The Charlotte News

Saturday, October 15, 1938

FIVE EDITORIALS

Site Ed. Note: Grinning, yes, but eventually, all that was left of that Cat was its smile. The body to the ether.

A teacher fired over protesting the Munich Pact in Boston, having had it alleged by the firing authorities that the demonstration was "Communist-organized". Alas and alack, doth hath a familiar ring to it.

As to "Gently, Gently!" the death penalty for murder now requires "special circumstances" for its implementation which must be specific in the law of each state. (See Furman v. Georgia, 408 US 238 (1972), declaring the death penalty as imposed, with unfettered discretion to the jury, unconstitutional as cruel and unusual punishment, and, for comparison, Gregg v. Georgia, 428 US 153, (1976), upholding the constitutionality of a death penalty under an amended state statute since Furman.) Such things as a prior murder conviction, murder which was particularly heinous or cruel, such as by torture or poisoning, murder effected by lying in wait, murder based on race, religion or national origin, murder by hidden or mailed explosive device, murder while escaping lawful custody, murder of a peace officer, firefighter, judge or prosecutor, or of a witness to a crime killed to prevent testimony or in retaliation for same, murder committed during or while attempting to flee the scene of certain violent felonies such as rape or robbery, murder committed by firing from a motor vehicle or murder committed while a member of a street gang, all may be special circumstances justifying under law the imposition of the death penalty for first degree murder.

For killing to be murder as distinct from justifiable homicide or manslaughter, the homicide must have malice aforethought, that is a deliberate intention to commit the homicide without justification or mitigation of circumstance, such as in the course of heat of passion, or where the circumstances show a "malignant or abandoned heart", also without any justification or defense such as a reasonably apprehended need for use of deadly force, that is like for like force, in order to effect self-defense or defense of others against an initial aggressor who has not abandoned combat.

For murder to be first degree as opposed to second degree, premeditation is required. Premeditation may be shown by such things as torture, lying in wait, poison, use of an explosive device, or commission of murder during the course of certain violent felonies.

This latter specie of murder, that committed during the commission of a felony, known as the felony-murder rule, is based on the theory, insofar as first degree murder is concerned, that the premeditative element is supplied by the nature of the felony during which the murder occurs, it being a felony requiring some level of premeditation. Premeditation is some level of forethought and planning, though nanoseconds of it, not hours or days, may be enough to demonstrate it.

For second-degree murder, the felony-murder rule might also apply where even a negligent homicide occurs during the course of a felony, even where, in some jurisdictions, a homicide occurs by an actor not connected with the perpetrator of the crime, such as by police against a co-conspirator or aider and abettor of the crime. The theory for the rule is that the malice aforethought ("aforethought" in this usage not to be confused with premeditation) necessary for murder, to be distinct from either justifiable homicide or manslaughter, is supplied by the malice inherent in the commission of a felony. But the homicide must be transacted during the actual commission of the felony, including its ensuing flight to a point of seeming safety, such as when the getaway vehicle plunges into another vehicle head-on killing its occupants, maybe even a co-felon: felony-murder.

But what of accidental homicide during the crime's subsequent cover-up, after initial flight has reached safety? Dividing up the loot back at the shack, Duke's sprayjob man out in the garage re-painting the rig for the next heist suddenly keels to the floor of a heart attack, causing the spray equipment to hit the lanthorn which in turn alights the garage afire which in turn kills all but Duke involved in the heist, not to mention a goodly portion of the rest of the inhabitants in the Petrified Forest, including Mrs. O'Leary. Felony-murder charge to Duke? Ay, there's the rub.

Likewise, there is a misdemeanor-manslaughter rule in most jurisdictions, that is, if a homicide occurs during the commission of a misdemeanor, even if an accidental homicide, it is at least manslaughter, the negligence or recklessness attendant the homicide, necessary for manslaughter, being supplied by the misdemeanor. If by negligence, manslaughter will be involuntary; if by reckless conduct, but not arising to the "abandoned and malignant heart" constituting malice necessary for murder, e.g., heat of passion killings, then it is voluntary manslaughter. The classic example of the latter is the killing of one's spouse in the act of playing Lover's Concerto once too often for your tastes, déjà entendu, so to speak--only not on the record player, that is unless...(well, we shall skip the nettle of that image altogether). But, that is touchy and depends entirely on how the jury sees and hears the evidence, the circumstances of the homicide. Was there genuine heat of passion aroused by provocation? Was the provocation a type of provocation which would provoke a reasonable person acting under the circumstances to kill? Was there insufficient cooling time between the act constituting the provocation and the killing? All of these questions are for the jury to decide. So the moral is: be careful of acting in accord with your passions, else a hanging jury may not hang but find instead malice aforethought, perhaps even premeditation, then special circumstances, and the hangman may be the last visage one's sad face thus sees in passion.

Bear in mind of course that these are theories of prosecution and charging. The felony-murder rule would only be resorted to when no other theory was available to transform a homicide into murder, likewise misdemeanor-manslaughter when no other theory would constitute manslaughter or murder. The hapless defendant does not get to choose as to which crime he or she is charged, although the accused's good counsel could elect to have lesser included offenses instructed to the jury, usually mandated by law anyway unless for reasons of strategy specifically waived by the defendant, as alternatives to the charged offenses.

The man making bold in Halifax, as explained below, sounds to have been acting in some heat of passion, but perhaps the evidence did not prove out the kind of provocation to which a reasonable person would so respond to ameliorate the act to second degree murder or manslaughter. Calling him a name or mocking him is probably not going to be deemed by a jury as reasonable provocation for homicide. Certainly not refusing to play Lover's Concerto on the record player.

As to whether it was first or second degree murder, again premeditation is not determined by time but rather the type and quality of act which is employed to commit the murder. Crushing a person's windpipe with a hand obviously requires personal force and thought of a type which a single blow with an axe does not. Some level of thought, in other words, can be gathered from the circumstances which may not be present in the axe blow or knife stabbing incidents. On the other hand, the time it takes to deliberate to pick up or find an axe or knife to do the job might be sufficient to show premeditation.

On yet the other hand, plying one's mom with forty whacks, and, when done, plopping one's dad with forty-one, would undoubtedly, if proved, be two counts degree first murder won. Though in that case neither Lizzie nor anyone other ever was found guilty of either crime, moribund.

It always depends on both the circumstances of the crime and, of course, in practical terms, the locale of the crime, the mood of the populace, the quality of the defense attorney, the quality of the prosecution. It is always initially a prosecutorial question, or where sought, a grand jury question, of the specie of homicide to be charged and proved to the jury, then up to the jury to apply the law to the evidence presented. Then, where sufficiency of the evidence for either the crime or the degree is raised on subsequent motion by the defense after a guilty verdict or on appeal, judges are left to look at the law to determine whether the conviction by the jury could reasonably have been rendered under the law by the evidence as heard.

And therefore results, especially when the taking of a human life is in issue, are sometimes a bit of a wheel of fortune spinning, hard to discern from merely the facts on paper. Hence, the moral: play it cool, boy and girl. Work out the petty differences or simply leave.

Better that than her walking the hills in the long black veil or him wondering from a white oak tree whether but for the Sheriff he'd 've been in Tennessee...

Incidentally, speaking of that, ever wonder how in the world, in light of the country singing in unison, "Po' boy, you're bound to die" nigh on ten years or longer back there, from 1958 onward, in the towns and villages, and the hungry intellectual environs between here and there, in which, as a delicacy, they also ate po' boys, the Supreme Court ever could in that atmosphere declare for four years between 1972 and 1976 the death penalty, as rendered, unconstitutional? Courage and commitment to the Bill of Rights and legal principle, we might venture--not to mention the subtle distinction to be descried between black satire and actually closely held belief--at least in some places, yet perhaps not in others, places where they didn't much serve or even comprehend probably the subtle delicacies of hors d'œuvres or for that matter hors concours or hors de combat, though horsage, they well might have, shoes and all. Yet moral, again: Read, listen once more, rather than yet endure that Classical Gas.

Anyhow, also on this day's editorial page:

Spindrift

By Maude Waddell

Foam is the ocean's frothy laugh,
On the incoming tide's deep breath,
When the sea-gods ride the wave and quaff
Their briny toast to death.

Spray marks the ocean's light mood,
When the waves break over the rock,
While the light-winged brood
Of billows break with no rude waking shock.

Flying foam from the wind-whipped crests
Takes wing on the south wind warm
And floats to land where the sea sees rest
From the surge and the crash of storm.

One More Plague*

A characteristic of the American people is that they cannot endure an interminable squabble between two factions. "A plague o' both their houses," which the President called down impartially on CIO and AFL last year, expresses it. No great matter of right and wrong, after so long a time. It is the squabbling that gets on people's nerves and disgusts them with both sides.

Something like that is taking place, in all probability, in the Eighth Congressional District, where, after three and a half months, it is still undecided, whether Deane or Burgin should go on the ticket as the Democratic nominee. Nobody, to be sure, can blame either of the candidates for taking advantage of all recourses. But the situation is so querulous a one that the people could become, and probably have, heartily sick of it.

Indeed, the likelihood is that many of them have included within their distaste the whole Democratic Party and its sufferance of fraud, which is the immediate cause of this imbroglio. And all the time the Republican candidate, an able campaigner, is behaving as circumspectly and as demurely as you please, saying nothing but grinning to himself, like a Cheshire cat. It would serve the Democrats exactly right if his grin became a loud laugh of triumph.

A Teacher Fired

At Medfield, Mass., a young woman school teacher, Christina Alach, has been dismissed by the school committee on the ground that she has "acknowledged taking active part in a public and illegal demonstration" against the Munich Pact before the British consulate at Boston.

It is a little hard to understand how the demonstration was illegal under the Bill of Rights, for there was no violence and the pickets left peacefully when asked to do so by the police.

And Miss Alach herself denies that she acknowledged taking an active part in the business and insists that she was in fact only a sympathetic onlooker. Furthermore, the committee admits that it took action because of the complaints of persons who came rushing to it with newspaper photographs showing Miss Alach's presence at the scene and alleging that the demonstration was Communist-organized. Miss Alach hotly denies any Communist sympathies, and her name seems to be sufficient ground upon which to explain her warm sympathy for Czechoslovakia--which, indeed, was shared by most Americans.

Altogether, it looks as though the young woman has plainly been deprived of a public job because of her exercise of the freedom of opinion. It is not the first time that sort of thing has happened to school teachers. As a class, indeed, school teachers probably enjoy less freedom of opinion and expression, not to say personal conduct, than any other group in the country. And that is not a fact which augurs well for the caliber of the people who would choose to go into the profession.

Gently, Gently!

If you kill your sweetheart neatly and to her utter surprise with one unpremeditated blow with an axe or a single thrust of a knife, it is murder in the second degree. But according to a principle of criminal law enunciated by the State Supreme Court this week, if you go about it thoroughly and with perhaps a little less baleful passion than is customary, it is murder in the first degree. Down in Halifax County some months ago a Negro, 22, crazed with anger or sadism or something, seized his girl, rammed his finger in her throat, causing her wind pipe to distend--and cut it in two. His lawyer appealed a conviction of murder in the first degree on the ground that the circumstances showed no premeditation, but the Supreme Court upheld the death sentence, agreeing that the "atrocious" manner of the crime "is evidence of expressed malice and a fixed purpose to make the deed complete."

That seems sound reasoning, and there isn't much doubt that the murderer got no more than he had coming to him. Besides, murder in any degree is equally repugnant to the corpus delicit.

And it is a sign of progress in race relations to see the attitude of white courts in North Carolina stiffening to Negro murders of Negroes, demanding a black life for a black life. And that it has stiffened may be illustrated by a murder that took place in Charlotte some four years ago. A Negro was accused of binding his paramour, drenching her with oil and burning her to death. This was unmistakable evidence "of a fixed purpose to make the deed complete," but what did he get? Why, he pleaded guilty to second-degree murder and got twenty years.

Site Ed. Note: And, incidentally, it is "delicit", meaning desires of the public, not "delicti", which is the rule of law which has it that there must be independent evidence of a crime committed before a charge may be brought, even one based on confession. Thus if a person confesses to a murder but there is no evidence the murder ever occurred, there is no "corpus delicti" of the offense and hence no chargeable crime of homicide under the law. Ergo, it also pays to cross your eyes and dot your tease.

Bill To France

The price paid at Munich goes steadily on up. With Hong Kong being surrounded by the Japanese, now it is Alsace-Lorraine. Has Mr. Hitler, then, so soon forgotten the pledge made to France at Nurnberg, that he would renounce all claims to those provinces if he might have his way with Prague? Not at all. Not yet. What is being demanded, through the Chamber of Commerce at Strasbourg, is not political annexation but a "trade pact." Which is to say, that the two provinces shall be detached from the economy of France and made a part of the economy of Germany.

For when Mr. Hitler uses the term, "trade pact," he does not at all mean what Mr. Cordell Hull means by it--reciprocal arrangements for the common benefit of two equal nations. It couldn't. For the economic system which Mr. Hitler insists on is autarchy--a complete self-contained economy--and all the "trade pacts" he negotiates contain these features: (1) the right to secure whatever raw materials he declares: (2) the right to pay for them only in "blocked" marks, which is to say marks which cannot be translated into any other currency and which can only be spent for German goods: (3) the removal of barriers against his dumping of whatever manufactured goods he does not want at home, to be sold for these "blocked marks" at prices far below the market in the country which they are sold.

There is grim irony here. France cannot reasonably refuse the request of the Strasbourg chamber, seeing that she has just plopped for "the principle of self-determination" and that over three-quarters of the population of the two provinces speak German and are at least as German racially as the Sudetens. And on the other hand, the two raw materials which the provinces mainly contain are--coal and iron. And Mr. Hitler wants these raw materials precisely to make his military establishment stronger--in the last analysis to make shells with which to kill Frenchmen, including loyal Alsatians and Lorrainers, in the finish-fight with France which he has continually envisaged as bound eventually to come.

Site Ed. Note: We include the article below by Herbert Agar, to which Cash makes reference. The notion that warfare will not breed civilization is a good one for any age to recall. Time has proven the lesson repeatedly, to those who learn from history, at least. The article also suggests a good lesson in not giving in to propaganda campaigns against individuals or groups, racial, religious or otherwise, or as against nations, lest in the end the propaganda becomes a reality. And the rule is Golden, also.

Bill to Mr. Hitler

But Mr. Hitler himself is not escaping without paying a price, too.

Yesterday the Czechs pledged him their "loyalty." Bitterly contemptuous of any further pledges from France and England, they have grimly concluded that their selfish interests will best be served now by working with Germany's economic scheme. But they have not forgotten and will not forget. They will never be Nazified, whatever Mr. Hitler thinks. For 400 years they kept their national morale intact under the iron heel of the Hapsburgs. And their "loyalty" is the loyalty, not, as Mr. Hitler perhaps imagines, of crushed slaves, but of a caged tiger waiting for his hour. One of these days Germany, following out her appointed course, is going to find herself hard-pressed by enemies and desperately needing friends. And in that time, the Czechs, planted within the fold, will begin to take their vengeance.

More still, there is not an ounce of sympathy left in the world for Germany--and little of mercy. When Mr. Herbert Agar, long a hater of the Versailles Treaty, says that Germany has now actually become the monster our imaginative propagandists painted her during the last war, he says what civilized men everywhere are grimly concluding. And that bodes no good for Germany.

WILL WAR CURE THIS?

By Herbert Agar

One of the most discouraging facts in history is that most of the worst things we could find to say about Germany in 1916-1917 have come true in 1938. Back in the days before we entered the World War, the anti-German propaganda in America was violent and effective. The British and French sent us their best experts in hate-promotion, and our own newspapers produced first-class workers in the same line.

Our propaganda was a gross exaggeration in those days. If reprinted today it would pass as simple reporting. This gives an idea how much the world has benefited by the "war to save democracy."

In 1917 we made the following charges against Germany:

First. Germany believed that "might makes right." She believed she had a right to do whatever she had the strength to do, irrespective of the desires of other peoples.

Second. Germany looked upon treaties as a mere matter of expediency--as an expression of opinion as to what she would find convenient to do when certain conditions arose. If the opinion proved to be wrong, the treaties would be broken.

Third. Germany was under the control of an irresponsible autocrat and of a cruel army clique. Her behavior cannot be expected to improve. If allowed to go her own way, she would make more and more trouble in the future.

Fourth. Germany was merciless and would make a bitter conqueror. Life would become painful and barren for people who came under her command.

Fifth. Germany was at heart a pagan state, an enemy of Christianity.

AND NOW GERMANY BOASTS IT'S TRUE

These were the worst things our propagandists could think to say about Germany--except for the usual atrocity stories, which pop up in every war. At the time, these accusations were by no means wholly true. But they are true today.

And the awful fact is that the Germans now boast that these things are true. In 1917 the Germans accepted the standards of the civilized world. However they may have behaved, they accepted the world's code of right and wrong. And they denied that their conduct was wrong.

Today they accept no such code. Today they boast of the very things they then denied. Except for the atrocity stories, they would welcome every charge made against Germany in 1917.

Instead of being indignant at being called the enemies of Christianity, the Germans now organize a pagan state-religion, and persecute the Christian churches.

Germany now boasts that might makes right. She boasts that she is ruled by an absolute autocrat whose power knows no limit. She boasts of her military discipline and of her will to sacrifice all her national life to the needs of the army.

She reveres a book in which it is written that mankind can only be ruled by lies and that no one but a fool would put faith in treaties.

AND ANOTHER WAR WOULD ONLY MAKE IT WORSE

A large part of this deterioration must be charged against the war itself. We set to work to make democracy more safe, but all we accomplished was to make man more savage. For it is not only Germany where the deterioration has been at work.

We live in an age of "might makes right," an age of brutal power politics, an age of growing paganism. And it is proposed to remedy all this by another war.

The first World War landed us halfway down the hill toward ruin--moral as well as physical ruin. The second world war might easily land us at the bottom.

It does not seem wise, in the light of what has happened since 1917, to welcome war as a cure for militarism.

 


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