in the Text and Notes are
faulty and inaccurate. This is, perhaps, going too far. On many a point
of Private International Law, as on many other branches of Jurisprudence,
there is and shall always remain a difference of opinion. Among Jurists a
consensus of opinion on all points has never existed. Dr. Wharton and the
zealous editor of his standard work have their own independent views, and
they fully knew and well-understood what they have written or said.
Opinions shall always differ. It is no wonder, therefore, if a critic, not
thinking with the author and editor, characterises certain propositions as
inaccurate. We have no hesitation in saying that the work is one of the
best, if not the best, on the subject it embraces. The editor has done his
work very ably and conscientiously and well deserves to be congratulated
w his invaluable production.



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S2 .The CluMiKAL Law Journal. "[VoUlIt

May'6 Criminal. Law. Eciited by H^rry Augustus
Bigelow. Published by Little, Brown, and Company, Boston.
Third Edition, 1905 ; 420 pp. Three Dollar. - • • - • /

This handy volume on the Law of Crimes is intended liotli for the
student "and profession. It contains a terse and liicid exposition of the
general principles of (Viminal Law as administered in the United States.
A (^haiTter on procedure law covers, inter atiuy brief statements" of the
Rules of Evidence, Joinder of Charges and Criminal Pleading. He
rest of the book is devoted to a discussion of the substantive tVii|nnMl Law,
Barratry, Champerty, Maintenaace, Eavesdropping, Engrossing,; Forestal-
ling, Regrating, Apostasy and Blasphemy are tiie names given to se^e of
the ofEences. Most o£ these are not treated as o.ffence» in I;idia, though
they give rise to civil liabilities.

Like Wharton^s all-containing treatise on Criminal' Law, tki« Itandk'
book does not pretend to ho exhaustive; but it is not a mei'e synopsffi.
It is an accurate and interesting discussion, more suited and useful to ii
student than to a practitioner. Tlie latter, however, would find it suffici-
ently minute and comprehensive for all ordinary i>ar|)oses.



Law of the Domestic Relations. By Dr. Jame^

Schouler. Published by Little, Brown, and Companv, BoSton,
1905. 460 pp. Three Dollars.

This is a well-written elementary treatise on' several important
branches of the private law. AVe are told that "it is abridged from the
author's larger work on this subject." We have not had tlie i)leasure of
seeing this larger work, but judging it from its abridgment before us we
can confidently say that it must be a work of great merit. .

The main purpose of the hand-book is to supply the student and pro^
fessional lawyer alike with an elementary text-book which may serve
equally for study and practical use. The arduous duty of abridgment has
been done by the learned author himself. After giving us an introductory
description of the nature and scojkj of the subject, Dr. Soliouler takes us
to a well-considered discussion of the happy relation of ** Husband and
Wife." The natural relation of " Parent and VhM " i* treated next in all
its importiint aspects. Next in order is the.topic of " Guardian and Ward."
This is followed by an able but brief treatment of the law of " Infancy."
Last of all is given a concise but clear statement of the rudimentary
principles governing the contractual relation of " Mastet and Servant."

As an elementary work, the book is unrivalled. Its style is homely
and attractive. The principles are stated briefly but lucidly and accur-
ately. The references in the foot-notes are copious.



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THE

Criminal Lain Journal



OP



INDIA.
JOURNAL



Ko. 3] FEBRUARY 15, 1908. [Vol. Ill



THE BOORN MURDER CASE.
By Russell W. Taft.

" So Justice, while h\iq winks at crimes,

Stumbles on itniocencc sometimes/'

— lindlhraa.

In September, 1819, the grand jury of B?nninxton County, Vermont,
indicted Stephen and Jesse Boom for the murder of Russell Cdvin,
alleged to have been committed on the tenth day of May, 1812. The
Boorn ho«fiehold, consisting of Barney Boorn and his wife, their two sons,
Stephen and Jesse, their daughter, Sally, wife of Colvin, and her twa
children, lived near the Battenkill River in Manchester, Vermont. Barney
Boorn and his wife seem to have stood well in the community, but the
reputatiOTi borne by their sons was that of reckless and turbulent spirits.
Colvin, their son-in-law, was weak in intellect, at times mentally unbalanced,-
and would periodically absent him-jclf from home, giving no account of
himself on his return.

In the month of May, 1812, while his wife was on a brief visit in a
iieighbourhig town, Colvin suddenly disappeared. The Boorns reported him
to have gone on orie of his periodical trips. He did not return, and as time
went on public curiosity gave rise to inquiry ; suspicions of foul play, based
on circumstances, trivial in themselves, but pregnant with meaning to a
credulous rural community, agape for mysteries, speedily gained grounds
Near the time of tbe ^li^ppearance one of the Boorn brothers had stated
that Colvin was dead, the other that they " had put him where potatoes
would not freeze " ; the hat Colvin wore at the time of his disappearance

NoTB.— Upjn this ^ e uiAiUU e casj Wilkle Cjllius foumlcd his well-knowu talo " The
Dejkl Alive,"



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34 The ('uimixal Law Journal. [Vol. Ill

was found, in a mouldy and dila})iditod ct)ndition, noar the i^oorn place ;
Amos Boorn, an uncle of the brothers, thrice dreamed that Colvin came to
his bedside and told him that he luid bli^'ii murdered and buried in a cellar
hole about four feet sijuare, over which a house had once stood, and used
at the time of Colvin.V disappearance jvs a ])lace for burying potatoe^s ; a
barn on the BoOrn.])hice burned, ti;i>in*jj rise to the suspicion that the body
Height have been concftiled btHxeath it ;^and some bones were dug out-by a
dog from beneath a hollow stump, which, upon examination, were pro-
nounced human. "''''

This was the last straw. Suspicion became a certainty, and, as Stephen
Boorn had recently removed*to New^'ork State, Jesse was arrested on
complaint of Truman Hill, town (IramL Juror, and examined before Joel
Pratt, justice of the p?:ice, q]\ Tuosdiy,^ April 27, 1811>. The examination
lasted three days. A large knife; a |)lTiiknife, and a button, the button and
large knife being shown to have been C^olvin's, were found in the old cellar
hole and produced, and the bones found in the stump were pronounced hy
four physicians to be tliose of a human foot, together with some, toe naife
and perhaps a thumb nail. However, one of the physicians, on later
examining a skeleton at his hom(^, concluded that he had erred, and next
day retracted his statement. ' His bretln^en were dissatisfied and caused a leg
that had been amputated and buried to be e^hltnt^d and brought into court,
when, upon co^nparison, it'was api):irenl that the bones were not human.

At this, public sentiin3nt against' jthe ac^'Uicrl abated, .afnd in all likeli-
hood Jes$e would have heeij released had he -not, tirged thereto by his
jailers, Lon Saturday night confessed that, during a quarrel that arose wWle
tljcy weredioeing in the *'.Gla»ier" lot, his brother Stephen struck Golvm
fvithaitlo^bor sto^e ; that Col vin's-i^kuH .was fractured and that hcy Jesse",
beliovijd Oolvin to be dead, but coiild not tell what became of the body.
Sitepheh was at OJic^ arrested at Denmark, Lnwis County, New York, and
on May 15 was brought to Manchester, where both brothers were promptly
bound over to await the a(*tion of .the graml jury. • .

Upon his arrest ;Stej)hen stoutly mxlntainetl his innocence, even wlieri
confronted by his brother, but after both had been indicted so'rtiany persons
of character and influence told them that the case against them* was hope-
less, and urged them to confess that St<^j)fet^n made the followiilg'Hvi^itt^h
confession : »• : ?

" May the iOth, 1812, T, about or 10 oVlock, went down to David
Glazier's bridge and fished down below Uncle Nathaniel Boorn's, and theft
w(^ntup across their fUllrtis, where l{ussell and Lewis wc^fb, being the nighest
^vay, and sat down and began to talk, and liu^ist^H'told me how many dollars
benefit he had been to father," and 1 told him he was a damned fool, and he
was mad and jumped-up, and we sat close together, and T told him to sit
down, you little tory, and there was a piece of beech limb about two fe^t



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Vol. Ill] The OiUMiNAL Law Journal. a!5

long, and he catchod it up and it struck at my head as I sat down, and I
junfjlc'd up and it struck nio on one sliouldcr, and I catched it out of his hand
sirtd ^Iruck him a back-handed blow, I being on the north side of him, and
fhbre was ii knot oh it about one inch long. As I struck him I did think I hit
Win on the back, and he stooped down, and that knot was broken off sharp,
airtd'ifliit'him on the back of the neck, close in hishair, audit went in about
d'lfdlf* of an inch on that great cord, and he fell down, and then I told the
bdy to-go down and come up with his Uncle John, and he asked me, if I had
killed Russell, and I told him no, but he must not tell that we struck one
another. And I told him when he got away down Russell was gone away,
^d I went back and he was dead, and then I went and took him and put
hiuiin the corner of the fence by the cellar hole, and put briars over him
aild Went home, and went down to the barn and got some boards, and when
it w^K dark I went down and took a hoc and boards and dug a grave as well
H^'l could, and took out of his pocket a little barlow knife, with about a
half of a bliide, and cut some bushes and ])ut on his face and the boards,
and put in the grave, and put him in four boards on the bottom and on the
top, and <j*other two on the sides, and then covered him up and went home
(trying along, but I wan't afraid as I know on. And when I lived at Wm.
Boorn's I planted some potatoes, and when I dug them I went there, and
^mething, I thought, had beenthere, and I took up his bones and put them
m a basket, an d^ took the boards and put on the potato hole, and when . it
5tll^ night took the basket and my hoc? and went down and pulled a plank
mth^' stable floor, and then dug a hole, and then covered him up, went
ia the house and told them I had done with the basket, and took back the
shovel, and covered up my potatoes that evening, and then when I lived
under the west mountain, Lewis came and told me that father's barn was
burnt up the next day, or the next day but one, I came down and went
to the barn, and there were a few bone^, and when they were at dinner
, 1 told them I did not want my dinner, and went and took them, and there
wore only a few of the biggest of the bones, and throwed them in the river
above Wyman's, and then went back, and it was done quick, too, and then
was hungry by that time, and then went home, and the next Sunday I
came down after money to pay the boot that I give between oxen, and went
out there and scraped up them little things that were under the stump
there, and told them I was going out fishing, and went, and there was a
hole, and I dropped them in and kicked over the stuff, and that is the
first anybody knew it, either friends or foes, even my wife. All these I
acknowledge before the world. Stephen Boorn."

The trial commenced on Tuesday, October 27, and closed the following
Saturday night. The court were Dudley Chase, Chief Judge, uncle to
Salmon P. Chase, later Chief Justice of the United States Supreme Court,
and Joel Doolittle and William Brayton, Assistant Judges, Owing to lack



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36 The Ckimikal Law Jourkal. [Vol. Ill

of space to aecoinniodat(» the audieiico the trial was held in the Congrega-
tional Church. The ovidoncc, aside from the written confession of
Stephen and the testimony of Silas Merrill and Lewis Colvin, was mainly
circumstantial. Steidien's writtcm confession, having heen excluded when
offered hy the stute, was offered hy the defence, and admitted. Lewis
Colvin, son of Uussell, whose testimony was in part corroborated by that
of Thomas Johnson, testified that the last time he saw his father was
during a quarrel with Stephen, in the course of which Stephen knocked his
father down with a club. The witness, being frightened, then ran away
to the house antl was later threatened with being killed by Stephen if he
said anything about striking. Silas Merrill, the principal witness before
the grand jury was a fellow-[)risoner, charged with forgery, and it
appears that after giving his testimony l)efore the grand jury Merrill's
chains were taken off and he was permitted to go about the streets,
whereas, previously he had been in chains and in close confinement His
testimony was as follows : '" Manchester, Aug. 27, 1819.

" In June last, Jesse's father came to the prison and spoke to Jesse.
After the old man went away Jesse appeared much afflicted. We went
to bed and to sleep. Jesse waked up and shook me and wanted that I
should wake up. He was frightened about something that hai come into
the window and was on the bed behind him. Ho stated that he wanted



Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 5 of 91)