Opinion
03-05-1890
STATE v. CODY.
For majority opinion, see 23 P. 891.
Code, § 1735, ORS 163.230, provides that if "any person shall purposely and maliciously, or in the commission or attempt to commit a felony, * * * cut or slit or mutilate * * * the lip of another, such person shall, upon conviction thereof, be punished by imprisonment in the penitentiary," etc. On indictment under this section it was shown that in a hand to hand fight, arising out of the heat of passion, the accused bit a piece out of the inner lining of the lower lip of one M., making a wound which had healed over at the time of the trial, but left a visible scar. Held, that the evidence was insufficient to support a conviction, in that it failed to show that the multilation was done purposely or maliciously, or in the attempt to commit a felony.
LORD, J. (dissenting.)
It will be my effort to submit my views briefly, as they can serve no other purpose than to furnish the reasons for my dissent. The main point upon which the case is decided was suggested in the brief, but not argued, and is to the effect that the evidence does not warrant the verdict, or is insufficient to constitute proof of mayhem. It is based on the theory that the evidence only shows a mutual altercation or quarrel suddenly developed into a fight, during the heat and excitement of which the defendant bit out a piece of the under-lip of one Morin. The opinion admits that the offense may be committed as charged, but affirms, as a matter of law, that the evidence does not show that it was purposely or maliciously done, because it was done or committed during the progress of a fight, suddenly precipitated, and in the heat and excitement of passion, when the defendant was incapable of forming a purpose or acting from motives of malice, and therefore there is wanting an essential ingredient to constitute the offense charged.
For the purpose of this case only, I am willing to accept the view that an injury of the character charged, committed on a person during the heat of a fight, not deliberately or purposely sought and forced on the other without his consent and against his protest, will not constitute sufficient proof of mayhem, and is conclusive of this case. As all questions of fact belong exclusively to the jury, the court cannot invade its province except to examine it for the purpose of ascertaining whether there is any evidence, or such a defect in it, as the law declares will not warrant a verdict of guilty. But if there is any evidence tending to show there was matter material for the jury to consider, although different men might disagree as to the conclusions to be drawn from it, evidence that tended to show that the defendant did not act from sudden heat of passion, whether weak or strong, but that he deliberately and purposely forced a fight on the other against his will and protest, and in the course of which he perpetrated the crime of mayhem, although there may be other evidence tending to contradict it, the material facts involved in the issue are controverted, and the inferences to be drawn from them are uncertain and disputed, and are exclusively for the jury. A motion of this character is said to be equivalent to a demurrer to evidence; that it serves the same purpose, and is to be tested by the same rules; and that as such it not only admits the facts, but also every conclusion which a jury might fairly or reasonably infer from them. In such case it must be borne in mind that the facts submitted in evidence are to be taken as true, not disputed, but admitted, and concede to the state, as plaintiff, every proper inference which may be fairly drawn from them, and that the defendant, granting all this, nevertheless claims that the evidence is insufficient to sustain the crime with which he is charged. In considering a like motion, that eminent jurist, Mr. Justice DILLON, said: "It must be assumed that all the evidence in the case is true, and that the witnesses are credible, for if there are questions relating to the credibility of witnesses, or if what the evidence proves depends upon the credibility of witnesses or upon the proper deduction to be drawn from the evidence, these are questions not for the court, but for the jury under the direction of the court." And referring to the right of the jury to pass upon the evidence, whether weak or strong, citing from another United States case, he says: "It was not proper for the court to wrest this part of the case, more than any other, from the exercise of their judgment. The instructions overlooked the line which separates two separate spheres of duty. Though correlative they are distinct, and it is important to the right administration of justice they should be kept so. It is as much within the province of the jury to decide questions of fact as of the court to decide questions of law. The jury should take the law as laid down by the court, and give it full effect. But its application to the facts, and the facts themselves, it is for them to determine. These are the checks and balances which give to the trial by jury its value. Experience has proved their importance. They are indispensable to the harmony and proper efficacy of the system. Such is the law." U.S. v. Babcock, 3 Dill. 578, and cases cited. In the light of the law as thus expounded, and which no one will dispute, it becomes our duty to examine the evidence, and if there is any which, if taken as true, tends to show that the fight was not the sudden outgrowth of a mere altercation or dispute, but was purposely and deliberately inaugurated and prosecuted by the defendant against the man Morin, and that the offense was committed during the progress under such circumstances created by the defendant, and that these facts present material matter from which to deduce the inference of purpose or motive which prompted the defendant to commit the act charged, then, such facts as evidence being material to the issue, although there is other evidence in contradiction of it, they are exclusively for the consideration of the jury. For no proposition is better settled when the evidence is conflicting or the facts controverted, and the inferences to be drawn from them are uncertain and disputed, although different men equally sensible, and equally impartial, would make different inferences, than that the law commits the case to the decision of the jury under instructions from the court. In advance I may say I shall take the position that there is evidence tending to show that Morin was not engaged in any dispute with the defendant out of which, in the heat of the moment, a sudden fight was precipitated, but that the defendant sought him, and charged him with doing that which he denied, and deliberately struck and forced him to fight, and that when he had him down and at his mercy the defendant bit him on the lip and cheek and finger, while he was calling out to the defendant to "let me up, and not bite me;" and that the defendant paid no heed to his entreaties, and that when Mr. Freeman invoked some one to interfere to stop "the disgraceful fight," the brother of the defendant, in effect, defied any one to interfere, and that when at last he was released from the grasp of his assailant, and Morin got up covered with blood, he dealt him a severe blow in the face. I admit that there is other evidence introduced by the defendant that contradicts this, and tends to establish the state of facts suggested in the opinion, but this only goes to show that the facts in controversy are disputed, and that the evidence is conflicting, in which case its proper solution necessarily depends upon the credibility to be attached to the witnesses, all of which only shows more emphatically and conclusively that the case is for the decision of the jury, and not of the court.
Morin in substance testified that he was engaged at the Holton House as porter, and on the 17th of March, while he was attending to his duties as porter, he had some words with the bell-boy, who insisted on running the elevator up and down in such a manner as to interfere with his work. He says: "I went up in the elevator, and left the elevator there until I fetched the baggage in. I had two more valises to fetch there, and when I was in the room some one rang the bell for the elevator, and the bell-boy Frank ran the elevator down, and when he came down, and stopped there, I warned him not to do so," etc. "Then I came down-stairs with the baggage. I had six trunks to run out on the sidewalk for the expressman, so I run them out, and helped him to put them in the express wagon." It may not be amiss to say, at this point, that I have been thus particular in stating this matter in order to show the frame of mind, the relation of the parties, and the condition of affairs which existed prior to the fight. Continuing, he says: "When I got done with the work I came in the office, and was sitting by the elevator talking to some one, and Al. Cody called me. He says: 'Frenchy,' (he called me by the name of 'Frenchy.') I says, 'Well;' and I walked to the desk. He was writing a message or a letter, and he said to me, 'The next time you raise your hand on that boy I will break your neck.' I says, 'I didn't raise my hand on that boy.' He replied, 'You are a damned liar;' and struck me in the eye at the same time, in the left eye, with his right hand. He made forward round front of the desk in the office, and clinched me, and I clinched him, and the two of us wrestled around on the floor until some one was going to interfere, and I heard Arthur Perkins say, 'Let them fight it out.' When I fell back on the table he was on the top of me, and he put his teeth into my cheek, there, [exhibiting the mark. That is a part of the evidence this court is unable to see.] Then I pushed him back with my hand, so that he could not disfigure me, and he got hold of my thumb and bit that also, and there is the mark and scar on that yet. I had to get it lanced three times from blood poisoning, and Dr. Wheeler and Dr. Rand could tell you the same thing. When I managed to get my thumb away from him, then he took my lip, and took a piece out of my lip here, and then got hold of my finger here, which has the scar yet." Juror. "Let me see that finger." Witness exhibits to the jury his finger, lip, and cheek. "He got hold of my lip with his teeth, and bit it, and bit a piece off of it, so when I managed to push him away from me, he caught hold of my right finger," etc. Referring to his lip, he said: "The piece was taken off from here. It has healed up. The lip is drawn up again, but it shows disfiguration." It must be borne in mind that some of the statements were visible to the jury, if true, and that they were in a position to estimate their value, and draw the proper inference from them. Continuing, he said: "While he had my finger in his mouth, and chewing it, I said to the people standing around, 'Don't you see that man is biting me, and trying to disfigure me for life?' and no one seemed to pay any attention to it." And right here, let it be observed, if what the witness stated is true, and the jury are the judges of that, are these not facts from which the inference of the defendant's purpose may be drawn? He had bitten him on the cheek and thumb, a piece out of the lip, and lastly on the finger, and the witness evidently thought, by his expression or declarations made while suffering from the pain inflicted by this bite and during the fight, that his purpose was to disfigure him. It certainly ought not to require the argument, "put yourself in his place," to know that these are facts admissible for the purpose of showing the intent with which the offense charged was committed. Recurring to the witness, he says: "I told him, 'Cody, don't bite me,' and that I said three or four times. When I got up, and saw that I was disfigured for life, I got a pistol, and opened fire upon him," etc. Mr. Freeman, who was being shaved in the barber-shop in the adjoining room, when the fight occurred, and is an officer in the Oregon Railway & Navigation Company, testifies that:--"I heard a scuffle, and I thought I would go and see if I could not stop the trouble, but I found that I could not do anything. I called upon some of them to stop it, and they said: 'Let them fight it out.' Arthur Perkins said: 'Let them fight it out.' I think I asked them why they did not stop this disgraceful fight. Cody's brother was there on the occasion, and seemed to be defending his brother, keeping the crowd back, and after Perkins said, 'Let them fight it out,' this man (Cody's brother) turned and defied anybody to interfere. Morin was underneath Cody, and he said he wanted to be let up, let alone. He said he didn't want to fight, but he wanted to be let alone, 'Take him off,' or something like that. I think that was the words. His condition was bloody. There was blood all over his face. The Frenchman (Morin) was cut badly." Replying as to the character of the fight, he said: "I could not see any blows struck, and did not see any. They seemed to be clinched and close together. Their heads seemed to be close together. The back of Cody's head was next to me, and I could not see what he was doing. Cody was on the top of him. Morin was bloody when they separated, when he got up, and Cody struck him a blow after they got up and separated," etc. Rudolph Marsch, a barber in the Holton House, who was engaged in shaving Mr. Freeman at the time the row occurred, among other things, said: "I saw Cody on top of Morin, and I heard Morin say, 'Let go; don't bite me.' That he heard Morin cry out, 'Let me up,' and 'Don't bite me,' three times," etc. Another witness was Dr. Rand, who described the wound on the lip, the size of it, etc.; that it was caused by the teeth; but, as these facts are not questioned, it is unnecessary to consider them further. Several other witnesses were examined whose testimony is corroborative of the facts that he was bit on the cheek and finger and thumb, and that a piece was bit out of his lip, and one of whom seemed to think that Morin was "chewed" quite severely, but we have not the space nor time for further detail, nor is it necessary, as a sufficient quantity of the testimony is already presented to serve that purpose of my argument, and, I think, to show that the judgment rendered cannot be sustained on the theory propounded.
As the evidence we have recited must be taken as true, and stands confessed, the plaintiff is entitled to every fair and reasonable inference of which it is susceptible, and if it is material, whether weak or strong, or about which men of equal intelligence and fairness might differ, it is for the jury, and cannot be reviewed by the court without a usurpation of their duties, however honestly or unconsciously done. Analyzing this evidence, it shows that, at the time Morin was called to him by the defendant, he was seated by the elevator, chatting, he thinks, with some one, and utterly unconscious of any hostilities or controversy between himself and defendant, and in fact, so far as he was concerned, there was none by the record. Morin responded promptly to the defendant's summons, saying, "Well," and the first words of the defendant, judged by what he said,--that he would "break Morin's neck,"--were indicative of a spirit and purpose which contemplated a more heinous offense than he subsequently committed. But, waiving this view, they indicated at least a spirit, backed by a purpose already formed, of hostility and injury to Morin; or, if there is any doubt at this point, it is conclusively shown by the defendant's conduct which immediately succeeded, for, when Morin denied his accusation, he instantly called him "a damned liar," and followed it with a blow in his face, and clinched him. Thus far Morin is a passive party, and has done nothing to engender any heat of temper or cause hostilities. There is no controversy or dispute. Nor is there any mutual altercation between them which, from bandying epithets, the temper of the parties growing more and more inflamed, is suddenly and unexpectedly developed into a fight, and during the progress of which the offense charged was committed. In that kind of case the facts might preclude the idea of malice or purpose; but when all the acts and conduct of the other party indicate a determined spirit of hostility, and a purpose to injure, it is a legitimate inference that he intended the consequences inflicted by his acts. The jury have a right to make this inference until by other proof he overcomes it in some way, and establishes the fact to be otherwise. The purpose to injure or malice is formed before the fight and, when he inaugurates it, all that follows is presumed to be incident to that purpose, and the heat of the battle only adds vim to its execution; but, in the other case, the purpose is wanting, and when from word to word the dispute grows into a quarrel, and a fight is suddenly precipitated, the heat of battle, and its excitement, excludes the idea of a deliberately formed purpose or malice. As evidence of facts from which the inference of purpose or malice may be drawn, consider the character of the "disgraceful fight," as Mr. Freeman called it. It was one of biting more than blows. Mr. Freeman saw no blows, except the one after the separation, but he saw their heads together, and the defendant was on top, and the result showed that the defendant was biting. More, the progress of the fight shows that as fast as Morin got loose from his teeth in one place he seized him in another, and so kept on until he had gone from cheek to thumb, lip, and finger, and despite his entreaties to be "let up" and "not to bite me," reiterated three or four times, and his vain appeals to the crowd to witness that the defendant was biting him, etc., the defendant, who seems to have been surrounded by his friends, and one of whom defied interference, paid no heed to his cries. The "disgraceful fight" could not be stopped, and the defendant continued to bite until Morin, when released, looked as if he had encountered a wild beast, so bitten and bloody was his appearance. Take all these facts together, and consider how the fight was initiated, that it was not a fight struck out suddenly from mutual altercation, but that it was deliberately begun by the defendant, and forced upon Morin despite his protests, and, during its progress, the constancy with which the defendant bit him despite his appeals to let him up, and not bite him, and can it be said that these circumstances do not tend to support the charge, and are not material evidence for the consideration of the jury? Do they not tend to show that the offense was committed, not during the excitement of an unpremeditated, but a premeditated, fight, forced on an unoffending party? Do they not show after the fight was begun that the defendant conducted it with brutality and a determined spirit to injure? Are not these circumstances susceptible of the inference that the act charged was done purposely or maliciously, and whether weak or strong, if they are, the inference is for the jury, and not for the court. A man cannot force a fight on another, and during the progress of it commit the offense charged, and then plead the heat and passion of its brutal prosecution to escape the consequences of his crime. To allow such an argument or defense any ruffian might force a man of peace, and law-abiding, into a fight for the purpose of inflicting such an injury, and when he had consummated his purpose, and disfigured his victim for life, escape the just punishment of his crime. The law will not allow a man to create the conditions which give birth to his crime, and escape the consequences of it. Of course I am considering these facts only for the purpose of showing that there are facts material in the case, and that taken as true, as required to be, they will not warrant the conclusion reached by my associates. Nor does it make any difference that there is other evidence which contradicts it, for that only renders the argument more conclusive that the case is for the decision of a jury, and not for the court. It may be that the result I reach might inflict pain and sorrow, and if so, while I should regret it, it could afford me no excuse for dereliction of duty. I am bound to be governed by the record, and when that, as certified to us, makes a case for the jury, the matter is for them to decide, and beyond our interference. But if I could consent to pass in silence this point, the principle declared in the next is so at variance with my views of the law that I should violate my sense of duty not to record my dissent.
I cannot concur in the proposition that we may look at any other matter in a bill of exceptions save such as has been excepted to and assigned as error. On the contrary, I hold it is only such particular matter as the trial court has been required to decide in the progress of the trial, which has been excepted to, and certified to us as alleged error, that is the subject of appellate review, or of which we can take cognizance. Any other view seems to me to be in conflict with the purpose of a bill of exceptions, and the matter it should contain. It involves no question of consent or dissent of the defendant, but simply whether the bill of exceptions certified to us that the matter complained of was decided by the court, and excepted to, as error, and put therein for the purpose of having it reviewed and decided in the appellate court. Where the trial court has charged no proposition of law, nor made any decision in the progress of the trial not excepted to and reserved for the appellate court, or where the trial court has omitted to charge some matters that counsel claimed it ought to have charged, but to which counsel did not call the attention of the court, and require it to so charge, so that the point claimed, and the decision upon it, may be excepted to, and put in the record or bill of exceptions, and certified to us, as alleged error, there is nothing in the record for our cognizance, and which we can examine and decide. The fact that the whole of the evidence may be in the record for some particular assignment of error gives us no right to pry into it to discover some other error not alleged, or that all of the instructions are included in it to serve some special purpose assigned as error, as that such instructions do not cover certain instructions asked and refused and excepted to as error, gives us cognizance or the right to examine and consider any other error than that reserved and assigned, and to which we are bound to confine our decision. No other is certified to us by the trial court, and, in legal contemplation, no other can be before us for our cognizance. A "bill of exceptions" is defined to be a statement in writing, on an objection made by a party to the decision of the court on a point of law, clearly stating the objection, with the facts and circumstances upon which it is founded, and. in order to attest its accuracy, signed and sealed by the judge or court who made the decision, the object being to put the decision objected to upon record for the information of the court having cognizance of the cause in error. 2 Amer. & Eng. Enc.Law, 218. It was said by this court in State v. Drake, 11 Or. 398, 4 P. 1204: "Originally at common law no matter could be assigned as error except such as appeared in the record, and, as the parties were bound by it as absolute verity, they were not allowed to impugn or contradict it by averment. The rulings of the court in the progress of the trial, and often of vital importance, did not appear in the record, nor were there any means of introducing them into it, and the consequence was that the party believing himself aggrieved was without remedy. To obviate and remedy this defect, the statute, 2 Westm. (13 Ed. I,) c. 31, was passed, which established in practice what is now known as a bill of exceptions. Its object was to bring in the record the particular matter excepted to and supposed to be error, and which the record would not otherwise disclose, to lay the foundation for proceedings in error. It is required therefore to be in writing, clearly stating the point wherein the court is supposed to have erred, with the necessary facts and circumstances to attest the accuracy and authority of which it must be signed and sealed by the judge who made the ruling or decision." It must be clear, then, that a bill of exceptions only lies to such errors of law as have been made during the progress of the trial, and to which counsel have reserved exceptions, and that it can properly only contain such matter as on which the decision to be reviewed is founded, and only those to which such decision applies, whether these be made in deciding as to the admissibility of evidence, instructions, or in accepting or rejecting witnesses, etc. If I am right in this view, the circuit court is reversed for an error not alleged and certified to us, and not, therefore, in the bill of exceptions for our information and cognizance. Nor is any constitutional right of the defendant waived or violated. The case of Cancemi v. People, 18 N.Y. 128, has no relevancy to the point here involved, either directly or by analogy. That involved the right of an accused to be tried by a greater or less number than 12 men, which the fathers of the constitution in their wisdom saw fit to provide. That the weight of judicial authority in criminal cases is that such right cannot be waived, no one disputes; and yet a contrary view is supported by authority, with reasons not easy to answer. "A conviction," said SEEVERS, J. "can only be legally obtained in a criminal action upon competent evidence, yet, if the defendant fails at the proper time to object to such as is incompetent, he cannot afterwards do so. He has a constitutional right to a speedy trial, and yet he may waive this provision by obtaining a continuance. A plea of guilty ordinarily dispenses with a jury trial, and it is thereby waived. The defendant may have consented to be tried by eleven jurors because his witnesses were then present, and he might not be able to get them again, or that it was best that he should be tried by the jury as thus constituted. Why should he not be permitted to do so? Why hamper him in this respect? Why restrain his liberty or right to do as he believed for his own interests?" State v. Kaufman, 51 Iowa, 579, 2 N.W. 275. It is seen, then, that the argument is controverted, but what pertinency or analogy can it have to the point here involved?
The omission of a judge to charge that the defendant may be convicted of a lesser crime than the offense charged is not a subject of constitutional provision, and involves no question of constitutional right of the accused to be waived or otherwise. The constitutional provision giving to a party a right to trial by jury means a common-law jury of 12 men, and no other number of men, greater or less, will meet the requirements of this provision. The reason is that consent cannot give the court jurisdiction or authorize a substantial change in its fundamental mode of proceeding that can neither be enlarged nor restricted. People v. Guidici, 100 N.Y. 508, 3 N.E. 493. But we look in vain for any provision out of which may be evolved the idea that an omission in the charge of a judge, in a criminal action, involves any constitutional right or privilege of the accused which is fatal to his [24 P. 900.] trial, and renders it illegal and void. It is not a matter which affects jurisdiction or the mode of proceeding. Such an omission stands upon the same footing as any other matter which may be omitted in the charge, which, to be made available, must be reserved by exception, and assigned as error, to be the subject of review in the appellate court. In such case the inquiry is not one of constitutional law, and no arguments drawn from that source have any relevancy or applicability. Again, it is admitted in the opinion that the weight of authority is against it, and to my mind this implies that the weight of reason is against it, unless the reason assigned in the opinion outweighs them. "In criminal actions," said Mr. Chief Justice SHAW, "by the form in which the issue is made up, the jury pass upon the whole matter of law and fact. It is the duty of the judge to give such instructions to the jury in matters of law as in his judgment may be calculated to aid and assist them in forming their verdict. But he is not bound to give instructions upon any particular questions, unless his attention is called to them, and they are particularly requested, in which case, if pertinent, instructions will be given, and, if the judge thinks proper, he will reserve the question of their correctness." Com. v. Kneeland, 20 Pick. 222. Mr. Chief Justice SHEPLEY says: "The court must first be requested to charge upon the point made, and if the request is refused exceptions may be taken." State v. Straw, 33 Me. 554. The reason of the rule, says Mr. Thompson on Trials, "rests upon the soundest foundation. The facts of the case come to the mind of the judge as matters of first impression, and it will often be extremely difficult for him, in the short time allowed for a trial before a jury, and in the midst of such a trial, to prepare a series of instructions applicable to all the hypotheses presented by the evidence. On the other hand, counsel are presumed to have studied their case beforehand, to come to the court with a *** full knowledge of the law applicable to those facts. It is therefore their duty to give attention to the charge of the judge, and, if in their opinion, he omits to give direction as to the law applicable to any essential feature of the evidence, to call his attention to the omission, and to the request appropriate suppletory instructions; and, where they fail to call his attention to something which he may fairly be supposed to have omitted from inadvertence, they ought not to be allowed to complain of the omission in an appellate court. A rule which would allow them to do so would be extremely inconvenient. It would multiply new trials and reversals, and often on grounds which have no connection whatever with the merits." 2 Thomp. Trials, § 2341. Does any one suppose if the learned counsel for the defendant had observed the requirements of this rule, and called the attention of the court to the matter now claimed to be prejudicial, that he would have had any ground for complaint? And can they take advantage of an omission which duty to their client and the trial court required them to point out, and constitute it an assignment of error with which to reserve the judgment? As that distinguished lawyer, Gen. WILLIAMS, when judge of this tribunal, well said: "Prisoners in our courts are provided with counsel, confronted with the witnesses against them, allowed to except to all the court says and does upon the trial, and it is no hardship to say that, if they have any objections to the acts of the tribunal before whom they are tried, they shall make their objections known or forever after hold their peace." O'Kelly v. Territory, 1 Or. 58. In all these matters the defendant is represented by his counsel, who are supposed to be skilled and learned in the law, and vigilant, attentive, and faithful to his interests according to the injunction of their oath, and upon whom devolves the duty to see that all the requirements of the law are observed so that he may have a fair trial, and to prevent and guard against any failure therein, either of omission or commission, in the trial court, to point out and reserve the matter prejudicial to his client, and save it by exceptions for the consideration and judgment of the appellate tribunal. Such a rule not only prevents unnecessary delay and expense, but new trials and reversals needlessly multiplied, and often without regard to the merits; but what is more important, it makes it the duty of counsel, although representing diverse interests as to clients, to mutually aid the court in rightly administering the law. Any other rule seems to me to be subversive of the soundest principles of justice regulating trials, and to invite to practices or conduct which are calculated to lower the standard of professional ethics, and to obstruct the proper administration of the law. In England such a rule has never found countenance, and it is impossible under their rules of practice. Nor ought we to tolerate it. The law is not a scheme of chicanery contrived by knaves to outwit justice, but a system of enlightened principles devised by the "collected reason of ages" to establish justice, and committed to the courts to be administered for the protection of society, and the punishment of criminals. A man who bites, when he fights, like a wild beast, lacerating and disfiguring his victim, is not an object worthy of admiration or sympathy, or even likely to be respected or tolerated by those who delight in brutal sports, and regard pugilism as a manly art; nor is he deserving of any other consideration at the hands of the court than the bare law affords; nor for whom ought it to overturn a rule of law, founded in reason, and supported by the unquestioned weight of authority.