| Kan. | Feb 15, 1862
By the Court,
At the November term of the District Court of Leavenworth county, Carl Horne was indicted and tried for the murder of Philip Friend, and was found guilty of murder in the first degree. From the judgment of the Court on that verdict, the accused has brought his case to this Court by appeal.
The errors alleged are set forth in the motion made for a new trial in the Court below, and are as follows:
First. That the Court admitted illegal testimony.
*71 Second. Since the trial of this cause, the defendant has discovered new evidence, material to the cause, which he could not with reasonable diligence have discovered before or at said trial.
Third. The jury was separated without leave of the Court, after retiring to deliberate upon their verdict.
Fourth. The Court misdirected the jury in a material matter of law.
Fifth. The Court erred in refusing to charge as requested by defendant’s counsel.
Sixth. The verdict is contrary to law.
Seventh. The verdict is contrary to lawr and against the evidence.
Eighth. The Court erred in overruling the motion to quash the indictment made in this case.
. Exceptions were taken, during the, progress of the trial, to the various rulings of the Court below, which bring them all before this Court for revision.
It is hardly necessary to comment in detail upon the numerous points raised in the record and urged by counsel. It is sufficient to say that after a careful consideration of the various rulings of the Court, as shown by the record, we can see no error in them, so far as embraced in the first, second, third, fifth, sixth, seventh and eighth causes assigned for a ■new trial.
Among the instructions of the Court are the following:
“If the jury believe, from the evidence, that the facts in the case are all consistent with the supposition that the prisoner ■is guilty, and he can offer no resistence to. that, except the character the prisoner has borne, and except the supposition that no man would be guilty of so atrocious a crime as that laid to the prisoner, they are warranted in returning a verdict of guilty.”
The Court further charged “that the woman and this defendant might both be guilty as principals in this murder.”
Take from this instruction the defense which the accused might offer of his previous good character, and the supposition that no man would be guilty of so atrocious a crime as that laid to his charge, and it leaves this proposition:
That if the jury believe from the evidence that, the facts in the case are all consistent with the supposition that the prisoner is guilty, they are warranted in returning a verdict of guilty.
It is obvious that proof of good character and the supposition that no man would be guilty of so atrocious a crime as murder, cannot unfavorably affect the position of the prisoner. He may well stand on the presumption of innocence and offer no evidence. Is a jury, then, warranted in returning a verdict of .guilty, when the facts in the case are all consistent with the supposition that the prisoner is guilty? If so, a man may first be presumed guilty, and two or three facts próyen, consistent with that supposition, and the law will warrant a finding of guilty. Such is not the rule of law.
A few facts or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty; but, in order to convict on circumstantial evidence, it is held necessary not only that the circumstances all concur to show that the prisoner committed the crime, but that they all be inconsistent with any other rational conclusion. (2 Sal. P. 0.; 2 Starkie Ev. 521, 522; 3 Grreenleaf Ev., § 137.) This being the true rule, it follows that in this proposition the Court misdirected the jury.
The counsel for the State, in support of the charge under consideration, read what he claimed as an identical proposition from Wells on Oircumstantial Evidence, Sec. 161, as follows:
*73 “If you think that the facts in this case are all consistent with the supposition that the prisoner is guilty, and can offer no resistence to that, except the character the prisoner has borne, and except the supposition that no man would be guilty of so atrocious a crime as that laid to the charge of the prisoner, that cannot much influence your minds.”
So far from this sustaining the charge given, there is nothing in common but the statement of the condition of the case. The conclusions from the same statement are different. The charge given says that a certain state of facts warrants a finding of guilty, while the authority quoted shows that the same facts being proven, the proof of good character and the presumption that no man would be guilty of so atrocious a crime, cannot much influence the minds of the jury.
It was urged in argument that the Court had, in other parts of the charge, given the true rule of law as applicable to this point; but as this was a separate charge, it is impossible for us to say that it was not the controlling one with the jury. We are not insensible to the consideration that the Court, having once ably and clearly given, the correct law, the probabilities are that little of essential injury may have been sustained by the defendant by this misdirection. But we have no right to consider probabilities in reference to a single case when called upon to apply the general principles of established law, and to register a precedent for the future action of courts. “We perform a single and unmixed duty when we declare upon the call of the accused what are his legal rights.”
The second of the charges quoted above, is a mixed one of law and fact. The principle of law involved is, that two persons may be guilty as principals in one crime. This is true, and a proper instruction. The fact presented in the charge is, that this was a murder, by the use of the expression, “•this murder.”
The Court has a right to present the facts in his charge, but must in that case inform the jury that they are the exclu
The first duty of the jury was to decide whether a murder had been committed. This duty was forestalled by the Court by intimating that this was murder. If it be considered as presenting the facts, or suggesting a conclusion from facts, it is equally error. If the first, it is error because the jury were not informed that they were the exclusive judges of the facts. If the second, it is error because it was intimating a conclusion from facts, which is the special and exclusive province of the jury-
All persons, familiar with the trial of criminal causes, have had occasion to observe with what anxiety a jury listens to catch from the Court the slightest indication of its views. This is particularly the case when matters of great doubt and difficulty are before them for decision. How then can it be known that the expression used in this charge had not some influence in determining the final result ? The more able and upright the Court, the more likely are its intimations to have weight; and it is impossible to say that the jury may not have received some bias from the language used. It therefore necessarily follows that there is material error in it.
For the misdirection in these two charges, a new trial should have been awarded the acused on his motion.
The judgment is reversed with costs, the verdict set aside, and the cause remanded to the Court below, with instructions to sustain the motion for a new trial.