delivered the opinion of the Court:
William Burge, the appellant, was indicted for the murder of Daisy Burge, and was tried and convicted of murder in the first degree. There was no demurrer to the indictment. A motion for a new trial was overruled. There was no motion in arrest of judgment. The appellant was sentenced to be hanged. The case comes before this court upon an appeal from the judgment and sentence, and upon bills of exception.
The objection here taken to the indictment was not made at the trial below, nor called to the attention of the trial court in any manner. Under the rule of this court, were this not a capital case, the first question would not be considered here, but because of the gravity of the case this court, in this instance, disregards these serious omissions.
First. That the court below erred in permitting the verdict of murder in the first degree to stand, because the indictment is-not a valid indictment for murder in the first degree.
Second. The court erred in permitting the prosecuting attorney, over appellant’s objection, to state in his opening proposed proof of facts tending to show the commission by appellant of another and different crime, not charged in the indictment ; and the court erred in permitting evidence of such facts' to be given to the jury over appellant’s objection.
1. The sufficiency of the indictment in this case to sustain a verdict of murder in the first degree was substantially decided by this court in the case of Hamilton v. United States, ante, 382.
In that case it was contended that the indictment failed to legally charge the crime of murder in the first degree, of which Hamilton was convicted, because the indictment failed to charge that the killing was done with intent to kill; but this court held that such indictment was not invalid by reason of the omission of an express allegation of an intent to kill.
In Hamilton v. United States we concurred with Mr. Wharton’s conclusion (1 Wharton, Criminal Law, 10th ed. § 393) r “Under the statutes a common-law indictment for murder is sufficient to sustain a verdict of guilty of murder, either in the first or the second degree. It being held, as has already been seen fully, that the line separating murder from manslaughter is in no way changed by our statutes, and it being further seen that murder in the second degree is simply murder at common law, with certain aggravating features discharged, it follows, that on a common-law indictment for murder a verdict of murder either in the first or in the second degree can be sustained.”
And so Mr. Wharton says that it is not more reasonable to require a “specific intention to take life” to be specially averred than it is to require “sanity” to be specially averred.
We need not repeat the reasons so recently expressed for holding the indictment in that case sufficient. That indictment,
The indictment we are now considering is substantially like the indictment for murder in the case of Hill v. United States, 22 App. D. C. 395. In the last-mentioned case (p. 402) this court said: “The definition of murder, as given in section 798 of the Code [31 Stat. at L. 1321, p. 854], is the common-law definition of that crime, as we find it in the 4th book of Blackstone’s Commentaries, page 195, transcribed from the 3d Institute of Coke, page 47. It is not, therefore, a new or statutory definition of murder, but simply the common-law definition of that crime. The indictment here is in the regular and long-approved common-law form, and the court below was clearly right in refusing to quash it for the reason assigned in the motion. Indeed, it was not necessary, in any view of the case, to charge that the accused was of sound mind and discretion, as essential to the validity of the indictment 2 Bishop, Crim. Proc. sec. 669.”
And, as Mr. Wharton says, it was not essential to charge a “specific intention to take life.”
The indictment upon which the appellant was charged and convicted, and which we are now considering, is in the common-law form. It is as follows:
“That one William Burge, late of the District aforesaid, on the twenty-seventh day of January, in the year of our Lord, one thousand, nine hundred and five, and at the District aforesaid, with force and arms in and upon the body of one Daisy Jordan, otherwise called Daisy Burge, in the peace of God and of the said United States, then and there being, feloniously, purposely, and of his deliberate and premeditated malice did make an assault; and that the said William Burge a certain revolving pistol, of the value of two dollars, then and there charged with gunpowder and divers, to wit, two leaden bullets, which said revolving pistol, he, the said William Burge in his right hand then and there had and held, then and there feloniously, purposely, and of his deliberate and premeditated malice did discharge and shoot off at, against, and upon the body of her, the
The usual conclusion follows, and is not necessary to be here recited.
The indictment of Hill, which was held good by this court, only differs from the indictment we are now considering in the part charging the wounding and Wounds, and only differs in that part in one particular; that is to say, in the indictment of Hill it is averred “that H. * * * feloniously, purposely, and of his deliberate and premeditated malice did strike, penetrate, and wound the said C. T. H. * * * giving to her, the said C. T. IT., then and there feloniously, purposely, and of his deliberate and premeditated malice with the leaden bullet * * * one mortal wound * * * of which said mortal wound she the said C. T. H. * * * did die.”
In the indictment we are now considering, in the like part
Each of these indictments is in the common-law form. Considering them together, we conclude that the difference is immaterial. We must hold the present indictment to be good in the particular just quoted, because it expressly charges that B. then and there feloniously, purposely, and of his deliberate and premeditated malice made the assault charged, and that B. with two leaden bullets feloniously, purposely, and of his deliberate and premeditated malice did wound the said D. B., thereby giving her with the leaden bullets aforesaid two mortal wounds, of which she instantly died.
In the leading case of White v. Com.
In Davis v. Utah,
As we have at some length, in Hamilton v. United States,
2. The second and third assignments of error present an important question. It is assigned as error that the court permitted the prosecuting attorney, over appellant’s objection, to state in his opening proposed proof of facts tending to show the commission by appellant of another and a different crime not charged in the indictment, and in permitting evidence of such facts to be given to the jury.
The United States attorney, in opening, stated that he expected to show another act of violence, and that all was part of one continuous performance. To this appellant’s counsel objected, and the court overruled the objection to this statement, because, if the proof established that the latter crime was a part of a preconcerted plan or design, it would be relevant upon the question of premeditation and deliberation.
Evidence tending to show that appellant with a revolver shot and killed his wife at 2006 It street, about midnight, was admitted, and later evidence tending to show that about a half hour afterwards the appellant went to 1102 0 street, the home of Mary Jordan, his wife’s mother, and with a revolver shot her with intent to kill.
The trial proceeded, and the evidence thus objected to was admitted. The court, in charging the jury, said, among other things: “There has been evidence offered tending to show that the defendant, after the occurrences which resulted in the death of Daisy Burge, shot Mrs. Lawson [Jordan] at her establishment. The fact that a man commits one crime is no evidence that he committed some other crime. But when a man plans beforehand to commit two crimes, then it is relevant to show all that he did in the execution of his prior plan. Therefore, you should consider from all this evidence whether or not you believe that he went.on to Mrs. Lawson’s [Jordan’s] house and shot her as a
In order 'to a proper consideration of this question a statement of the leading facts is necessary.
It appears that on January 27, 1905, Daisy Burge received two pistol-shot wounds, and her death was due to hemorrhage resulting from these wounds. In June, 1902, William Burge and Daisy Jordan were married and lived several years at the home of her mother, Mary Jordan, who says Burge treated his wife cruelly. Six months after the marriage he beat her. A year before her death he beat her very badly, kicked her, and threatened to kill her.
On Saturday before the homicide the pair went to live at the house of Eliza Harris. ■ On Monday deceased left, taking her clothes and leaving a letter for Burge. After reading it, Burge told Eliza Harris that “his wife had done him dirty,” and complained that she had carried away his clothes. Deceased visited her own home, but did not remain, fearing Burge, who searched for her. She went to Lena Lawson, her friend, who, with her mother, Annie Lawson, lived at 2006 R street. Deceased told Lena she feared her husband, and therefore asked Lena to secure her employment away from the city. On the day of the homicide, Lena took her to the house of Sarah Williams, 1835 R street, to talk concerning this employment out of town. While Lena and the deceased were there Burge came and insisted that his wife should come out and talk with him. When she refused to go out he went into the house, and the two talked so long privately and apart that Sarah Williams told them she
Burge went to his room, 1425 Church street, and in a few minutes went out and went to the house of Mary Jordan, his wife’s mother, 1102 O street. He arrived some time after 12 •o’clock and insisted upon seeing his wife’s mother, who had gone to bed. He went to her bedroom door, saying, “Mrs. Jordan, I have seen Daisy, and she said my trunk is here, and I want it.” She replied, denying that the trunk was in the house. He
Burge testified in his own behalf that he had lived peaceably with his wife, and told how he had kissed her good-night as. Lena and she were going to 2006 B street, and how he looked back and saw his wife lying in the alley with a man, and how the man and he drew their revolvers and Burge’s revolver went off, and how the appellant, the deceased, and Lena struggled in the yard, and his revolver was a second time discharged, and a. third time went off. Burge didn’t know when his wife was shot,, but after he left the house he discovered that he himself was-, wounded. He went to tell Mary Jordan that her daughter had been accidentally shot, and found it necessary to take out his pistol to show how it happened, when Frank Jordan struck him with a chair and seized Burge’s revolver and fired twice. He-, did not know Mary Jordan was shot, but knew Frank shot him, Burge. There was not a particle of evidence in the record to corroborate Burge’s incredible story. The evidence tends to-show Burge was wounded during the scuffle with the two persons who came to Mrs. Jordan’s rescue. This evidence proves that Burge, at 12 o’cock at night, deliberately killed his wife,, in the presence of three witnesses, and, after stopping at his room a few minutes, went to the house of his wife’s mother and„
• Having' summarized the evidence, we proceed to consider whether or not the court erred in permitting the evidence to be given to the jury of the appellant’s assault upon Mary Jordan at her house, 1102 O street, about a half hour after he had killed his wife at 2006 E street.
If it were possible for us to sustain this judgment and conviction of the appellant of the brutal crime for which he was indicted, we surely should be swift to affirm this judgment. Hut a rule of law which sharply differentiates our more merciful common law and the civil law of Continental Europe protects a person accused of crime with the presumption of innocence, and while meeting one distinct charge gives him assurance that no other will be or can be proved against him. We proceed "to discuss this rule of law and its application to the evidence admitted by the court below in the trial of this case.
“The rule which requires that all evidence which is intro•duced shall be relevant to the guilt or the innocence of the accused is applied with considerable strictness in criminal proceedings. The wisdom and justness of this, at least from the 'defendant’s standpoint, are self-evident. He can, with fairness, ¡be expected to come into court prepared to meet the accusations contained in the indictment only, and, on this account, all the evidence offered by the prosecution should consist wholly of facts which are within the range and scope of its allegations.”
Jurors are prone to conclude that, if a person once committed a similar offense, he committed the offense charged.
“To guard against this evil, and at the same time to avoid the delay which would be incident to an indefinite multiplication of issues, the general rule (to which, however, some very important exceptions may be noted) forbids the introduction of evidence which will show, or tend to show, that the accused has committed any crime wholly independent of that offense for which he is on trial. To this general rule there are a very few exceptions which have been permitted from absolute necessity to aid in the detection and punishment of crime. These excep
The government cannot prove against a defendant any crime not alleged, in aid of the proof that he is guilty of a crime charged. Whatever tends directly to prove a defendant guilty of the crime charged, though guilty also of another, may be shown against him; but his cause cannot be prejudiced by the evidence disclosing irrelevant guilt. Even where offenses are of a like sort, evidence to prove one is not ordinarily admissible to prove another. If one be indicted for the murder of a particular person it is not admissible to prove that at another time he murdered, or attempted to murder, another person. Mr. Bishop says: “To permit such evidence would be to put a man’s whole life in issue on the charge of a single wrongful act, and crush him by irrelevant matter which he could not be prepared to meet.” 1 Bishop, New Crim. Proc. secs. 1120-1124.
This familiar rule, that a person cannot be convicted of one offense upon proof that he committed another, is so well established that it needs no discussion here. It is well stated in Shaffner v. Com.
This doctrine is not carried so far as to exclude evidence which has a direct tendency to prove the particular crime for which the prisoner is indicted.
The exceptions, however, to this rule are few, and they are well stated in People v. Molineux,
It is obvious that the last exception has no application to the case we are here considering.
“Motive” is the state of feeling impelling towards an act, and “intent” is the mental state accompanying the act. Without more evidence than appears in this record, proof that apjiellant, a half hour after killing his wife, made an assault, with intent to kill, upon his wife’s mother, would not help the inquiry into the motive with which appellant brutally killed his wife about a half hour before at a different place.
We have considered carefully whether, since in homicide the intent to kill is practically always an issue, and the recurrence of like acts of the sort tends to negative indifference, accident, or any other form of innocent intent, it might be justifiable in this case to admit evidence of the later assault with intent to kill, to enlighten the jury touching the intent of appellant in the earlier actual killing. Eor this purpose prior assaults by the defendant upon the deceased, or assaults upon others at the same time and place, or even prior homicides, have been in rare instances admitted to throw light upon the intent of the defendant indicted and tried for a subsequent homicide. We have in vain sought for a ease where a later crime, like that of
The exception to the rule which permits proof of another crime in order to exclude the defense of mistake or accident in the perpetration of the crime for which the defendant is on trial could not apply to this case. That the appellant most brutally shot and killed the deceased was proved clearly by all of the three eye-witnesses. There could be no pretense of mistake,, and the jury could not possibly believe the unsupported pretext of the appellant that with his revolver he twice accidentally-shot his wife. Upon this exception to the rule the government would not be justified in assuming the risk of greatly prejudicing the jury in considering the degreee of murder under the indictment.
The remaining exception to the rule, namely, a common scheme or plan embracing the commission of two crimes so related to each other that proof of one tends to establish the other, presents the ground upon which the government introduced the-evidence proving the assault with intent to kill, upon Mary Jordan. This principle presupposes that a design or plan on the part of the defendant is to be shown as making it probable-that the defendant carried out the design and plan, and committed the act for which he stands indicted; and former similar acts are admitted in evidence so far as through common features they naturally indicate the existence of such a plan, design, or system, of which they are the partial fulfilment or means. According to this principle, subsequent criminal acts might be relevant upon the trial of a prior homicide, such as that we areliere considering. The record, however, in this case comams but two circumstances tending to establish a plan or design of the appellant to kill his wife and his wife’s mother by means of the revolver he bought on the morning, and with which he so brutally assaulted his wife and her mother the same night. The
As Mr. Underhill says in section 88, supra: “Some connection between the crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received. 'This connection must clearly appear from the evidence. Whether any connection exists is a judicial question. If the court does not clearly perceive it, the accused should be given the benefit of the doubt, and the evidence should be rejected. The minds of the jurors must not he poisoned and prejudiced against-the prisoner by receiving evidence of this irrelevant and dangerous description.” Approved in People v. Molineux,
As was said by the highest court of Pennsylvania:
“If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given "to the prisoner instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper ■evidence of the particular guilt.” Shaffner v. Com. supra.
Several of the cases relied upon by the government afforded •abundant proof of design, scheme, and plan to warrant the admission of one crime upon the trial of another committed as part -of the common purpose or in pursuance of it. Briefly, in Com.
In People v. Craig,
Of course, the jury were warned that the sxxbsequent homicides were admitted only to be considered in relation to the infent of defendant in firing the shot that killed his wife.
In State v. Eastwood,
In State v. Mace,
It is true that a court of errors recognizes there must be a certain discretion on the part of the trial judge in ruling upon certain testimony to throw light upon a particular fact or to explain conduct. There is a limitation, however; if “it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors,” the reason for not interfering with the discretion of the trial court does not apply. Moore v. United States,
In the case before us there is substantially no proof, nor is there such obvious relation between the two crimes that it may be clearly inferred that the one in any way characterized the other. Upon no theory can the relevancy of the testimony concerning the assault on Mary Jordan be sustained without breaking down firmly established rules of evidence. Nearly all the cases appear to adhere to the position we are in this case constrained to take.
It becomes our duty, therefore, because of the error in admitting the testimony objected to, to reverse the judgment and sentence in this case, and to remand the case for a new trial in the court below, in accordance with the principles stated in this opinion; and it is so ordered. Reversed.