11 Utah 241 | Utah | 1895
The defendant, Charles Thiede, was indicted for the' murder of his wife, and on the 21st day of October, 1894, was found guilty, and on the 5th of November, 1894, his. motion for new trial and arrest of judgment was overruled, and sentence of death was passed upon him. From the judgment and order overruling his motion, he appeals to-this court. The record discloses numerous assignments of errors, and, as defendant’s counsel urged each one with ability and great earnestness, not only in his brief, but in-his oral argument, and because of the importance of the-case, we feel that the points presented demand careful consideration. We will not discuss the assignments in the order presented, but group them somewhat with reference to their chronological order in respect to the trial.
1. It is claimed that the evidence is insufficient to justify the verdict, and that the verdict is contrary to the-evidence and to the law, and that the court erred in overruling defendant’s motion for a new trial. This necessi
A number qí witnesses testified that the defendant ill treated his wife, and the course of treatment had continued for a number of years; and one witness testified that the ■defendant, about four months prior to the death of his wife, had expressed a desire to get rid of his wife, saying that she was too good for his' business. The defendant was a witness in his own behalf, and denied the ill treatment, and denied that he had expressed a desire to get rid of his wife; and there were other witnesses introduced by the defendant, whose testimony tended to corroborate ■the defendant and contradict the testimony of some of the witnesses for the prosecution. We do not deem it necessary to review all the evidence on this point, but there, •certainly was sufficient evidence to warrant the jury in •coming to the conclusion that the defendant and his wife had lived unhappily for years, and that the defendant had frequently abused and ill treated his wife, • and that without any excuse, so far as the evidence discloses. The testimony on behalf of the prosecution shows that on Sunday •evening preceding the murder the defendant and his wife, had quarreled in the garden, after dark; ■ that they were ■called into the house of the witness Lauenberger; that when there the defendant slapped his wife in the face, and •ordered her to go home, and that she refused to go, giving .as a reason that, if she went home, the defendant would murder her that night; that soon thereafter she. left Lauen-berger’s house, and the defendant and ' his child and the witness Lauenberger went to defendant’s saloon; that while there the defendant’s wife sought admittance to the saloon, which was denied by the defendant; that the defendant
The last seen of the defendant’s wife by any witness other than the defendant was about 10 o’clock Monday evening, when she was seen sitting outside of the saloon, of the defendant. During the night, about 1 o’clock, the-defendant aroused the witness Lauenberger, and infoiuned him that his wife had been killed. The night was very-dark. Dr. Ferrebee, the physician called, testified that lie-was close to the body before he could discern anything,, and had to touch it before he knew it was a human -body. The witness Lauenberger testified that before going; for a doctor, or alarming any one else than himself and, wife, the defendant took a light, and scanned the outside-of the south door of the saloon, and the side of the building adjacent thereto, as if looking for something upon the* door and wall; that fresh spots of blood were found upom the outside of the door next day. Witnesses testified that, the defendant said when he found his wife lying upon the-ground that she said, Oh, Charley ! ” while the only-medical witnesses in the case all agreed that it was impossible for the deceased to speak or articulate after the-wound was inflicted. One or two witnesses testified that, after their return to the saloon with the doctor, and after the body of his wife had been carried into the saloon, the-defendant had gone several times from the saloon before-daylight, remaining at one time as long as 20 minutes. It was testified that a large knife, used by the defendant-in the saloon, was missing, and could not be found; and
The only question upon this branch of the ease for us to determine is whether there is evidence in the record sufficient to support the verdict. It was for the jury to say whether they believed the testimony of the witnesses, and what weight they should give to the testimony of the witnesses for the prosecution and for the defense, and to the testimony of the defendant himself. There is certainly nothing in the record that would warrant us - in saying that the jury should not have believed the testimony of the witnesses for the prosecution. There can be no doubt but that the defendant’s wife was murdered, and, while the evidence was largely circumstantial, it certainly was sufficient to warrant the jury in finding that the defendant was the person who committed the crime. It appears, from the evidence that a large number of men, belonging to what was known as the “Industrial Army,” were-camped less than a mile from the defendant’s saloon; and it is claimed that there were many lawless men among them, and that their presence was sufficient to raise a», doubt as to who committed the crime. But it is not, shown that any of these men were near the saloon of the defendant that night, before the murder, or were in any,
2. It is insisted that the court erred in admitting incompetent, irrelevant, immaterial, and hearsay evidence.
(a) In permitting certain witnesses to testify to hearing deceased scream upon numerous occasions, to seeing bruises upon her face and body, to seeing her cry upon several occasions, and to observing her when she appeared alarmed- and frightened, — without connecting the defendant with the circumstances, or the alleged acts of cruelty towards the deceased. It is conceded by defendant’s counsel that “ in cases of marital homicide ill treatment and abuse by the husband to his wife may be shown in a general way for the purpose of proving malice or motive, but is incom-pretent for any other purpose.” It is evident from the record that the sole purpose for which this testimony was •offered was to show defendant’s malice towards his wife, ■and point out the motive of the homicide. 'Psychic phenomena so often appear that scientists sometimes despair in their efforts to trace ordinary and natural sequence in mental concepts. Still the accepted rule must be that motive underlies human action. Uxoricide is unnatural. When it is charged, the first question suggested is, what
We think the objections to this testimony were properly •overruled. The evidence shows that no person other than the defendant was in a position to have inflicted the injuries described upon the deceased. Besides, defendant is •clearly and definitely identified with the bruises and maltreatment to which the deceased was subjected. It was ■the province of the jury to pass upon and weigh the evidence introduced by the prosecution showing ill treatment; •but the court, .passing upon the admissibility of the testimony offered to show the injuries and bruises upon defendant’s wife, had to assume that the testimony was true. ■Counsel cites several cases in support of. his contention upon this point, but, aside from the case of Territory v. Armijo (N. M.), 37 Pac. 1113, they have no application -whatever to the case at bar. In the case of State v. Ling (Or.), 18 Pac. 844, there was not the slightest evidence ■connecting the defendant with the homicide or previous •circumstances from which it might be inferred that malice was entertained by some persons towards the deceased. State v. Weaver (Iowa), 11 N. W. 675 is cited. There two persons were jointly indicted for murder, and the court .held that it was incompetent, upon the separate trial of • one, to show threats made by the other, several months before the crime was committed, in the absence of any ■ evidence tending to show a conspiracy, or any concert of feeling or action prior to the conflict resulting in the murder. The evidence in the case of McBride v. People,
(5) In permitting Dr. Benedict to testify that the defendant was a strong man. The evidence was that deceased’s head was nearly severed from her body, and! that one stroke of the instrument employed had accom- . plished this. The witness was acquainted with the defendant, and knew him to be possessed of great physical strength. Such a stroke, it was contended by the prosecution, could only have been made by a person possessing immense strength. While there are many strong men, yet, in view of the nature of the wound, and the expert testimony relative to the manner in which it was inflicted, we think it was a circumstance, the value of which, slight though it was, the jury were entitled to. Such testimony might be not only relevant, but very material if the homicide had been committed at a time and place - when only one strong person was in the neighborhood. Its import-
(c) In permitting the witness Montgomery to give his'opinion as to how certain blood stains were occasioned.. Counsel claims that he was not an expert, and therefore' his testimony was incompetent. The record shows 'that-no objection was offered, and no exception at any time was taken; but even if there had been, we think it would not have been error. A person not an expert is competent to testify that certain stains resembled blood, that the stains were blood, that certain hairs were human, and that a person was intoxicated. Thomas v. State, 67 Ga. 460; McLain v. Com., 99 Pa. St. 86; Com. v. Dorsey, 103 Mass. 412; People v. Hopt, 4 Utah, 252, 9 Pac. 407; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614.
(id) Appellant contends that it was error to permit the-prosecution to recall defendant's witness Annie Thiede after the defense had rested.- After the direct examination of the witness, in which she stated that the defendant, was kind to his wife, the district attorney cross-examined her, and asked her some questions with a view to showing-defendant's cruelty towards the deceased. Rebutting testimony was offered by the prosecution, and permission was-asked of the court that this witness might be recalled for further cross-examination, and in order to lay a foundation for impeachment. Permission was given, and objection made by the defense upon the ground that it was-incompetent, irrelevant, and immaterial, and not rebuttal. Witness was then asked, if she had not, at the time and place designated, made certain statements to Mrs. Soder-holm concerning specific acts of cruelty upon the part of the defendant towards the deceased. It was not error in the court to permit this. Nor is there any merit in the two succeeding objections, wherein it is alleged that the court erred in permitting the witnesses Minnie Noble and
■ {e) Defendant made contradictory statements relevant to the manner in which the deceased met her death. He also told Dr. Ferrebee that a man, to whom he had sold whisky during the night of the homicide, and while his wife was lying dead in the saloon, had killed her. The evidence tended to prove that whoever killed the deceased must have been partially covered with blood. Dr. Fer-rebee examined the man thus accused the morning following the homicide; and when on the witness stand as a witness for the prosecution the doctor was asked whether he had found any blood stains upon this person. His answer was in the negative, and permitting the answering of this question is assigned as error. This evidence only became competent and material in view of defendant's statement. He was endeavoring to exculpate himself, and in doing so sought to direct attention to others. Testimony that would tend to contradict and impeach him,
(/) Complaint is made because a note, written by the witness last named while he was at the defendant’s saloon, .a short time after the homicide, was admitted in evidence. During the trial the defendant’s conduct immediately after the homicide was inquired into. Witnesses for the prosecution were examined with a view to show that the defendant himself desired the presence of the sheriff. The note jn question was written by Dr. Ferrebee, and read over to the defendant before it was transmitted. It contained .a direction that the sheriff be sent for. This direction, the witness testified, was inserted without defendant’s request, but, when read to him, no objection was offered. In the light of the testimony, and especially that which was elicited on cross-examination of the people’s witnesses, this, while not very material, was not subject to the ■objections urged.
Lillie Birch, witness for the prosecution, testified that on the Sunday evening preceding the homicide deceased •came to her home, weeping. On cross-examination she was asked if the following evening defendant and his wife had not appeared friendly towards each other. This was ■objected to, as not proper cross-examination, and the objection sustained. Appellant insists this was error. 'This exception is absolutely without merit. Witness testified to but one occurrence. If she had given evidence •concerning general treatment of deceased by her husband,
3. Defendant contends that the court erred in overruling-his objection to going to trial on the 10th of October, 1894, for the reason that the evidence taken at the preliminary hearing had not been transcribed, certified, and filed with the.clerk of the district court, as provided by law. Section 4883 of the Compiled Laws of Utah of 1888 provides, in substance, that in cases of homicide the testimony of each witness must be reduced to writing, or the-magistrate before whom the hearing is had may, in his-discretion, order the testimony and proceedings to be taken down in shorthand, and for that purpose may appoint a, reporter. “The transcript of the reporter, when written out in longhand writing and certified as being the correct-statement or the testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings. The reporter shall within ten days after the close of such examination, if the defendant be held to-answer the charge, transcribe in longhand writing his said shorthand notes, and certify and file the same with the clerk of the district conrt of the district embracing the county in which defendant was examined, and shall in all cases file his original notes with said clerk. The reporter’s fees shall be paid out of the treasury of the county.” When the ease was called for trial, defendant’s counsel “objected to going.to trial,” because the notes of the stenographer, taken at the preliminary examination of the defendant, had not been transcribed, certified, and filed with the clerk within ten days, or at all. The record shows that the stenographer who had reported the hearing had declined to transcribe his notes, because in similar-cases both the county and territory had refused to pay him, and upon suit against the former it had been held that the county was not liable. It appears also that the
The record seems to indicate that defendant’s position was that he could not be put on trial at all, because the time had expired within which, under the statute, the reporter was to file a certified transcription of his notes with the clerk. It is now contended by the appellant that he was tried “ without due process of law.” We think defendant’s position unsound. He was deprived of •no right. The preliminary hearing is not connected with the trial; it is unknown to the constitution; it is no part •■of the grand jury system, and has no relation to the indictment. No matter what irregularities may have existed at the examination, even if defendant was there denied an impartial hearing, it would in no manner affect this case, or determine the trial upon indictment. Under ■our practice, an. examination prior to indictment is not indispensable. Indeed, many cases are taken directly before the grand jury. If appellant’s position is correct, the trial ■of a person charged with homicide, where an examination has been held before a magistrate, depends upon the .reporter. If his notes are lost, stolen, or destroyed,. or if through sickness, or for any other reason, he is unable to ■transcribe and certify to them within 10 days after the hearing, the defendant cannot be legally tried, as it would not be with “due process of law.” It was not the intention of the legislature to postpone the trial of a person ■ charged with homicide until he knew the testimony
5. Appellant assigns as error the overruling of his challenges for cause directed against the jurors Harris, Favor, Burton and Smith. The juror Harris, being examined on his voir dire, stated in substance that he had read an account of the homicide, at the time it occurred, in one newspaper, but had never heard or read anything concerning the case since. He had forgotten what was written, and the manner in which the deceased had come to her death. He had never talked with any person concerning the case, nor did he form or express an opinion. He had, however, heard persons, whose names he had forgotten, express ar. opinion as to the guilt or innocence of the defendant. He had an impression as to defendant’s guilt or innocence' from the account read. It was, however, only a newspaper impression, although it would take evidence to remove it. The juror stated, however, that he could try the case fairly and impartially, and give the defendant the presumption, of innocence. The juror Burton had read, in one newspaper only, a partial account of the homicide, and knew nothing except what he had read in the incomplete statement. He had no opinion concerning the guilt or innocence-of the defendant, — “just an opinion as to the occurrence.” In answer to the couit, Mr. Burton stated that he could
Section 244 provides: “That in a challenge for implied bias, one or more of the causes stated in section 242 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 241 must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter
This section of our statute (244) has been passed upon, by the supreme court of the United States in the case of Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614. One off the jurors in that case was challenged for actual and implied bias. He testified on his voir clire that he had-heard of the case through the newspapers, and read what, was represented to be the evidence, and also had talked, about it, so that he had formed a qualified opinion; but. he “could sit upon the jury, and determine the case,, without reference to anything that he heard.” The trial
6. It is further insisted that the court erred in over-
7. Appellant assigns as error the action of the court in permitting witnesses to testify whose names were not indorsed' upon the indictment, and were not given in the list furnished by the district attorney prior to the commencement of the trial. On the day the case was set for trial, defendant’s counsel, in open court, requested “as a favor, and not as a matter of right,” that the people’s .attorney furnish him the names of all the witnesses to be called during the trial, before its commencement. The ■district attorney replied that he had no acquaintance with the case, but, as soon as he was advised that other wit-messes than those whose names were indorsed upon the indictment would be called, he would inform defendant’s ■counsel. So far as the record speaks upon this matter, ■this promise was fulfilled. Witness McQueen’s .name
8. Appellant claims that the court erred, in permitting. Louis Gronosky, one of the jurors, to be sworn and act as interpreter during the trial for two of the witnesses. After the trial had been in progress several days, the prosecution •called Jacob Lauenberger to testify as a witness in the ■cause. The witness spoke a peculiar and unusual dialect •of the German language, and it was difficult to procure a •competent interpreter. One Fritz Lomax was, with the •consent of the defendant, sworn as interpreter. After .some little testimony had been given through the interpreter, defendant’s counsel stated that he was informed by ■the defendant and a member of the bar that the interpreter was not translating correctly -the answers .of the witness. The juror Gronosky spoke up, and said that sev•eral statements were not rightly interpreted. Thereupon he was asked by the district attorney if he understood ■fully the witness, and the juror answered affirmatively, and ■stated that he was willing to act as interpreter. The district attorney then asked the defendant’s counsel privately, ■so as not to be heard by the court or jury, if the defend■ant would consent to the juror’s acting as interpreter for •the witness, to which counsel replied, “Make your statement openly to the court.” The district attorney then stated •that he had endeavored to find some person to interpret the witness, but had been unable to find one who could fully •understand witness. Request was then made of the court that the juror might be permitted to act as interpreter. 'The defendant and his counsel, in open court, consented •that the juror Gronosky might act as interpreter for the ■witness. Thereupon the court consented, and Mr. Gror
Counsel now contends that he was deprived of a trial by a constitutional jury of 13 men; that Gronosky, while-acting as interpreter, ceased to be a juror. It is also claimed that the consent given was of no avail, as it was concerning a matter so vital that defendant could not waive it. Section 3879 of the Compiled Laws of Utah of 1888 provides that “ the judge or any juror may be called as a witness by either party, but when this is done, it is in the discretion of the court to order a postponement of the trial, and that it be taken before another judge or jury.” While this section is found in the civil practice-act, section 5386 provides that the rules determining the-competency of witnesses in civil cases are applicable also to criminal actions and proceedings. And it appears to have been the rule at common law that a juror could be called as a witness. Archb. Cr. Prac. & Pl. p. 150; Rex v. Rosser, 1 Car. & P. 648; McKain v. Love, 2 Hill, Lib. & Law, 506. In Mr. Pomeroy’s edition of Archb. Cr. Prac. & Pl. is found a marginal note on page 150, which readsr “A juror’ may give evidence of any fact material to be communicated in the cause of a trial in a criminal prosecution. The jury may use that general knowledge which any man may bring to be subject-matter of the indictment,
9. - Appellant assigns as error certain portions of the charge of the court, and also the refusal of the court to give certain numbered instructions asked by the defendant. Defendant’s counsel presented to the trial court nine pages of typewritten matter, paragraphed and numbered from 1 to 22, inclusive, upon which was indorsed the following: “ Comes now the defendant, and requests the court to instruct the jury as follows.” Then followed the signature of counsel, and the requests. When the judge had concluded his charge, defendant’s counsel excepted to' “the refusal of the court to give the instructions requested by defendant, being numbered 1, 2, etc.” Then follow the numbers of all the paragraphs except three, the court having adopted them verbatim. Also to the instruction of the court defining “malice,” “deliberation,” and “premeditation; ” and also to the “ charge of the court in submitting the question of murder in the second degree to the jury, as not being justified by the evidence, and tending to mislead and confuse the jury.” Thirteen days later, and 12 days after the jury had returned a verdict, and been discharged, without consent of the attorney for the people or permission of court, appellant’s counsel took several general exceptions to the charge. They were, however, so indefinite, and so general, that, even if taken in time, they would prove unavailing, and would not be considered by an appellate court. It is the duty of coun
The exceptions to the court’s definitions of the words ■“malice,” “premeditation ” and “ deliberation ” are also too general to raise any question for the consideration of the court. There was no attempt to indicate wherein there was error in the language of the charge. A bare statement that the court erred in defining “ malice,” without pointing out wherein the error lies, is too general. People v. Hart (Utah), 37 Pac. 331; Holder v. U. S. 150 U. S. 92, 14 Sup. Ct. 10; Railway Co. v. Jurey, supra; Allis v. U. S., 15 Sup. Ct. 36. However, we have examined the portion of the charge defining these terms, and we find no error therein. This counsel practically concedes in his brief. And we think there was no error in charging upon the question of murder in the second degree. It was the duty of the court to define murder, and its degrees, but not to hold as a matter of law (in view
Defendant complains because his requests were not all given. They were asked in the aggregate, and the rulé-is that, when so asked, and there is anything exceptionable in either of them, the whole may be properly rejected by the court. Railroad Co. v. Horst, 93 U. S. 295; U. S. v. Musser, 4 Utah, 166, 7 Pac. 389. A number of defendant’s requests stated mere abstract principles of law, and had little, if any, application to the case; and two at least were- not correct statements of the law. Most of them, however, were substantially given in the charge of the court. We think the entire case was covered in the court’s charge, and that it was submitted properly to the jury. When this is done, the court may refuse to instruct-further; and it may “use its own language, and present the case in its own way.” Railroad Co. v. Horst,