was a threat to cut her throat, &c. All these facts are convincing proofs of full and perfect deliberation.

Mr. Haly went largely into the facts of the case, and contended that there was not evidence more than sufficient to convict of murder in the second degree; that there was not a premeditation to kill; that the instrument used was not likely to murder; that the blows given were the result of sudden excitement, and not of malice aforethought; that the cases already decided in Pennsylvania, rebut the position that death wounds given under excitement, constitute murder in the first degree; and that all the cases in Pennsylvania concur in favour of the prisoner. A pamphlet, written by T. Earle, Esq., bearing directly upon the case, was quoted to some extent.

Mr. Hubbell followed his colleague in an address of about equal length; 1st, contending that there was no intention to kill; and 2d, that there was no premeditation, in the common understanding of the term. The prominent facts of the case were fully canvassed, and applied to the points of law involved. He ended a full investigation of the case by a peroration, alluding to the sanguinary scriptures of the Jewish dispensation, and the horrors of public executions.

Mr. Pettit rose at nine P. M., to conclude on behalf of the commonwealth. After alluding to the unpleasant duty that all the public branches of the tribunal were compelled to perform, he went into a statement of the facts, alleging that the case presented that of a cruel, brutal, and unmanly murder, of the most wretched description.

He alluded to the prominent circumstances of aggravation to prove that there was premeditated malice in the prisoner, without provocation, or any reason to actuate him. He went into the law at length; admitting that there must be an intention to kill, but contending that such an intention was fully proved in this case; and also admitting that the wilful, premeditated

killing must be proved, but alleging that that was also done. He alluded very roughly to a pamphlet of Mr. Earle, read in the cause; said "it was a very querulous work, by an inexperienced lawyer, written for the purpose of finding fault with people wiser than the author." He denied that the conduct of the deceased was improper in any respect, and vindicated her character.

The chief justice, a little after ten P. M., commenced his charge. The learned judge vindicated the manner in which the trial had been conducted, as to the alleged precipitation; he deprecated any delay in criminal cases, such as we see in civil cases; nothing is so salutary as promptness and certainty in criminal jurisprudence; public justice requires that no adjournment should take place in capital cases; in great and powerful families, a separation would admit of tampering and corruptness; the common law in this respect is excellent. As to the public excitement, his honour charged the jury to shut every avenue leading from it to their understanding; and on the other side, to divest themselves of that ridiculous humanity which would deprive justice of its due. The commonwealth and prisoners have reciprocal rights. The man who warps the facts or the law, to suit a prisoner, takes perjury on his soul. There is no discretion in the jury to do either, and God forbid that we should have no other security than that for lives. Juries would be as despotic as emperors, if they did. It has been truly said that juries are the judges of the law, but they have no right thereby to judge of its propriety. Juries can reject the law as laid down by the court, if it does not comport with their judgment; but respect should always be paid to opinions of men who have no interest to misconstrue the law against such prisoners as this. To approach the case: It is not seriously denied that the prisoner is guilty of murder-but it is denied that it is of the first degree. Ifthe destruction of life, caused

by the beating, was intentional, it is murder of the first degree. The phrases such as wilful, &c., in the act, were used to fix a settled determination to kill.

Verdicts of juries had been improperly quoted to contradict the law, yet there was the case of James Mounks, in Centre county, who shot a man down with a rifle, who was merely passing along the road. He was hung. So was negro Bob, who flourished an axe, saying he would split any man who was saucy, and he cut down a fellow-creature. As to the evidence of intention, God only knows the heart. If, however, a man does an act, which must produce certain consequences, and those consequences happen, he is supposed to have meant to produce them. It is however only prima facie evidence, subject to explanation or contradiction. The prisoner contends that the weapon was not deadly, and that, if he intended death, he would have used a deadly instrument. The prisoner is entitled to the benefit of it, for as much as it is worth. Evidences of intention on the part of the prosecution are, continued beating for more than an hour; beating after her strength and life were gone; dragging her to the window; declaration of the prisoner, &c. These proofs of intention are only glimmering lights; the jury will judge of them. There are also circumstances that indicate an intention not to kill; the prisoner told the deceased in the midst of the beating to go; he said that he would not release her hair until she came to herself, and left off drinking; that he would take her away to her father, if Mc Colgan would give him a pin to do up her hair: his having chosen a time and place where immediate detection would be inevitable. These are the circumstances, picked out from the case, as well s possible. The whole case is left to the jury, as to the law and facts.

About three o'clock, P. M. 28th, the jury signified to the court, that they had agreed upon their verdict,

and upon being brought into court, and the prisoner placed at the bar, the jury pronounced the verdict of “Guilty of MURDER-IN THE SECOND DEGREE!"

The next day the court of oyer and terminer was crowded to excess, to hear the sentence passed on this wretched man. He was conducted into court by the peace officers. His face betokened much more placidity than when he last appeared before the court, with the expected sentence of murder, in the first degree, hanging over him.

The chief justice addressed him nearly as follows:

Michael McGarvey-You have been convicted, by a jury, of murder in the second degree. You have been most wonderfully and mercifully dealt with. The evidence was amply sufficient to warrant a conviction, which, had it been pronounced by the jury, would have deprived you of life. You have escaped by a miracle. Be grateful then to that Providence which has so wonderfully interposed to preserve your wretched existence. If the deepest remorse does not pursue your future steps, then must you have indeed a conscience impervious to all feeling of shame, and of repentance.

She

Your treatment of your unfortunate and murdered wife, was a disgrace to man; there was nothing to impeach the propriety of her conduct. was mild and confiding; you have acted towards her like a devil in human shape.

The imperious duty of this court is to award the highest punishment which the law admits. Had the jury dealt with you as you deserved-had they given that verdict which would have entailed death, death you should have suffered! The sentence of the court is, that you, Michael McGarvey, be confined in the penitentiary for the term of eighteen years, nine of those years in solitary cells, to be kept on low diet, and the remaining nine years of hard labour.

Mary W. Hall, sworn.-She is the wife of the jailer; she was not at home when Morgan was committed; she came home on Tuesday, the 12th of September, and found him in jail; Mr. Hall went out about dark on the evening of that day; a person came to the jail and inquired for Mr. Hall; she told him he had gone from home; the person then wished to go into Morgan's room, which she refused; he then asked permision to have private conversation with Morgan, which was also refused; he then insisted on paying the debt for which Morgan was imprisoned, and taking him away; this too was refused. The person then went in search of Mr. Hall, and soon returned without finding him, and again urged witness to permit him to pay the debt and take Morgan away, to which she would not consent; he then asked her whether she would discharge him, if Col. Sawyer would say it was right; witness did not say she would or would not. The person went away and soon came back, with Col. Sawyer. Chesebro advised to let Morgan go. Lawson paid the amount for which Morgan was imprisoned, which was a little more than three dollars; stranger went to the door and whistled, witness unlocked the door of Morgan's room, and Lawson went in and led Morgan into the hall of the jail, by the arm; after they went out the door, and before it was shut, she heard the cry of murder; she went to the door and saw three men taking Morgan east; he was struggling, his hat fell off, and one of them took it up: she saw no other persons about the jail. An unknown person rapped on the well curb, and a carriage soon passed by the jail from the west. It went east and shortly returned, driven with great rapidity. This took place about 9 o'clock in the evening of the 12th of September. She has not seen Morgan since.

Wyllis Turner, sworn.-In Sepember, 1826, witness lived with Mr Freeman Atwater, in the street on which the jail is situated, a little west of it, and on the same side of the road.

As he came out of Mr. Atwater's gate one evening, he met Chesebro and Sawyer, going west; saw Sawyer pick up a stick; they turned about and went to the west corner of the jail, and were whispering together. Witness went to Mr. Hall's well, which is in the street, a little west of the jail, for water, and as he was turning the water into his pail, he heard the cry of murder: he saw three men coming down the jail steps with their arms locked. Heard the cry of murder once while they were coming down the steps, and twice after they had left them. Mrs. Hall was standing in the door; some one, he believes Chesebro, stopped the mouth of the man who cried murder: when they had gone a little distance from the steps, the middle man of the three appeared to hang back; his hat fell off, and a Mr. Osborn took it up and gave it to Sawyer; asked Sawyer what the rumpus was, who replied that a man had been arrested for debt and was unwilling to go. Saw Sawyer rap on the well curb; Hubbard's carriage soon drove by rapidly to the east, with Hubbard driving; the horses were gray, and the curtains down. The carriage went a little beyond the pound east of the jail and turned about. A man was put in by four others, who then got in, and the carriage drove west, and went round the corner of the tavern, then kept by Mr. Kingsley; witness followed the men as they went east ; was near the pound when they got into the carriage. It turned round before they got in. As the carriage was returning west, some one in it cried out, "Hubbard, why don't you drive faster; damn you, why don't you drive faster." Hubbard then cracked his whip. Have seen Morgan, but did not know whether he was the man taken from the jail; did not know those who came down the steps. The moon shone bright.

Hiram Hubbard, sworn.-In Sept. 1826, the witness kept a livery stable in Canandaigua. He was applied to by Mr. Chauncey H. Coe, to take a

party to Rochester, on the 12th of September, and was paid for it last suminer or fall, by Mr. Nicholas G. Chesebro. His was a yellow twohorse carriage. His horses were gray. They were at the barn near Mr. Kingsley's tavern, west of the jail. About the time he was ready, some person on the sidewalk, then and now unknown to the witness, told him to go on the Palmyra road when he was ready, for the party had gone on. This was the only direction he had as to setting out. He did not hear a rap on the well curb. He started about 9 o'clock in the evening. It was pleasant and the moon shone. No one was in the carriage when he left the barn. He went beyond the jail east, 50 or 60 rods, and stopped opposite the long house. His party, supposed to be five in number, there opened the carriage and got in. He heard no noise. He presumed the people in the road were his party. He knew none of them then, nor where they came from, and has not known them since. He can't say whether he saw them get into the earriage. He was not very particular in noticing them. After the party had got in, he turned round. On his way to Rochester, he first stopt at Brace's, 6 miles from Canandaigua, to water. The people had not gone to bed; some of the company went in; he don't know, but he saw them by candle light; he don't know how many went in. He stopt again at Beach's, in Victor, or at the house beyond, people had gone to bed. Stopt also at Mendon; nobody was up; did not feed his horses at either of these places. He stopt at Stone's, in Pittsford, long enough to water. The bar-keeper was up waiting the return of some young men belonging to the house. Don't remember whether any of his party got out beyond Brace's. He stopt in Rochester, at the large watering place in Main street, 10 or 12 minutes; it was just at twilight. Some of the party got out here, but he don't know whether any went from the carriage: he saw no one of them that he

knew, and has seen none since to recognise them. The party desired him to go on beyond Rochester. He consented to go. He took the Lewiston road; on arriving at Hanford's, which was then a tavern, one of the party got out. He called for feed for his horses, but got none; he went about 80 or 100 rods beyond the house and stopt near a piece of woods: It was not a usual stopping place: the party got out before he turned his carriage; he thinks he must have seen them, but he saw no one that he knew, and has seen no one of them since; he don't know why he stopt at that place, but presumes his party told him to do so. Returning, he stopt at Hanford's, and endeavoured to get food for his horses, but could not; he saw two or three carriages going out of Rochester when he did, which turned round and went back. One was a small carriage; its colour he cannot recollect. After he had turned round he met a hack with two horses, near the house; thinks it was green; did not see it stop, nor hear it hailed; thinks it was not the hack he saw going out of Rochester. He heard nothing from his party about carriages coming from Rochester; knows Mr. Platt, who kept a livery stable in Rochester, but not his carriages. No one returned in his carriage to Rochester, except two transient persons whom he took in on the road, neither of whom was known to him An unknown man on horseback, passed his carriage between Canandaigua and Rochester.

Ezra Platt, sworn.-In September, 1826, the witness kept a livery stable at Rochester. He is a mason and a member of a chapter. A lodge had previously been established at Lewiston. A chapter was expected to be installed in that place, and the Rochester chapter had been authorized to install it. It is usual for the grand chapter to issue to suitable persons, a special commission for such a purpose. The first officers of a chapter would be proper commissioners. After the fact of the Rochester chapter having received a commission to install one at