81 Va. 787 | Va. | 1886
Lead Opinion
delivered the opinion of the court.
The voluminous record in this case presents to the careful, patient and anxious scrutiny of this court, the determination of the legality and justice of the proceeding in the case in the trial court—that is, the question, both, whether the Commonwealth produced upon the trial before the jury, evidence, competent and sufficient, to warrant the verdict of the jury;
In this connection it is appropriate to remark the fact, that, from the beginning to the end of the protracted and painful trial of this case in the said Hustings court, extending through thirty days, and embracing so many intricate questions of law and fact, there are no exceptions filed, either to the instr uctions given by the court to the jury, or to the conduct of the jury, or of the officers of the court.
The record shows that, during the said trial, eight bills of exceptions to the rulings of the court were taken by the prisoner; and, also, that a motion in arrest of judgment, for errors manifest on the record, was made by the prisoner, and overruled by the court; and the said rulings of the court, as shown in the several bills of exceptions, and its ruling upon his motion in arrest of judgment, ate assigned as errors.
Before we proceed to consider these assignments of error and the grounds of error assigned in the record, we must consider the question raised and relied on here by the learned counsel for the prisoner, in their printed and oral argument at the bar of this court, viz: “ That the Hustings court had no authority to hold its session; and hence had no jurisdiction over this case at the time the verdict was rendered and sentence pronounced.” The record shows that the accused was arraigned on the 5th day of May, 1S85, and, at the same session of the court, continued by adjournment from day to day, the case was submitted to the jury on the 4th day of June; on which day they found the accused guilty.
It is insisted by the learned counsel for the prisoner, “that the regular monthly term of the Hustings court, for the month
By the twenty-sixth section of chapter 154 ’of the Code of 1873, it is provided, that “there shall be a term of the said Hustings court (of the city of Richmond) for each month in the year, except the month of August, commencing on the first Monday in the month, and continuing so long as the business before the court may reqwbre.”
By the thirty-sixth section of this chapter it is provided, “the judge of every such corporation court may, from time to time, change the day for the commencement of the terms thereof, or any of them,” &c. 'See also Code 1873, chapter 155, section eighteen. The judge of the Hustings court entered an order in this cause postponing the commencement of the June term of the court from the first Monday to the fourth Monday ; and then continued the May term, by adjournment from day to day, after the first Monday in June, “so long as the business before the court required.”
In Cahoon’s Case, 21 Gratt. 822, this Court, in construing the fourteenth section of the VI. Article of the Constitution of Virginia, says: “The words ‘as many days in each month as may be prescribed by law,’ in that section, do not refer to the calendar month in which a term may commence, but to the judicial month, commencing from the day in one calendar month, and continuing to the day in the next calendar month fixed by law for the commencement of the monthly term of the court.”
The first bill of exceptions alleges error in the decision of the hustings court upon the challenge for cause by the Commonwealth, of the venireman, R. W. Larke, in sustaining the ■said challenge and discharging the said Larke from service on the jury, after he had been examined by the court upon his voir dire and accepted as a juror.
After the said Larke had been examined and accepted by the court as a juror, he was challenged by the Commonwealth, on the ground that he had, before being sworn, stated “that he under no circumstances would hang any man upon circumstantial evidence.” The information upon which the challenge was based, came to the knowledge of the attorneys for the Commonwealth after the said Larke had been so accepted. The Commonwealth introduced two witnesses, J. T. Ford and W. A. Boswell, to support its challenge.
J. T. Ford testified as to where the statement was made by Larke, and stated that W. A. Boswell and others were present; and he then said: “ We were talking about this case. I said that I could not serve, as I had formed an opinion, or made up my mind. Mr. Larke asked me how I had formed my opinion. And I told him from what I had seen in the newspapers. He said I had no right to form an opinion upon that. I said that was true, but a man could not help forming an opinion after he had read about the evidence. Mr. Larke then said,
William A. Boswell testified: “They were discussing this case, and talking generally about crime. Mr. Larke mentioned several cases of circumstantial evidence, and said that he would not, under any circumstances, hang a man on circumstantial evidence. He spoke in a general way, &c., &c. I didn’t understand him to refer particularly to this case.”
The challenged juror, Larke, then stated: “We got to talking about circumstantial evidence, and I narrated some cases to show the danger of convicting a man on circumstantial evidence. I may have made the remark, as stated by Boswell and Ford; and if they say so, I have no doubt I did, for they remember, perhaps, better what I said than I do. I can’t remember positively the words. I spoke in a general way? without reference to any particular case. I meant by what I said that a man ought to be very slow and cautious in convicting a man on circumstantial evidence. If this case presented an unbroken chain of circumstantial evidence, fully proved, I would convict him—if I was convinced!. I don’t remember having said that I would under no circumstances hang a man on circumstantial evidence. I didn’t intend to say I wouldn’t convict a man in any case of circumstantial evidence, but would be very slow and cautious in so doing.”
Mr. Larke then said that he was over sixty years of age; that he had not thought of it when examined on his voir dire; that, if not too late, he would claim, and did claim, his legal exemption.
In the case of Waller v. State, 40 Ala. 325, a juror who stated, in answer to a question by the court, that he had scruples against capital punishment, was set aside by the court; notwithstanding he stated, in answer to questions by the prisoner) “that if he was on the jury, and the law required him to convict, he would do so, notwithstanding the punishment might be capital.” It has been frequently decided that a party who
And the first section of chapter 17, Acts 1877-78, p. 341, provides: “A person whose opinions are such as to prevent his convicting anyone of an offence punishable with death, shall not be allowed to serve as a juror on a trial for such offence.” The practice in matters of challenge to jurors by the Commonwealth, for cause, has been simplified by the statutes of Virginia; the Commonwealth alleges the cause; evidence on both sides is heard by the court; and the court decides, by a preponderance of evidence, whether the challenge is sustained or not. See Crim. Proc. 1878, chapter 17, section 6.
We are of opinion that the Hustings court was, upon all the evidence before it, clearly right and fully justified in holding that Larke was not a properjuror in the case; and that the evidence shows, that he not only announced his belief that no man should be hung upon circumstantial evidence, but that he argued to support his views against a well settled principle of the law of the State.
Indeed, Larke himself, after being challenged, admitted the ground of the challenge; and, in guarded language, if not paltering in a double sense, only said: “If this case presented an unbroken chain ■ of circumstantial evidence, fully proved, I would convict him, if I was convinced.” (?) The very question at issue was, whether he could be convinced by circumstantial evidence, in a capital case; and he himself, intimates that ■an “unbroken chain,” “fully proved,” might not convince him.
The prosecution and punishment of criminals is vital to the safety of the whole People, and to the peace and dignity of the Commonwealth; and it is the policy of law and the duty
But, even if Mr. Larke had not been disqualified to act as a juror upon this trial, by his proved and admitted opinions, yet the court committed no error in dismissing him. He was over sixty years of age; and, without having been sworn as a juror to try the case, he claimed his legal exemption from jury service ; and the court properly permitted him to stand aside.
The second bill of exceptions claims that the Hustings court erred in setting aside the juror, A. S. Goode, who was challenged by the Commonwealth, on the ground that he had “expressed an opinion,” and “had made one or two bets upon the result of the trial.”
This contention brings the same general question before the court that was involved in the first bill, just disposed of, in the case of the rejected juror, Larke; and may be considered in the light of the same reason and authorities urged and applied in that case. The principle insisted upon in Larke’s case, must be repeated and applied to the challenge of the juror, Goode, viz: That great weight should be given to the opinion of the lower court in the exercise of its discretion in examining and deciding upon the fitness and competency of jurors, according to all the evidence before it, for and against the challenge; and that the mere statement of the challenged juror that he is, or considers himself, competent and impartial, will not be allowed to overweigh without consideration, a preponder
Harris testified: “ Mr. Goode said if they did not stop fooling, or something like that, that they would not be able to convict Cluverius. I said I thought he would be convicted; and Mr. Goode replied that he would not be. I contended that he would be; and Mr. Goode then said that he would bet me a ten cent cigar that he would not be. I said all right; I’ll take that bet. I don’t know whether he was joking or not; I considered it a bet; and think I would have to claim the cigar if the prisoner is convicted.”
White testified substantially to the above-stated conversation; and said Harris took the bet, &c., &c.
Robinson, testifying to the second expression of opinion by Goode, which took place in Goode’s store, said: “ There were several parties present. We got to arguing the Cluverius case; I maintaining that the prisoner would be convicted; and he contending that he would not be;—and he offered to bet me fifty cigars that he would not be convicted. I took the bet; and remarked that I would smoke those cigars yet,” &c., &c.
It is admitted that the knowledge of this cause of challenge did not come to the Commonwealth until after the juror, Goode, had been examined and accepted. We are of opinion that, irrespective of the character or amount of the wager, the naked fact that a bet, of whatever size, had been made by the juror on the result of the case, should cause his discharge.
In Essex v. McPherson, 64 Illinois, 549, the court said: “For a juror to sit in the trial of. a cause upon the result of which he has a wager depending, is a gross impropriety, and offensive to the sense of justice.”
The hustings court did not err in rejecting Goode; the gi’ound of his exclusion having been clearly proved by the evidence before the court in support of the challenge, and found to be neither “vague, uncertain, nor irrelevant,”—but distinct, positive and relevant.
III. The third bill of exceptions is taken to the method of impanelling the jury. The court proceeded to examine the veniremen summoned under the several successive writs oí venire facias, until (after the examination of over nine hundred)
The court overruled this objection, and the prisoner excepted.
In this exception there is no merit. The court proceeded in strict conformity with the law, as it has been clearly expounded and decided by this Court in the recent cases of Hall v. Commonwealth, 80 Va. 555; Richards’ Case, ante, p. 110; Honesty’s Case, ante, p. 283.
IV. The fourth bill of exceptions is taken to the action of the court in permitting certain questions to be propounded to the witness, A. W. Archer, which questions are set forth in the bill, and alleged to be “leading.”
It is not permissible for three separate and distinct rulings of the court to be objected to in one bill. Each ruling must be the subject of a separate bill; each objection must stand on its own merits. A bill of exceptions is required to be a specific and definite allegation of error;—not a jungle of objections. Harman v. City of Lynchburg, 33 Gratt. 37. Here the bill of exceptions sets forth objections as being to two questions, alleged to be leading, which were asked at different times; and to the refusal of the court to strike out “ each and every question and answer propounded to and given by this -witness, as being illegal and irrelevant.”
But a critical notice of the two questions objected to, will show that they were not leading, or otherwise improper ques
Before either of the said questions was put to the witness, Archer, he had testified that he had had an interview and a conversation with the prisoner at the jail, but that he did not remember the details of the conversation; and both the court and the attorney for the Commonwealth had endeavored to get the witness to narrate the conversation, and had failed. Then the first of the said questions were put: “ Do you remember whether in the jail you asked him if he had ever seen you before?” The other question objected to reads as follows: “ Do you remember whether at the jail you had any conversation with him, or not, about when he had last seen Miss Madison?” These questions aré not leading, but are merely introductory; they are as indefinite in form as possible under the circumstances, and they ask no information as to what the prisoner had said.
What are leading questions ? * “ It should never be forgotten that leading is a relative, not an absolute term. There is no such thing as leading, in the abstract; for the identical form of question which would be leading, of the grossest kind, in one case or state of facts, might be not only unobjectionable, but the very fittest mode of interrogation in another.” Best on Evid. 1 American Edition, 2 vol., sec. 641; 2 Phil. Evid., 5 American Edition, p. 745, note 575.
“ In cases of conversations, admissions, and agreements, you may draw the witness’ attention to the subject, occasion,.time, place, person, and ask directly whether such person said anything on the subject thus brought under his attention; and if answered, yes, then what did he say?” 2 Phil, on Evid. 5 Amer. Ed., page 747, note 575.
“A question is objectionable, as leading, when it suggests the answer; not when it merely directs the attention of the witness
Tested by this rule and these authorities, the questions objected to were perfectly proper; being put to a witness who had deposed to a conversation with the prisoner, but who had stated his inability of memory as to the details of the conversation; and being intended only to draw the attention of the witness to certain subjects discussed in the conversation; and in so doing, the questions are confined to what the witness may have said, and not the prisoner.
The fourth bill of exceptions presents no ground for reversal.
V. The fifth bill of exceptions is taken to the alleged error of the court in allowing to be read to the jury as evidence a ■certain letter purporting to have been written to Fannie Lillian Madison, the deceased, by Miss Laura M. Curtis.
Before this “Curtis letter” was admitted by the court, evidence (as the record shows) had been offered to prove the death of Fannie Lillian Madison, by drowning, preceded by at least partial insensibility. That her hat, shawl, veil, gloves, and a ■cloth satchel of clothing had been so scattered in different places within the city, between the hours of eight and a half o’clock P. M., of March 13, and seven o’clock A. M., on March 14, when her dead body was found, as to make it unreasonable to suppose that she had committed suicide; that the marks upon her face and hands, and her general appearance, showed that she had been first struck on the head by some person, and then thrown into the water; that she had not been in the water over twelve hours, if so long; and that she was eight
It had also been proved, that she had gone to Mrs. Margaret A. Dickinson’s, in Bath county, Virginia, in October, 1884, as a teacher; that she had left there on January 5, 1885, under a pretext, that her aunt, Mrs. Jane F. Tunstall (who lived in King and Queen county, and with whom the prisoner lived), was not expected to live; telling Mrs. Dickinson, “Poor Aunt Jane isn’t expected to live,” and saying that she “would like to see her once more;” and saying, in reply to Mrs. Dickinson’s remark, that it was a right long trip for her alone,” “Cousin Tommie wrote me he would meet in Richmond;” and the next morning, when about to start, “ Oh I Cousin Tommy will meet me;” and, when she returned on January 8, in reply to Mrs. Dickinson’s question, “Miss Lillie, did any one meet you in Richmond?”—“ Cousin Tommie Cluverius met me in Richmond and brought me back;” that she returned to Bath county on the evening of the 7th; that on the 6th of January she was at the Exchange Hotel, in.Richmond, registered in her own handwriting under the name of “Miss F. L. Merton,” and occupying Room 66; that the prisoner, who lived in King and Queen county, came into the Exchange Hotel on the morning of the 6th, and walked up to the clerk’s counter, and, running his finger down the list of names on the register, fixed it upon the entry “Miss F. L. Merton, 66,” and asked if this lady is in? That the prisoner was in the hotel several times during that day in conversation with the deceased, who had registered herself as “Miss F. L. Merton,” and who was the occupant of Room 66; that he left the hotel with her that evening; and that she did not return that night at all, and not until the next morning, the 7th, when she shortly afterwards went away.
Thé evidence having established that the deceased was living in Bath county at Mrs. Dickinson’s as a teacher, and that she left there on March 12th for Richmond, assigning, as the reason for her leaving, the contents of a letter at the time that she exhibited and read the same; and, having established that, she did come to Richmond and was found dead here early on the morning of the 14th, under circumstances and surroundings which powerfully, if not, indeed, palpably, indicated that she had been murdered; the letter was legitimate proof as part of the res gestee, or of those acts—verbal, or written, or done— which stand in “causal relation” to the crime. It was the avowed hinge and preparation for her coming; it was illustrative of her motive and act of coming; it “ characterized her act
This narrative of so much of the transaction between the deceased and the prisoner, which followed in immediate sequence to, and -consequence of, her reception of the “ Curtis letter ” in
“ When an act is done to which it is necessary or important to ascribe a character, motive or object, what was said by the actor at the time, from which the character, motive or cause may be collected, is part of the res gestae—verbal acts—and may be given in evidence, whether the actor be, or be not, a party to the suit.” G-reenleaf on Evidence, 16th Edition, vol. 1, sec. 108, note B. See also, Taylor on Evidence, vol. 1, sec. 584.
The mere lapse of time does not affect the res gestee. See Little’s Case, 25 Gratt. 921, and Jordan’s Case, Ibid. 943. See also Greenleaf on Evidence, vol. 1, sec. 108, note I, p. 145.
In Hadley v. Carter, 8 N. Hamp. 40, it appears that the servant made his statement (of the reasons of his going) one night, and on the next morning he was gone. Miss Madison made her statement of reason, object, purpose of going, on the evening of March 10th, and started off the next day as soon as she could. If she had merely repeated to Mrs. Dickinson the contents of the letter (without mentioning or exhibiting the letter) as her reason for coming to Richmond, the Commonwealth could, undoubtedly, have introduced her statement as a part of the res gestee—to “ characterize her act of going”—having shown that she started as soon as she could, and came to Richmond. But, as the case stood, it was abso
“Evidence of preparation is always admissible for the prosecution, &c. Under the same head fall cases where the evidence shows a repairing to the spot destined to be the scene of crime; and acts done with the view of paving the way to the guilty enterprise.” (Wharton’s Crim. Evid. sec. 753.) “Inthe same connection may be noticed false representations as to the state of another person’s health, with the intention of preparing the relatives for the event of sudden death, and to diminish the surprise and alarm .which attend its occurrence; and letters addressed to the writer by himself for the purpose of diverting suspicion.” Ibid, sec. 754.
The mere fact that the reason given for leaving was a forgery and a premeditated falsehood, does not render the letter inadmissible for the prosecution. As testimony for the defence it would be inadmissible, because it was prepared for a defence. “Statements concocted in advance, as part of a scheme of crime, are clearly not within the exception. Such statements are inadmissible as self-serving, and cánnot, therefore, be introduced by the defendants on their own behalf; they may be put in
The record shows that no objection was made to the questions to and answers from Mrs. Dickinson as to the receipt of the letter; and that it was the question of the defence to the witness, Mrs. Dickinson, which brought out the fact that it was the letter which brought the deceased to Richmond; and this being put in evidence by the defence, the prosecution had the right, outside of the principle of res gestse, to read the contents of the letter which it was thus proved had brought her to the scene of her death.
The rule is, that although evidence, when admitted, may be inadmissible; yet if the evidence subsequently introduced makes the original evidence material and proper, then whatever error was made, in first admitting it, is removed. 1 Bishop’s Crim. Pro., section 966 b; Eastman v. Company, 44 N. Hamp. 143; Scott v. The State, 30 Ala. 503; 1 Dana, page 7; Rucker v. Hamilton, 3 Dana, pages 36-41; Bunting v. Allen, 18 N. J. L., page 299.
This court has recognized the right to look to the whole record to determine whether any reversible error has been committed by letting in improper testimony. Gerst v. Jones, 32 Gratt. 518-529.
The prisoner knew the assumed name under which the deceased girl registered at the Exchange Hotel January 5, 1885, and at the American Hotel, March 12, 1885. They were together at both times and places, in Richmond. The girl was enabled to get Mrs. Dickinson’s consent to her coming to Richmond in January, by the first conspiracy with the' prisoner to deceive Mrs. Dickinson.
On March the 10th she received, through the postoffi.ee in Bath, the “Laura Curtis letter”—a forgery—written by herself.
The decision of the hustings court in admitting the letter to be read, was in accordance with the principle of res gestee, and was right; and, even though it were inadmissible when admitted, it was made admissible by the subsequent testimony by the Commonwealth, and by the testimony offered by the prisoner, withal.
VI. The sixth bill of exception presents the objection made to the admission of a certain note in the handwriting of the dead girl, and addressed to the prisoner—spoken of in the record as the “torn note.” In discussing the “Curtis letter,” as questioned in the fifth bill of exceptions, very much of the evidence germane to the identification and admissibility of this “torn note,” and the various and leading authorities bearing upon the doctrine of res gestae, have been cited and elaborately commented on; yet, in giving due consideration to the subject of this “ torn note,” as an' essential link in the chain of circumstantial evidence upon which the verdict of guilty and the judgment of the court are based, much repetition will be unavoidable.
On March 13th, 1885, about 11 o’clock A. M., a small colored boy brought a note to the American Hotel for the occupant of “Room 21.” The occupant of “Room 21” was Fannie Lillian Madison (the deceased), who was registered, by her own handwriting, as “ Miss F. L. Merton.” The said note was handed to the clerk (Dodson), who gave it to the office waiter (Hunt), telling him to take it to the lady in “Room 21.” Hunt took the note up to Room 21, gave it to Miss Madison, the occupant of Room 21, and waited while she read it and wrote a reply, which he received from her in a sealed envelope, directed to T. J. Cluverius, and carried it down to the office of the hotel, and
The small colored boy who received the note from Hunt, in the office of the Hotel, and, after an absence of a few minutes, brought it back to the Hotel and gave it to Dodson, the clerk, has never been found by the utmost diligence of the Commonwealth to find him and to produce him on the trial; but his evidence is not indispensable to the Commonwealth, as his testimony would only be cumulative to the fact, fully proved by the witnesses, Dodson and Hunt. Who so likely to be able to recognize him, or to know his whereabouts, as the prisoner, who had selected and made use of him? The facts in this case are widely and essentially different from those upon which the opinion of the court is based in the case of Mitchell v. State, 71 Ga.—cited by the counsel for the prisoner. The “torn note” was admissible as a part of the res gestee; as a silent admission; as proof that the prisoner and the girl, Fannie Lillian Madison, were in communication and were together that day; and to identify the occupant of “ Room 21 ” as Fannie Lillian Madison, the dead girl.
The hustings court admitted it generally. The objection to its admission was a general one. The prisoner did not pray the court to instruct the jury as to what questions in the case it was proper evidence, and as to which it was improper. The rule is laid down in Taylor on Evidence, vol. 2, pp. 1157-8, sec.
The authorities cited in the petition for the prisoner—Payne’s Case, 31 Gratt. 855, and Smith v. Shoemaker, 17 Wall.—do not touch upon the doctrine of res gestee. They were decided upon the question as to how far a letter to a party may be received as a silent admission. There are in this case under review many circumstances to overcome or obviate the objection which prevailed in Payne’s Case and in Smith v. Shoemaker. The note was a reply to a note sent to the occupant of “Room 21.” Who sent the note to her? She had only reached the Hotel a few hours before, and had not left the Hotel nor seen anyone; she was registered under an assumed name—the same which she had used and registered by at the Exchange Hotel in January, when the- prisoner put his finger upon her assumed name, “Miss F. L. Merton,” on the register, and asked to see her, she having come to Richmond from her home in Bath county by reason of a letter from him. This assumed name of “ Merton,” used by her on both visits, was the one assumed by the prisoner himself on a former occasion. The evidence shows that she, his cousin, was not far from the time of delivery of a bastard, of which the evidence strongly tends to show he was the father; that he was in the city and in the immediate neighborhood of the American Hotel about the time that the note was sent to her, to which she sent a reply—the “torn note;” that, in a few moments afterwards, she left the Hotel and was with the prisoner in a distant part of the city; that upon her return to the Hotel, a short time after she had been with the prisoner, she asked for the note. These facts “obviate the manifest soundness of the objection” which prevailed in Payne’s Case and in Smith v. Shoemaker. The State had the right to use the “torn note” as evidence to prove that the prisoner and his victim
VII. The seventh exception presents the question, whether the Commonwealth produced sufficient evidence to warrant the verdict found by the jury, and to justify the judgment of the judge who presided at the trial, saw and heard the witnesses, approved the verdict, and refused to grant the prisoner a new trial.
The record, most voluminous as it is, contains a certificate of the evidence only, and hence, the facts proved not being certified, the appellate court can consider only the evidence introduced by the Comnlonwealth, and will not reverse the judgment, unless that evidence, admitted to be true, is “plainly insufficient” to warrant the verdict of the jury. “Where the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have gi /en a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant
In Lawrence’s Case, 30 Gratt., Moncure, P., Christian, Staples, and Burks, J.’s, concurring, said: “We are of opinion that, while we would probably have given a verdict of not guilty, if we had been upon the jury, or set aside the verdict which was given and granted a new trial, if we had presided at the trial, yet it is not a case in which this court can properly reverse the judgment for any supposed error therein, in that respect, as will appear by reference to Reed’s Case, 22 Gratt. 924, and the cases therein referred to and commented on.”
In Dean’s Case, 32 Gratt., Judge Christian, speaking for the court, said: “ Circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty, especially of murder in the first degree—the penalty of which is death—unless the circumstances proved are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt. * But it must also be remembered that there are some crimes committed with such secrecy that to require the production of a witness who saw the act committed would
The error assigned in this seventh bill of exceptions presents two specific points of essential inquiry: First, whether the corpus delicti is established by the testimony in the case; and, second, whether the evidence sufficiently proves the prisoner to be the guilty agent of the murder of the deceased?
There is in this record ample proof, outside of that which connects the prisoner with the case, to prove that Fannie Lillian Madison, whose dead body was found immersed in the water in the Old Reservoir, in the suburbs, but within the city limits of Richmond, on Saturday, March 14th, about seven o’clock A. M., came to her death by the criminal agency of another—that she was murdered; that she did not commit suicide.
On the 14th of March, 1885, about seven o’clock A. M., the superintendent of the Old Reservoir, L. W. Rose, walking around on top of the southern embankment, sees a lady’s glove (garnet colored) and a piece of shoestring lying on the ground in front of him, which was furrowed up with broken tracks, which extended across the walkway—the glove and shoestring lying about the centre of the furrowed ground—and looked to him like there had been a scuffle. The walkway was of crushed particles of granite on a clay basis, and was somewhat soft from rain; and at and around where the glove and shoestring lay, the ground was furrowed up with broken tracks all huddled up together and run into one another. Next to the water,
The coroner, Dr. W. H. Taylor, noticed many tracks of a female, and two, large broad-heel tracks, as if of a person looking into the reservoir. He had the body taken out, and it was found to be the body of a young woman, who had been dead at least six hours, how much longer he could not tell. The hands were tightly clenched, with lumps of mud in them. On the inside of the left arm of her Jersey was a small tear, and around the bottom of her dress were a few small, round holes. Her clothing had no name upon them. Her hair was neatly done up. Her height was four feet eleven inches—only nineteen inches higher than the picket fence with sharp points. She had the mark of a blow on the upper and outer side of the right eye, but no abrasion of the skin, while the left side of her lower lip was bruised “by a slight blow or pressure—but more probably pressure.” On her forehead were a few slight abrasions of the skin. The post mortem examination revealed a blush of blood upon the brain, attributed by the coroner to a counter-stroke from the blow over the eye. She died from “drowning, preceded, perhaps, by partial insensibility, which prevented her from swallowing more water.” She was eight months gone with child, and hence more liable to be rendered insensible by a blow. Her shoe fitted the female tracks upon the embankment. Mr. Jackson Bolton, assistant city engineer,
They are utterly inconsistent with the hypothesis of suicide. But this hypothesis of suicide is further disproved by the distribution of her garments. The testimony shows that she was drowned sometime during the night, and, probably, before midnight, as the food in her stomach was not wholly digested; yet her canvas satchel was found floating in the James river, two miles below Mayo’s Bridge, at 7 o’clock the next morning, with the clothing in it not then, all of it, wet. Had it been thrown in above Mayo’s Bridge, it could never have passed the rapids, and in the whirling currents and obstructions, of that part of the stream, it must inevitably have become saturated, and have sunk. It was an open canvas bag, containing plothing that would easily have become soaked with water. If it was thrown in by the deceased, for what possible reason did she wander, that dark and dreary night, from that place where she could, so much more easily and surely have committed suicide, out to the distant and lonely reservoir ? But, if it had been thrown in during the night, it would have ■either become saturated and sunk, or have floated far below the place where it was found. It would have taken this timid, heavily pregnant woman at least an hour to walk from Mayo’s Bridge out to the reservoir; and no one met her or saw her, walking more than half the length of the city, wrapped in a red worsted-knit shawl. Her red shawl was found at six o’clock A. M. on Dunstan’s front fence, on Reservoir street, full half a mile from the scene of her death. Her hat was found in the dead-house on the Clark Spring property, adjoining the reser
The mark of a straight blow over and back of her right eye, which did not abrade the skin, could not have been made by her throwing herself or falling, face .foremost, headlong and striking upon the bricks of the incline to the water in the reservoir; because it is not probable, if, indeed, it be possible, that such an impingement would not have either staved in her skull, or have glanced and lacerated her skin. And, again, because if she plunged and struck her head on the right side above the eye, how did she bruise the left side of her under lip— “more probably by pressure?” But can it be supposed, that a woman in her condition, who had been actively on her feet about the city, on Belle Isle with the prisoner, and in and out of the American Hotel, and who had walked from Main street to the Old Reservoir, nearly a mile, could have climbed over that pointed picket fence without tearing her clothes or breaking the fence, in that dark, inclement, cold night ? All the marks upon her body, and the distribution of her clothing, taken together, show that the defence of suicide is untenable and impossible. We are not bound, under the rule, to notice a letter of the girl, written in 1883, which was put in evidence by the defence to indicate a suicide. It contains, among other passionate, school-girl expressions, “ 0, if suicide were not a sin, how soon the lingering spark of my life would vanish; but I will wait God’s own time.” “ Oh, to think of my school, it almost kills me.” At this writing, she was about seventeen years old, and in durance vile, as she felt, by her father and mother, who had quarreled with her aunt, Mrs. Tunstall, and had forbidden all intercourse with her aunt, and would not
Dr. Taylor, the coroner, says that “the medical facts are not inconsistent with the theory of suicíde; they do not prove it, either for or against it.” If it be possible that, what he calls the mere “medical facts” in this case, are not inconsistent with the theory of suicide; yet they all are consistent with the theory of murder; which is fully sustained and enforced by the place, surrounding circumstances, and physical facts, which implicate and loudly attest the perpetration of a systematic and deliberate murder.
Who was the murderer? Who had a motive to take her life ? The girl, an unmarried woman, was pregnant with a child which, it is admitted, was conceived about the middle of July, 1884. Who was its father? Wffiat man had an opportunity about the middle of July to cause her pregnancy? She left her father’s house, in King William county, on July 8th or 9th, and went to her grandfather’s, where, with the exception of a week in August spent with her aunt, Mrs. Hillyard, she staid until October 10th, when she went to Mrs. Dickinson’s in Bath
This evidence proves, beyond a reasonable doubt, and to a moral certainty, that he was the destroyer of her virtue and the author of her ruin. Had the prisoner a motive to murder the victim of his lust? He was a young lawyer, in good society, and a member of the church, and was engaged to be married to a young lady in his neighborhood. In a month his base conduct would become known, his professional, social, and religious standing were all at stake, and the young lady whom he hoped and expected to marry would be lost to him. His aunt, Mrs. Tunstall, with whom he found a home, it is to be presumed, would . doubtless drive, from her presence and her nurture, the heartless author of the shame and ruin of her
Earp says : “The man (prisoner) looks like the man, but he had a small moustache then. The lady was stout and chunky.” Kidd said: “ The prisoner resembles the man I saw; is about the same size, but I wouldn’t swear he is the same man, because I didn’t take notice enough for that. I went down to the jail with, &c. Prisoner was standing in a line with other prisoners. We looked at them so standing, and I picked him out as the man I saw on Belle Isle. I picked him out without assistance. The man had a moustache.” Thompson stated that they were in his way when he was carrying heated iron. He touched them to get them aside. He looked at the prisoner. When he came back a few moments afterwards he saw them. “The prisoner is the man I saw. I am confident he is the man. One thing I recognize him by is the sink in his face between the eyes; he had then a thin moustache, and the lady was well built, was short and chunky, and had a rosy face, &c. I picked him out at the jail from among the other prisoners. No one assisted me.”
Perkins testified: “ I noticed her pregnant condition, &c. The lady was a low, heavy set woman, &c. To best of my knowledge the prisoner is the man. I am very confident that he is the man. I went down to the jail to see him, and recognized him without his being pointed out to me.”
It cannot be reasonably doubted that the woman with the prisoner was the murdered girl. It would be amazing, indeed, if the prisoner was not with the murdered girl on that occasion, and yet was with a pregnant woman—a “short, chunky” woman—wearing her clothing and a red shawl, and calling him “ Cousin Tommie.” If the woman with him on Belle Isle was not the girl who was shortly afterwards murdered, why did the prisoner not produce his companion on that occasion, as a witness to prove it ? He did not produce her, because in a few hours after he was with her on Belle Isle he had made her silent, in death. She was last seen on the island about twenty minutes after twelve. She was seen with the prisoner at a bawdy house on Fifteenth street, between twelve and two o’clock. She returned to the American between half-past one and two P. M., and was seated by Diggs, the head waiter, in the dining-room, at her dinner. The woman who was with the prisoner at the bawdy house, for fifteen minutes in a room in which the bed was in order when they went in and was rumpled when they came out, was there noticed to have on a red shawl, but wore under it a blue basque, jacket or Jersey. When the dead girl was taken from the reservoir she had on' a blue Jersey. Here it was noticed that she had on a blue veil;
Herman Joel, a jeweller residing in Richmond, and who had been in this country about four years, and whom the record shows to be a truthful, fair-minded man, testified that, while he had a shop in Centreville, in King and Queen county, he repaired or fixed a watch-key for the prisoner; and when shown the key in evidence, he says it looks very much like the same key, and he believed it to be the same„key; but that he would be able and willing to say positively if he were permit
The witness says that he had had this watch a long time, and that when this order was handed to him by the prisoner, he told him that it had been hanging there so long that it needed oil, and he would like to give it a little fresh oil; whereupon the prisoner said to him, “funny, like a lawyer, if I wasn’t going to deliver the watch, he was going to make me do it.” The testimony of Mrs. Dickinson and of Willie Dickinson proves that the deceased did not wear or use a watch, or a watch-key, while she was in Bath. This watch-key, of a peculiar shape and character, which is very like the one which Judge Foster, Mr. Gatewood, and John Walker saw him wearing, and which Joel, the jeweller, believes is the same key he fixed for the prisoner, fits the prison®'’s watch; and when the prisoner was arrested he had attached to his watch-chain a charm-chain, about an inch long, without any key or charm to it. It was first seen on his chain, by Captain Epps and Mr. Bobbins, who made the arrest, at Mrs. Tunstall’s, in King and Queen county. Captain Epps had noticed it in the supper-room, and when they had gone into the prisoner’s room, up stairs, and while the prisoner was leaning over in the act of changing his clothing before leaving for Bichmond,
The conduct of the prisoner, the testimony of Judge Foster, of Gatewood,- of Walker, and of Jo.el, remove all doubt that the key belonged to the prisoner; and the key itself proves his presence with the murdered girl that night at the scene of her death, without the aid of the testimony of Dillard, Tyler, Tucker, Williams and Stratton. All the probabilities, all the inferences, and all the facts point to the prisoner as the man who, with “studied, sly, ensnaring art,” first betrayed the trust of this young girl, to the loss of her virtue, and then to her death. The evidence in this record shows that “all the circumstances of time, place, motive, means, and opportunity ” point to the prisoner as the perpetrator of this ruthless and dastardly crime. It only remains to show that the circumstances of his conduct prove his guilt. When these all concur, says this court, in Bean’s Case, supra, “ it must produce a moral, if not an absolute, certainty of his guilt.” He came into the Davis Hotel on the fatal night of the 13th of March, about twelve o’clock. Where he was during the day and the early part of that night he made no attempt to prove, although, when arrested, he told the officers “it will be easy enough for me to prove where I was. Every place I went to I met somebody that knew me.” From the first moment of his arrest he displayed remarkable coolness and calmness—a self possession too extreme to be consistent with innocence. When told by the officers that he was arrested for murder, he does not ask for the murder of whom ? He shows no indignation, but coolly invites the officers in the house to supper, and inquires what evidence there was against him? And, when the officer refused to tell him, he said, “I should like to know, sir, so that I may know what line of defence to prepare.” Such coolness— such indifference even to the name of the person murdered or
The jury were fully justified in finding their verdict; and the trial court did not err in refusing to set that verdict aside.
The eighth bill of exceptions presents the question, whether the court erred in overruling the motion in arrest of judgment? It is insisted—1st. That there is no verdict set forth in the record. 2d. That the verdict is defective. 8d. That the record does not show that the prisoner was present when the verdict was received. All three of these mere technical objections are raised upon the form of the court’s order in the following words: “ At a like hustings court, continued by adjournment, and held for the said city, at the courthouse, on the 4th day of June, 1885, the said Thomas J. Cluverius was again led to the bar, in the custody of the sergeant of this city, and the jury sworn for the trial of this cause were brought into court in the custody of the said sergeant, and, having fully heard the arguments of counsel, upon their oaths do say, that the said Thomas J. Cluverius is guilty of murder in the first degree, as charged in the indictment. And thereupon the said Thomas J. Cluverius was remanded to jail.”
The record follows the usual form, and shows clearly that there was a verdict; and that a motion was made on June 5th, to set aside this very verdict, rendered the day before.
Does the record show whether the prisoner was present when the verdict was rendered ? The record alleges that the prisoner was brought into court. No intimation is made that the prisoner left the court-room. The same order was entered as to his presence on each day of the trial from May 5th to June 4th inclusive. In Lawrence’s Case 30 Gratt. 851, this court, in
The ninth bill of exceptions insists that the court erred in refusing a new trial upon the ground of after-discovered testimony. An affidavit of Dr. Joseph B. Garlick, which set forth that he had an intimate acquaintance with the handwriting of Fannie L. Madison; that he had “no question of the fact that the note is in her handwriting; that his conviction is positive that the handwriting on the envelope is not that of F. L. Madison, and that this conviction is founded upon his intimate knowledge of the handwriting of F. L. Madison,” &c.
The prisoner knew, well and familiarly, that Dr. Garlick had been, a few years before, the teacher of the murdered girl; and he could, by reasonable diligence, have obtained his testimony. Dr. Garlick was acquainted with her general handwriting, from exercises and letters submitted to him as her teacher when a school-girl, some years before, and which were most probably executed with deliberation and care. He was now looking at a direction on an envelope written in great-haste and evident sudden flurry. It is much more difficult to swear that a writing is not in a person’s handwriting, than to-swear that it is. Dr. Garlick -was not proved or alleged to be. an expert. The prisoner had had ample opportunity to prove,, by his experts, that the handwriting of the direction on the-envelope was not that of Miss Madison. He was allowed to-submit it to his experts, and after they had examined the
We have reviewed this most voluminous record of the proceedings of the Hustings court in this protracted and difficult trial, and we find no error, of law or fact, which would justify this appellate court in interfering with the verdict of the jury or the judgment of the court.
The prisoner has had a fair and impartial trial. He has been defended, both in the Hustings court and in this Court of review, by able, experienced, and most faithful counsel; and the law has been vindicated in the result.
Justice to the prisoner, and mercy to all the innocent public,
Lewis, P., concurred in the opinion.
Richardson, J., concurred in the results.
Concurrence Opinion
concurring in the results, said:
The plaintiff in error was indicted in the hustings court of the city of Richmond upon the charge of murder, on the 6th day of April, 1885; tried in the said court upon the said charge, and convicted on the 4th day of June following of murder in the first degree, and on the 19th day of June, 1885, sentenced to be hanged. Upon a writ of error to this court, there are eight assignments of error.
The first assignment is as to the rejection of two veniremen, upon the challenge of the Commonwealth, for cause.- First, as to the rejection of the venireman, R. W. Larke. Larke had been examined upon his voir dire, and accepted as a competent juror, and his name placed upon the panel. He was then challenged upon the ground that he had said that he would not convict any man upon circumstantial evidence under any circumstances. It was proved by the Commonwealth that Larke had said, a few days before the trial, that he had not formed any opinion about this case, and said that he would not hang any man on circumstantial evidence. Larke, however, stated, under oath, that he had forgotten this conversation, and could not recall the words he used on that occasion, but that he meant by what he said that a man ought to be very slow and cautious
There can be no question, under the decisions of this court, that if a juror is improperly stricken from the panel by the trial court, it is error for which this court will reverse the judgment. It is equally clear upon reason that a competent juror cannot be arbitrarily rejected by the court; to hold otherwise would undermine the whole system of jury trial. And'it is not necessary that the plaintiff in error shall show actual injury in a case which shows that the juror has been improperly rejected, because when any legal right has been denied to a party on trial for a criminal offence, or any of the safe-guards thrown around him by law for his protection has been disregarded, it is not for this court to say what might or might not have been the effect upon the accused. The law will intend prejudice, if it be necessary to enable him to exercise his right to have the judgment of the court reviewed in the appellate tribunal, and will hold it impossible in such a case to say that a fair and impartial trial has been had. No challenge is allowed the Commonwealth except for cause (sec. 6, ch. 17, Crim. Code, Acts 1878-79, p 340); and when such challenge is made, the same must be shown, and the cause must be a good and legal cause for the exclusion of such juror; if not such, the court must, in its discretion, overrule the same, and the exercise of
But ■ as to Larke, his exclusion cannot be rested on his opinions concerning circumstantial evidence, however correct. Under the first section of chapter 158 of the Virginia Code he was not liable to serve on the jury, and had a right to be discharged upon his motion, if made in time; and as he had not been sworn upon the jury, his claim to be discharged for that case did not come too late, and the hustings court did not err in discharging him from further service. Sections 16, 18, 19, 20, ch. 158, Code of 1873. As to the venireman Goode, he had laid a wager upon the result; had bet, a trifle, certainly, but still he had made a bet that the accused would be acquitted. This gave him an interest in the result, which might influence him, how much, could not be determined. A juror should be wholly free from interest. This he could not be, and he was properly rejected by the court. “ For a juror to sit in the trial of a cause upon the result of which he has a wager, is a gross impropriety and offensive to the sense of justice,” in any case whatever. See Essex v. McPherson, 64 Illinois, 549.
The third assignment is as to the mode of impaneling the jury. The court proceeded to examine the veniremen, summoned under several successive venire facias, until sixteen persons had been directed to take their places upon the panel. The
The statute of 1866-7, acts of that year, pages 932, 933, did provide that a panel of twenty-four persons, free from exception, should be completed, and that the accused should have the right to strike from this panel eight persons, leaving sixteen, from which a jury of twelve was chosen by lot. By the act of 1870-71, section 9, chapter 262, page 358, this law was amended so as to require a panel of sixteen to be completed from the twenty-four summoned by the writ of venire facias, provided for by the 4th section of chapter 262, page 357, and the accused was allowed by the said 9th section a peremptory challenge as to four only, instead of eight, as in the act of 1867 ; and, as we have seen above, this is the mode prescribed by the act of March 14th, 1878. Acts of 1877-78, page 341, section 8, chapter 17. There is no confusion nor uncertainty in the law on this subject. Twenty-four are directed to be
The next assignment of error is as to the action of the court in allowing the attorney for the Commonwealth to ask the witness, Archer, “Do you remember whether at the jail you had any conversation with him (the accused) or not when he had last seen Miss Madison (the deceased)?” The question was objected to as leading, but the objection was overruled by the court; and also the question, “ Do you remember whether in the jail you asked him (the accused) if he had ever seen you before ?” The witness had stated that he could not recall the conversation, and the object of the question was to aid his recollection.
Upon the examination of witnesses in-chief, leading questions are excluded by a well-established rule: that is, questions which suggest to the witness the answer he is to make; but where the matter to which the witness is examined is merely introductory of that which is material, it is frequently desirable to lead the mind of the witness directly to the subject; and when the witness is examined as to material facts, it is in general necessary, to some extent, to lead his mind to the subject of inquiry.
In some cases leading questions are permitted in a direct examination, as where an omission in his testimony is evidently caused by want of recollection which a suggestion may assist. 1st Starkie on Evidence, 129; Snyder v. Snyder, 6 Binn. 483; Page v. Parker, 40 N. H. 47; Spear v. Richardson, 37 N. H. 23; Wilson v. McCulloch, 23 Penn. St. 440; Kemmerer v. Edelman, 23 Penn. St. 440; Aceno v. Petroni, 1 Stark. R. 100. Upon this subject, it must be borne in mind, that much weight is due to the decision of the trial-court upon the admission of questions which appeared to the presiding judge as necessary under all the circumstances then existing to arrive at the truth. This matter rests so largely upon the discretion
In the case of Moody v. Rowell, 17 Pick. 448, it was said: “ The court has no doubt that it is within the discretion of a judge at the trial under particular circumstances to permit a leading question to be put to one’s own witness : as when he has exhausted his memory without stating the particular required, when it is a proper name, or other fact which cannot be significantly pointed to by a general interrogatory.” See also Donnell v. Jones, 13 Ala. 490; Walker v. Dunspaugh, 20 N. Y. 170.
The main question with this witness here was to prove the substance of a conversation had with the accused at the jail. The witness, after several questions from the counsel, and then from the court, after a pause, had said: “ I cannot recall the conversation.” He was then asked : “ Do you remember whether in the jail you asked him if he had ever seen you before ? ” While this question was leading in form, it was not as to a material fact or circumstance. It was immaterial whether the witness had asked this question or not; its object and its effect was only to lead the witness to a consideration of the conversation, and however answered, proved no material fact or circumstance, and was not excluded by the rule as to such questions. The other question: “Do you remember whether at the jail you had any conversation with him or not about when he had last seen Miss Madison?” was admissible for precisely the same reason; it was as to matter of inducement merely, when the recollection of the witness was at fault; it was not as to matter material to the case.
In cases of conversations, admissions and agreements you may draw the witness’ attention to the subject, occasion, time,
The next question to be considered is as to the forged letter purporting to have been written by Miss Laura M. Curtis (who had no connection with it), to the deceased shortly before her death, and which was written by the deceased to herself. The admission of this letter is objected to as coming within the description of res inter alios acta.
Whatever may have been the justice of the objection to the admission of a letter as evidence written by Miss Laura Curtis to the deceased, without the knowledge or concurrence of the plaintiff in error, as the letter of a stranger with whom he had no connection, and for whose act he was in no wise responsible, such objection has obviously no force when applied to the admission of this letter. It was not the act nor the letter of a stranger; it was not the letter of Miss Laura Curtis at all; she did not write it at all; she had no knowledge of nor concern with it. It was a letter written by the deceased, and used by her as showing her reason and motive for leaving her home and going to an alleged assignation house with the plaintiff in error, where she met her death. _ And evidence is offered by the Commonw’ealth tending to show that the letter was submitted for approval to the plaintiff in error, and by him sent through the mail to the deceased and forthwith exhibited by her as the cause of her leaving home. It is proved to have come through the mail to the deceased,
The principle upon which this indirect evidence is used by courts is aptly illustrated from the course of the ordinary concerns of life, thus: “ Where an ordinary inquirer could not obtain information from any witness of the fact which he was anxious to ascertain, either immediately from such witness, or mediately through others, or when the information which he had obtained was not satisfactory, his attention would be directed to the circumstances which have a connection with the transaction, as ascertained either by his own observation or by means of the observation of others, to enable him to draw his own conclusions; and in pursuing such an inquiry, when it was of importance and interest, he would neglect no circumstances which were in any way connected with the transaction which could either singly or collectively enable him to draw any reasonable inference on the subject. All his experience
The next assignment of error is as to the admission of the note in the handwriting of the deceased, enclosed in an envelope addressed to the plaintiff in error. It cannot be necessary to discuss this question at any length. It is admissible for the same reasons that have been given for the admission of the forged letter; and these reasons are more cogent and less liable to objection as we draw nearer to the chief fact under investigation. This was a note written by the deceased a few hours before her decease to some person in communication
The next assignment is as to the refusal of the court to grant a new trial upon the ground that the evidence is plainly insufficient to warrant the finding against the plaintiff in error, and that the existence of the crime, the corpus delicti, is not established by the testimony. The court in this case has certified the evidence; and upon the trial of this writ of error here, this court should consider all the evidence for the Commonwealth, rejecting all the parol evidence offered by the exceptor which is in conflict with the Commonwealth’s evidence. This rule is essential to anything like stability in judicial decisions. An appellate court is not equipped for the task of passing between conflicting points in evidence on paper. That court does not see the witnesses, nor hear them testify. It can draw no reliable inference from their manner and deportment contrasted with one another; and so when witnesses have contradicted one another before the trial court, and the jury, who saw and heard, and the judge have passed between them in the court below, that judgment cannot be safely disturbed, for on paper they all appear alike. But I do not sanction the proposition that all the evidence of the exceptor must he rejected, whether in conflict with that of the prevailing party or not. Such a rule as that strikes too fatally at the root of all appeal in cases at law; and while that idea is sustained by some decisions in this court, I do not consider that it is founded in reason.nor sustained by the best precedents. In early and in many well considered cases the rule is established, as I have stated it, and it is sustained by reason, to reject uncontradicted evidence, or the testimony of uncontradicted and unimpeached witnesses, appears to be unreasonable arid irrational. Keys v. M’Fatridge, 6 Mun. 18; Bennett v. Hardaway, 6 Mun. 125;
In the case of Ewing v. Ewing, 2 Leigh, 366, decided the next year, Brooke, P., was still absent, and Coalter, J., was also absent, with Cabell, J., present, with Carr and Green, J., J. Carr, J., said: “In Carrington v. Bennett I have given my view of that case (Bennett v. Hardaway), in which I was overruled by my brethren; they thought the only effect of that case was that it is not competent to a party by way of exception to the refusal of a new trial to refer to the judgment of the appellate court the credit of the tuitnesses, and that, therefore, the exception should contain the facts which the trying court considered as proved, not the evidence by which they -were proved; that this rule applied to cases where there is conflicting evidence ; but that where the facts are not directly proved, but must be
Carr, J., citing the decision of the court in Carrington v. Bennett, in which he was overruled, and Ewing v. Ewing, in which he reserved his opinion for a full court, said: “ According to these decisions we must receive the exception here as well taken, for the evidence is all on one side, and there cannot be a question of the credit of- witnesses.” Cabell, J., said: “ I am clearly of opinion, upon the authority of the cases of Carrington v. Bennett (in which he did not sit), and in Ewing v. Ewing (in which he did sit and gave the casting vote between Carr, J., and Green, J., and approved the decision in Carrington v. Bennett), that the exception to the opinion of the court overruling the motion for a new trial was properly taken, there being no conflict in the evidence, which was all on one side, and against the party tendering the exception; and that in such a case it is competent to this court, and it is its duty, to deduce from the testimony all such inferences of fact as the jury might have deduced from it;” and I will add, did deduce from it what the jury might have deduced from it, but did not deduce from it.
Brooke, J., took the opposite view, and held that Ewing v. Ewing presents a new mode of trial not to be found in any of the books, and more congenial with the civil than the common law. Tucker, P., however, approved the decision in Ewing v. Ewing, and the case was reversed, although the evidence was certified, and was all offered by the prevailing party in the court below, and none by the exceptor. See also Rohr v. Davis, 9 Leigh, 30.
In a late case decided in this court—Goodman v. The Railroad, ante p. 576—the verdict was for Goodman; the railroad offered no evidence; the-judge set the verdict aside, and final judgment was entered -by the judge upon the evidence offered by Goodman alone, in favor the railroad company. This court
In the case of Goodman v. The Railroad, there being no conflict in the evidence and the credit of the witnesses not being involved, there being nothing to contradict them, this court drew different inferences from this uncontradicted evidence of
unimpeached witnesses, from those which were drawn by the trial court, and reversed the judgment of that court, although that court heard the witnesses testify, saw their manner, bearing, deportment, &c., and may have thought proper to disbelieve them all, and everything they said, yet this court, as they were uncontradicted and unimpeached, was of opinion to credit their testimony, notwithstanding the views of the court below. See the opinion of Judge Fauntleroy in that case.
The opinion in Gimmi v. Cullen, 20 Gratt. 439, has led to some confusion on this question, I think, for while in the main it followed some of the decisions of this court. In discussing the question the learned judge uses the language of Judge Carr (the overruled judge) in Carrington v. Bennett, and likewise as to Green v. Ashby, where, as we have seen, Judge Carr yields his views to the views of a full court, and the intimation seems to be, and it is argued to show, that Judge Cabell and Judge
In Gimmi v. Cullen it is said: “ The rule,, therefore, is, that where all the evidence is introduced by one party, and the verdict is in his favor, the other party may have a refusal to grant a new trial reviewed, upon a bill of exceptions certifying the evidence only. In such case, the evidence certified will be considered as true by the appellate court, unless impeached in some way. But, when the verdict is against the party wdio introduced the evidence, he cannot have the refusal of the court to grant a new trial reviewed upon a certificate of the evidence merely: he must have a certificate of the facts proved. From the evidence certified in the former case, and from the facts certified in the latter, the appellate court will draw such inference as a jury might reasonably draw.” This distinction does not exist I think.
Time does not permit, nor is there space within reasonable limits to complete this discussion in one opinion. I have already reviewed the subject and discussed it at some length in the case of Moses v. The Old Dominion Iron and Nail Works, ante p. 22, although it was not in that case, and it is not in this, the principal question. For the present I will content myself with referring to that opinion and citing'for the opposite view Muse v. Stern, not yet reported, in which, I think, the opinion of Judge Carr in Ewing v. Ewing is called in requisition as stating that the case of Bennett v. Hardaway had been shorn of its fair proportions.
The question in Bennett v. Hardaway, which was decided by the court, was as to whether the bill of exceptions should state the evidence or the facts proved. But the rule now is settled that when the evidence is conflicting so that the court declines to certify the facts, the Qourt must certify, nevertheless, the evi
Bid the court err in overruling the motion of the plaintiff in error to set aside the verdict and of the jury and grant him a new trial ? Was the evidence sufficient to warrant the finding of the jury ?
On the morning of the 14th of March, 1884, the dead body of a woman was found floating in the reservoir of the city of Richmond; opposite to the body, on the bank, the ground was disturbed by confused tracks. When the body was taken out of the water a shoe, removed from one of her feet, fitted the smaller tracks, which appeared to be the tracks of a woman, the other tracks were those of a man. Near the tracks were a glove and a broken shoestring; just outside of the enclosure of the reservoir grounds a veil and another glove were found. The inquest showed that the deceased was not dead, but at least partially insensible when her body came into the water; her hands holding tightly clasped lumps of mud from the bottom of the reservoir. This led at first to the suspicion of suicide. But when it was disclosed, upon close examination, that'she was with child, and within one month of its birth in the ordinary course of nature, which would have rendered it very difficult for a person of her height (four feet eleven inches) to have gotten over the picket-fence, finished with sharp points, three feet four inches high; and when it was discovered that
Suspicion pointed to the plaintiff in error, in the minds of those who knew them both; and the note addressed by the deceased to the plaintiff in error at the hotel, in reply to one she had received, was found in the waste-basket at the office of the hotel, and a search of the hotel registers in the city disclosed the fact that the plaintiff in error was registered at one of the hotels on the 12th and 13th of March. A warrant was issued for the plaintiff in error, and executed at his home in King and Queen county. When arrested, the plaintiff in error, being told that he was to be arrested under a warrant then in the hands of an officer who proceeded to make the arrest, remarked: For me! ridiculous! And when told it was for murder, did not enquire for the murder of whom, but coolly and politely said, Come in and let us have some supper! The officer then noticed hanging from his watch-chain a short
Notwithstanding the denial of the plaintiff in error that he
The deceased was soon to be a mother; was shortly to give birth to a child of shame! Was he the guilty partner in the unfortunate situation? I am not prepared to say that he was
Fortunately for the interests of society, crimes, especially those of great enormity and 'violence, can rarely be committed without a,ffording vestiges by which the offender may be traced and ascertained. The very measures which he adopts for his security not unfrequently turn out to be the most cogent arguments of his guilt.
On the other hand, it is to be said that this is a species of evidence which requires the utmost degree of caution and vigilance in its application, and in acting upon it the just and humane rule impressed by Lord Hale cannot be too often repeated, tutius semper est errare in acqvietando quam in puniendo,, ex parte misericordiae quam ex parte justitiae.
If a number of the circumstances which attended a disputed fact be known and ascertained, and these so coincide- and agree with the hypothesis that the disputed fact is true, that no other hypothesis can consist with' these circumstances, the truth of that hypothesis is necessarily established. And again, the nature and degree of coincidence between the cir
It cannot be said that the verdict of the jury in this case although founded on circumstantial evidence alone, was -without evidence, nor plainly against the evidence. The circum
The record shows that the prisoner was brought into court, and the jury, having fully heard the arguments of counsel, “upon their oaths, do say that the said Thomas J. Cluverius is guilty of murder in the first degree, as charged in the indictment; and thereupon the' said Thomas J. Cluverius was remanded to jail.” This verdict is free from objection.
It ascertains the degree of the offence of which he is found guilty, and the record shows that the plaintiff in error was present in court. See Livingston’s Case, 14 Gratt. 592; Mitchell v. State, 5 Yerger, 340; 8 Yerger, 514; Hines v. The State, 8 Humph. 597; Kennedy v. The People, 39 N. Y. p. 245; Fitzgerald v. The People, 37 N. Y. 413; Lawrence’s Case, 30 Gratt. 851.
As to the question raised as to the term of the court at which the trial took place having been extended beyond the month, it is -provided by law that the term shall be commenced on the first Monday in the month and continue so long as the business before the court shall require. This term
As to the last assignment of error, the refusal of the court to set aside the verdict and grant a new trial because of after-discovered evidence, in this there was no error. How could that evidence have benefited the plaintiff in error in the light of the circumstances surrounding this case ? The circumstance that this note was addressed to the plaintiff in error has ceased to be material, however effective it may have been in pointing suspicion to him. It was proved that he was in the company of the deceased in several places during the day, and if the opinion of the new witness had been of any avail to raise a doubt that the envelope was in a different handwriting, it -would have been upon a point which was no longer material, but the character of the evidence offered -was inconclusive, and would have been a mere opinion of one not an expert.
Upon the whole case I discover no error in the judgment of the hustings court, and am, for the foregoing reasons, of opinion to affirm the same.
Dissenting Opinion
dissenting, said:
It would seem to be beyond doubt that the power to punish for crime, possessed by all civilized communities, had its origin and source in the inherent right which belonged to every individual, in a state of nature, to secure himself against injury from his fellows, and that it was transferred, in course
And it cannot be doubted that the prompt and fearless exercise of this power, on all proper occasions, is absolutely essential to the safety and well-being, if not the life of all organized society. Nevertheless, as this right is confined to the use of such means and the imposition of -such penalties as the lawmaking power of the State deems necessary to prevent the recurrence of crime, it is obvious that the right to exercise this power never arises, and cannot be lawfully exercised until there has been a crime positively established, and the real criminal certainly found and legally convicted. The exercise of this right, therefore, in any case where there is reasonable doubt, either as to the crime or the criminal, especially in cases of murder, where the penalty is death, can never be justified, and is likely to work irreparable injury to the accused, the defeat of the real ends of punishment, and ten^ to a want of confidence in the humanity of the law and the due administration of justice. Hence it is, that to meet exactly such cases, the maxim “it is better that ninety-nine (that is an indefinite number of) guilty persons should escape punishment than that one innocent person should be punished,” has been wisely adopted. Johnson’s Case, 29 Gratt. 820; Smith’s Case, 21 Gratt. 818.
It must also he obvious, that as the only ends sought to be obtained by the infliction of punishment are, first, to prevent the criminal and others from the commission of like crimes; and, next, to amend the criminal, that the idea, sometimes advanced by the unthinking, that a person charged with a specific offence may be rightly punished for some other offence, or for general depravity, or that the offence actually committed,
And as it is the bounden duty of each judge of this court, in every case, properly here, to carefully examine the proceedings of the lower court, and if he finds that there has been a mistrial or failure of legal justice, either because the prisoner has been denied any, even the least important of the safe-guards, which the law has justly and mercifully thrown around him, for his protection, or that the jury have reached an erroneous conclusion upon the evidence, or that he has been prejudiced in any other respect, so to declare, I shall offer no apology for dissenting in this, the first case in this court, so far as I can recall, in which a judgment of affirmance has been entered without at least three of the judges being able to agree in all the reasons by which their conclusion was reached, and shall proceed to state as briefly as I can the grounds which, in my judgment, clearly entitle the accused to a new trial.
The first error of which the accused has the right to complain, is the rejection of the juryman Larke. As appeared by the first bill of exceptions, after twelve veniremen, among whom was the venireman Robert W. Larke, had been examined upon their voir dire, and accepted by the court as competent jurors, but before the panel had been completed and before said jurors had been sworn to try the cause, the attorneys for the Commonwealth challenged the juror Larke, upon the ground that he had previously stated that he “would not under any circumstances convict a man upon circumstantial evidence.” And they then introduced, in support of their challenge, two witnesses, who testified in substance as follows: That in a conversation held with the juror a week or ten days
And Wills, in his book on Circumstantial Evidence, quotes, with approval, the language of Mr. Justice Bayley, in Rex v. Downing, that “ Where there is nothing but the evidence of circumstances to guide you, those circumstances ought to be closely and necessarily connected, and to be made as clear as if there were absolute and positive proof.”
Such being the law in cases of this character, it must be
It is a matter of utter impossibility to accurately estimate or ascertain the value of such a juror, in such a case, especially if, as usually happens, the feelings of the public are deeply aroused against the supposed perpetrator of the crime. The exclusion of such a person from the jury is manifest error to the prejudice of the prisoner, and accordingly we find it, as we would naturally expect, laid down in Montague’s Case, that in every such case it is unnecessary to inquire whether the prisoner has been prejudiced by the illegal exclusion of the juror, “because, in the opinion of this court, where any legal right has been denied to a party on trial for a criminal offence, any of the safe-guards thrown around him by law for his protection has been disregarded, it is not for this court to say what might or might not have been the effect upon the case of the accused, but will reverse the judgment and remand the case for a new trial. And if it be necessary, to enable him to exercise his right to have the judgment of the court reviewed in the appellate tribunal, the law will intend prejudice, and will hold it impossible, in such a case, to say that a fair and impartial trial has been had.” And such is the settled law of this State ever since that case.
It is, however, contended that if the court did not have the right to exclude Larke from serving as a juror upon this ground that it did have the right to discharge him, because, after he had been challenged by the State, he stated to the court that he was over sixty years of age; that he had not remembered it when examined on his voir dire, and that if it
But four cases are specially relied upon by the attorneys for the Commonwealth in their brief, and by Judge Fauntleroy in his opinion, as sustaining the action of the hustings court. After a careful examination of these cases, however, I can discover nothing in either or all of them which militates in the slightest degree against the views presented herein, as a brief reference to them will show.
In the first of these cases, 15 Tex. App. 534, the challenged juror admitted upon his examination in court that on the pre-» vious day he had had a conversation with the defendant with reference to his case, in which he said to him that he hoped or believed (he did not remember which word he had used) that
In the next case, Metzger v State, 18 Fla. 486, it distinctly appears that the juror was rejected in obedience to the express mandate of the statute of that State, which says that “no person, whose opinions are such as to preclude him from finding any defendant guilty of an offence, punishable with death, shall be compelled or allowed to serve as a juror on the trial of such an offence;” and the chief-justice in delivering the opinion of the court, after reciting the words of the statute set out above, said:
“ Here is an express statute disqualifying those whose opinions are such as would prevent them from convicting persons of capital offences from sitting on juries in such cases. Here two persons made oath in his presence (meaning the presence of the judge) that Hoke (the juror) had said that if he were on the jury he would not go for capital punishment; in other words, he would not be an instrument of inflicting the penalty of death, and he makes no denial of the charge that these were his opinions.” In that case the objection to the juror was that he was opposed to capital punishment, and he does not say before the judge either that his views had undergone a change or that he never meant what he had previously said. What similarity; may I then be permitted to ask, can there be between that case and this? What similarity can there be between a juror, who is opposed to capital punishment, no matter how cogent and full the proof may be and one, who simply says he will do, in a case of circumstantial evidence, what the law requires him to do in such a case—namely, scan the evidence closely and only find a verdict of guilty if the chain of evidence is unbroken and the proof full and convincing?
In State v. Ward, 39 Vermont R. 231, the juror, upon being
In Waller v. State, 40 Ala. 325, the juror was set aside for having a fixed opinion against capital punishment. The court, however, saying that to act or to decline to act in such a case as this is not error (meaning in the lower court). Thus in effect, saying that it would not have been error under the statute of that State for the lower court to have allowed the challenged juror to remain upon the jury, unless challenged by the State’s attorney for cause.
Having thus stated what, in my judgment, these cases really decide, it seems almost a work of supererogation to add that I am unable to perceive that they even tend to sustain the action of the trial court in this case. Neither one of them asserts the doctrine that a person would be incompetent to sit as a. juror merely because he would require convincing evidence before he would convict in a criminal case depending upon circumstantial evidence, and neither of them establishes the power of a court, in this State, to discharge a juror after he has been examined upon his voir dire, has answered satisfactorily and been accepted, merely because he says that he is over sixty years of age, and claimed his exemption from service on the jury on that ground, if it was not too late.
“Richmond, Va., March 9th, 1885.
“ My Dear Lillie,—It is on business of sad importance I must write to you to-day, as you know mama, both mama and Aunt Mary have both been in wretched health for a long time, and both have been getting worse for some time, and the doctors say if Aunt Mary don’t leave here, and that soon, she cannot stand it long; so they advise papa to take her to Old Point, in order that she can take those sun-baths, which are proving so beneficial to consumptives. But she will not agree to go unless I go with her, which, of course, is out of the question, as mama is too ill for me to leave her, so we have been trying to persuade her to let some one else accompany her. So, at last, she agrees that if we can get you to come down and go with her, she will consent to go. Of course we told her you were teaching, but she begged we would try to get you to come and go with her just as company for her, as her nurse will go with her, who has been waiting on her all the time. She says the reason she wants you to be with her is on account of your being so quiet and gentle in your manners when you were visiting us, and she is so nervous she could not bear to have some one with her who was not gentle and kind. She told me to beg you please to grant her this request, as it was her last resort for momentary relief from her sufferings, as of course, we know she can never be well. My dear Lillie, imagine how it is with me, my dear mama and aunt both so sick. Mama is rapidly declining, I think, and aunt worse, I think; but if she can get to Old Point we hope she will get better. She will only stay there one week, as in that time the doctors think she will be better, if it will benefit her at all.*889 Lillie, please come. Ask Mrs. Dickinson,, I say, please excuse you under these sad circumstances, just for a week, and she will do it, I know, as you wrote me she was so good and kind. Papa wishes me to say to you, if you will come and go with aunt, he will never forget your kindness, and, besides, he will pay all your expenses and $2 per day for every day you are with her. He is such a devoted brother to her he would do anything' in his power. Lillie, don’t get any dresses for the purpose, as you and myself wear the same clothes, and as we wanted, if possible, to attend the exposition, I have had made up a lot of new clothes for the purpose, but, of course, now we can’t go, but we were in hopes mama and aunt would get better, so we could go, but we have given it out now. Now, dear Lillie, we are in hopes to see you soon. If you will accompany aunt, come Thursday (12), either on the mail or express; we shall send to meet you; and please, dear Lillie, don’t disappoint us, for you know there is nothing I would not do for you. If aunt should get too ill to go, we will telegraph to you, so you will get it before time for you to start the 12th. If you will ask the lady you teach for to excuse you for just this short time, she will do it I know. All send much love; aunt is very nervous to-day.
“ Ever your loving schoolmate,
This letter is signed: “Laura M. Curtis.”
This letter is proven to be entirely in the handwriting of the deceased, and it is, admittedly, untrue in every line and sentence.
There is not one particle of evidence in the record to show that he ever saw or knew of it. And the proof, at the trial, establishes beyond a doubt that she did not go to Richmond for the purposes indicated in that letter. It was therefore, unless connected with the prisoner in some way—and the proscution’s efforts to supply such connection by presumption—nothing
It was admitted by the court, and allowed to be used by the prosecution as evidence to establish two things: first, a conspiracy between the accused and the deceased to deceive Mrs. Dickinson; and next, a deliberate purpose, on the part of the accused, to bring the deceased to Richmond, in ord&r that he might have an opportunity to murder her. That it prejudiced the accused, cannot be doubted. As the fifth bill of exceptions says, the court permitted “ the letter to be read as a part of the statement made by Miss Madison to the witness as explanation and preparation of leaving her home in Bath county for Richmond.” It was argued here that being the reason assigned by her for leaving Bath county, it was “the inducement to or the cause of coming” and so admissible as a part of the res gestee.
Now, the precise meaning of this language is not very clear. But that is immaterial, for it matters not in what aspect the argument for the State is viewed, it will be found to be unsustained by the authorities, even those cited for the State, as I shall now proceed to show. In vol. 1 Whart. Law ■ on Evid. sec. 258, that author says: “The res gestee may be therefore defined as those circumstances which are the wndesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of timé more or less appreciable. They may consist of speeches of any one concerned, whether participant or by-stander; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act, necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other
In Hayden’s Case, 9 Reporter, p. 237, Park, C. J., in his charge to the jury, in substance said, that the declarations of the deceased that she was going to the place where she was subsequently found murdered, to take “quick medicine” to be given her by the accused in order to procure an abortion, made while in the act of going, are competent to characterize her act of going; and the declaration and the act thus united becomes a fact in the case. In this case the deceased, when found in the woods, had ninety grains of oxide of arsenic in her stomach and her throat cut; the jury, therefore, very properly concluded that the party, as the judge in his charge said, who administered it to her, must have met her by appointment, for he must not only have had the arsenic but a vessel of some kind in which it was prepared to be administered. This case is cited by Wharton in his book on Criminal Evidence in support of the doctrine, that evidence of the statements of the deceased, at the time of the attack or so soon afterwards, as to preclude the hypothesis'of concoction or premeditation, charging the defendant with the act, may be received. In Hadley v. Carter, 8 N. H. 40, which was a suit brought against a person for enticing away the servant of another, the court held that the declarations of the servant, made at the time of leaving, and showing he left of his own accord, were admissible as evidence. In the course of the opinion, Upham, J., said: “In this instance the servant at the time of preparation for leaving disclosed causes for such a design of a character strongly implicating himself and tending to negative entirely any suspicion of intentional misrepresentation of his ■true motive. He communicated this design in connection with the fact of asking advice, what course to pursue, and accompanied his declarations of the motive
In Hunter v. State, 11 Vroom, 495, the man, afterwards murdered, made statements to his son and wrote a note to his wife, a few hours before leaving home on the night of the murder, to the effect, that he was going to the city of Camden on business, and that the prisoner was going with him. In this case, the court held that such statements, both oral and written, were admissible as explanations and preparations of the act of going from home. In the course of the opinion Bersley, O. J., after saying that it was the usual information that a man about leaving home would communicate for the convenience of his family, the information of his friends or the regulation of his business, makes use of this language, which seems to have been omitted in the brief of the counsel for the Commonwealth : “At the time it was given such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that fox which they were obviously designed.” After quoting with approval Mr. Wharton’s definition of res gestee, he proceeds: “This definition obviously embraces the declarations now challenged, for they were immediate preparations for the act in question, and were certainly not produced by the calculated policy of the actor who gave utterance to them.” Again, at page 450, he says: “It is principally from the foregoing considerations that I find myself constrained to think that the declarations under discussion, even if they stood in the case unsupported or unaffected by other circumstances, were admissible, on general principles, on the single ground that they were the natural and inartificial concomitants of a
In this connection- it must be stated that both counsel and Judge Fauntleroy have entirely misapprehended the meaning of the word “preparation,” as used in their quotation from section 753 of Whart. Cr. Ev. The word is there with reference to preparation on the part of an accused for an attack, for example, as providing himself with a pistol, &c., as the cases cited in support of that statement in the note to the text will show. Now, these are the authorities relied on to sustain the admission of this letter, and yet it must be apparent to every dispassionate mind that they not only fail to justify its admission, but, by necessary implication, forbid it. Running through all of them may be seen the same general idea—that is, that such declarations constitute a part of the res gestx only "when they are the natural and undesigned incidents or concomitants of a particular act, the nature of which it is necessary to enquire into. This idea that the declaration must be truthful, and not fabricated, is illustrated with great force and clearness by several cases in this State. In Hill's Case, 2 Gratt. 594, the court, in discussing the admissibility of the declarations of the deceased, after citing the case of Rex v. Foster, and one from Skinner, said: “All that is necessary, according to these cases, to make the declaration part of the res gestx, is that it should be made recently after receiving the injury and before he had time to make up a story or devise anything for his own advantage. Tested by this rule, the statement referred to is clearly admissible.”
In Kirby v. Commonwealth, 77 Va. 689, Lewis, P., speaking for the court, said: “Here the declarations in question were not only made recently, but probably within two minutes after
In Wharton’s Cr. Evid., sec. 262, the author says: “Resgestee are events speaking for themselves through the instinctive words and acts of participants—not the words and acts of participants when narrating the events. What is done or said by participants under immediate spur of a transaction, becomes thus pai't of the transaction, because it is then the transaction that thus speaks.”
In Starkie on Evid., sec. 87, that author, speaking of declarations accompanying an act, says: “These, when the nature and quality of an act are in question, are either to be regarded as part of the act'itself, or as the best and most proximate evidence of the nature and quality of the act; their connection with the act either sanctions them as direct evidence, or constitutes them indirect evidence, from which the real motive of the actor may be duly estimated.” Hence it is that declarations, made by a trader at the time of his departure from his residence or place of business, are evidence of the intention with which he went. His real intention, in such a case, cannot be inferred otherwise than from external appearances—from his acts; and his declarations are collateral indications of the nature of his acts and his intention in doing them. Without further citation of authority, it seems to me to be beyond question that neither the statements of the deceased, nor the so-called Curtis letter were admissible in evidence, especially against the prisoner, whose lips were sealed.-- They do not furnish the real motive of her leaving Mrs. Dickinson’s, and cannot in any proper sense be
This is a case of purely circumstantial evidence, and in every such case it is admitted by all the text writers and all the cases, that all the facts and circumstances must be scanned with the closest scrutiny, and that if, upon the whole evidence, there be a reasonable doubt, either as to whether the deceased came to her death by criminal violence or as to who was the criminal agent, that such doubt must be resolved in his favor, and that he is entitled to an acquittal.
Now, with this simple statement of the law, and remembering that' the accused cannot be required to make any disproof of the charge made against him until the prosecution has established his guilt, beyond reasonable doubt, by proof both of the crime and criminal agent, I ask, is it proven, to the exclusion of every
I have not the time to go into all the details of evidence in this case in order to develop the train of events which led to this poor girl’s death, and if I had, I would doubt the wisdom of doing so, as it could only result in casting, perhaps, undeserved suspicion upon the living, without furnishing conclusive evidences of the certainty of my conjectures. I shall therefore only say that I do not feel justified in saying, in the face of the testimony of the medical expert, that the medical facts are as con
Assuming, what is not positively proven, that it was his key,
Judgment affirmed.