29 Mich. 173 | Mich. | 1874
The defendants were indicted for burning a barn, with intent to defraud an insurance company. The conviction was had of this plaintiff in error (defendants below being tried separately) upon the testimony of William Fuller, who was sworn as state’s evidence. Questions arose below on some preliminary matters, and upon the sufficiency of the information, as well as on points ruled at the trial.
The plea relied upon was, in brief, that the complaint before the justice of the peace was brought on for examination on the 21st of February, 1872, and after it had been partly completed it was adjourned until the 22d, when some further testimony was taken and an adjournment was had until the 23d, and thereafter the proceedings went on to completion. The objection relied on is that the 22d of February being not a law day, the justice lost jurisdiction.
This is all that appears in the-original plea; and admitting it to be true, and without reference to the subsequent proceedings at the circuit on either side, we do not think it can be sustained.
The justice, in these examinations, does not act judicially, in the technical sense, but in his capacity of a conservator of the peace, and the proceeding is one which, at common law, was conducted very much at discretion. It is possible that the regularity of the arrest and continued custody of the prisoners may have been open to question; but we have found no authority for holding that a criminal examination before a justice is void, if a complaint has been made before him on oath, and the accused are finally held to bail or committed on a law day upon testimony taken in their presence in pursuance of it. Whether irregular or not, we find no authority for regarding such proceedings as nullities. We can see no reason why a complaint properly verified should cease to be valid to maintain an examination, unless the parties accused are either discharged or held to commitment, so long as there is no substantial break in the proceedings. No formal record i's required to be kept of them, and the continuance from day to day is .not an adjournment of such a nature that the failure to announce it would be of any consequence. The proceedings are by the statute contemplated as contin
The plea does not dispute the fact that there was a preliminary examination upon a proper complaint' before a magistrate having jurisdiction, resulting in a commitment; and this, we think, was all that was necessary to justify proceeding by information.
A motion was made to quash the information, resting mainly on the misjoinder of counts, the insufficiency of some of them, and the want of a preliminary examination upon some of the charges.
It was held in Washburn v. People, 10 Mich., 372, that the fact of examination need not be alleged in the information, but that the objection must be'made by motion to quash, or plea in abatement. It is not claimed by the motion that there was no examination, but only that it did not cover all the counts; and the counts objected to for that reason are not specified. As the motion to quash the whole information could not properly prevail on this ground, and the parts objected to are not specified, we think that objection was not tenable in the form resorted to. The question of misjoinder is more serious, and rests on different grounds.
The complaint before the magistrate and the information are both so confused and multifarious that the court below might very properly have declined to compel defendants to go to a trial. We have seldom seen pleadings so fairly open to criticism on this head. Offenses are charged to which all the defendants could not possibly be amena
It is intimated in The King v. Kingston, 8 East R., 41, that a demurrer would not lie to the whole information for such a misjoinder; but that the proper remedy was by motion to quash. Such a motion is addressed to the discretion of the court. It ought to be granted where the confusion is such that it is likely to interfere with the means of defending, by misleading or perplexing the prisoner in meeting the case or preparing for trial. But when the court can prevent any mischief, as it usually can, by confining the proof to the single transaction on which the defendant was examined, or on which the prosecution, has opened the testimony, or by compelling an election in the outset, no wrong is done by the refusal to quash.
We do not hold that, under our statutes, requiring a motion to quash in lieu of a motion in arrest or to save a ground of error, such a motion is always discretionary.. But such a motion for misjoinder appears to be discretionary. — 1 Bish. Cr. Pro., § 447 ; The King v. Kingston, 8 East, 41.
Where the various counts may all refer to the same transaction, the safer course usually is, undoubtedly, not to quash, but to regulate the proof on the trial as far as may be necessary to prevent surprise or the misleading of the prisoner, and to confine it to that transaction. — See Rex v. Young, R. & Ry., 280 (n.); Rex v. Ellis, 6 B. & C., 145; Anonymous, 2 Leach C. C., 1105.
We had occasion at the last term to consider and sustain the propriety of allowing proof of the entire transaction, in People v. Marion, and Van Sickle v. People.
The court on the trial regarded the case as one where the offense was that of burning property with intent to defraud insurers; and it was tried entirely on that theory. The questions raised and discussed on the exceptions and charge are to be considered in view of such a state of facts.
The theory of the prosecution depended entirely on the evidence of the respondent Fuller, who swore to a plan, made in advance, to burn the barn in question, by putting a lighted candle in a place where, as it burned low, it would reach litter and other combustible material, and set it on fire. It was to operate like a slow match. There is no direct evidence of the guilt of any of the defendants, but they were convicted on circumstantial evidence, which derived its force chiefly as explained by Fuller’s testimony concerning the previous arrangement. With that out of the case, or discredited, no conviction could hate been justified.
The first ruling objected to and mentioned on the argument, related to the admission of certain chancery records, showing that in 1869 a bill was filed to rescind the conveyance of the land on which the barn was situated. The ground set up in the bill was fraud alleged to have been practiced by Thomas W. Hamilton and one Nathaniel Badger. The object of this testimony was claimed to be to establish a motive to account for the destruction of the property, by showing a dispute affecting title. It was admitted against the objection, and the court afterwards refused to strike it out.
We are inclined to think that evidence of an existing controversy of that sort would have some bearing on • the question of motive, although there may be difficulty in guarding it so as to prevent the jury from passing upon
Objection was made to the reception of certain evidence of the amount of hay in the barn, that there was no valid count charging the burning of any thing but the barn, and that respondents had not been examined upon such a charge. We think that the fact of the fullness or emptiness of the barn might have a very clear bearing upon the question of motive in burning the barn; and we can see no reason for excluding any circumstance showing the extent of the fire and of the property burned. The whole transaction was properly open to the jury, and they were entitled to understand it all.
The testimony of Bobert Billingsly that, in a conversation four or five months after the fire, defendant, when asked whether he could keep the farm, said “he did not care; that he had got a good insurance on the house, and it might go to blazes with the barn,” was not, we think, proof of any admission that the barn had been burned by defendant; and that was the only point on which it can be claimed it had any relevancy.
We also think the defendant ■ Thomas W. Hamilton
We can find nothing which could render it admissible for the witness Hiram Allen to detail what was said by the witness Lettie Campbell, concerning the facts which occurred the night of the fire. It is hearsay, pure and simple.
Henry Hamilton, being called by the prosecution, gave testimony concerning what took place at a certain party or dance at James Hamilton’s, the night of the fire. Being asked on cross-examination whether the dance was not talked of some time before it was got up, this was objected to. The defense stated they proposed to show it was talked of, and invitations given, a week or ten days beforehand. The court ruled out the question, and the defense excepted.
To uuders'tand the bearing of the question, it will be necessary to refer to the account given by Fuller of the proposed plan for burning the barn. That was, in substance, that in order to prevent any suspicion, a dance should be got up at another person’s house, and that during the course of the evening one of the Hamiltons was to go-out for a supply of cider, and take advantage of that opportunity to light the candle, which would take some time to burn down to the straw; so that they should be away at the party at the time the fire should break out, and so escape suspicion. If the party had been arranged, and invitations given, earlier than the alleged interview with
We think, also, that when Houseman had sworn to seeing the three Hamiltons apparently consulting together after the fire, the defense should not have been precluded from cross-questioning him as to the force of the impression made on him at the time, and as to the persons to whom he first mentioned it. It is only by thorough sifting that it can be known how much a witness has allowed his memory to be warped by subsequent suspicions. Undoubtedly the real meaning of what is seen is not always understood at the time, and therefore it does not follow that a witness who . had no suspicions until afterwards may not have observed and remembered accurately. But whether he has done so or not can never be unimportant. The' conclusiveness of circumstantial evidence depends entirely on the assurance that facts have been truly seen and sworn to.
It was manifest error to refuse to allow Ribble to be impeached by testimony to contradict his denial on cross-examination, of the part he had taken in getting up testimony.
It was not error to allow a witness to be asked if he had deserted, or another witness to be asked if he had been charged with crime. There was no attempt to impeach by contradiction on these collateral matters, and the answers were admissible.
It seems to us that the impeachment of Fuller by Young, and Jane Shutly, should have been received. He had been asked about his statements to them concerning his testimony in this case, and had denied making such statements. Yet Fuller’s answer as to Young was ruled out, and Jane Shutly was not allowed to answer. The place and time were fixed with reasonable certainty, no objection for uncertainty being made when he was cross-examined, and his answers having been positive and sweeping, his statements that he had been offered a bribe, and would swear for it, were material.
The same remark will apply to the impeachment of Thomas Mulvany by Nelson Howe, where time and place were fixed accurately, and the fact was recent. We do not see, however, on what principle testimony could have been received concerning the conversation of James Mulvany, who had not been sworn, and was a stranger to the record in the circuit court.
We are also of opinion that the testimony in regard to playing cards in the barn with lights should have been allowed to be fully given. Fire might take from such a cause, and the defense were entitled to show all circumstances reasonably bearing on such a possibility.
Several questions of an impeaching nature were excluded on the ground that Fuller had made them to his counsel, and they were therefore privileged. We think the rule of privilege
When a co-defendant in a criminal case turns state’s evidence, and has attempted to convict others by proof also convicting himself, he has no right to claim any privilege concerning any of the facts bearing upon the issue. He has waived all privileges which would permit him to withhold any thing. — Foster v. People, 18 Mich. R., 266. It was expressly held in Alderman v. People, 4 Mich. R., 414, that this waiver covered confidential communications to attorneys, and there is no more reason for saving these than for saving the privilege against criminating himself. Each may be waived, and is by such criminating disclosures conclusively waived. Both client and counsel may be compelled to disclose the client’s statements which are pertinent to the issue.
A witness, William Cay ton, having been sworn to sustain Fuller’s reputation for truth and veracity, was asked whether he had not said at a certain time and place that he would not believe Fuller under oath, and answered that he did not think he had done so at that time, but that it was likely he might have said so at the time of Fuller’s arrest for this crime. This answer was stricken out as not responsive. He was then asked whether the arrest affected his opinion of Fuller, one way or the other. This was ruled out, as well as a proposition to show his statements to different persons to the same effect, that he would not believe Fuller under oath.
The objection that the answer was not responsive was
The purpose of any inquiry into the character of a witness is to enable the jury to determine whether he-is to be believed on oath. Evidence of his reputation would be irrelevant for any other purpose. And a reputation which would not affect a witness so far as to touch his credibility under oath, could have no proper influence. The English text-books and authorities have always, and without .exception, required the testimony to be given directly on this, issue. The questions put to the impeaching and supporting witnesses relate, first, to their knowledge of the reputation for truth and veracity of the assailed witness; and, second, whether from that reputation they would believe him under oiith. The only controversy has been whether or no the grounds of belief must rest upon and be confined to a knowledge of reputation for veracity only. But confined to that, the authorities are harmonious. — 1 Ciarhi'e’s Ev., 287 <& seq.; 2 Phil. Ev. (Edwards’ Ed.), 955, 958.. A very recent decision is found in Queen v. Brown & Hedley, L. R., 1 C. C. R., 70.
Until Mr. Greenleaf allowed a statement to creep into his work on evidence to the effect that the American authorities disfavored the English rule, it was never very seriously questioned. — See 1 Greenl. Ev., § 461. It is a little remarkable that of the cases referred to to sustain this idea, not one contained a decision upon the question, and only ■one contained more than a passing dictum not in any way called for. — Phillips v. Kingfield, 1 Appleton’s (Me.) R., 375. The authorities referred to in that case contained no such decision, and the court, after reasoning out the matter somewhat carefully, declared the question was not presented by the record for decision. The .American editors of Phillips and StarJcie do not appear to have discovered any such conflict, and do not allude to it. They do, however, as many decisions do, refer to the kind of reputation which should be shown, and whether of veracity or of other qualities. In Webber v. Hanke, 4 Mich. R., 198, no question came up on the record except as to the species of reputation, and the neighborhood and time of its existence; and what was said further was not in the case, and cannot properly dispose of the matter. The objection alleged ,to
So far as the reports show, the American decisions, instead of shaking the English doctrine, are very decidedly in favor of it, and have so held upon repeated and careful consideration, and we have not been referred to, nor have we found any considerable conflict. — See in New York, People v. Mather, 4 Wend. R., 229 (which was the view of Judge Oakley, no opinion being given by his associate); People v. Rector, 19 Wend., 569; People v. Davis, 21 Wend., 309; in New Hampshire, Titus v. Ash, 4 Foster, 319; in Pennsylvania, Bogle’s Exrs. v. Kreitzer, 46 Pa. St., 465; Lyman v. Philadelphia, 56 Pa. St., 488; in Maryland, Knight v. House, 29 Md., 194; in California, Stevens v. Irwin, 12 Cal., 306; People v. Tyler, 35 Cal., 553; in Illinois,. Eason v. Chapman, 21 Ill.) 33; in Wisconsin, Wilson v. State, 3 Wis., 798; in Georgia, Stokes v. State, 18 Ga., 17; Taylor v. Smith, 16 Ga., 7; in Tennessee, Ford v. Ford, 7 Humph., 92; in Alabama, McCutchen v. McCutchen, 9 Port., 650; in Kentucky, Mobley, v. Hamit, 1 A. K. Marsh., 590; also in Judge McLean’s Circuit, in U. S. v. Van Sickle, 2 McLean, 219.
Mr. G-reenleaf himself intimates that it might be a
Where an impeached witness has changed his domicile,, there appears to be no objection to showing his reputation in both places within a reasonable limit of time. But, as-the only object is to know whether he is to be believed afc the time when he testifies, a witness knowing his reputation then, should state that knowledge, although he may also be authorized in addition to show what his reputation had been elsewhere before.
The court should not have permitted the jury to consider any counts except those that charged all the defendants, or any except those which related to the burning with intent to defraud the insurers. No others specified any offense of which all could possibly have been guilty, and upon the rest there should have been a discontinuance or acquittal.
The testimony of Fuller, as an accomplice, was properly left to the jury to believe or not, whether standing alone- or corroborated. It was for them to determine to what extent they could credit him, and all of the circumstances of his employment and conduct were proper to be considered as affecting his credit, and they should have been so instructed. But they could not be directed what force to give to these matters.' That was their own province. While a jury cannot be compelled to disregard all the testimony of a witness who has wilfully falsified, yet they may do so if they do not trust it. In such a case they know the witness is not restrained by his oath, and they need not pay any respect to his statements beyond what they actually consider them to deserve. The fact that his evidence m more or less corroborated does not in such a case lead to any necessary inference that all the facts he has sworn to
The circuit court was asked, but refused, to give the following instruction; “This is a criminal trial on an information for felony, and all the questions of law and fact in the case are exclusively for the jury, and the jury are paramount judges, both of the law and the facts.” The court held they were judges of law and fact under some restrictions and conditions, but not in the absolute way indicated.
The precise definition of the rights of a jury in criminal cases is easier understood than expressed. Their decision upon the guilt or innocence of a prisoner can never be directly reviewed, and upon an acquittal there can be no new trial. But if they have the legal authority claimed in the request, their verdict of guilty would be of the same force as their acquittal. In this country, for a long time past, exceptions have been usually allowed to the rulings of the court on the trial, and if those rulings are erroneous, the conviction will be set aside. But this can only be upon the idea that the jury are expected to follow the charges given; and it is as contrary to the law, as usually administered, to refuse to give a proper charge, as to give an improper one. And if a judge were to decline to give any charge, — as he might, if it is of no importance, — it has been assumed that he would violate his duty.
The law does not favor unnecessary intrusions by one functionary upon ground of others. But the charge of a judge in criminal cases is one of the ancient and traditionary incidents of a trial, which must have been introduced for some purpose, and must have some value. It is certain that there is a great body of authority holding it to be meant for the guidance and instruction of the jury, and entitled to their respect. It is true that juries in criminal cases cannot properly find a conviction against their con
The power of juries in criminal and civil cases is the same in kind, though different in degree. The practice of disregarding or relieving against wrong verdicts in civil cases is one largely of modern growth. In early times verdicts were substantially conclusive. In modern times, though they may be set aside, they cannot be reviewed or altered. And setting aside verdicts as against law, is a matter of discretion and not of right. An appellate court can only review the action of the judge, not that of the jury. And this, too, is not by virtue of the old law, but by force of statutes, which, though ancient, are yet later in origin than jury trials. The jury system is generally regarded as deriving one of its chief advantages from having the law applied to the facts by persons having no permanent offices as magistrates, and who are not likely to get into the habit of disregarding any circumstances of fact, or of forcing cases into rigid forms and arbitrary Classes. It is especially important, where guilt depends on
It may be fairly regarded as one of the best features of the jury system, that the law, though interpreted by professional interpreters, can, only be applied to facts through the understandings of ordinary men of average capacity, and usually including in their number some of very simple minds. By this process it is divested of all that Would not be readily comprehended by all men. In this way over-nicety and technicality become less dangerous,- if not absolutely harmless; and an apparent deviation in- the verdict from the rules laid down, is often no departure from the rules as supposed to be laid down!
But if the court is to have no voice in laying down these Tules, it is obvious that there can be no security whatever, either that the innocent may not be condemned, or' that society will have any defense against the guilty. A jury -may disregard a statute just as freely as any other rule. A fair trial in time of excitement would be almost impossible. All the mischief of ex post facto laws would be done by tribunals and authorities wholly irresponsible, and there would be no method of enforcing with effect many of our most important constitutional and legal safeguards against injustice. Parties charged with crime need the protection of the law against unjust convictions, quite as often hs the public needs it against groundless acquittals. Neither can be safe without having the rules of law defined and preserved, and beyond the mere discretion of any one. - We must construe the jury system, like all other parts of our legal fabric, in the light of history and usage. It came
It would not be profitable to collate or discuss the authorities at length. They differ in terms more than in .substantial results. If the charge is proper, it can only be .so because it is to be respected. If juries disregard it, they may be free from personal risk, and in cases of acquittal their verdict is conclusive. But the power to do wrong with impunity does not make wrong right. The same thing cannot be lawful and unlawful when done by different persons.
. We understand the uniform practice, and the decided weight of opinion, to require that the judge give his views of ,the law to the jury as authority, and not as a matter to be ^submitted to their review. And while we recognise the
This question was presented many years ago to the then supreme court, but for some reason the decision, if made, has not been reported, and is not found. — People v. Supple, Jan’y., 1853.
There is undoubtedly some' difference between civil and criminal cases in regard to legal presumptions, which will prevent a judge from instructing a jury in the same way as to their weight. This was somewhat discussed in the case of Maher v. People, 10 Mich. R., 212. It is very well remarked by a modern writer on evidence, that “ artificial presumptions can never be safely established as means of proof in a criminal case. To convict an innocent man is an act of positive injustice, which, according to one of the best and most humane principles of our law, cannot be expiated by the conviction of an hundred criminals who might otherwise have escaped. — 2 Hale, 289. From such presumptions the common law is justly most abhorrent; and happily our statute-book has not been disgraced by many violations of the humane principles .of the common law in this respect.” — StarJs. Hv., 7H>, note †, ed. of 1869. There is no conclusion or presumption of fact which is not entirely within the disposal of the jury, as it is also entirely for them to determine what portion of testimony to believe or disbelieve; and “it is the conscience of the jury that must pronounce the prisoner guilty or not guilty.” — 2 Hale, 818. But while the rules of criminal law narrow the functions of the judge, they do not abrogate those functions.
Some errors are alleged concerning the dealings of the court with questions of fact. The jury were very fully directed that they must decide upon the facts for themselves, and we do not discover any instructions to the contrary of such a na
Neither are we disposed to discuss the question concerning the precise limits of a reasonable doubt. The jury were told they could, not convict without being satisfied to a moral certainty, and that defendant was entitled to the. presumption of innocence till every branch of the case should be established against him by evidence. They were also told that if they found a single material fact inconsistent Avith his guilt they could not convict. It is very possible that the definition by the court of a reasonable-doubt, as being such a one as would prevent the jurors from acting in their most important concerns; would, if standing alone, have been of questionable sufficiency; yet, whether correct or not, it could certainly have done no harm with the aid of the other instructions given.
But we do not think that juries can derive any help from attempts by numerous and complicated requests to explain what Avould be very much plainer without them. If a jury cannot understand their duty when told they must not convict when they have a reasonable dpubt of the prisoner’s guilt, or of any fact essential to prove it, they can very seldom get any help from such subtleties as require a trained mind to distinguish. Jurors are presumed to have common sense, and to understand common English. But they are not presumed to have professional, or any high degree of technical or linguistic-, training. The majority of. the special requests in this case, on both sides, might have been omitted with advantage; and if the jury came to a wrong conclusion, — on which Ave have no right to speculate, — Ave do not conceive that any course that might have
For the reasons we have given the judgment must he reversed and a new trial granted, and the respondent must he remanded into the custody of the proper sheriff, to he held in custody until bailed or otherwise dealt with according to law.