73 P. 705 | Wyo. | 1903
On information filed in the District Court of Laramie County, charging him with the murder of one William Nickell, the plaintiff in error, Tom Horn, was tried in said court and convicted of the crime of murder in the first degree, and sentenced to suffer the penalty of death imposed by statute upon that crime. Before sentence was pronounced a motion for new trial was filed 'and overruled, to which exceptions were reserved. The grounds of the motion, speaking generally, were the insufficiency of the evidence to sustain the verdict, alleged errors of law occurring in the admission and exclusion of testimony, and in the giving and refusing of certain instructions to the jury, alleged misconduct of the prosecuting attorney in his argument to the jury, and irregularities in the proceedings of the jury. The only specification of error in this court is that the District Court erred in overruling the motion for new trial. This brings up for review each matter properly presented to the court below by such motion, and not abandoned or waived by failure to discuss or refer to the same in the brief of counsel. The points relied on to sustain this assignment of error will be disposed of in their order, as briefly as may be consistent with the importance of the questions involved.
1. It is contended with much earnestness that the verdict is not supported by sufficient evidence. This proposition was presented in brief and upon oral argument with unusual skill, and the same is true of the manner of presentation of the other side of the question by counsel for the State. Indeed, on the whole case the arguments both for the plaintiff in error and the State were not only able and instructive, but displayed immense labor and research, and it is doubtful, to say the least, if in any criminal case
The deceased, William Nickell/ usually referred to in the record and by counsel as “Willie Nickell,” was a boy fourteen years of age, of average size, residing at the time of the homicide on a ranch in the neighborhood of Iron Mountain, in Laramie County, this State, with his parents, Kels P. and Mary Nickell. The testimony quite conclusively establishes the- fact, and it is not disputed, that he met his death as the result of two gun shot wounds inflicted by some other person on Thursday, July 18, 1901, at about 7 o’clock in the morning-, at or in the proximity of a gate about three-fourths of a mile from his home on the road leading from the latter place to Iron Mountain. The family had breakfast 011 that morning about 6 o’clock, and soon thereafter the father, accompanied by his brother-in-law and Mr. Apperson, a surveyor, left the house for the purpose of doing some surveying. As they were leaving Willie was seen by them at the corral arranging to go on an errand for his father to Iron Mountain, his mission being- the employment of a sheep herder. They went in an easterly direction from the house about a mile and a half, and as they were about ready to commence their work they heard three shots fired, seeming to come from the direction of the gate, where the shooting was afterward found to have occurred. Some remark was made about it. Mr. Apperson testified that Mr. Nickell said something to the effect that he wondered who fired those shots, that the reports were too loud for the gun carried by Freddie, a younger son, but the matter was given no further attention. The)'- all agree that the shots were heard at about 7 o’clock.
Shortly after Mr. Nickell and his companions had departed, and at about 6:30 o’clock, or twenty minutes to 7, according to the testimony of Mrs. Nickell, Willie left, going in a westerly direction, and was last seen by his mother as he was g’oing around the house up the road. He was on horseback. He was not afterward seen alive
The following morning, Frida}'-, July 19, 1901, at about 8 o’clock, Fred, a younger brother, took the cows out, going in the .direction and, as we understand, along the road traveled by Willie the day before, and he soon returned crying, and stated that Willie was killed at the gate. Mr. Nickell and Mr. Apperson started immediately for the gate, and they were shortly followed by the brother-in-law aforesaid and Mrs. Nickell. The body was found lying on its back in the road, with the head turned toward the house. The theory of the prosecution is that the boy had fallen on his face, and that the body had been turned over, owing to its situation, and the fact that the clothing was saturated with blood and gravel was sticking to the face and clothing; and that was the opinion of the witnesses who discovered the body, and seems also to have been the opinion of at least some of the physicians called to give expert testimony. Under the head of the body was a small-stone, or a ‘‘little rock," as expressed in the testimony, which appeared to have been placed there by someone. The body was found at a point sixty-five feet from the gate, which was open and lying down. Near the body was a pool of blood, and another pool was found at or very close to the gate, and between the gate and the body patches or spots of blood were found in the road.
We conceive it to be an undisputed theory in the case, at least every indication seems to point to it, that the boy was shot when he was standing at ,or very near the gate, and that he ran toward the house, falling where his body was discovered or close to that spot. The missiles entered the body on the left side, passing- entirely through it. The
To connect the plaintiff in error with the murder the prosecution relied upon a confession in connection with circumstantial evidence. The alleged confession was made to one Joe Lafors, a Deputy United States Marshal, in the office of the United States Marshal at Cheyenne, on January 12, 1902, and was overheard by two other witnesses, viz., Leslie Snow, a deputy sheriff of Laramie County, and Charles Ohnhaus, a stenographer, who had secreted themselves in an adjoining room of the marshal’s office behind a closed door separating the two rooms. They had thus secreted themselves in anticipation that Lafors might succeed in causing the plaintiff in error to talk about the murder, and his connection with it. Xo question is involved of duress or threats in respect to the confession, nol-is there any claim that the confession was inadmissible as being- involuntary or for any other reason. Lafors was not an officer of the county, and was not officially charged with an}7 duty to discover or arrest the perpetrator of the crime; but his relation to the affair ivas that of detective. At the time of the confession the plaintiff in error was not under arrest, and had not been publicly accused of the murder. The explanation of the plaintiff in error is that what he said in the conversation with Lafors was spoken in joke or said as a “josh;” but it is contended in addition to that, by counsel, that the plaintiff in error was in an in
At the time Horn did not know that any other person was present and listening to his talk with Lafors. The confession, as it is called, was brought out in the course of a conversation between Horn and Lafors, and consisted of answers by the former to several questions propounded by the latter in reference to the killing of Willie Nickell, in which Rafors assumed that Horn had done the killing-. Rafors had recommended Horn to some Montana parties as a good man to do some detective work in that state in regard to the stealing of cattle. The conversation was brought about through that circumstance, and can be better explained by a brief reference to the correspondence relating to that matter. One Smith had written to Rafors the latter part of December from Miles City, Montana, partly as follows: “I want a good man to do some secret work. And I want a man that I can trust. And he will have to be a man not known in this country. The nature of the work is this: There is a gang over on the Big Mason River that are stealing cattle and we propose to fit the man out as a wolfer and let him go into that country (and wolf) and if he is the right kind of- a man, he can soon get in with the gang. He will have to be a man that can take care of himself in any kind of country.” This letter was sent to Horn, and soon thereafter the latter replied by letter to Lafors, stating in substance that he would accept the employment. In that letter he wrote: “I would like to take up that work and I feel sure I can give Mr. Smith satisfaction. I don’t care how big or bad his men are, or how many of them there are. I can handle them. They can scarcely be any worse than the Brown’s Hole gang and I stopped the cow stealing- there in' one summer. . . . You may write Mr. Smith for me that I can handle his work and do it with less expense in the shape of lawyer
At this time and for several years prior thereto Horn made his home at a cattle ranch in the neighborhood, of Iron Mountain, where he was employed as a stock detective. He testified that it was his business to ride on the range alone and look after the interests of the company; that he kept track of the cattle in the country in a general way, and as closely as possible drove home all cows and calves he found belonging to the company in the pastures of other people; and that he kept as good track as he could of the people in the country that were killing and marketing beef — everything of that nature that will have a tendency to protect the interests of the company.
With this much by way of introduction, we will proceed as briefly as possible to set forth as much of the. conversation between Horn and Lafors as may seem necessary to a correct understanding of the case, omitting the profanit)'' as much as possible. We shall refer particularly to the testimony of the witness Ohnhaus, who took down the conversation in shorthand; but it should be remarked that the three witnesses — Lafors, Snow and Ohnhaus — agree substantiall}' as to what was said.
After Lafors and Horn entered'the marshal’s office, the former handed the latter a letter, remarking: “Here is your letter of introduction to Mr. W. G. Pruitt, which reads as follows,” and he proceeded to read it aloud. Then Horn said: “I want to go on the Union Pacific. I know
Horn said: “No,-I left no trail. The only way to cover up your trail is to go barefooted.” Joe said: “Where was your horse?” Horn replied: “He was along ways off." Lafors said: “I would be afraid to leave my horse so far away, you might get cut off from him,” to which Horn replied: “You don’t take much chances. These people are unorganized, and, anyway, I depend on this gun of mine. The only thing 1 was ever afraid of was that I would be compelled to kill an officer or a man I didn’t want to, but I would do everything to keep from being seen, but if he kept after me I would certainly kill him.” The conversation then continued as follows:
Horn: “I think it was this way: Suppose a man was in the big draw to the right of the gate — you know where it is — the draw that comes into the main creek below Nickell’s house, where Nickell was shot. Well, I suppose a man was in that and the kid came riding up on him from this way, and suppose the kid started to run for the house, and the fellow headed him off at the gate and killed him to keep him from going to the house and raising a hell of commotion. That is the way I think it occurred.”
Lafors: “Tom, you had your boots on when you ran across there to cut the kid off, didn’t you?”
Horn: “No, I was barefooted.”
Lafors: “You didn’t run across there barefooted?”
Horn : “Yes, I did.”
Lafors: “How did you get your boots on after cutting up your feet?”
Horn: “I generally have ten days to rest after a job of that kind. Joe, do you remember the little girl?”
Lafors : “Who do you mean ?”
Horn: “The school marm. She was sure smooth people. She wrote me a letter as long as the Governor’s message, telling me in detail everything asked by Stoll, the prosecuting attornej-. Stoll thought I was going to prove an alibi, but I fooled him. 1 had a man on the outside keeping- me in touch before I showed up with everything that was going on. I got this letter from the girl the same day I got my summons to appear before the coroner’s inquest.”
Lafors: “Did the school marm tell everything she knew ?”
Horn: “Yes, she did. I would not tell an individual like her anything, not me. She told me to look out for you. She said, look out for Joe Lafors; he is not all right; look out for him, he is trying to find out some
Lafors: “How many days was it before the killing of the kid?”
Horn: “Three or four days, maybe — damned if I want to remember the dates. She was there, and of course we soon paired ourselves off.”
Lafors: “What nationality was she?”
Horn: “She was one-quarter Jap, one-half Korean, and the other German. She talks almost every language on earth.”
Lafors : “Tom, didn’t Jim Dixon carry you grub ?”
Horn : “No ; no one carried me grub.”
Lafors: “Tom, how can a man that weighs 204 pounds go without eating anything so long?”
Horn: “Well, I do. For some times T go for some days without a mouthful. Sometimes I have a little bacon along."
Lafors: “You must get terribly hungry, Tom.”
Horn: “Yes; sometimes 1 get so hungry that I could kill my mother for some grub, but I never quit a job until I get my man.”
Lafors : “What kind of a gun have you got?”
Horn: “I used a 30-30 Winchester.”
Lafors: “Tom, do you think that will hold up as well as a 30-40?”
Horn: “No, but I like to get close to my man. The closer the better.”
Lafors: “How far was Willie Nickell killed?”
Horn: “About 300 yards. It was the best shot that I ever made and the dirtiest trick 1 ever done. I thought at one time he would get away.”
Horn : “You bet your-life I did.”
Lafors: “Tom, do you need any more money for this trip ?”
Hora: “No. If I get a pass I will not need any more money. If I have to buy a ticket, I must have a little more money; but today is Sunday, and I will have to wait until tomorrow.”
Lafors: “Well, it is after noon and I will go home and see you again this afternoon or this evening, when we can talk this matter over.”
Horn: “All right, I will be back. I want to know all about these people before I go up there.”
Dafors: “Tom, let us go down stairs and get a drink. I could always see your work clear, but I want you to tell me why you killed the kid. Was it a mistake?”
Horn: “Well, I will tell you all about that when I come back from Montana. It is too new yet.”
Horn and Lafors then left the office, but they returned in the afternoon, when the conversation was continued as follows:
Horn: “Joe, we have only been together about fifteen minutes, and I will bet there- is some people saying, ‘What are these-planning now, and who are they going to kill next?’ We have come up here because there is no other place to go. If you go to the Inter Ocean (Hotel) to sit down and talk a few minutes, someone comes in and sa)'s, %et us have a drink,’ and before you know it you are standing up talking, and my feet get so-tired it almost kills me. I am 44 years, 3 months and 27 days old, and if I get killed now, T have the satisfaction of knowing I have lived about fifteen ordinary lives. I would like to have had somebody who saw my past, and could picture it to the public. It would be the most-interesting reading in the country; and if we could describe to the author our feelings at different times, it
Lafors: “How much did you get for killing these fellows? In the Powell and Lewis case you got $600 apiece. You killed Lewis in the corral with a six-shooter. I would like to have seen the expression on his face when you shot him.”
Horn: “He was the scaredest son-you ever saw. How did you come to know that, Joe?”
Lafors: “I have known everything you have done, Tom, for a great many years. I know where you were paid this money.”
Horn: “Yes, I was paid this money on the train between Cheyenne and Denver.”
Lafors: “Why did you put the rock under the kid's head after you killed him? That is one of your marks, isn't it?"
Horn: “Yes, that is the way I hang out my sign to collect my money for a job of this kind.”
:|c * * * * * * * *
Lafors: “Have you got your money yet for the killing of Nickell ?”
Horn: “I got that before I did the job.”
Lafors: “You got $500 for that. Why did you cut the price?”
Horn: “I got $2,100.”
Lafors : “How much is that a man ?”
Plorn: “That is for three dead men, and one man shot at five times. Killing men is my specialty. I look at it as a business proposition, and f think I have a corner on the market.”
It appears that when they returned to the office in the afternoon the conversation at first consisted of stories told by each about various troubles they had been connected with; and such stories concerned the killing of people
It is proper to state, before passing in review the other circumstances in the case, that Horn, testifying in his own behalf, admitted making all these statements to Lafors at the time mentioned. While admitting that he had been drinking some, he testified that he knew what he was saying, and he remembered all of it except that he did not remember having said that it was the best shot he had ever made and the dirtiest trick he had ever done. He testified, however, that if the witness Ohnhaus had so taken it down, he did not doubt his having made the statement. He explained the affair by stating that everything was said as a '‘josh.” He says that he saw that Lafors was assuming and insinuating that he had killed Willie Nickell, and he did not wish to disappoint him, but would have said or admitted anything that he thought would please him. He testified further that, at one point in the conversation, he was afraid that Lafors would discover that he was tying. He denied, when testifying, that he killed the boy or that he had ever killed anyone.
The three witnesses to the conversation testified that, although the plaintiff in error may have been drinking, he was not drunk, but was sober, and Lafors and Snow testified that his manner during the conversation was sincere. On the other hand, the defense introduced several wit
It is contended quite strenuously that some of the facts in the case are in conflict with the admissions or statements made by Horn in his conversation with Lafors, and render it extremely improbable, if not impossible, for the killing to have -occurred in the manner explained by him in that conversation. Counsel disagree, in the first place, as to the place where Horn intended by his statement to Lafors to place the person who did the killing. For the defense it is insisted that the right of the gate would be the north side, or on the right of a person standing at the gate looking west; while the prosecution construe the position as the right to one who would be looking .east. Counsel for the defense contend that it would have been impossible for a person to have gone barefoot over the ground from the supposed location of the assailant north of the gate, without great injury to his feet, and it was shown by a witness who slept with Horn in Laramie a few nights after the killing that his feet did not appear to have been injured. Counsel also contend that the remarks or admissions of Horn were the ravings or vaporings of an intoxicated man, without any regard to the truth. Another point of conflict claimed to exist between the facts and the confession is in relation to the gun Horn said he used. It is claimed, and there is some expert evidence to that effect, that the wounds could not have been produced by a 30-30 Winchester.
It is unnecessary, we think, to enter upon any discussion of the probable location of the boy’s assailant. Maps and photographs in abundance were produced in evidence showing- every material detail of the topography of the country; and it was minutely described by witnesses. In this respect Horn’s statements, and the character of the country,
We come now to a brief rehearsal of some of the other material circumstances that are claimed to corroborate the confession of the plaintiff in error, or tend to connect him •with the crime independent of that confession. In the first place, no witness testifies to having seen anyone in the immediate vicinity of the place of the killing on Thursday, the date of the crime. But the prosecution introduced testimony showing the presence of Horn in the neighborhood from Sunday evening, the 14th, up to AVednesday evening, the 17th. And the facts thus established were admitted by the plaintiff in error.
Horn arrived at the ranch of William Clay Sunday evening, and he stayed there that night. He departed from Clay’s house Monday morning-, returned between 1 and 2 o’clock in the afternoon and shortly went away again. Clay's ranch is located north and in the immediate neighborhood of the Nickell ranch. We are not certain that the evidence shows that the two places adjoin each other, but it is clear that they are not far apart. The two houses, we believe, are not to exceed two or three miles apart, and the distance may be even less than that.
Monday morning at about 10 o’clock he appeared at the ranch house of one Miller, and made that place his headquarters until about 9 or 10 o’clock Wednesday morning, the day preceding the killing. He slept there Monday and Tuesday nights. Tuesday morning- he and Mr. Miller went fishing a short time; and about 4 o’clock in the afternoon he had his horse brought up, and he rode away, going, as he stated, to what is known as the tree claim. He was absent about one hour. On his return he remarked that he had seen Nickell’s sheep in the Miller pasture. Horn testified that he went to see if the Nickell sheep were .in any of the pastures belonging to his employer, and found that they were not. Wednesday morning when he left the Miller place he rode in a southerly direction. The Miller
The witness Bray, who owned a ranch about two miles north of Clay’s place, had been working for Clay on Monday, the 15th, and saw Horn when he returned to Clay’s, as he says, about noon of that day. On Wednesday evening, on returning home from Clay’s, .where he had been woi'king, not long after 6 o’clock, he again saw Horn off and to the west of the road and off his horse, about a mile and three-quarters northwest of the Clay place. His horse was about twenty-five feet from him and toward the south. He seemed to be doing nothing at the time but standing there. Soon after the witness arrived home he again saw Horn, on horseback, as we understand, going toward the road that took him in the direction of the Sybille. He was then west of the Bray place, and about half a mile away, where a turn is made to go west. The witness saw him until he passed over the hill. This would bring Horn on Wednesda)r evening about four to five miles north of the Nickell ranch. And it is, therefore, apparent that, although he had gone in a southerly direction when leaving Miller’s, he had changed his course at some time during the day, so as to bring him north of both the Miller and Nickell ranches. Indeed, Horn himself says that after
From this time until the following Saturday there is much conflict in the testimony concerning the whereabouts of the plaintiff in error. The prosecution introduced a witness who testified to having seen him just outside of Laramie City, riding into that place about noon on Thursday, and an attempt was made to show that he had put his horse about that time in a certain stable in Laramie, and that the condition of the horse made it evident he had made a rapid ride that morning. Laramie City is about thirty-five to thirty-eight miles from the place where the crime was committed. The theory of the prosecution is that, immediately after the killing, Horn rode to Laramie. Horn testified that he did not go into Laramie until Saturday; and that from Wednesday evening- until Saturday he remained in the country and from seven to ten miles from the Nickell ranch, riding the range and looking over pastures in the day time, and sleeping- out at night, with nothing to eat except some bacon and bread, which he had previously secreted at. some point near the Bray place and took again into his possession Wednesday evening, in addition to a rabbit or two that he killed and roasted; and that Saturday he went into the ranch where he lived, changed his clothes, obtained a different horse — changing to a dark bay called “Pacer,” and after eating- dinner went to Laramie City. His statements as to the time he arrived at the ranch, the changing of horses, and his departure for Laramie is corroborated by several witnesses, who were at the ranch on Saturday.
On behalf of the prosecution, a witness not already mentioned testified that he met Horn in a saloon at Laramie Friday evening. The books kept at the stable where Horn put up his horse showed that his horse was there ten days, from July 20 to July 30. The entry was made up, not at
The defense produced a witness who testified to having seen Horn riding across the country Thursday morning about twenty-five miles south of the place where the crime was committed, but the veracity of this witness was impeached by several witnesses; and, notwithstanding that others were called on behalf of the defense to show his good reputation for truth and veracity, the. jury may have refused to credit his testimony. Moreover, it may be said that Horn’s recital of his wanderings does not seem to place him Thursday morning where the witness claims to have observed him.
One other item of evidence deserves mention. In explaining the killing of deceased, Horn referred to a place where Nickell was shot, and it cropped out in the testimony of Mrs. Nickell, in recalling a certain date, that Mr. Nickell had been shot about seventeen days after the boy had been killed. In Horn’s testimony he had claimed that the conversation with Lafors was the result or had “emanated,” as he put it, from previous conversations between them, when they had been talking about killing people, and in which conversations Lafors wanted him to assist him in fastening the crime upon another party. On rebuttal, La-fors, in referring to such previous conversations, testified in effect that Horn admitted having shot at Mr. Nickell. This evidence was objected to, and it is now urged that error was committed in its admission. But it was before the jury, and we are now considering the contention that the verdict is not sustained by the evidence.
It appeared in evidence that Nickell was the only person in that neighborhood who had sheep. It is a matter so notorious that the jury might have considered it that more or less enmitv between cattle and sheep owners is frequently
We are not permitted under the law to substitute our judgment for that of the jury upon the facts. The theory of the law is that the jury are the better qualified to pass upon them. They are confronted by the witnesses, and are not only, under the law, the sole judg-es of their credibility, but they are better enabled to determine that matter than an appellate court. In Cornish v. Territory, 3 Wyo., 96, it was said: “Where there is material evidence tending to prove the prisoner’s guilt before the jury, and the
In the consideration of the claim, therefore, that the evidence is insufficient to sustain the verdict, and that tlfc trial court erred in refusing to grant a new trial on that ground, the question is not whether the evidence convinces the appellate court beyond a reasonable doubt of the guilt of the accused; but whether if believed by the jufiy the facts are sufficient to have reasonably justified the verdict. It is not the duty of this court to enter upon the same critical examination of the evidence that was incumbent upon the jury. Our study of the evidence is not for the purpose of arriving at a judgment in our own minds as to the guilt of the prisoner. We review the evidence to ascertain and determine whether in any reasonable view of the facts the jury were justified in returning a verdict of guilty. It is needless to say that we have made a careful examination of all the testimony, and, although it has been most ably argued that the verdict in this case is not supported by the testimony, we are constrained to hold the contrary. Some of our reasons have been already indicated.
It is quite evident that the jury believed the confession of the accused made during his conversation with Lafors; and that they believed Horn to have been in possession of his senses at the time, and that he spoke earnestly, rather than jokingly. To overcome the confession, in addition to the contention that it was not made seriously, it was sought to show on the part of the defense that, standing where Horn indicated he stood, the circumstances did not accord with his statement; and that the wounds upon the boy’s body could not have been made with a projectile of the
Some of the physicians gave it as their opinion that the wounds were produced by a btillet of a larger calibre than 30-30. But it was an opinion only. Dr. Barber, while expressing- that opinion, basing it upon the -statements of well-known writers on the subject, as well perhaps as upon his own experience, stated that he could not testify with accuracy upon the question; and there is expert testimony in the record to the effect that it is quite impossible to definitely determine the exact calibre of the bullet which produced the wound. In view of what the jury may have believed to be the uncertainty of the expert opinions, while they may have given due respect to the opinions expressed as being- not only honest, but founded upon personal experience -in some cases, and the result of observations set forth in standard works on the subject, they may have accepted the admission of the accused that he used a 30-30. And we do not think the evidence is to be construed as pointing so positivel}'- to. the contrary that we should hold the jury unwarranted in that conclusion.
Again, the jury may not have believed that the evidence sustained the theory of the prosecution that Horn made a hurried flight into Laramie Thursday morning. But if not, they may have believed that he remained in the immediate or comparative vicinity of the crime, 'screening himself from observation until Saturday. It was not essential to their verdict of guilty that it should be found beyond a reasonable doubt that the prisoner rode to Laramie on the day of the crime. It might be conceded also that the proof as to some of the circumstances was calculated to throw some doubt upon the accuracy of Horn in his admission to. Lafors of the manner in which the killing was accomplished, allowing counsel to place their interpretation upon his explanation. There are some matters in this connection, and in relation to a few other particulars, that are not made as clear by the record as they apparently were to
But the explanation of Horn in the confession was given in a very general way, and there does not appear to have been close attention to detail when he was describing how the killing occurred. Moreover, it seems that it was not intended as a complete statement. Lafors testified that Horn said the matter was too new, but he would fully explain when he returned from Montana.
Moreover, the jury had before them such facts as indicated quite strongly that the accused had some object in observing the Nickell ranch or property, and that he would be concerned in preventing a commotion that might be caused if his presence should be noticed. On the entire case we find ourselves unable to say that the evidence was insufficient, and that for such reason the court ought to have granted a new trial, and erred in not doing so.
We ought perhaps to advert to another element in the testimony. Evidence was introduced to establish the fact of certain statements by Horn in Denver tending to inculpate him as the party guilty of this crime. To overcome that evidence it was sought to impeach one of the witnesses to the alleged statements, and to show that at the time when they were alleged to have been uttered Horn was suffering from a broken jaw, and was unable to speak. It is impossible for this court to say what credence was placed upon that testimony, or what effect it had upon the verdict. The evidence was clearly admissible. Indeed, no objections were urged to it. It was before the jury for what they might consider it worth. If the parties who related the occurrence testified to things that were untrue, and had
2. The refusal of the court to give to the jury the following instruction requested by the defendant on trial is assigned as error:
“The court instructs the jury that the confessions of a prisoner out of court are a doubtful species of evidence and should be acted upon by the jury with great caution."
■ Counsel refer to the case of Hay, Executor, v. Peterson, 6 Wyo., 432, as sustaining this instruction. The remarks of the court in the opinion in that case relied upon by counsel were not necessary to a determination of the case. They were used in discussing an altogether different instruction in a civil case with reference to an admission of the plaintiff that nothing was clue him. The court had been requested to charge the jury that the admission was prima facie evidence of payment. Error was predicated upon the refusal to give the instruction; and the refusal was, held not to be error. In discussing- the matter the Chief Justice said the weight to be given to the testimony of mere admissions is to be determined by the jury. Upon that ground the instruction was held improper. But the opinion went on to say that “it may be proper for the court to instruct them that such testimony is usually unsatisfactory and should be received with great caution.” It is evident that the court was not deliberately announcing a principle applicable to all cases, and that the inquiry then before the court did not at all depend upon such a doctrine.
It is usually stated as a general rule that verbal admissions ought to be received with great caution. The reason for that rule is given by Greenleaf as follows: “The evidence consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake;
In Gay v. State, 2 Tex. App., 127, cited by counsel for plaintiff in error, it is said that the confessions of a defendant should be received with great care and caution, “owing to the fact that such testimony is so liable to be misunderstood, so easily fabricated, and so hard to be contradicted, as the witness deposing to it often locates the time and place when and where there are no other persons present to contradict his story if it is untrue. It has been also forcibly and truly urged that the mind, under the pressure of calamity, is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or truth, as different agitations may prevail.” And the learned court quotes the language of Blackstone discouraging a reliance upon confessions for the reason that they are “ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered ac- • curately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.” (4 Bl. Com., 357.)
Assuming the correctness of the requested instruction as an abstract legal proposition, it does not necessarily follow that it should in all cases be contained in a charge to the jury where admissions or confessions constitute part of the proof. Every instruction should be applicable to the case. The instruction expressed the law only partially as applied to the facts in the case at bar. In People v. McArron (Mich.), 79 N. W., 944, the trial court had been requested to instruct the jury to the effect that the statements of the defendant at the time of his arrest are to be received with great caution, and the request embodied the reasons therefor as laid down in the authorities. The appellate court held that no error was committed in refusing the instruction. The ground taken was that the facts in the case did not render the instruction necessary. The court say: “According to respondent’s own testimony, he did not know he was under arrest when he made the statement. The officer said no more to him than that he wanted him to come down to an inquest; that a boy had been found in front of a new house, and that T was with him.’ In the light of this testimony, was there any occasion to give the nineteenth request? I think not.”
In the case at bar there is no question of the accuracy of the statements. They arc admitted to have been said by the defendant himself. He was not under arrest, and had not been publicly accused of the crime. The statements were not misinterpreted. He admits that he intended Labors to understand that he was acknowledging his commis
Moreover, at the request of the State, the jury were instructed in substance that they were the judges of the fact whether defendant was under the influence of liquor at the time, and that the confession was entitled to that weight which the jury might think it entitled to, and that it was for the jury to determine whether they were sincere statements of the defendant admitting his participation in the killing of the deceased; and the court said, among other things: “A confession voluntarily made, no matter through what motive, and correctly reported, is admissible'; but it is exclusively for the jury to determine what weight they will give to the confession.” That instruction informed the jury also that there could be no doubt of the language used by the defendant, under the testimony in the case, and it properly left the jury to determine whether or not the defendant was serious at the time or joking, or under the influence of liquor to such an extent as to render his statements unreliable. It thus appears that all the law upon this subject applicable to the case was given'. We think the request was properly refused.
3'. It is further contended that the court erred on the trial in refusing to permit the defendant to introduce certain evidence to show motive and opportunity of other per
However, the defense produced one Whitman as a witness and propounded to him the following question: "You may state what, in July, 1901, was the relation of the Nick-ell family to its neighbors?” Objection was interposed on the ground of immateriality, whereupon counsel stated: “[ desire to prove that there were feuds, not with one, hut with two or three, immediate neighbors that resided there in the vicinity, and the character of the ¡ feuds, and that there had been threats of killing on both sides, and that both Mr. Nickell and Mr. Miller had been bound over to keep the peace to one another;. and the general situation in that community." The objection was sustained.
It is urged that the court erred in these various rulings, and to support the contention the rule is invoked that where the State depends on circumstantial evidence to convict a defendant any testimony tending to show that some other person committed the crime is admissible. Counsel state the rule broader than that, and insist that testimony may he introduced tending to show that. another person may have committed the crime; and the rule is so stated by some courts. But we think it is not generally or usually held that facts are competent .which have no further effect than to cast a hare suspicion upon another. It is generally conceded that a defendant in a criminal case may, for the purpose of establishing his own innocence, prove Such facts as
One of the prominent rules of evidence is that it must tend to prove the issue. It is not necessary that every fact should bear directly upon the issue, but it becomes admissible if it tends to prove the issue, or constitutes a link in the chain of proof. The rule excludes all evidence of collateral facts which are incapable of affording any reasonable presumption or inference as to the principle fact or matter in dispute, and the tendency of which is to divert the mind from the point in issue, and to excite prejudice and mislead or confuse the jury. (1 Greenleaf on Ev., Secs. 51, 52; Gillett on Indirect & Coll. Ev., Sec. 54; Com. v. Abbott, 130 Mass., 472.)
The identity of the person who shot the deceased was a material point in dispute in the case. True, the prosecution relied upon a confession of the defendant, as well as upon proof of circumstances to establish his guilt. But he denied the genuine character of the confession, while admitting the statements attributed to him, denied that he did-the shooting-, and denied that he. was where the killing occurred at the time. We think, therefore, it would have been competent for him to show by proper testimony that the crime was committed by another; and to that end he was at liberty, if within his power, to produce evidence reasonably tending to show such fact. The direct inquiry, therefore, is whether the offer on behalf of the defendant was sufficient to constitute the evidence admissible.-
It is evident that no precise rule can be laid down to govern the admission of such evidence in” all cases. Much
In Commonwealth v. Abbott, supra, the Massachusetts court, after stating that as one step towards proving that some person other than the accused committed the crime, the latter had the right to prove such a state of ill feeling-on the part of a third person as would furnish him with a motive for the commission of the crime, say: “The existence of ill feeling as a motive for the commission of crime will not alone justify submitting to a jury the question of the guilt of a person entertaining such feeling. It becomes material only when offered in connection with other evidence proper to be submitted, showing- that the person charged with such ill feeling was in fact implicated in the commission of the crime.” In Carlton v. People, supra, it is said: “It is competent for the defendant to show by any legal evidence that another committed the crime with which ■ he is charged, and that he is innocent of any participation in it, but this cannot be shown by the admission or confessions of a third person not under oath, which are only hearsay. The proof must connect such third person with the fact, that is, with the perpetration of some deed entering into the crime itself. There must be proof of such a train of facts and circumstances as tend clearly to point to him, rather than the prisoner, as the guilty party.”
The question was discussed at length in the case of State v. Beaudet, supra, and it was held that proof of the threats offered would not have shown the party making them guilty of the murder, nor rendered the circumstances relied upon by the State inconsistent with the guilt of the accused or consistent with his innocence. And the court say: “It does not seem to us possible that the proposed evidence could have impaired in the least the circumstantial evidence against the accused; and surely no one'would claim that it could affect the evidence derived from the confcssioii of the prisoner.”
Now, the offer in the case at bar was not to show an ill feeling on the part of one individual, but of several, and it was not connected with any other offer to show overt acts on the part of such individuals toward the commission of the crime charged against the prisoner, nor even an opportunity on their part to have perpetrated the crime. Nor was there any evidence to that effect. It must be assumed that no evidence on the subject beyond that proposed was .to be tendered. The offer was limited to the showing of a possible motive on the part of someone to do some injury to some member of the Nickell family, and perhaps to take the life of some member of that family. In our judgment, the offer cannot be construed as going beyond that. The proposal to show the general situation in the community we cannot conceive to have been at all competent unless it would have had some relevancy in relation to the res gestae; and it is not explained how it would have been material in
We do not perceive that the offered testimony would have had any reasonable tendency to establish the innocence of the defendant. Its effect, if any, could have been no greater than to generate a mere suspicion that some other person might have committed the crime solely because he entertained a feeling of ill will or hatred against the Nickell family at some time and may have uttered threats of taking life. The evidence offered does not come within the rule relied on by counsel for plaintiff in error, and the court did not err in excluding it.
4. It is contended that prejudicial error was committed by the trial court in permitting counsel for the State to interrogate Dr. Barber, a witness called by the State, with reference to his testimony given upon the preliminary examination of defendant. The witness, was asked whether he could say anything about the size of the projectile that, produced the wounds upon the body of the deceased with certainty. He answered: “Not with certainty, but from actual measurements of the wound of entrance — in the abdomen measuring three-eights of an inch — I am of the opinion that the projectile was a bullet from 38 to 45 calibre.” Counsel thereupon asked him to revert to his testimony on the preliminary hearing-, and whether he remembered of saying that he could not state with certainty as to the cal-ibre of the bullet. The question being objected to as an improper method of examining one’s own witness, and
We are unable to perceive that the defendant was materially prejudiced by this examination. The witness expressed his opinion as to the calibre which agreed with the position taken by the defense, but maintained the correctness of his former statement, that he could not testify with accuracy, and so stated at other points in his testimony.
But it is evident from the record that the prosecutor was surprised at the testimony of the witness in the expression of a positive opinion regarding the probable calibre of the projectile that produced the wounds. The witness was one of the physicians who had conducted the post mortem
While it is not necessary to so decide, it is not improbable that, without the aid of the statute, the examination was proper for the purpose of probing the recollection of the witness, and inducing him to correct the supposed error in his testimony, as well as to explain the circumstances inducing the prosecutor to call him. (Arnold v. State, 5 Wyo., 439; 1 Greenleaf on Ev. (14th Ed.), Sec. 444.)
5. Error is predicated upon the admission in evidence of a cartridge and the circumstances of its discovery. The cartridge was a 30-30 calibre, and such as might be used in the rifle carried by the defendant, and which he declared
The theory of the prosecution was that Horn had traveled this road in his flight to Laramie, immediately after the homicide. The country in that locality was very sparsely settled. The road, while a public highway, was evidently traveled but little or by few people. It is difficult, therefore, upon any legal principle, to-define a boundary to the vicinity or neighborhood of the crime. In this respect we think some discretion must be accorded the trial judge. It is true that other persons in the community had^ the same kind of rifle, and might have kept the same kind of cartridges; but while that fact would lessen the strength of the evidence, we think it would not render it inadmissible, if the time or place of its discovery did not render it incompetent. Although its effect as a circumstance in the case must have been slight, we are not prepared to hold the admission of the evidence to have been erroneous. The jury were doubtless capable of determining the weight to be given to it, and we are not convinced that it was calculated to mislead them. It is argued that in this particular case the prejudice and clamor against the defendant -were such as to cause the merest trifle to seem like strong proof. The trial court must have been conversant with the situation, and was infinitely more able to judge of that matter than we are, conceding that the situation could be held to affect the admission of testimony.
6. If there was any error in admitting in evidence, over the objection that they were irrelevant and immaterial, the letter of I-Iorn, of January 7, 1902, to Lafors, and the let
'7. In discussing the next objection, we will endeavor to state as briefly as possible the facts leading up to it in the order of their occurrence. It will be remembered that, in the conversation with Rafors, the defendant referred to a man shot at five times; and that in the testimony of Mrs. Nickell the fact was incidentally" mentioned that her husband had been shot at a time about seventeen' days after her son had been killed. On the cross-examination of the defendant on the subject of his conversation with Rafors, upon being asked whether Rafors had used the language as testified to concerning' his inabilitv to find the defendant’s
Again, later on in his cross-examination, he stated that he had talked over the shooting of Willie Nickell with Lafors previous to the January conversation, and that there was never any intimation at any previous conversation between them that he was connected with the killing, but that in the previous conversation Lafors desired him to assist him in convicting some other person. In answering a question as to whether he was interested in ferreting out murders as well as cattle thieves, he said: “That would
It appeared from the cross-examination of the defendant, and was a notorious fact in the community, that some time before — we believe, some years before — two men named Powell and Lewis, respectively, had been killed in the vicinity of this trouble. The defendant was asked in reference to his statement that the money paid him was for three men killed and one man shot at five times, if Powell, Lewis and Willie Nickell were not referred to as the dead men, and he replied that he thought they were enumerated. He was asked if the one man shot at five times was Kels Nickell. His answer was: “I think that 'is the way it was reckoned — was understood if it is not enumerated. I think that is the way it Was understood, anyhow.”
The witness Lafors was called in rebuttal, and interrogated by the prosecutor regarding the previous conversations between himself and the defendant. Pie was asked to state whether in any of them the subject was that the defendant should go in with him and furnish evidence to convict somebody in the country. The witness replied that he had never had such a conversation at any time. Upon similar questions being propounded, objections were interposed on the ground that it was not proper rebuttal, and not relevant to the examination in chief of the defendant. The objection was overruled, and the witness specifically
It is very earnestly argued that the admission of this evidence violates the rule forbidding proof of the commission of any other crime by the defendant; and that except proof of the crime charged, and the defendant’s connection with it, it is not competent to blacken the character of the defendant on trial; and it is insisted that the sole force of the testimony thus elicited from Lafors was to show the participation of the defendant in another and distinct offense. Counsel urged that the history of these troubles was a matter of such public notoriety that this court should take into consideration the knowledge of its members of such matters; and that, in view of such fact, the evidence admitted was so clearly collateral as to un
It is further contended that the attempt of the defendant to give certain conversations with Lafors did not warrant the prosecution in not only denying them on rebuttal, but to state the whole thereof referring to a separate and distinct crime. And the additional proposition is suggested that the examination of Horn on this subject went beyond proper cross-examination, as relating to a collateral matter, and could not, for that reason, be contradicted.
This raises one of the most vital and serious questions in the case. There can hardly exist a doubt that the evidence under consideration was calculated to- operate to the serious detriment of the defense by enhancing the probability of conviction. If, therefore, we were convinced that the testimony had been improperly admitted, it would be our duty without hesitation to order a vacation of the verdict. But, after the most careful investigation, both of the evidence and the law upon the subject, we are clearly of the opinion that the rules of evidence were not violated by the admission of the testimony. The difficulty is not so much in understanding- the legal principles involved as in the application of those principles to the facts of the particular case.
It is an elementary and salutary rule that a party is not permitted to contradict a witness upon purely collateral and irrelevant matters brought out on cross-examination. Was the supposed connection of the defendant with the shooting of or at Kels Nickell a collateral matter and irrelevant to any issue in the case? The defendant repeatedly stated on both his direct and cross-examination that he had never killed anyone, nor contracted to kill anyone. Having admitted the accuracy of the conversation of January 12 between himself and Lafors, as related by the witnesses for the State, and that the reference in that conversation to one man shot at five times was to Kels Nickell,
The reference to the shooting at Kels Nickell was a material fragment of the confession, tending- to illuminate the transaction, uncover the motive and explain generally
The prosecution made no effort to introduce affirmative evidence of the fact of the shooting of Kels Nickell, nor to otherwise show defendant’s knowledge thereof or participation therein, except by his own admissions; and this circumstance cropped out in the main confession as a part of it, and as explanatory somewhat of his motives; ’ and came to the surface again on his cross-examination, and in rebuttal for the purpose of contradicting- his testimony.
It seems to us, therefore, that it was relevant upon an important issue in the case, viz., whether his confession was or was not genuine, and intended to seriously and truthfully connect himself with the homicide. If material for any purpose the evidence would not become inadmissible, because it might also point to the defendant as the perpetrator of an independent crime.
The general rule is not to be disputed, that proof of the' perpetration of a separate and distinct crime will not be admitted for the purpose of aiding the conviction of a defendant of the particular crime charged. Ordinarily such proof, even in respect to a like crime, will have no possible
Proof of participation in other crimes of a similar nature is only competent when it bears directly upon the question of guilt of the crime for which the accused is being tried. If it has a reasonable tendenc}' to establish the guilt of the prisoner of the crime charged, other than by merely showing a capacity or disposition to commit such crimes, or to show that, having committed one crime, it is probable he might be guilty of the one charged against him, it may be admissible. Hence, there are a number of well defined exceptions to the general rule; and the chief difficulty in any case is to determine whether it comes within any of the exceptions. In People v. Sharp, 107 N. Y., 427, Mr. Justice Peckham remarked: “The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that under ordinary circumstances proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded. But for the purpose of showing guilt of the offense for which the pris
And in the case of People v. Molineux, supra, the learned court in the main opinion summarizes the exceptions to the rule as follows: “Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, (5) the identity of the person charged with the commission of the crime on trial.”
Upon the facts, this case is peculiar. It is evident' that the chief point in issue was the identity of the defendant as the party who shot the deceased. He had admitted to a witness that he was the boy’s assailant; but the genuine character of that admission was denied. He was shown to have been in the vicinity of the crime the day preceding its occurrence; but by his testimony he located himself at another place, a few miles distant, on the morning of the homicide. Intimately associated with the matter of identity was the question of motive. In his confession
The difficulty of ascribing a motive for the crime was recognized by Lafors, when he stated to Horn in effect that he had not understood why the boy was killed; and Horn was asked if the boy was one of the victims named. In response to that inquiry, Horn proceeded to describe the circumstances, explaining somewhat the purpose or necessity of shooting the deceased. In view of the situation of the parties, the relationship between the deceased and Kels Nickell, the proximity of the two assaults as to time, and the similarity between them — both assaults having been made by shooting — and the other circumstances, some of which have been specially adverted to, it appears to us that it would have been competent for the State under proper offers to have shown that the defendant was the person who shot or shot at the father. Such proof would have tended to establish both the identity of the defendant as the party guilty of the crime charged and his motive in the commission of that crime. As above stated, however, such proof was not attempted beyond showing defendant’s admissions, in conversations referred to by defendant himself as explanatory of the conversation of January 12. Defendant not only denied having made such admissions, but he denied being at the time where the shooting of the father occurred. There was no effort made, however, to contradict him as to the latter denial, by proof of any affirmative facts.
In People v. Seaman, 107 Mich., 348, a case of manslaughter, the defendant, a physician, was charged with having caused the death of a young woman as the result of an abortion. The testimony of witnesses to the effect that the defendant had performed similar operations upon other persons at the same place was held admissible. And the court said that proof of another offense may be ad
The cases illustrating the application of the rule as to proof of other crimes are numerous, but the necessary length of this opinion in other respects forbids specific reference to any others than those above cited.
This testimony was properly admitted as coming within the rule allowing non-expert witnesses to state their opinions regarding the appearance and demeanor of another, which are incapable of adequate description by any other means. Such opinions are received on the ground of necessity, since from the nature of the fact sought 'to be elicited no better evidence is obtainable. (Gillett on Indirect and Coll. Ev., Sec. 213 et seq.; McKee v. Nelson, 4 Cow., 355; Clary's Administrators v. Clary, 2 Ired. L., 78; Reininghaus v. Merchants’ L. Asso. (Ia.), 89 N. W., 1113; 12 Ency. L. (2d Ed.), 490; Mitchell v. State (Fla.), 31 So., 242; Russell v. State (Neb.), 92 N. W., 751; State v. Houston, 78 Ala., 576; Hardy v. Merrill, 56 N. H., 227; 22 Am. R., 441; Isherwood v. Jenkins Lumber Co. (Minn.), 92 N. W., 230; Shelby v. Clagett, 46 O. St., 549; 5 L. R. A., 606.)
In Mitchell v. State, supra, the questions objected to were: "What was Mitchell’s manner at the time the above remarks were passed?” “What kind of humor did he seem to be in?" The court said: "Both questions sought to elicit the mental condition of the defendant as exhibited by his manner on the' occasion inquired about — whether he was in an angry or friendly mood — and both fall within the rule that the physical or mental condition or appearance of a person, or his manner, habit or conduct, may be proved by the opinion of an ordinary witness, founded on observation.’'
In Clary v. Clary, supra, it was said by the Supreme Court of North Carolina: “And so in regard to questions respecting the temper, in which words have been spoken or acts done. Were they said or done kindly or rudely — in good humor or in anger — in jest or in earnest? What answer can be given to these inquiries, if the observer is not permitted to state his impression or belief? Must a fac simile be attempted, so as to bring before the jury the very tone, look, gestures and manner, and let them collect thereupon the disposition of the speaker or agent?”
The Supreme Court of Iowa in a case above cited say that, under a rule of every-day application in trial courts, witnesses are permitted to testify that a person was pleased or excited, or spoke earnestly or jestingly, and many other matters of mixed fact and opinion. “The.limitations of human language are -such as to render these rules a necessity. Many mental and* physical conditions manifest themselves with practical certainty to the eye and mind of the ordinary observer, who cannot describe in apt terms the facts upon which his conclusion is based, but it does not necessarily follow that fhe conclusion is inadmissible as evidence.” (Reininghaus v. Merchants’ Life Assn,, supra.)
Illustrations might be multiplied, but the foregoing are doubtless sufficient to show the reason and scope of the rule. We fail to perceive the logic of the argument that human judgment is incapable of measuring the sincerity of the words or conduct of an individual. It is necessary in human affairs that the qualities of the mind, sentiments, purposes and motives be determined from appearances and circumstances. In this respect sincerity is not different from anjr other mental condition. We are not disposed to think that any subtlet)'- of definition was 'involved in the use of the word “sincere.” Its only palpable effect was to impress upon the jury that the defendant acted and appeared as though he meant what he said.
9. It is contended that error was committed in giving the following, as part of the twelfth instruction: “It is not necessary that other facts or circumstances surrounding-such testimony as has been given on behalf of the State should be established beyond a reasonable doubt. Some of such facts or circumstances may be established by a preponderance of evidence or may not be established. It is not meant that it is incumbent upon the prosecution to establish every fact surrounding such testimony, as given, beyond a reasonable doubt.’’
It is essential to a proper understanding of the legal effect of the language above quoted to consider the entire instruction and the connection in which the portion complained of was used. The instruction was as follows:
Mr. Bishop says that the rule for purely circumstantial evidence is that every essential fact, or, in other words, every individual circumstance necessarily entering into the proofs, must be fully established beyond a reasonable doubt; but that where direct evidence mingles with the circumstantial, the considerations for the Jury are proportionally modified. (1 Bishop New Crim. Pro., 1076.)
It is not true that the prosecution is bound to establish beyond a reasonable doubt every minor circumstance given in proof as tending to establish the main or ultimate fact essential to conviction. If that were the law all that a defendant would be required to accomplish to secure an acquittal would be to throw a reasonable doubt by his proof upon the truth of some slight circumstance entering into
It is not every circumstance entering into 'the proof that the law requires to be established beyond a reasonable doubt. The learned author above referred to states that every essential fact, or every individual 'circumstance necessarily entering into the proofs — that is, every fact or circumstance necessary to be shown in order to establish the charge. The instruction in question so informed the jury. They were instructed that the fact of the killing of the deceased within Laramie County at or about the time stated, and of the criminal agency of defendant in that killing must be established beyond a reasonable doubt; and that all the facts and circumstances taken together should show the guilt of defendant beyond a reasonable doubt.
The words objected to are not misleading, nor liable to be misunderstood, when considered in connection with the remainder of the instruction. The proposition might have been stated perhaps in briefer and clearer language, but we do not think that as expressed it was liable to misconception. It is evident that all that it was intended to say was that every circumstance offered in evidence tending to establish the ultimate facts or circumstances on which a conviction depended, need not be proven beyond a reasonable doubt.
A number of cases have been cited in support of the objection which condemned an instruction to the effect that it
10. The next objection is based upon the refusal of the court to give an instruction requested by the defendant, as follows:
*156 “You are instructed as a matter of law that where a conviction of a criminal offense is sought upon circumstantial evidence alone, the State must not only show by a preponderance- of evidence that the alleged facts are true, but they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused.”
This is not a case of purely circumstantial evidence, although the circumstances offered in evidence constitute an important element in the case. In the first place it is evident that by such proof it was sought to corroborate the statements made by defendant in his confession, and in the second place to fasten the crime upon him independent of the confession. It is clear, however, that a conviction did not depend entirely upon the circumstantial evidence alone, or the confession alone. They supplemented each other. In view of the explanation offered of the confession Ivy the defendant, the circumstances tended to throw light upon it, and doubtless aided the jury somewhat in determining its truthfulness. Nevertheless, should the jury have accepted the defendant’s explanation, the only basis for a conviction would have been the evidence tending circumstantially to connect the defendant with the crime. We are not prepared, therefore, to say that it was improper to instruct the jury with respect to the rules governing the force and effect of circumstantial evidence. Although it would seem that such an instruction, where there is direct evidence also, or a confession, should by apt words be made applicable to the particular case. In State v. Seymour, 94 la., 699, an instruction requested on the subject of circumstantial evidence was said to be faulty because it eliminated all the direct evidence in the case.
While the court refused the instruction above quoted, another was given, at request of defendant, stating that in cases of circumstantial evidence “the jury must not only
The following instruction was also given at defendant's request:
“To authorize a conviction upon circumstantial evidence alone, the circumstances must not only all be in harmony with the guilt of the accused, but the)’’ must be of such a character that they cannot reasonably be true in the ordinary nature of things and the defendant be innocent.” And the jury were still further instructed at defendant’s request that, "in order to be convinced beyond a reasonable doubt, you must find, after consideration of all the evidence, that you have an abiding conviction to a moral certainty of the guilt of the defendant, and unless you are so convinced beyond a reasonable doubt you will acquit him.”
In view of these instructions, it is not perceived that any injury to defendant could have possibly resulted from the refusal complained of. ' But the instruction refused was condemned in this jurisdiction in the case of Cornish v. Territory, 3 Wyo., 96. Mr. Justice Parks said, in the opinion in that case, that the words “must be absolutely incompatible with the innocence of the accused” have been correctly defined to imply that the proof of guilt must be established beyond the possibility of a doubt; and a statement of the principle by the New York Court of Appeals, in Poole v. People, 80 N. Y., 646, was approved, viz. :* “A jury is never required to find that it was' not possible for another to have committed the crime before they can convict a prisoner on trial, or, in other words, to find that it is
In Illinois an instruction similar to the one refused was said to be “so broad and sweeping in its terms that, if it were given in every criminal case dependent upon circumstantial evidence, it would have a tendency to prevent, in many instances, the conviction of guilty parties,” and the instruction was held properly refused. (Carlton v. People, 150 Ill., 181, 191.) In Missouri a charge was held sufficient which informed the jury that they must find the facts and circumstances tending to prove guilt to be not only consistent with each other and the guilt of the defendant, but that the proven facts must be inconsistent with any rational hypothesis consistent with his innocence. (State v. David, 131 Mo., 380.) In California the refusal of an instruction was upheld which required the hypothesis contended for by the prosecution to be established with absolute moral certainty. (People v. Davis, 64 Cal., 440.) And in Minnesota a request was held erroneous which stated that if any single fact proved was inconsistent with guilt, the defendant should be acquitted. (State v. Johnson, 37 Minn., 493.) And the court held that it was sufficient to charge the jury that to authorize a conviction the circumstances should not only be consistent with the prisoner's guilt, but they must be inconsistent with any other rational conclusion. Greenleaf states the rule as follows: “Where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.” (1 Greenleaf Ev., Sec. 34. See also State v. Rover, 13 Nev., 24; Smith v. State (Ala.), 31 So., 806.)
11. It is urged that the verdict should be vacated by this court because of certain alleged remarks made by the
The following- are the remarks objected to: “Gentlemen of the jury, you do not have the ordinary man here to -deal with; you have the criminal, a man of criminal
In the affidavits filed in opposition to the motion for new trial, these remarks, so far as conceded to have been made, are explained. The language in respect to the kind of man the jury had to deal with, it is explained, was employed at the conclusion of the comments of the prosecutor upon the testimony given by the defendant, and with relation to his testimony before the coroner which was in evidence' in the case, upon his appearance and demeanoi while testifying, and the unreasonableness of his story, together with the fact of his contradiction on material matters by other credible testimony. The accuracy of the language imputed to him to the effect that the jury need not fear imbruing their hands in the blood of defendant, and that after them was the courts and then the Governor is denied. It is explained tha.t any words of that character which were employed was in reply to the argument of defendant’s counsel urging the jury to accept his version of the facts, and to reject the version of the other witnesses;
It is admitted that the substance, but not the exact words, of the remark last above quoted was used, viz., in reference to another case. But the explanation was offered in the affidavit that it was used in reply to the argument of one of the counsel for defendant who had cited several cases of circumstantial evidence to show that little reliability could be placed upon such evidence; and that the prosecutor referred to the case as reported without, however, naming it; and that counsel distinctly stated at the time of such reference that the attention of the jury was called to it for the purpose of having them conscientiously consider all the evidence relating to the different facts in the case.
In People v. Kramer, supra, it is said by the ■ California court that “the proper way to correct such abuse of privilege on the part of either counsel is for his adversary to call it to the attention of the court, and have it stopped,” and that: “While error arising from misconduct of an attorney, of the character complained of, may not always be avoided by such means, it is essential, in order to have it reviewed, that the act be at least called to the attention of the court below at the time, that that tribunal may have an opportunity to correct the abuse, and thus, if possible, avoid error and a mistrial.”
The Supreme Court of Iowa, considering a similar objection, say: “No exceptions were taken to the prosecuting attorney’s argument at the time, and the objection cannot be first made on motion for new trial, when, if it had been promptly made, the court might have restrained any undue zeal on the part of the prosecuting attorney, and thus have prevented the prejudice which is afterwards claimed to have resulted.” (State v. Sale, supra.)
We find ourselves unable to accept the view of counsel, that the tendency of an objection at the time would have been to strengthen the force of the alleged misconduct.
In Bunce v. McMahon, 6 Wyo., 24, this court said on this subject that “much must be left to the judgment of the trial court,” and that “the trial' judge can better determine whether in any given case an undue prejudice has been actually produced by the language of counsel, if it goes beyond that which is legitimate.” As an additional reason for the rule we have been led to approve, it may be said that the trial judge will ordinarily be more capable of fairly determining whether the language is illegitimate and prejudicial if his attention be called to it at the time.
12. One of the grounds for new trial insisted upon in the court below was alleged irregularities in the proceedings of the jury preventing the defendant from having a fair trial, viz.: (i) Misconduct by third parties, in the presence of the jury, prejudicial to defendant; (2) undue influence exercised upon the jury by third parties; (3) undue pressure upon the jury by third parties.
In support of this ground, certain affidavits were exhibited in substance as follows: The head waitress of the hotel where the jury took their meals during the trial deposed that remarks were made by different people, during the trial and when the jury were in the dining room, to the effect that there would probably be a hung jury in the Horn case — that there were three men on the jury who were supposed to be particular friends of defendant who would not convict him, and that a man would be more apt to tell the truth when drunk than when sober; that said statements were made by persons sitting at a table adjoining the one occupied by the jury. Juror Payne deposed that he overheard similar remarks, and observed that he was pointed out as a friend of the defendant, which gave him the impression that people thought that he had been “bought or fixed.” He further deposed that while the jury were deliberating on their verdict the argument was made in the jury room that if they made a mistake the trial court or the Supreme Court would grant defendant a new trial. A Denver newspaper reporter deposed to having heard re
The prosecution filed opposing affidavits. Juror Tolson deposed that in the dining room he sat opposite Juror Payne and nearer to the other guests in the hotel than said Payne, and that' the affiant, although paying strict attention to what occurred at the table occupied by the jurors, did not hear any such conversation as related in the affidavits filed by the defense; that after the jury had retired six ballots were taken before a verdict was arrived at; that after the fifth ballot, which stood ten for murder in the first degree and two for acquittal — the two voting for acquittal being Jurors Thomas and Payne — affiant observed that it would be well to hear a statement from the two jurors before taking another ballot'; and thereupon he asked said jurors if they voted for acquittal on the ground that Horn's conversation with Rafors was not in earnest, to which Juror Payne replied in substance that he did; that the entire evidence of Horn, together with the surrounding circumstances, was then discussed, at the conclusion of which Payne and Thomas consulted together, and then Thomas proposed another ballot, which was taken, resulting in twelve votes for murder in the first degree. Pie further deposed that Payne made no mention in his presence or hearing of his having overheard any remarks of third persons at the hotel or any other place. Juror Barnes deposed to an affidavit to the same effect. Bailiffs Reese and Proctor, who attended the jury during the trial, deposed that they were respectively especially cautious to see that no communication was had with the jury; that one of them sat at one end of the jurors’ -table and the other sat at the other end, and they heard no remarks of the kind mentioned by Juror Payne. The same newspaper reporter, whose affidavit has been referred to as filed by the defense, made another affidavit, stating that, after the trial was ended and a verdict had been returned, he had a conversation with Juror Payne, who said: “It was hard to go
There were other affidavits filed describing the situation of the dining room, and office or rotunda of the hotel, and showing that a large number of people boarded at the hotel during the trial.
The trial court expressly found in relation to this matter that there was no irregularity of the jury by which the defendant was prevented from having a fair trial; and that the defendant was not prejudiced in any of his substantial rights by reason of the remarks said to have been heard by Juror Payne.
We conceive it unnecessary to enter upon any extended discussion as to what facts of the nature disclosed by the affidavits alluded to will be sufficient to impeach a verdict and require its vacation. Upon a careful consideration of the affidavits filed on both sides, the District Court failed to find any prejudicial irregularity. It is evident to our minds that such a condition of affairs is not set forth as to justify our interference, with the finding of the court in that respect. It is not clear to us that there is any reasonable ground to presume that the verdict was influenced by the remarks said to have been made by others. Indeed, but one affiant other than Juror Payne states that it was possible for the jury to have overheard them, and the jurors Tolson and Barnes, as well as the two bailiffs, assert that they did not hear them, although they were seated where they ought to have heard them if spoken loud enough to reach the ears of the jury. It is not rendered manifest that the verdict of Juror Payne was caused by such remarks. We perceive no good reason for holding that the learned judge who presided ovér the trial showed a lack of judgment or sound discretion in refusing- a new trial on
The several objections urged have now been considered. The case is not only important in view of the character of the crime, and the penalty imposed upon it by law, but because of the unusual and peculiar features presented by the facts, and the leg-al propositions involved in its determination. A case of this kind always demands the most patient, studious and impartial consideration; and we think that this court has never underrated the responsibility resting upon an appellate tribunal of last resort, especially where the life or liberty of a citizen is in question. In the case at bar, in view of the earnestness of counsel both in relation to the facts and the law, and their apparent feeling that the verdict was to some extent influenced by public clamor, we have endeavored, by a close scrutiny of the record, to ascertain whether there was disclosed anything to reasonably indicate that the accused had not been .afforded a fair and impartial trial. The objections to the rulings of the court have received our most careful consideration; a very large number of authorities have been consulted, in addition to those cited in this opinion; and it has all resulted in convincing our minds that the record furnishes no justification for a reversal of the case. It seems to have been ably and dispassionately tried. We are, therefore, of the opinion that the judgment should be and the same will be affirmed.
And now this court appoints Friday, the 20th day of November, in the year of our Lord 1903, for the execution of the sentence pronounced by the court below. Affirmed.