Emery v. State

92 Wis. 146 | Wis. | 1896

Winslow, J.

There was sufficient evidence to sustain the verdict, and the trial seems to have been in most respects fair and just, but there were two rulings made which, we think, were erroneous, and which necessitate reversal of the judgment.

1. The circuit judge charged the jury on the subject of reasonable doubt as follows: “ All men are presumed to be innocent of crime. No man can rightfully be convicted of crime until the legal presumption of innocence just mentioned shall have been overcome, and his guilt affirmatively proven beyond a reasonable doubt. Such proof of guilt can be made only by the evidence given or received on the trial of the case, and must be, in the judgment of the jury, the just and reasonable logic and effect of the whole evidence. The ‘reasonable doubt ’ mentioned beyond which guilt must be affirmatively proven in order to justify a verdict of guilty means, as its name implies, a doubt resting in reason; and it must arise from the whole evidence fairly and rationally considered. When, after a full and impartial consideration of the whole evidence considered within the rules already stated, the judgment is convinced to a moral certainty that the accused is guilty, that there is no reasonable explanation of the facts proven' except upon the hypothesis that the accused committed the crime charged, then every ‘ reasonable doubt ’ is removed, and a verdict of guilty should follow. Mere fanciful or speculative doubt,— such^ as a skeptical mind may suggest in any case, however strong and convincing that the accused is guilty the evidence, as a whole, may be to a reasonable and impartial mind,— does not amount to a ‘ reasonable doubt,’ within the meaning of the law. A doubt such as this — one that ignores a reasonable construction of the whole evidence, proceeds upon mere speculation or suspicion — is unreasonable, would acquit one proven guilty as easily as one not so proven, and does not justify a verdict of not guilty.” So far the charge is unexceptionable. The judge then proceeded, however, as follows: “On the other hand, when, upon the whole evidence, the judgment and conscience a/re not convj/nced of guilt in a degree or to an extent such as would lead a careful and prudent man to act affirmatively m importa/nt matters of his own, when the jury feel that upon the whole evidence, rationally considered, guilt is not satisfactorily proven, such feeling amounts to a reasonable doubt of guilt, and in such case the defendants will be entitled to a verdict of not guilty.” This latter proposition qualifies all that goes befoi’e it on that subject, and it is in direct conflict with the rule i>f law as laid down by this court in the case of Anderson v. State, 41 Wis. 430. It was there held that the jury should be charged that they must scrutinize the evidence with the utmost caution and care, bringing to that duty the reason and prudence which they would exercise in the most important affairs of life,— in fact, all the judgment, caution, and discrimination they possessed ; and if, after such scrutiny, they entertained no reasonable doubt of the guilt of the accused, they should convict; otherwise, acquit. An instruction in that, case which gave to the jury as a guide “ that prudence and reason which govern you in the ordinary conduct of your affairs ” was distinctly condemned, and the judgment was reversed upon that ground alone. The rule laid down in that case has not been departed from nor qualified since. It is squarely applicable to the present case, and it necessitates a reversal of the judgment. It is unnecessary to discuss the reasons of the rule. We are aware that courts in some of the states hold to a different rule, but in this state it has been deliberately declared that a juryman in a criminal case must use all the reason, prudence, and judgment which a man would exercise in the most important affairs of life, and that an instruction authorizing the use of any less degree of reason, prudence, and judgment is erroneous. In support of this rule, see, also, State v. Dineen, 10 Minn. 407; Comm. v. Miller, 139 Pa. St. 77.

2. Witnesses were called by the prosecution, who testified to having heard the defendant Emery, during the winter before the homicide, remark that if he met Peter Houston in the woods, and they both had guns, he would see that Peter did not get the first shot. When Emery was put on the stand in his own behalf, he admitted that he might have made such a remark, and was then asked what was the occasion of his making it. This question was objected to, and the objection sustained, and exception taken. The following colloquy then took place: “ Ques. Why do you say you may have said that ? (Objected to as before. Overruled.) The Court: You need not tell anything you heard previous to that, if you did hear anything. Ans. Because I might have said it. Q. If you are limited to not giving the conversation, you cannot give it in any other way 1 A. No, sir.” It is very apparent that the court, by these rulings, excluded everything else that was said by either Emery or others at the time of the making of the threatening remark, as well as excluded every thing that had come to Emery's knowledge which prompted him to make it. That the balance of the conversation was admissible there can be no doubt. Wheré the plaintiff introduces evidence of a remark made by the defendant, the defendant may unquestionably on his own behalf give the entire conversation, even though it may contain self-serving statements. Plano Mfg. Co. v. Frawley, 68 Wis. 577; 1 Greenl. Ev. § 201. The evidence of the threat was introduced by the state to show the state of the defendant’s mind, to show that he had malice in his heart against the deceased, and hence that he had a motive to kill him; in short, it was to show intent. Now, when the intent or motive of a party in doing a particular act or making a declaration becomes material, it is always permissible for the party to be sworn in regard to it. 3 Rice, Ev. § 288. The defendant could therefore have testified directly as to his intent or feeling toward the deceased Avhen he made the remark, and we think he was also entitled to show what was the occasion of his making it, and the reason that prompted it, even though such reason might involve the introduction of testimony which would otherwise be hearsay. Certain it is to' our minds that a defendant who admits having made an incriminating threat is entitled to show the circumstances under which it was made, the accompanying conversation, if any, which called it forth, and the information on which it was based. ,

There are numerous other assignments of error made on the part of the plaintiffs in error. We have carefully examined them, and do not find them to be well taken. We shall now briefly notice some of the more important of these contentions.

(1) There was a plea in abatement made by the defendant Lord to the effect that he had had no preliminary examination. This plea was based on the grounds — first, that the complaining witness was not sworn on the examination; second, that all of the witnesses for the state were not sworn; third, that the defendants were deprived of the testimony of a material and. important witness named James Jacobs, upon such examination, by the acts and direction of the district attorney of Wood county. This plea seems to have been tried upon, affidavits and on the justice’s record. R. S. sec. 4786, provides that the magistrate holding a preliminary examination shall “ examine the complainant and the witnesses to support the prosecution on oath in the presence of the party charged.” It is claimed by the plaintiffs in error that this statute is mandatory, and that, unless the complaining witness and all the witnesses known to the state are examined, no legal preliminary examination is had. It is sufficient to say that we cannot agree with this contention. "We regard the statute as directory only. A sufficient number of witnesses were examined to amply justify the magistrate in binding over Lord for trial, and this must be held to satisfy the statute. Such was the holding in Michigan under a similar statute. People v. Curtis, 95 Mich. 212. As to the claim that the defendants were deprived of the testimony of James Jacobs by the acts and directions of the district ' attorney of Wood county, it is sufficient to say that the fact was not proven.

(2) At the close of the testimony on the part of the state, and before the introduction of the evidence for the defense, the defendants’ counsel claimed the right to review the testimony on the part of the state for the purpose of showing that it did not warrant a conviction. Upon objection, the court ruled that, in opening the defense, he could only comment on the testimony already in so far as it might be necessary to show the relevancy of the testimony which he expected to introduce. This was plainly right, and is in accordance with the established practice within this state. It is no infringement on the constitutional privilege of being heard by counsel. It is simply a rule which manifestly is conducive to the orderly and logical mode of conducting a trial, by which the arguments upon the merits are all to be made after the testimony is in and -all the facts are before the

(3) The state was allowed to introduce certain parts of the statements under oath made by the defendant Emery at the inquest, it being objected by the defendant that the state must introduce the whole of the testimony or none. This Avas not error. The point was directly decided in Rounds v. State, 57 Wis. 45. The defendant was entitled to introduce in evidence the remainder of the statement, and did do so.

(4) The state was allowed to prove a conversation between Emery and the sheriff on the day of Emery’s arrest, in which the sheriff said to Emery, “ I am satisfied in my own mind that your gun did the shooting,” to which Emery replied, “ It looks so, don’t it? ” It is objected that this evidence was inadmissible, as its effeot was to introduce the opinion of the sheriff as to whose gun did the shooting. We do not regard the objection as tenable. The answer of Emery partook of the nature of an admission, hence was proper evidence against him; but it could only be understood in connection with the sheriff’s remark to which it was a reply.

We do not deem it necessary to notice any other points made.

By the Court.— Judgment is reversed as to each plaintiff in error, and the cause is remanded to the circuit court for a new trial. The warden of the state prison will deliver the plaintiffs in error to .the sheriff of Wood county, who will hold them in custody until discharged therefrom by due process of law.