Commonwealth v. Drew

Of murder and manslaughter.

The defendants were indicted at this term for the wilful murder of Ebenezer Parker. The indictment contained two counts.‡ The first count charged Drew and Quinby with assaulting Parker, at Falmouth, on the 11th day of January last, then a deputy sheriff, and in the due execution of his office ; and that Drew then and there gave the deceased the mortal wound, of which he thereafterwards, on the 18th of the same January, died; and that Quinby was present, aiding and abetting Drew in giving the mortal wound. The second count was like the first, with this difference only, that it was not alleged therein that Parker was a deputy sheriff, in the due execution of his office. The prisoners, on their arraignment, pleaded not guilty; and not agreeing in their challenges to the jurors, they were separately tried. Drew was first put on his trial. It satisfactorily appeared in evidence that, on the day alleged in the indictment, Drew gave the deceased a mortal wound with a bludgeon, by which Parker’s skull was fractured ; that the bludgeon was of hard wood, about four or five feet in length, and about two inches in diameter, having formerly been used as a handle to a pitchfork; and that Parker, seven days afterwards, died of that wound. * It was proved that at the time the wound was given, [ * 392 ] and long before, the deceased was, and had been, a deputy sheriff, duly appointed and qualified to execute that office; that an execution, duly issued on a judgment legally recovered by one Josiah Gould against Quinby, had been, some time before the assault, delivered to the deceased to be executed ; that about a fortnight before the assault, the deceased had lawfully arrested Quinby on that execution, and had delivered him to one Richard King for safe keeping, who took charge of him ; that without the knowledge of the deceased, King, at Quinby’s request, permitted him to go at large, Quinby promising King that he would be ready to settle the execution at any time when the deceased should call on him ; that Parker, who lived at several miles’ distance from Quinby’s place of residence, came thither, about a week afterwards, to see Quinby, and procure satisfaction of the execution, but Quinby could not be found by him that Drew and Quinby were hired men, in the service of Daniel Conant, Drew’s employment being at a blacksmith’s forge of Conant’s, and Quinby’s in working at Conant’s saw-mill ; but when the mill was not going, Quinby worked with Drew at the blacksmith’s shop, which was at a distance from, and not part of, any dwelling-house ; that on the day when the mortal wound was given, the deceased again came to see Quinby, and, if he would not satisfy the execution, to arrest his body ; that Quinby knew that the deceased had come with that intent, and being at work in the saw-mill, and seeing the deceased coming to the mill, he left his work, and went to Conant’s house; there taking with him a bottle of rum, he passed out of Conant’s back door, and went to the blacksmith’s shop, where Drew was at work making nails, "when Drew and Quinby fastened the shop, to exclude the entrance of any person ; that in the evening, the deceased, having been informed that Quinby had shut himself in the shop with Drew, sent one William Babb, Jun., to the shop, to inform them that he was coming, and to advise Quinby to settle the execution ; that Babb went, and finding the door fastened, knocked ; Quinby called, “ Who is there ? ” Babb then told his name; “Who is with you?” asked Quinby; upon Babb’s answering, “ No one,” he was admitted into the [ * 393 ] shop, and the * door was again fastened; and Babb delivered his message from the deceased, advised Quinby to settle the execution, and told him that Conant was ready to settle it for him if he would consent; but Quinby refused, and said it should not be settled that night; that the deceased then came to the shop with Bichard King, Samuel Cox, and some others, to assist him, and knocked at the door ; Drew was drawing nails from a rod then in his hand, and Quinby was blowing the bellows, one hand being on the bellows pole, and the other resting on the bludgeon, with which the mortal wound was afterwards given; that when the deceased had knocked, Drew inquired who was there ? “ Parker,” answered the deceased ; that Drew then threw some burning cinders towards the door from the nail rod in his hand; that Parker then asked for admission, and Drew asked him if he was well; “Yes,” answered Parker; “then I advise you,” said Drew, “ to stay where you are; ” that the deceased then told Drew, that he did not want him, that he wanted Quinby, who was his prisoner, and that he would have him ; that the deceased then put his hands under the door, which was about four feet w'do, and which opened outwards on a lane leading to Conant’s house, and to his mills, and, without much apparent difficulty, pulled it open ; that Drew immediately threw down the nail rod, caught up a sledge, and came to the door; that he went out in a great passion, saying, “ What are you breaking open my shop for ? stand by, or I will throw the sledge through you ; ” that he then, with the sledge, struck at the deceased, who was without any weapon, and who dodged behind the door ; that he then struck at King, who re treated from the sledge, and Drew threw it at him, and it glanced against his breast, and fell without hurting him ; that Quinby, when Drew had left the shop with the sledge in his hand, threw down the bludgeon he had held, towards the door, and it fell about two feet distant from it; that Drew, after throwing the sledge at King, returned to the shop door, and saw the bludgeon lying there ; that he reached in his hand, and took the bludgeon, and turned to the deceased, who had pushed the door partly forward, had come from behind it, and was standing against the edge of it, and struck at * him three times with the bludgeon, holding [ * 394 ] it in both his hands, and striking with great violence; that the first blow fell on the edge of the door, and forcibly shut it, the second blow was on the head of the deceased, and inflicted the mortal wound ; and the deceased, when falling under the weight of it, received the third blow on his back or shoulders, it not being clearly ascertained on which ; and one witness also testified that the first blow struck the head of the deceased ; that Drew then turned to King, and with the bludgeon knocked him down, and immediately went into the shop, carrying the bludgeon with him, and there told Babb that he had better take Parker up, as he had got enough of it; that Babb left the shop to take up the deceased, and Drew and Quinby again fastened the door, and, opening the window, defied the people who were outside; Drew saying that as many might come as had a mind to, and he would give them all sore heads. Upon this evidence, the counsel for the prisoner argued, that the offence was manslaughter, and not murder. That Parker having before arrested Quinby on the execution, and his servant having permitted him voluntarily to escape, he could not again lawfully arrest Quinby on the same execution; and therefore the deceased was a trespasser in breaking open the shop door, and his entry might lawfully be resisted by Drew, who was in possession of the shop. And they argued further that the deceased was killed in attempting unlawfully to arrest Quinby, by color of a legal warrant; that the attempt was an unlawful act; that not on'y Quinby, but any stranger, might lawfully oppose the officer in his unlawful attempt, and a fortiori might Drew, as he could not be considered as a stranger, being a fellow-servant with Quinby, working with him for Conant, who had hired them to labor in his service; and if the officer was killed in pursuing his unlawful attempt, the killing was at most but manslaughter. And upon this point they cited, and relied on as authorities, Sir Henry Ferrer’s case, Cro. Car. 371.— Hopkin Hugget’s case, 1 Hale, 465. and Kel. 59.— Rex. vs. Tooley & Al. 2 L. Raym. 1296. — Mary Adey’s case, 1 Leach, C. C. 245. 1 Fast, C. L. 329, in the note.