143 Pa. 64 | Pa. | 1891
Lead Opinion
Opinion,
The first assignment of error is to the admission of the conduct of the prisoner and the woman Cross an hour before the murder. It was an undisputed fact that the prisoner, the same woman Cross, and the deceased were together when the killing took place, or immediately before, even if the woman did, as she testified, run away before the shot was actually fired. Both the prisoner and the woman, as well as some other witnesses, testified that the quarrel was about the woman, though the exact cause of it is differently related. The theory of the commonwealth was that the killing was done from jealousy; and under these circumstances, the conduct of the prisoner an hour previous, in putting a pistol to her head, had a bearing on his state of mind towards her, and therefore, on the existence of the supposed motive for the killing. For such purpose it was clearly admissible.
The second and eighth assignments, inclusive, and the tenth, may be grouped together. They are minute criticisms on the language of the charge. Thus, the second is based on the statement of the judge of the quantity of beer as two gallons, instead of two kettles; an inaccuracy not material to the point of the case, and so far as it had any bearing, not unfavorable to the prisoner. The evidence as to the history of the transaction was, as the learned judge said, at first harmonious, then divergent, and finally contradictory. The jury, as has been often said, were bound to reconcile the discrepancies, if it could reasonably be done; and the judge aided them in the performance of that duty by a review of the evidence in general terms and with substantial accuracy, making suggestions fairly warranted by the evidence, to show the jury how it might be reconciled in some parts, and the difficulty of doing so in others. Nothing but hypercriticism can find any error in this part of the charge.
The ninth assignment we. understand to be abandoned.
The eleventh to the twenty-third assignments may be taken together and disposed of by saying that, so far as they were correct and pertinent statements of the law, they were affirmed in the charge: Points, even though taken verbatim from the decisions of this court, cannot always properly be answered by a simple affirmation. However accurately and carefully stated in their connection and applied to the case under discussion, they may, when taken as detached sentences and applied to different circumstances, convey erroneous ideas, especially to unlearned jurors. For example, the prisoner’s fourth point was that “Before the jury, in this case, can convict of murder of-the first degree, they must find that the prisoner acted upon as clear and premeditated a motive as he who kills by poison or by lying in wait.” This is said to be taken from the language of this court, though the case is not given, which is a very unsatisfactory mode of citing authority. It may be there are cases in which this would be a correct statement of the law; but, separated from its context and applied to the present case of shooting at a street corner, and answered by a simple affirmation, it would be dangerously liable to convey to the jury the idea that a prolonged premeditation, such as is necessarily involved in killing by poison or lying in wait, was essential to the case they had in hand. The learned judge told the jury that the design and the resolve to. kill must be formed before the shot was fired; that no specific time was requisite to make premeditation; the time might be short, but that shortness of time was an argument against premeditation; and that the jury must be satisfied from the evidence that premeditation and the deliberate intent were there, not merely when the shot was fired, but were there previously. This was all the prisoner was entitled to ask. He had no right to dictate the language of the- court. To convey the proper idea to the jury, language often must vary with the circumstances of the particular case. Neither under the act of March 31, 1860, or otherwise, has the prisoner a right to have answers to his points in any set form.
There remains only the twenty-fourth assignment, that the judge erred in his answer to the point that “ The jury are judges of the law as well as of the fact, and may, upon the whole case, determine the grade of the offence.” The learned judge answered this point by saying that the jury had been sworn to decide the case on the law and the evidence; that the statement of the law by the court was the best evidence of the law within the jury’s reach; and that therefore, in view of that evidence and viewing it as evidence only, the jury was to be guided by what the court had said with reference to the law. This was an accurate and carefully considered answer to the point, and is entirely in harmony with Kane v. Commonwealth, 89 Pa. 522. It left the jury to decide the whole case upon the law and the evidence,—not upon the law as distinct from the evidence; and they were instructed as to what was the best evidence of the law. That is to say, in the language of the constitution, they were to determine “ the law and the facts, as in other cases,” under the advice and direction of the court; they were to look to the court for the best evidence of the law, just as they look to the witnesses for the best evidence of the facts. Thus interpreted and thus administered, this seeming paradox in our criminal law becomes intelligible. A judge who instructs a jury, in a criminal case, that they may disregard the law as laid down by the court, errs as widely as the judge who gives them a binding instruction upon the law. It is the duty of the jury to take the best evidence of the law, as it is to take the best evidence of the facts. When they refuse to do either, they disregard their duty and their oaths.
The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purpose of execution.
Concurrence Opinion
concurring:
I concur in affirming this judgment and in the reasons given,
In the early days of jury trials, issues that went to the country were usually simple, and were probably submitted to the jury without much separation of law and fact by the judge, and in that sense juries decided the law. But the distinction between questions of law and fact, and the tribunals for their decision respectively, lies at the foundation of our juridical system, and there was no time when it did not exist. The rule, ad questionem facti non respondent judiees, ad questionem juris non. respondent juratores, was an ancient maxim in the days of Coke: Coke Litt., 155 a; 8 Rep. 155 a; 9 Rep. 13 a; and Mr. Bigelow, treating of the class of cases raising questions of law, or some question of fact properly belonging to the court to decide, quotes the case of the Archbishop of Canterbury v. Abbot of Battel Abbey, 1 Rotul. 143, tempore Stephen, which “ turned upon a question of law, and was decided (without appointment of a trial term) just as a modern case of the kind would be decided, by a submission of the point of law in the question to the determination of the court, and not to some test imposed by the parties: ” Hist, of Procedure
It is a striking illustration of the uniformity of human motives at-all periods, that, while the attaint remained as a remedy for perversity or favoritism, the struggle of juries was to escape the obligation of general verdicts and to maintain the right of special findings of fact; but when the decline and final disuse of the attaint rendered them practically irresponsible, the struggle was reversed, and juries asserted stoutly the right to give general verdicts, while the tendency of lawyers and judges was to confine them to special findings of fact and to have the court pronounce the result as a matter of law. The period of transition was long and changes slow. It was clearly and justly felt that juries, as judges of the law in any but an incidental way, were an anomaly in the system, and perhaps those who endeavored to do away with it claimed too much. Safety was thought to reside in the retention by jirries of the right to give general verdicts. In view of the constant and notorious failure of justice in certain classes of cases, by the occasional perversity and the frequent cowardice of juries,
The exact line between law and fact, not always easy to draw, presented in the case of libel some special difficulties, technical and other. The alleged libel being in writing, its terms were not in dispute and naturally fell to the court to pass upon, as other writings did; and the intent, libellous or otherwise, being claimed as a legal inference, there was nothing left in dispute but the fact of publication and the truth of the innuendo. Accordingly, the juries in the Dean of St. Asaph’s Case, and the King v. Withers, 3 Term R. 428, were confined to these two points; and it was to counteract these rulings of Buller and Mansfield and Kenyon, (though it cannot be disputed that they were in accordance with long settled practice,) and to secure, in libel as in other cases, the right of the jury to find a general verdict upon the whole matter in issue, that the act of 32 Geo. III., c. 60, was passed. The text of that famous statute is worth quoting to show how little foundation it affords for the superstructure that is sought to be built upon it. It is entitled “An Act to remove Doubts respecting the Functions of Juries in Cases of Libel,” and its language is:
“ Whereas doubts have arisen whether on the trial of an indictment .....for the making or publishing any Libel, where an issue is joined.....on the plea of not guilty pleaded, it be competent to the jury empaneled to try the same to give their verdict upon the whole matter in issue: Be it therefore declared.....that, on every such trial, the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information, and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a Libel, and of the sense ascribed to the same in such indictment or information.
“ Provided always, that, on every such trial, the court or judge before whom such indictment or information shall be*89 tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases.
“ Provided also, that nothing herein contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases.
“ Provided also, that in case the jury shall find the defendant or defendants guilty, it shall and may be lawful for the said defendant or defendants to move in arrest of judgment, on such ground and in such manner as by law he or they might have done before the passing of this act; anything herein contained to the contrary notwithstanding.”
Nothing could be clearer than the care with which this act was directed to the exact point in controversy, the right to render a general verdict of guilty or not guilty upon the whole issue, in cases of libel, and the equal care with which the right of the court to pass finally upon the questions of law, was preserved by the provisos that the judge should give the jury his “ opinion and directions,” and that a verdict should still not be conclusive of the law against a defendant, but he should have his right to an arrest of judgment as theretofore enjoyed. The claim that juries were to be judges of the law was thus intentionally and carefully excluded.
The constitution of Pennsylvania was made in 1790, two years before Fox’s Libel Act. The controversy was then at its height, and the subject commanded popular attention. In fact, Pennsylvania had borne rather a distinguished part in the discussion, and the speech of Andrew Hamilton, in the trial of John Peter Zenger, was regarded as the vindication of popular rights, and not only quoted as such by Erskine but referred to among other authorities by Hargrave: Coke Litt., 155 b. “No lawyer,” says Mr. Binney, “ can read that argument without perceiving that, while it was a spirited and vigorous, though rather overbearing harangue, which carried the jury away from the instruction of the court, and from the established law of both the colony and the mother country, he argued elaborately what was not law anywhere, with the same confidence as he did the better points of his case. It is, however, worth remembering, and to his honor, that he was half a century before
The members of our convention of 1790 were familiar with the subject, and the minutes show that much care was given to framing the clause in the declaration of rights which refers to it. Section seven of article IX., relating to" liberty of the press, was originally reported to the convention by the committee to draft a proposed constitution, on December 21, 1789, in the following form: “ That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, 'and no law shall ever be made restraining the right thereof. The free communication of thoughts and opinions is one of the most invaluable rights of man, and every citizen may freely speak, write and print, being responsible for the abuse of that liberty: ” Proceedings of the Convention, p. 162, Harrisburg, 1825. This was reported from committee of the whole, on February 5, 1790, in the same form (dropping only the word “most” before the word “invaluable”), but with the addition: “But upon indictments for the publication of papers investigating the conduct of individuals in their public capacity, or of those applying or canvassing for office, the truth of the facts may be given in evidence in justification upon the general issue: ” Idem, 174. On February 22d, this section being under consideration, Mr. Addison offered, as a substitute for the sentence last quoted, “ In prosecutions for libels, their truth or design may he given in evidence on the general issue, and their nature and tendency, whether proper for public information or only for private ridicule or malice, be determined by the jury.” To this an amendment, offered by Mr. McKean, to add “ under the directions of the court as in other cases ” was adopted almost unanimously, the vote being fifty-six to three, but the substitute itself received a bare majority, thirty-two to twenty-seven; the strong minority being in favor of restricting the truth as a justification, to cases of publications upon the conduct of persons in their public capacity, or of candidates for office: Idem, 220-222. The convention, having ordered the proposed constitution to be published for the consideration of the citizens, adjourned on February 26th to the following Au
It is impossible to read these various steps in the formulation of our fundamental law, without seeing that there was never at any time the intention to make or to consider juries as in any sense judges of the law. No such possible construction seems to have been apprehended until suggested by McKean, and the practically unanimous vote on his motion to add “under the direction of the court as in other cases,” shows the feeling of the convention on this subject. McKean was at that time one of the foremost personages of the commonwealth, perhaps its best trained lawyer. He had studied in the Temple, and was familiar with the details of the legal controversy between Buller and Mansfield, on the one side, and Erskine, on the other, before Fox took it up as a matter of politics; and he knew, as Lewis and Wilson and Ross and Sitgreaves and Addison and Findley and other leaders of the convention knew, that the contest was not for any control by the jury as judges of the law, — even Junius hardly ventured to put his denunciations of Mansfield in that form, — but for the right of applying the law to the facts and pronouncing the result by a general verdict. And such was the understanding of the convention, as it was of parliament two years later, and such the natural meaning of the language on which they finally settled to express their purpose. It puts beyond question the right to return a general verdict, nothing more. To cut the sentence
Much misunderstanding has in my judgment been caused in this state by the case of Kane v. Commonwealth, 89 Pa. 522.
So, the jury may disregard the law favorable to the prisoner. As was suggested by the learned judge at the trial of the case in hand, the jury had the legal power to find murder of the first degree without regard to the element of premeditation, but no judge would contend that they had the legal right to do so; and, if the evidence of premeditation was below the legal standard, determined by the court as matter of law, not only would the trial court set aside the verdict, but this court would be bound to review the evidence and determine if the legal elements of murder of the first degree existed in the case. Such powers and such duties in the courts are absolutely inconsistent with the right of the jury to be in any sense judges of the law.
This is not new doctrine, but the long-established law of the state. Alexander Addison was one of the staunchest asserters of the rights of juries in the constitutional convention, and was one of the, minority of three who voted against McKean’s amendment to insert the words “under the direction of the court as in other cases; ” but when, three years later, he presided in the Oyer and Terminer of Washington county, he laid down the law in these precise and forcible terms : “ Whether the facts are so or so, it lies with you to determine, according as you believe the testimony. Supposing them so or so, whether they amount to murder or manslaughter, is a question of law for the court to determine. You may find, according as you believe or disbelieve the facts, and comparing the facts with the rules of law, that the prisoner is guilty or not guilty (of murder), or guilty of manslaughter; or, you may find the facts specially, without drawing any conclusion of guilt or innocence, leaving it to the court to pronounce the construction which the law puts on the facts found; but you cannot but at the peril of violation of duty, believing the facts, say that they are not what the law declares them to be; for this would be taking upon you to make the law, which is the province of the legislature, or to construe the law, which is the province of the court: ” Pennsylvania v. Bell, Add., 160. And in Commonwealth v. Sherry, an indictment for murder growing out of the
My conclusions on the general subject, therefore, are: .
1. That the jury never were judges of the law in any case, civil or criminal, except incidentally as involved in the mixed determination of law and fact by a general verdict.
2. Even if it could be conceded that they may have been so in primitive times, their right certainly ceased after the introduction of bills of exception and the granting of new trials, and admittedly has not existed in civil cases for centuries.
3. That there was not originally, nor is now, any distinction in this respect between civil and criminal cases, the true rule as to both being that “ the immediate and direct right of deciding upon questions of law is entrusted to the judges; in a jury, it is only incidental: ” Hargrave’s note to Coke Litt., 155 b. The idea of a difference in the rights and functions of juries in civil and criminal cases, as to the determination of the law, arose from a misconception of the controversy over the right to give a general verdict, and was an error for which there is no respectable English authority, and which the best American authorities have overwhelmingly disapproved.
4. That, even if the jury had originally had such right in criminal cases, it was an anomaly, belonging to the period when jurors were selected from the vicinage, because of their knowledge of the case, and, like its congener, has changed and disappeared, because totally inconsistent with the functions of courts
This whole subject is discussed with exhaustive learning and ability in State v. Croteau, 23 Vt. 14. The opinion of the court by Hall, J., is the only serious attempt that I have been able to find, to support the dogma for which it is now mainly responsible, and with great respect for that eminent jurist it appears to me that his whole argument is based on the confusion of the right to determine the law with the right to render a general verdict. A careful examination of all the authorities cited by him, and they include everything which the most learned and diligent research could discover, shows that they only go so far as to sustain the right of the jury, not to be judges of or to determine the law, but only to apply it through a general verdict. The dissenting opinion of Bennett, J., in the same case, displays equal learning and sounder reasoning. It is a storehouse of information on the subject, and has anticipated everything that can be said upon it. A masterly analysis and review by Chief Justice Shaw will also be found in Commonwealth v. Anthes, 5 Gray 185. There are less elaborate but equally clear and forcible statements of the argument by Story, J., in United States v. Battiste, 2 Sumn. 240; by B. R. Curtis, J., in United States v. Morris, 1 Curt. C. C. 23, 49; by Gilchrist, J., in Pierce v. State, 13 N. H. 536; and by Shaw, C. J., in Commonwealth v. Porter, 10 Metc. (Mass.) 263. See, also, Montgomery v. State, 11 Ohio 427; Montee v. Commonwealth, 3 Marsh., J. J., 149; Townsend v. State, 2 Blackf. 151 (but see Armstrong v. State, 4 Blackf. 247); Pierson v. State, 12 Ala. 153; Hardy v. State, 7 Mo. 607; Nels v. State, 2 Tex. 280; Brown v. Commonwealth, 10 Southeast. R. 745 (Ct. of App. of Va., 1890); a very able
As already said, there is not a single respectable English authority for the doctrine in question; and against the foregoing solid phalanx of the best American judicial and professional opinion, I have not been able to find a single well-considered case except State v. Croteau, which as already seen was by a divided court. Under these circumstances, whether the doctrine be of much practical importance or not, I cannot help thinking it a matter of regret that any vestige of it should be left in Pennsylvania.'