72 Neb. 228 | Neb. | 1904
In the early morning of the 24th day of October, 1902, Harvey Lillie was killed at his home in David City. The circumstances were such that all parties agree that he was wilfully murdered. Lena Margaret Lillie, who was his wife, was charged with the crime, and upon her trial in the district court for Butler county was convicted of murder in the first degree, and sentenced to imprisonment for life. She has brought the record of her conviction to this court for review upon petition in error, and urges that the judgment against her should be reversed because the evidence was circumstantial and was insufficient to justify her conviction, and because of errors in the prosecution against her which prevented a proper investigation of the charge.
In Murphey v. State, 43 Neb. 34, this court said: “Where the evidence by which it is sought to impeach a verdict on account of the prejudice of a single juror, subsequently discovered, is conflicting, an order denying a new trial will not as a rule be disturbed on appeal.”
Substantially the same rule was announced in Clough v. State, 7 Neb. 320, 347; Carleton v. State, 43 Neb. 373; Hill v. State, 42 Neb. 503, and in other cases.
In Bliss v. State, 117 Wis. 596; 94 N. W. 325, the court said: “The question whether the juryman was disqualified was one of fact for the determination of the trial court, and as such decision does not appear to have been against the weight of the evidence it will not be determined by this court.”
When may the evidence be said to be conflicting within the meaning of the decisions of this court? The conflict, of course, must be a substantial one. The evidence must be of such a nature that the presumption of the correctness of the ruling of the trial court is not overcome. The law affords the defendant in criminal prosecution great latitude in the examination of jurors to ascertain whether there are just grounds for challenge. The trial court hears this examination, and will suggest or propound further questions if necessary to ascertain whether the juror is fair and impartial, or may possibly be prejudiced for or against the accused or may have formed or expressed an opinion upon the merits of the questions that are to be tried. The trial court observes the conduct and demeanor of the juror during this examination, and will not hesitate to exercise its discretion and excuse the juror if there is substantial ground to believe that he is for any reason' unfit for the service. The rulings of the trial court in the exercise of this discretion will not be disturbed simply because there may seem to be some preponderance of evidence against it. There must be such substantial evidence as to make it appear that in view of all of the evi
Tavo Avitnesses testified by affidavit that the juror Joseph Hilger made statements in their hearing some time before the trial, AArhich Avould shoAV that he had formed an opinion as to the guilt of the defendant, and Avhich amounted to an expression of such opinion. These affidavits are unqualifiedly denied by the affidavit of the juror and of Myrtle Hilger his Avife. The conversation, in Avhich the statements are alleged to have been made, was in the presence of both of the witnesses testifying thereto. The AAÚtnesses, however, do not precisely agree as to the form or substance of the statement. We find nothing in the record indicating that the evidence of these Avitnesses should prevail against the evidence of the juror and his wife, and Ave cannot see that in overruling this objection the trial court abused its discretion. The affidavit as to the statements of the juror Pool made prior to the trial, does not show that this juror had formed or expressed an opinion of defendant’s guilt and is wholly insufficient to overcome the positive statements of the juror’s affidavit, and the presumption of the proper exercise of its discretion on the part of the trial court.
It was not shown in the evidence before the jury that this defendant at the time was in possession of a weapon with which she might have committed the crime. This fact is of importance in connection with the question of the sufficiency of the evidence to sustain the .verdict, as will be hereafter noticed. Upon the motion, for a new trial on the ground of newly discovered evidence, it was shown by affidavit that sometime after the trial a revolver had been found in an unused well upon premises not far distant from those upon which the murder was committed. Three of the five chambers of this revolver were loaded with bullets at the time it was found, the other two chambers being vacant; and it was claimed that this evidence would indicate that the murderer, in his flight from the premises, had thus disposed of one of the evidences of his guilt. Counter affidavits were filed showing that Mr. Lillie, the deceased, had a similar weapon in his possession sometime prior to the murder. It has been held that in civil cases: “A motion for new trial will not be granted on account of newly-discovered evidence, unless it would be sufficient to render clear what was before doubtful or of so controlling a nature as to probably change the verdict.” Gran v. Houston, 45 Neb. 813; Omaha, N. & B. H. R. Co. v. O’Donnell, 24 Neb. 753; Hill v. Helman, 33 Neb. 731.
In capital cases the newly discovered evidence must, at least, be of such a nature as to make it appear that its
It is Contended that this evidence was incompetent, that it tended to prejudice the jury against her and served no legitimate purpose in the ease. The same objection is made to receiving in evidence several letters Avritten by the defendant to Mr. Runyon, her broker in the foregoing transactions. One of these letters Avas Avritten within three or four days after the homicide and the others a little later. In one of these letters, she said:
“That little trade I had there I suppose you took care of*235 it and I will make it all right some day. I think it is going to make me some money soon. They have no way of knowing anything only through you and I beg of you to be careful and what trades on -your books that I spoke of are mine and the rest are yours you understand.
“Be careful what you say. I told them that you never received any margin only through the mail and that the amount was merely inclosed in an envelope and sent. How they know anything is what I can’t' see, but they don’t know much and if you Avant to ask me anything you can through the mail and it Avill be safe.”
In another letter she said:
“And I will count on you staying by me as you should and you must as they are going to try to make your books a strong point against me and don’t let them do it. They have not one single thing against me and so far they have not been able to dig up anything and do not be the means of such a thing yourself. I Avill count on you as a friend to do the right thing by me.”
Another letter was as folloAVs:
“Mr. Runyon:
“Remember that you are to stay by me on those books as you agreed to do. Do all you can for me and do me no harm.”
Proof of a motive to commit a crime, is, of course, competent in murder trials. Gravely v. State, 45 Neb. 878; St. Louis v. State, 8 Neb. 405. It is argued in the briefs that it is so improbable that a Avife would murder her husband for so small a consideration as to render this evidence Avliolly incompetent; but it should be improbable that a Avife would murder her husband for any consideration, however large; and the fact that'the motive shoAvn is out of proportion to the crime committed does not require that the evidence shall be excluded.
Circumstances that tend to show a motive for the crime are to be considered by the jury, and in vieAV of the fact that the defendant knew that Mr. Lillie’s life was insured in her favor in something more than seven thou
Mrs. Lillie was engaged in dressmaking. She at times employed .several girls to assist her in the business. One young lady Avas engaged with her 'at this time. The defendant appears to have had some credit with the banks. She occasionally borrowed small sums of money upon her unsecured note. She appears in one instance, at least, to have attempted to deal upon credit on the board of trade. Her statement in her letter to her broker that she would make her “little trade” with him “all right some day,” and other circumstances in evidence, would indicate that she had no large amount of ready money. She appears to have been able to procure temporary loans. There is reason to believe from the evidence that she had no means of improving her financial condition permanently other than the earnings of her business, unless it should be from the insurance upon the life of her husband. It Avas certainly proper that the jury should understand these matters. There is nothing to indicate that the jury gave too much weight to the fact that she had been dealing on the board of trade. The fear that the jury might do so would be no legal ground for excluding evidence othemvise competent and proper.
It is further objected that these witnesses did not shoAV themselves competent. The point insisted upon, as Ave understand counsel, is that the witnesses failed to shoAV that in fact it was Mrs. Lillie Avith whom they were talking, it appearing that the conversation was over the telephone. No objection, hoAvever, was made specifically upon that ground. The witness testified absolutely that she had a conversation with the defendant. No attempt AAras made to cross-examine, either before or after the evidence was given, as to the Avitness’s means of knowing the identity of the person conversing with her. The evidence Avas properly submitted to the consideration of the jury.
In the experiments, the cloth Avas hung before a wooden surface and about six inches distant; no Avire screen was used. It Avas not known Avhat sort of cartridges Avere used by the assassin except that one of the bullets which Avas found in Mr. Lillie’s head Avas in evidence before the jury, and also another similar bullet which was found in a building at some distance from the Avindow and was at least partially identified by the evidence as the bullet fired at the second shot above referred to. It Avas therefore impossible in these experiments to use the same revolver Avith AArhich Mr. Lillie was killed, or to be certain of the similarity of the cartridges used. In making these experiments, various revolvers Avere used of different pattern and of different length of barrel, and cartridges were used of different lengths, being Avhat are- called long and short cartridges, and of each length cartridge different kinds Avere used with reference to the character of the poAvder with Avhich they Avere charged; some being filled Avith common black poAvder and others with lighter colored or semi-smokeless poAArder. A record Avas kept of each shot fired. The cloth used Avas in evidence before the jury. Each bullet mark through the cloth Avas fully explained to the jury, showing the kind of revolver and cartridge used in connection thereAAÚth, and the distance from which the shot was fired. The distances at which-the various shots were fired range from about three inches to about three feet.
In Davis v. State, 51 Neb. 301, the court, after pointing out the similarity of the conditions existing in connection with the experiments proved, and the conditions existing in the transactions to explain which the experiments were offered, said:
*240 “This was sufficient to make the evidence competent, and it was for the jury to consider the place where the displacement of the fixtures occurred and the place where the experiment was made and then to give such weight to the testimony of the state’s witness who made the experiment as they thought it deserved.”
And in City of Ord v. Nash, 50 Neb. 335, it was said:
“Some discretion is conferred upon the trial court in receiving evidence of experiments for the purpose of contradicting or corroborating other witnesses, and in order to authorize the reversal of a judgment on account of the admission or rejection of such evidence there must have been a clear abuse of discretion.”
The defendant offered evidence of experiments of the same general nature. The experiments complained of were under conditions as closely identical with the conditions of the transactions upon which they were intended to throw light, as the circumstances of the case would admit. The object of the experiments Avas to explain or illustrate how near a cloth curtain a pistol or revolver must be held in order that a shot fired from it through the curtain will poAvder-mark the curtain. It is true that it was not shoAvn that any one of these reArolvers used in these experiments Avas identical in construction and power with the weapon Avith which Mr. Lillie aauis killed, but there is evidence tending to shoAV that the weapon from Avhich the fatal shot was fired was an ordinary revolver. The defendant, in statements made immediately after the transaction, partially described the weapon, which she says she saw in the hands of the assassin.
We think the circumstances were such as to come within the above rule, and it was not an abuse of discretion on the part of the trial court to admit this evidence.
“Mrs. Lillie, having been put on trial for murder, had a right to have the jury know that she had an exceptionally high character; that her life had been pure and that she was devoted to the well being and happiness of her husband; and this being shown the jury had a right to say that it did in their judgment not only raise a reasonable doubt of her guilt but that her character was so strong they preferred under the solemnity of their oaths to believe she did not commit the crime.”
Judge Cooley in People v. Garbutt, 17 Mich. 9, 25, said:
“Good character is an important fact with every man; and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent Avith any such crime. There are cases where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of*243 guilt which would not otherwise exist, but it may bring conviction of innocence.”
He also in the same case said:
“The difficulty at this point lies in attempting to surround the jury with arbitrary rules as to the weight they shall allow to evidence which has properly been placed before them. This court has several times found it necessary to declare that no such arbitrary rules are admissible. We refer particularly to the cases of People v. Jenness, 5 Mich. 305; Maher v. People, 10 Mich. 212, and Durant v. People, 13 Mich. 351. The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice. But to give it full effect, the jury must be left to weigh the evidence and to examine the alleged motives by their own tests.”
The whole matter is for the jury to determine. The question being discussed is whether the matter was properly left to the jury. The proposition contained in the requested instruction is undoubtedly true. Good character has, and ought to have, great weight. The other evidence in the case may be sufficient to convict a person of bad character, when it would be wholly insufficient if good character were shown. But the same is true of other substantive matters of defense. Must the court single out each substantive fact in the evidence that tends to establish innocence, and tell the jury that if a consideration of all other evidence would require a verdict of
“You are further instructed that it is not indispensable that a motive be shown for the commission of a crime, but the existence or non-existence of such motive is a question of fact which must be determined by the jury from a consideration of all of the evidence in the case, and as a circumstance tending to shoAV the guilt or innocence of the accused.”
It is urged that this instruction is wrong because crime is not committed without some motive. But the instruction does not say that it is not indispensable that a motive exist. The human mind is sometimes unfathomable. A motive may exist, and there still be no direct evidence to show it. If, in fact, the crime was committed, and this is shown beyond a reasonable doubt, then it does not necessarily folloAv that no motive existed, because the evidence fails to show an adequate motive. It is therefore not erroneous to tell the jury that it is not indispensable that a motive be shown.
“You are not at liberty to disbelieve as jurors if from all the evidence you believe as men.”
These words were not included in the instruction quoted in Barney v. State^ otherwise the instruction was practically the same in both cases.
This court refused to reverse the judgment in the case of Barney v. State on account of this instruction; but did not unqualifiedly approve of giving such language in the charge to the jury. The court said: “Whenever a court undertakes to define a reasonable doubt, it opens the way to a vast amount of speculative reasoning without any very practical application.” Thé instruction may be deserving of some of the criticism it has provoked, but in view of the former decision of this court, we cannot reverse this judgment solely on account of the giving of this instruction.
Mr. Lillie occupied the side of the bed farthest from the window and there can be no doubt, under the evidence, that when his position was first observed after the murder, the body was lying upon the back. There is some conflict in the evidence as to the exact position of the head, which will be again noticed. The defendant occupied the part of the bed nearest the window. These details and others that will be noticed later, are very important in determining two questions: First, Was the fatal shot fired from the east side of the bed? Second, If it was fired from the east side of the bed, could it have been done by any other person than the defendant herself? The bullet entered Mr. Lillie’s head upon the right side, a little above the ear and somewhat further forward than the center of the head. Upon this point there is no conflict in the evidence. There was a post-mortem examination made by several surgeons, and their evidence was taken as to the course of the bullet through the head. The bullet passed through the brain, struck the skull on the opposite side of the head, failed to penetrate it, and was found near where it had struck the skull. Yerbal descriptions of the course of the bullet indicate that the line of its passage through the brain was nearly perpendicular with the side of the head. A human skull was in evidence which was marked by the expert witnesses to indicate the point where
As to the position of the head of the deceased when first observed after the crime was committed, the evidence is not entirely satisfactory. Evidence upon this point becomes of greater importance because it is established beyond controversy by the expert testimony produced upon the trial that the effect of such a wound, through that part of the brain traversed by this bullet, would be to immediately take away all power of voluntary motion, so much so as to render it impossible that the deceased might have changed his position after the fatal shot was fired.
The defendant’s little girl 12 years of age appears to have been the first witness who observed the position of the
Mr. Bert Hall, who appears to have been the next witness who saw the body, testified that the face was turned distinctly toward the west, and when further questioned as to the matter said that it was turned at least eighty degrees toward the west. By this he afterwards explained that he meant that it was turned at least four-fifths, and his evidence fairly construed is that the head was lying very nearly flat upon the left side of the face.He seems for some reason to have been very much confused, or, as he said, “nervous,” and stated that he had testified a little differently he thought at a former examination, but that he was more confused then than he was afterwards.
Dr. Stewart, who first saw the body and afterwards changed the position of the head, was not called as a witness. The state refused to pxit him upon the witness stand at the request of the defendant. There were other witnesses whose evidence tends to show that the head was turned but very little, if any, and the face was directly toward the ceiling. It does not appear from'the evidence whether these witnesses saw the body before the head had been moved by Dr. Stewart, or not until after-wards. There were several features of this evidence which rendered it a difficult task for the jury to determine the exact fact upon this question. The position of the head, when the shot was fired, may have been, with the face turned somewhat toward the west from an upward position.
Another circumstance is worthy of mention in this connection. As before noticed the second shot Avas fired through the window. They were, of course, both fired by the same person. The bullet passed first through the curtain, then the windoAV-pane, then an ordinary wire screen. It is beyond question from an inspection of these exhibits that the bullet in passing out of the window did not take a downward course. The evidence shows that the range of the bullet was such that if it had been fired from the Avest side of the bed, it must have passed within a few inches of the pilloAv upon which the head of the deceased rested. The weapon Avhen the second shot was fired must then have been not more than six inches higher than Mr. Lillie’s head. There was evidence from Avhich the jury might reasonably believe that the weapon must have been much nearer the curtain to have poAvderburned it as this curtain Avas. The circumstances seem to justify the jury in finding that the supposition that Mr. Lillie was shot from the west side of the bed Aims not a reasonable one. They are not, hoAvever, inconsistent with the view that the bullet came from the east. If the jury found, as it Avas not unreasonable to do from this evidence, that Mr. Lillie’s face Avas turned but a few degrees to the west when he was shot, they must necessarily have found that he was shot from the east. We are driven to the conclusion that a finding that beyond all reasonable doubt Mr. Lillie was shot by some person who was then between him and the window in question cannot be held to be unsupported by this evidence. If the jury believed that this was the case, the conclusion that this defendant
The defendant on the afternoon before the murder stated to the girls in the house that she had a large sum of money and would go and deposit it in the bank; that she feared burglars might break into the house and the money be stolen. Also immediately after the murder, she in the presence of several persons opened a bureau drawer in the room, and thereupon stated that her money was gone, and that she had about three hundred dollars in the drawer.
No attempt was made upon the trial to support these statements with proof that the defendant was in possession of any such sum of money. On the contrary it was shown that after making the above statements to the girls in the house, she was at the bank and paid a small amount on a note of hers and she made no deposit in the bank. This, as her counsel say, was because she did not at that time have an account with this particular bank with which she made a payment upon her note. The defendant also immediately after the murder, in the presence of the same witnesses, examined the clothing of Mr. Lillie and declared that his pocket-book had been taken and his money was gone. There was no proof offered on the trial tending to show that any pocket-book or money of Mr. Lillie’s was missing after the murder.
It appears that the defendant, immediately after the second shot was fired, after having by her screams alarmed some of the girls who were sleeping in bedrooms immediately across the narrow hall, went downstairs with all of
The duty of determining whether or not a fellow being has been guilty of so cold-blooded and unnatural a crime imposes a terrible responsibility. A wise provision of our law requires the judgment of twelve men upon such questions. Every reasonable precaution is required to guard against an unjust conviction. It is the duty of the courts to see that these are observed. If all of the rights of the accused have been protected, if upon the whole evidence the minds of reasonable men might differ as to whether there is reasonable doubt of guilt, the conclusion of the tribunal to which the law commits the responsibility must be taken as just. The wisdom of the past tells us that thus we have greatest assurance of avoiding the mistaken judgments to which the frailties of human reasoning sometimes lead. We conclude that the law does not require nor allow us to interfere Avith this A'erdict.
The judgment of the district court is therefore
Affirmed.