42 Ind. 420 | Ind. | 1873
Lead Opinion
This was an indictment for murder in the first degree against the appellant, and Silas Hartman, and William J. Abrams, found and returned by the grand jury in the Marion Criminal Court. It is stated that the grand jurors of the county of Marion and State of Indiana, impanelled, charged,and sworn to inquire of feloniesand misdemeanors committed within the county of Marion, in said State of Indiana, on their oath, do present, charge, and find, that Silas Hartman, Nancy E. Clem, and William J. Abrams, all late of said county and State, and all being then and there of sound mind, on the 12th day of September in the year of our Lord one thousand eight hundred and sixty-eight, at said county of Marion and State of Indiana, did, with farce
A change of the venue was granted, on the application of the defendant, first from the judge of the criminal court, and then from the county of Marion to the county of Boone.
The defendant pleaded a former acquittal on another indictment charging her with the same crime. 'The State demurred to this plea, the demurrer was sustained, and the defendant excepted. She then pleaded not guilty, there was a trial by jury, and the jury failed to agree upon averdict. At a subsequent term ofthe court, there was a second trial by jury, which resulted in a verdict of guilty of murder in the second degree, the jury returning with their verdict the following recommendation : “ We, the jury, who have this day made our
verdict in the case of The State v. Nancy E. Clem, recommend her to the clemency of the executive of the State in her behalf.”
1. The sustaining of the demurrer to the plea of former acquittal; and,
2. The overruling of the motion for a new trial.
In the plea of former acquittal, the defendant alleges, that heretofore, on the 20th day of October, 1868, in the Marion Criminal Court, the grand jury, duly impanelled, sworn, and charged, etc., returned into open court an indictment, charging that Silas Hartman, Nancy E. Clem, the identical person now defendant in this action, and William J. Abrams, on the 12th day of September, 1868, at, etc., did, with force and arms, unlawfullj’-, feloniously, purposely, and with premeditated malice, make an assault upon one Nancy Jane Young, then and there and in the public peace being, and did, then and there, with force and arms, and with guns and pistols, and with leaden balls, shot, and slugs, then and there shot off and discharged by the said, etc., from the said guns and pistols aforesaid, at and against the said Nancy Jane Young, her the said Nancy Jane Young, then and there, unlawfully, feloniously, purposely, and with' premeditated malice, touch, strike, bruise and wound, then and there and thereby giving said Nancy Jane Young, in and upon the head of her, the said Nancy Jane Young, one mortal wound of the length of two inches, and of the depth of six inches, of which said mortal wound the said Nancy Jane Young, then and there instantly died. And so the jurors aforesaid on their oath aforesaid do say and find,- that the said Silas Hartman, Nancy E. Clem, and William J. Abrams, the said Nancy Jane Young, then and there in manner and form aforesaid, unlawfully, feloniously, purposely, and with premeditated malice, did kill and murder, contrary to the form of the statute in such case made - and provided, and against the peace and dignity of the State of Indiana. And she says that the said indictment was duly signed by the prose-
The cause of demurrer to the answer was, that it did not state facts sufficient to constitute any good and sufficient plea to the indictment.
When there is a demurrer to a pleading, ail the facts stated in the pleading, which are well pleaded, are to be taken as true for the purpose of determining the sufficiency of the pleading. The question is, does the pleading state facts sufficient to show that the defendant had been indicted in a court of competent jurisdiction, and tried and acquitted of the crime of mhrder in the first degree with which she is charged in this indictment ? If so, then it is a right secured by the common law, and guaranteed by the constitution of this State, that she shall not be again put in jeopardy for the same offence. 4 Bl. Com. 335; Constitution of Indiana, art. 1, sec. 14.
When a defendant is charged with the crime of murder in the first degree, he may be found guilty in that degree, or he may be convicted of murder in the second degree or of manslaughter, as the evidence may justify and require. 2 G. &. H. 405, sec. 72; Dukes v. The State, 11 Ind. 557; Kennedy v. The State, 6 Ind. 485. If upon such an indictment the jury find the defendant guilty of an inferior grade of homicide without saying anything as to the higher grade, the verdict is, by implication, an acquittal of the higher grade of the crime. 2 G. & H. 417, sec. 110; Weinzorpflin v. The State, 7 Blackf. 186; Brennan v. The People, 15 Ill. 511; Hurts;. The State, 25 Miss. 378.
1. That it does not show that the crime of which the defendant was acquitted was the same as that for which she was about to to be tried; and,
2. That the same facts might have been given in evidence under the plea of not guilty.
It is urged that the plea should show by proper allegation that the person in this indictment alleged to have been killed is the same person who was alleged to have been killed in the indictment in the former prosecution. In other words, that, in order to make it good, the plea should have alleged that Jacob Young, mentioned in the indictment in this case, is the same person as Nancy Jane Young, the person alleged to have been killed in the indictment on which the defendant was previously acquitted. But evidently this cannot be so, else when two persons are killed by the same act, and when the crime would therefore be one and indivisible, and when the State had chosen to indict the defendant and try him for the killing of one of them, there could be no plea of former acquittal when he was indicted for the death of the other produced by the same act. When, however, but one person has been killed, and in the second indictment the defendant is charged with the same crime, then, if the two indictments do not, When brought together, show that the person, charged in the second indictment to have been killed, is the same person mentioned in the first, that fact must be expressly alleged in the plea. But, if we are right in our view of the case under consideration, it is not only not necessary that the plea should contain such an allegation, but it would be impossible, consistently with the truth, that it could do so. If it be true, as we suppose it is, that the killing of two or more persons by the same act constitutes but one crime, then it follows that the State cannot indict the guilty party for killing one of the persons, and after a conviction or acquittal indict him for the killing of the other; for the State cannot divide that which constitutes but one crime, and make the different parts of it the bases
.The plea of former acquittal is very simple in its structure. It is said to be a plea of a mixed nature, and to consist partly of matter of record, and partly of matter of fact. The matter of record is the former indictment and acquittal, the matter of fact is the averment of the identity of the offence and of the defendant as the person formerly indicted, i Chit. Crim. Law, 459. There is no question made in this case as to the sufficiency of that part of the plea which sets forth the matter of record, that is, the former indictment and acquittal. But the objection is, that it does not sufficiently allege the identity of the felony charged in this case with that charged in the former case, of which the defendant was acquitted. The form of the allegation of identity in the precedents is very general. Consulting some of the forms, we find it stated as follows: “That the felony' and murder in the said former indictment mentioned, and the felony and murder in this present indictment mentioned, are one and the same felony and murder and not divers and different felonies and murders.” Whart. Preced. 1150. “And that the felony of which he, the said A. B., was so indicted and acquitted, as aforesaid, and the felony of which he is now indicted, are one and the same felony.” Bicknell Crim. Prac. 120. Under this general allegation the evidence is
The language of the plea, with reference to the identity of the crime, is not exactly that which is used in the approved precedents, but we think it is in effect the Same. It states that the crime charged against the defendant in said indictment, and of which she was tried and acquitted, was and is identical in all its parts, incidents,. and circumstances, with the crime charged in the indictment upon which she was about to be tried, and that the evidence, whereby the State could and would attempt to support and prove the same, is the same, and nowise different from that employed and produced against her upon the former trial. It seems to us that this language sufficiently shows that the crimes are the same. It does not follow because one of the indictments was for the murder of Nancy Jane Young, and the other for the murder of Jacob Young, that the crime is not the same. If the same act of the defendant resulted in the death of both of them, there was but one crime. Where, by the discharge of a fire-arm, or a stroke of the same instrument, an injury is inflicted upon two or more persons, or their death is produced, there is but one crime committed. In The State v. Damon, 2 Tyler, 387, the defendant "was indicted for an assault and battery on one Doty, and pleaded a former conviction on a complaint for an assault and battery committed upon one Miller, alleging that the wounding of each was by the same stroke, and at the same time. The court said, in delivering its opinion: “It appears that the defendant wounded two persons in the same affray, at the same instant of time, and with the same stroke. On a regular complaint made, he has been convicted before a court of competent jurisdiction for assaulting, beating and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating and wounding Elias Doty, the other of those persons; and the defendant pleads in bar the former conviction, which he alleges to have been for the same offence. The only question is, whether the defendant has
“ This is not a question between either of the parties injured by the assault and battery and their assailant; redress has been or may be obtained by them by private action; but it is a question between the government and its subject, and the court are clearly of the opinion that the indictment can not be sustained. The indictment charges the defendant with having disturbed the public peace by assaulting and wounding one of its citizens. For this crime he shows that he has been legally convicted by a court of competent jurisdiction. He cannot, therefore, be again held to answer in this court for the same offence.”
In The State v. Williams, 10 Humph, 101, the defendant was indicted for stealing a horse, saddle, bridle, blanket and martingale, and it was decided to be but one offence. And see Laupher v. The State, 14 Ind. 327. In the State v. Nelson, 29 Me. 329, it was held that where the goods of several persons were stolen at the same time, so that the transaction is the same, one count in the indictment may embrace the whole; and in Commonwealth v. Williams, Thacher Crim. Cas. 84, the same doctrine is laid down. The court in its opinion quote, with approbation, the language of Lord Hale, 1 P. C. 531, where he says: “ For it seems to me that if at the same time, the party steal goods of A. of the value of 6d., goods of B. of the value of 6d., and goods of C. of the value of 6d., being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony, done at the same time, though the persons had several properties, and therefore, if in one indictment, they make grand larceny.”
A case more nearly in point is Ben v. The State, 22 Ala. 9, where the defendant was indicted for administering poison
In the case under consideration, we regard the allegations of the plea of former acquittal as stating in effect that the same act caused the death of Jacob Young and Nancy Jane Young, and therefore as bringing the case within the rule established by the authorities to which we have referred.
The statute provides, that in all criminal prosecutions the defendant may plead the general issue orally, which shall be entered on the minutes of the court, and under it every matter of defence may be proved. 2 G. & H. 413, sec. 97. But this is a privilege conferred upon the defendant, and was not designed to take away from him the right to plead specially any defence which before the enactment of the section might have been specially pleaded. It is an affirmative statute and does not take away or abrogate the common law. It is expressly provided in the criminal code, that the laws and usages of this State relative to pleadings and practice in criminal actions, not inconsistent with the code, as far as the same may operate in aid thereof, or to supply any omitted case, are continued in force. 2 G. & H. 428, sec. 172. The defences which a defendant might plead specially in bar of the indictment were formerly of four kinds; a former acquittal, a former conviction, a former attainder, and a pardon. But as attainders are prohibited in this country, Const. U. S. art. 1, sec. 10, and as pardons are not granted until after conviction, State Const, art. 5, sec.
In this State, we think it is optional with the defendant, whether he will plead a former acquittal or a former conviction specially or give it in evidence under the general issue as authorized by the statute. If he elect to plead such defence specially, then it seems that he is entitled to have that issue tried before he is bound to plead the general issue. We are referred by counsel to civil cases, where it has been held that it is not an available error that a demurrer has been sustained to a pleading, when there is another pleading under which the same evidence is admissible. We think the rule is not
But it is urged that we may regard the evidence that was given on the trial of the cause upon the general issue which was pleaded after the sustaining of the demurrer to the plea of former acquittal, in deciding the question under consideration, and we are referred to 2 G. & H. 419, sec. 118, and 427, sec. 160.'. We are unable to see how we can do this. We cannot know that the evidence in the record bearing on this question is the only evidence which would have been introduced, had the defendant been allowed to try- the issue presented by her plea of former acquittal. The question relating to the sufficiency of the plea was presented to the circuit court before the evidence was heard, and wholly disconnected from it. The court decided it insufficient. The question now comes before us, and we must decide it, as that court did, unaffected by the evidence which was afterward adduced upon the trial of another issue. If the crime was not the same as that of which the defendant had before been acquitted, the State had only to take issue upon the plea, and when it was found against the defendant, compel her to plead the general issue and go to trial upon the question of her guilt or innocence of the charge contained in the indictment.
If there was any other fact which could have been pleaded in avoidance of the plea, it was the privilege of the State, by her attorney, to plead the same by way of reply. We are of the opinion that the court erred in sustaining the demurrer to the plea.
The questions arising out of the overruling of the motion for a new trial are next' to be considered. Among the objections urged against the regularity of the proceedings upon the trial, exception is taken to several portions of the instruction of the court to the jury. The following is the. first which we shall notice: “If you have a reasonable doubt whether the material facts have all been given to you. in evidence, and whether other relevant and material facts-
In the second sentence of the charge there are two things referred to; first, other facts exculpatory in their character, which could have been proved by the defendant; and, second, that she was not guilty, and could have so explained those given in evidence as to show their consistency with her innocence. The first case supposed, that is, the failure to prove exculpatory facts, which the defendant could have proved, the jury is informed, may be considered in connection with other circumstances, offered to show the defendant’s guilt. It relates to facts not proved by either party, but which the defendant might have proved. It proceeds upon the supposition that there are other facts which the defendant could have proved, that those facts are exculpatory in their character, and then states that if the facts, thus known to be exculpatory in their character, are not proved by the defendant, the jury may regard her failure to do so as evidence of her guilt.
The second proposition is, that if she was innocent, and did not explain the facts given in evidence against her so as to show their consistency with her innocence, the jury might regard her failure as evidence of her guilt. If she was not guilty, it is difficult to see how her failure -to explain' circumstances inconsistent with her innocence could make her guilty. In the first branch of the sentence, the court speaks of facts exculpatory in their character. In the second the court speaks of “those given in evidence,” meaning, we suppose, notthe exculpatory facts before spoken of, but the inculpatory or criminative facts which had been given in evidence by the State against the defendant. To these last facts we understand the third sentence of the charge to relate, in which the court informed the jury that conviction could not be had, whether the defendant did or did not disprove any of the circumstances arrayed against her, unless the circumstances proved convinced them, beyond a- reasonable
The court also gave the following instruction to the jury: “ Remember that you are each responsible for the verdict you shall render, not forgetting, however, that no man can safely consider himself infallible; that no number of minds can agree upon a multitude of facts, such as this case pre
It is the duty of jurors to consider carefully every part of the evidence, and, if necessary, reconsider it, and to hear and consider the views and arguments of their fellow jurors, but at last each one of them must act upon his own judgment, and not upon that of another. This seems to be the rule contemplated by the statute, which makes it a
There are other questions presented and argued, arising out of the motion for a new trial, but as the full bench of this court has unanimously concluded that, for the reasons already stated, the judgment must be reversed, we do not regard it necessary to examine and decide the other questions to which we have alluded.
The judgment is reversed, and the cause remanded; and the clerk is directed to certify to the warden of the state prison south, to return the defendant to the jail of Boone county.
Rehearing
ON PETITION FOR A REHEARING.
The counsel for the appellant "raise the question of the power of the court to grant to the State a rehearing in this case. They say that the judgment of the court below having been reversed, and the warden of the State’s prison having delivered her to the sheriff of the county under the order of this court in the judgment of reversal, we cannot by granting a rehearing remand her back to the state prison; that if we grant a rehearing and vacate our judgment reversing the judgment against her, the sheriff of Boone county, having once executed the judgment of the circuit court, by delivering her to the warden of the state prison, can have no power to take her there the second time on the same judgment after she has been delivered to him by the warden under a valid order of this court.
The counsel for the State ask that if we shall overrule the petition for a rehearing, for any cause, we will modify: and change the opinion heretofore delivered, and that we will also express an opinion upon the effect of granting a new trial in the case, and decide, whether she must take it as to the whole case, or only as to the verdict of guilty of
We all concur in the conclusion that the judgment of the court below was properly reversed, and that the petition for a rehearing ought to be overruled. Hence, we need not consider the question of power. We also concur in the opinion that we ought not to consider the question as to the effect of granting to the appellant a new trial, because the question is not before us. That must be decided by the court below, before it. can be properly passed upon by this court. If we were to express an opinion upon it, the circuit court would not be bound by such opinion. We think it the safer and better practice for this court to avoid deciding questions not presented by the record. A majority of the court adhere to their rulings, and decline to materially modify the opinion.
I do not concur in the conclusion of the majority, that the opinion ought not to be materially modified. Since that opinion was delivered, and since the petition for a rehearing was filed, we have had the benefit of a full argument on the plea of former acquittal, as well as the other questions involved in the petition, and I can no longer concur or acquiesce in that part • of the opinion which holds that the averments of identity of the two crimes are sufficient to show that the two homicides were caused by the same act. I do not consider it necessary to discuss the question at this time. I think no useful purpose would be accomplished by doing so. I only wish to state that I do not think the answer in that particular sufficiently certain, and in my opinion the demurrer to it was correctly sustained.
A majority of the court holding the answer good, we have concluded to add something to the former opinion on the question of the proper practice in such cases; and, also, as to a part of the instructions given to the jury.
Mr. JBishop, in- his work on Criminal Procedure, vol. i, p. 308, sec. 436, says, if two or more pleas involving issues to the jury are tendered together, they are not all necessa
In The King v. Captain Roche, Leach, 160, he pleaded former acquittal. The prosecutor moved that the jury might be charged at once with the issue, and that of not guilty. The court said: “ Charging them with both issues at once would lead to this absurdity, that being charged with both, they would be obliged to find upon both; and yet if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar. They are distinct issues, and the jury must be separately charged with them.”
Mr. Bishop, onp. 418, sec. 578, ofthe same volume referred to, says: “ There are, indeed, some instances to be found in the reports, in which, by a sort of loose practice, the two issues have been submitted together; but, where this was done, and the jury returned a verdict of guilty without passing on the other issue, a judgment rendered on the verdict was held to be erroneousand refers to Solliday v. The Commonwealth, 28 Penn. St. 13. In that case, the loose practice referred to by Mr. Bishop had been adopted by the court, and both issues of former conviction on a spe'cial plea and not guilty were submitted to the jury at the same time. The jury returned a verdict of not guilty. The lower court refused to arrest the judgment and passed sentence upon the prisoner. The Supreme Court held that a former conviction could always be pleaded, and if its. truth was established, it would be a plain bar to another judgment against the accused. If an issue of fact was formed upon the plea, it must go to a jury, and no judgment could be given in the case, until that case could be disposed of. No matter how clear the court may be against the defendant, nobody but the jury can decide an issue like that. If the jury should determine and find that the former indictment wTas for a different offence, and omit to find whether he was
“ When a defendant pleads former acquittal or conviction, and not guilty, both issues ought not to be put to the jury at the same time. * * * Until the issue upon the plea of former acquittal, or former conviction, is disposed of, there can be no trial in chief.” Henry v. The State, 33 Ala. 389.
In the case of The State v. Nelson, 7 Ala. 610, a plea of former conviction was filed, after which an issue was formed upon the plea of not guilty and a jury impanelled and sworn;
If such plea is tendered by the prisoner, and the prosecutor demurs to it, this is an admission that the record exists as pleaded. Commonwealth v. Myers, 1 Va. Cas. 188, 229, 232. A novel assignment is not admissible in a criminal case, and the proper and only mode of replying to a pica of former conviction is to traverse the alleged identity. Duncan v. The Commonwealth, 6 Dana, 295. To such a plea, a replication of an arrest of judgment is bad ; it shows the indictment was defective, or that a conviction could not have been had upon it for the offence charged in the second indictment. Henry v. The State, 33 Ala. 389. Whenever the offences charged in the first and second indictments are capable of being legally identified as the same offence, by averment, it is a question of fact for the jury to determine whether the the averments are supported and the offences the same. But when the plea of atitrefois acquit upon its face shows that the offences are legally distinct and incapable of identification by averments, the replication of mil ticl record may conclude with a verification, and the court may decide the issue. Hite v. The State, 9 Yerg. 357; 1 Bishop Crim. Proced. 585, note.
But it is said, that even if the plea was a. good one, the prisoner was not prejudiced by sustaining a demurrer to it, because, under the plea of not guilty, she could introduce the same evidence and make the same defence that she could under the special plea, and that on appeal the court must give judgment without regard to technical error or defects, or to exceptions which do not affect the substantial rights of the parties. And hence the judgment ought not to be reversed on account of sustaining the demurrer to that plea. But it must not be forgotten that the laws and usages of this State, relative to pleading and practice in criminal actions,
The theory that a judgment in a criminal case must not be reversed, or the verdict of a jury set aside, unless it is unsupported by the evidence, or if it appears to be supported
The counsel for the State call our attention to the charge that the jury must not convict unless their minds were convinced of the guilt of the accused beyond a reasonable doubt; that they were directed to examine the evidence carefully and dispassionately; to bring to the exercise of that duty their best judgment, and return into court that verdict which should commend itself to their consciences, as being in exact accord with truth and justice. The statute requires the court to instruct the jury and state to them all matters of law which are necessary for their information in giving their verdict. 2 G. & H. 417, sec. 113. And although the jury are made the. judges of the law as well as of the facts in criminal cases, the charge of the court is presumed to control their minds to some extent, in deciding the case and in arriving at a verdict; so much so, that when the court has misdirected the jury in a material matter of law, such misdirection is a ground for a new trial. 2 G. & H. 423, sec. 142, clause 4. This last charge must be taken in connection with the other, and in that they were told that it was their duty to yield their individual judgments upon the evidence, and make what might be called a compromise, in order to agree upon a verdict;
If an erroneous charge is given, it “ cannot be corrected by another instruction which may state the law accurately, unless the erroneous instruction be thereby plainly withdrawn from the jury. The effect of the conflicting instructions can only be to confuse the jury; and as they must follow one or the other, it is impossible to determine whether the influence of the court in such case has been exerted for good or evil.” Bradley v. The State, 31 Ind. 492; Clem v. The State, 31 Ind. 480.
Exception is taken to the following language used in the opinion in this case: “It is inconvenient to have a jury disagree and thus render it necessary that there should be another trial of the case, but this is a necessary consequence of a trial by jury.” We still think it better that parties should suffer the inconvenience and delay caused by a failure of the jury to agree upon a verdict, than that a verdict should be rendered against the judgment of a part of the jurors. The trial by jury in this State is based upon the theory that each juror is to decide upon the facts, as he understands them. Undoubtedly, jurors do make mutual concessions on minor matters. They are required to deliberate, decide, and make up their verdict by themselves, without aid or interference from anybody. How much each concedes, what compromises are made, what particular item of evidence is considered, or by what means the conclusion is arrived at, is not made known in the verdict. The twelve jurors must all agree upon the verdict, although they need not upon' the reasons for it. Each must decide for himself. He ought not to be required' “as a matter of law” to yield his individual judgment upon the evidence, in order to render a verdict. We fully appreciate the importance of a verdict in every case, but our anxiety for such a result must not be so great as to tolerate anything like dictation by the court towards the jury, or any
The history of jury'trials shows frequent failures to agree, and yet we require a unanimous verdict. It has been considered better and safer to adhere to the system, to suffer the inconvenience of such failure, than to abandon it. But if. jurors may be required by courts to surrender their judgment to their fellows, the theory of unanimous verdicts is practically abrogated, and the timid, conscientious juror will, be controlled by the strong-minded and determined.
We cannot say that the evidence in this case so clearly and satisfactorily establishes the guilt of the accused, beyond, a reasonable doubt, that the very decided language of the-charge did not exercise a controlling influence upon the minds of the jury. It seems to us that the true rule is, that where from the whole case it appears that the jury might have rendered a different verdict, then we may well consider that an erroneous charge leading to the verdict influenced! them, and is good ground for a new trial.
We do not consider it necessary to add anything to the-opinion on the other branch of instructions.
The petition for a rehearing is overruled.