People of the Territory v. Thiede

11 Utah 241 | Utah | 1895

KING, J.

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 necessitates a brief review of the evidence produced upon the trial. The undisputed testimony shows the following facts: 'The wife of the defendant was killed during the night of Monday, the 30th day of April, 1894. The defendant, about half past 1 or 2 o’clock in the morning, awakened •Jacob Lauenberger, and informed him that he had found his wife with her throat out, lying near the defendant’s saloon. Upon examination by physicians of the wound upon the person of the deceased it was found that ■the head had been almost severed from the body by a wound in the throat, made by some sharp instrument. The ■wound extended inward to the vertebrae, which obstructed the further passage of the weapon. That from the char•acter of the wound death was inevitable and immediate. It was highly improbable, if not impossible, according to the testimony of the physicians, that the wound could have been made with a pocket-knife, and highly improbable that it was made with a razor, but was of such a nature as would be made with a large knife, or-similar instrument. The body of the deceased was found lying within 3 to 5 feet of the southeast corner of the defend-ant’s saloon; and about 30 feet further east was a pool of blood, with evidence of a struggle, indicating that the •deceased and her assailant had engaged in a struggle there, .and that the deceased had received a serious, if not a fatal, wound at that place; and from that point to where the body lay there were blood marks, and another pool of blood where the body lay. The defendant was in or near the saloon during the night until he went with the witness Lauenberger to Murray for a physician, and the ■saloon was lighted during the whole of the night. The •defendant had blood upon his hands and there was blood upon his clothing. The defendant, when he awakened Lauenberger, and thereafter, when going for a physician, .and after his return, made manifestations of grief at the loss of bis wife. The defendant and his wife were about 53 years of age, and for several years prior to her deatlj the husband had slept at his saloon, and his wife, with her child, about ten years of age, at the dwelling house, .a short distance from the saloon.

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 and his child slept in the saloon that night; that about-this time the defendants wife went to the house of a. neighbor, crying, and apparently afraid; that about 10-o’clock that night she was seen on the public highway, a-short distance from the saloon, as if hiding and alarmed.. On Monday morning the child went to school, and was-told to go home with the teacher, and she remained withi her Monday night.

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 it was testified to by the sheriff and his deputy that on the morning after the murder, when they went there, the defendant stated to the sheriff that he had killed his wife during the night. The defendant testified that when he found his wife lying upon the ground he undertook to-lift her up, and so got the blood upon his hands and clothing; that when he undertook to raise her a sound was made like “ Oh, Charley! ” and that was what he said to the witnesses who testified that he said his wife said, “Oh, Charley!” He denies that he made the statement to the sheriff that he killed his wife, and says that what he said was, “They killed my wife.”

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, way connected with the crime; and the absence of motive, and the improbability of any of these men carrying npon his person a weapon snch as would be likely to inflict such a wbund, or committing such a crime within a few feet of a lighted building, and the likelihood that the ■defendant would have heard his wife’s screams if anybody ■else had committed the murder, were matters for the consideration of the jury; and they could very properly say that, under the circumstances, the presence of these men in the neighborhood did not relieve the defendant from the effect of the evidence against him, but that the presence of these men furnished him with an opportunity to take his wife’s life, and throw suspicion upon others than himself.

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 motive inspired the deed? It is a most material question to be determined. If no reason or motive is found, one is loath to believe even positive and direct evidence incriminating the spouse. In the case at bar, evidence of -kindness and affection towards the deceased, exhibited by the defendant, would have been material, and would have proven of great weight in his behalf; conversely, cruel ■treatment and evidence of hatred and> ill will would operate very strongly against him. Various witnesses testified to maltreatment, and circumstances from which the prosecution sought to draw inferences that defendant’s treatment of his wife was cruel and inhuman. Was the ■defendant sufficiently connected with these acts and circumstances? The undisputed evidence was that defendant for years had'not slept at home or with his wife. She had no relations in this country, was alone with her husband and their 10 year old daughter. Mr. Soderholm testified: That for about four years prior to the homicide he had resided within a few yards of the defendant’s saloon and home. That shortly after taking up his residence there he saw the deceased one morning, running from her home, followed by defendant. She was screaming and attempting to escape from her husband. While so doing, defendant caught her, threw her down violently upon the ground, and kicked her, and dragged her by the hair of her head. Witness interfered, and defendant then •ceased. He also testified: That very often, — as frequently .as once a week, — from that time to the time of her death he had heard Mrs. Thiede crying and screaming at her .home and the saloon when her husband would be there. 'That he had seen her, after dark, hiding near her home, when she appeared greatly frightened and agitated. Her ■face was always bruised, and often bloody. Before it had ■rime to heal up it showed signs of renewed external violence.

Mrs. Soderholm testified that about 3£ years before the-trial she saw defendant beat his wife with a stick,, and in, October or November, 1893, about midnight, deceased’s, little girl ran to her home, and conveyed certain information, as a result of which witness and her daughter went to defendant’s brewery, a short distance from his-home and saloon. There they discerned deceased in the-attic of the brewery, -thinly clad. The night was very cold. She was softly crying to her daughter. Defendant was-near, and when the witness and her daughter approached he drove them away, threatening to shoot them. She also testified to seeing deceased hiding, about 300 feet away from the saloon, one night when defendant was there. She was crying, and wringing her hands, and appeared to-be greatly distressed. The witness further stated that she-saw defendant chase his wife almost daily, and nearly every night when he was at home or at the saloon she-could hear Mrs. Thiede screaming. The witness resided; but a short distance from the saloon, described by her on the stand as being twice the length of the room in which-the trial was being conducted. Mrs. Anderson, whose-residence was very near the defendant’s, testified to having-seen bruises upon the deceased, and healing screams from her home late at night; and about midnight, upon one-occasion, she heard defendant and deceased near the saloon,, and the latter was screaming. She also saw Mrs. Thiede, the night preceding the homicide, hiding near her home.. Jacob Lauenberger and his wife testified that the evening-before Mrs. Thiede’s death, and before the time when Mrs. Anderson saw her hiding, she and defendant had a. quarrel in the garden adjoining Lauenberger’s home. Mr. Lauenberger invited the deceased into his house, hoping to-terminate the quarrel. The invitation was accepted', but-defendant followed his wife into the house, and there-struck her in the face two or three times, and insisted, upon her going home. She refused, saying, “You will hill me tonight, if I go home.” James Gilbert testified that about sundown on the evening that Mrs. Thiede was killed he was near defendant's saloon, and saw Mrs. 'Thiede run out of the saloon, looking very greatly alarmed and excited, and was followed by her husband. Other witnesses gave similar testimony to that given by the witnesses above named.

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, (Colo. App.) 37 Pac. 953, showed that the deceased and her husband engaged in frequent drunken carousals, but failed to show the cause of her death. The corpus delicti was not proven. As the court say: “In their periodical drunken conflicts, she was undoubtedly the victim of violence and abuse. The external injuries, if inflicted by him, may have affected, more or less, a person in a prostrate condition; but,there was an utter lack of evidence-that they caused death, and as to show how they were received is left equally in doubt.” The case of Territory v. Armijo, supra, was strongly relied upon in the oral argument as completely vindicating defendant’s position upon this question. It is not necessary to enter into a. discussion of that case. It is sufficient to say that, while-we do not assent to all the reasoning of the court, and to-all the conclusions reached, yet that is clearly distinguishable from this ease, and does not announce a different, rule of evidence than that which governed the trial court-in the case at bar, and which we uphold.

(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-anee diminishes in proportion to the increased number of strong persons in the vicinity at the time of the homicide.

(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 Mrs. Soderholm to testify to conversations had with the witness Annie Thiede, the proper foundation having been laid. These are matters resting largely in the sound discretion of the trial court. Careful examination of the record shows that there was no abuse of this discretion. It was a material question whether the defendant abused his wife, and, Annie Thiede having denied that her mother was in the attic of the brewery in the nighttime, under circumstances indicating that she had fled from the wrath of the defendant, as testified to by Mrs. Soderholm and her daughter, and the witness having further stated that she never saw her father whip or strike her mother, Mrs. Soderholm was recalled, and testified in substance that Annie Thiede told. her that defendant took the deceased from the attic and whipped her. This was not incompetent or hearsay evidence, nor was it collateral or immaterial, as counsel insists. It was properly admitted by the court.

■ {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, .■and at the same time explain away any circumstance tending to connect another with the killing, would be material. Certainly it would have been proper for the_ prosecution to have shown that this person accused by the ■defendant of having killed his wife was in a different part ■of the territory at the time of the homicide. The fact that several hours elapsed before the witness made the examination goes only to the weight of the evidence, and does not affect the question of its materiality.

(/) 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, another question would have been presented. To negative maltreatment was a part of the defense. The witness-could have been called by defendant, but it is clear the question was not proper on cross-examination. It is also-urged that error was committed in sustaining objections te the questions asked Mrs. and Mr. Soderholm, witnesses-for the people. The questions asked of Mr. Soderholm, it is apparent, were not propounded for the purpose of testing his credibility, but to condemn him before the jury by innuendo. The first question assumes that a man bearing the same surname had a fight with his wife, and the second assumes that some person had trouble with his wife-in Burgetown, growing out of his having some woman in his room. These questions were not cross-examination, had no relation whatever to anything concerning which witness had testified in his direct examination, and they assume facts in regard to which there was not even a suggestion of proof. The questions asked Mrs. Soderholm were clearly incompetent. Counsel asked her if her husband was not in the habit of whipping her, and whether or not she had not had trouble with him “in regard to-a woman being in the house." There is nothing in these questions that would tend in any manner to impeach the-witness or test her credibility-. The court asked defendants counsel whether these questions were put in good faith. The reply was that he was relying upon information received from defendant and others. TJpon cross-examination a witness may be asked any question which tends to test his accuracy or credibility or to impair his credit by compromising his character; but the extent to-Avhich examination shall be allowed is in the discretion of the court, and that discretion should be exercised in view of the circumstances attending the trial, and the good or bad faith manifested by the parties. 1 Thomp. Trials, §§ 458, 461, 464; People v. Larsen (Utah), 87 Pac. 358. We-cannot say tbis discretionary power was abnsed by the conrt in passing upon the questions above referred to.

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 •attorney for tbe people bad requested a transcript, but the reporter bad peremptorily declined to furnish it, and had come into open court and given his reasons for so doing. The defendant did not claim that he was prejudiced in not having a transcript of the reporter’s notes, nor did he ask for a continuance in order to secure a transcript of them; and the record shows that he never made any request, ■either to the reporter or to the court, to be furnished with .a copy of the testimony taken by the reporter.

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 against him. If so, the grand jury would have been, required to divulge the evidence before them, or that body would have been forbidden to examine any case until a preliminary hearing had taken place, and the evidence there produced furnished the accused. It is not necessary to decide whether the statute is directory merely, or mandatory. If defendant had asked for a continuance in. order to procure a copy of the testimony, or made any showing that he was being deprived of any right or advantage, or would in any manner be prejudiced in proceeding to trial, perhaps a different question might be-presented than that here raised by the defendant.

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 entirely disregard what he had read, and any impression or opinion that he had formed from it, and try the defendant on the evidence produced. O. S. Favor, upon his •examination, stated that he had read newspaper accounts ■of the homicide, and that he had a strong impression arising therefrom as to the guilt or innocence of the defendant, and the fact that the homicide had been committed, but that his mind was entirely free from such an ■opinion or conclusion; “ that he could accord to the •defendant the full presumption of innocence in entering upon the trial. He had, however, an impression which would take some evidence to remove, but would enter the .jury box [he hoped] unbiased.” The statute of the territory allows challenges to jurors for implied and actual bias. The provisions relating to this subject are found in '2 Comp. Laws Utah 1888, pp. 704, 706, and are as follows: Section 241: “A particular cause of challenge is: (1) For such a bias as when the existence of the facts is .ascertained in the judgment of law, disqualifies the juror, .and which is known in this act as implied bias. (2) For the existence of a state of mind on the part of the juror which leads to a just inference, in reference to the case, that he will not act with entire impartiality, which is known in law as actual bias.” For implied bias there are ■eight grounds of challenge. The only one necessary to be referred to in this case is that which provides for challenging the juror when he has formed and expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.

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 ■or canse to be submitted to snob jury, founded upon public rumor, statement in public journals, or common notoriety; provided, it appear to the court, upon bis declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the' matters submitted to him. The challenge may be oral, but must be entered in the minutes of the court •or of the phonographic reporter.” The challenges interposed by defendant were too general, and did not raise •any question for review by this court. Defendant's mode of challenge was, “ Defendant challenges for cause.” This is insufficient. People v. Hopt, 4 Utah, 249, 9 Pac. 407. If the jurors were challenged for implied bias, the grounds upon which the challenge is placed must be stated. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; People v. Hopt, 4 Utah, 250, 9 Pac. 407; People v. Cotta, 49 Cal. 166. If the challenge is for actual bias, the cause stated in the statute must be alleged. Hopt v. Utah, and People v. Hopt, supra. Moreover, defendant peremptorily challenged the jurors Harris and Burton, and, under all -authorities, if there had been error in overruling his •challenges for cause, he could not now complain. But, ■waiving the question as to the form of challenges and the "last point suggested, and considering the matter upon its ■merits, we are of the opinion that the court properly ¡overruled defendant's challenges. It is clear the jurors were not disqualified for implied bias, as they had neither :formed nor expressed an unqualified opinion or belief as to the guilt or innocence of the defendant, so that, if they ■were disqualified, it was because of actual bias. Counsel insists that these jurors were not impartial, and therefore incompetent, and that the sixth amendment to the federal •constitution, which provides for “a. .speedy and public trial before an impartial jury,” was violated. If the jurors were incompetent, it was because of having read in “public journals” an account of the homicide. They had not gone-to the extent of “ forming and expressing an opinion upon the cause.” Illinois has a statute substantially the same as section 244, supra. It was contended in the case of Spies v. People, 122 Ill. 261, 12 N. E. 865, and 17 N. E. 898, that it was unconstitutional as being in contravention of a provision of the state constitution providing for a speedy and impartial trial in criminal cases. The defendants claimed that a federal question was involved, and carried the case to the supreme court of the United States. Speaking of the constitutionality of the act, that court say: “ Without pursuing this subject further, it is sufficient to say that we entirely agree with the supreme court of Illinois in its opinion in this case, that the statute on. its face, as construed by the trial court, is not repugnant, to section 9 of article 2 of the constitution of that state, which guaranties to the accused party in every criminal prosecution a speedy trial by an impartial jury of the' county or district in which the offense is alleged to have been committed. As this is substantially the provision of' the constitution of the United States upon which the-petitioners now rely, it follows that, even if their position as to the operation and effect of that constitution is correct, the statute is not open to the objection which is made-against it.” Spies v. Illinois, 123 U. S. 170, 8 Sup. Ct. 21.

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 court held that he was competent. The court say: “By the express terms of the statute (section 244) he could not be disqualified as a juror for an opinion formed or expressed upon statements in public journals, if it appear to the court, upon a declaration under oath or otherwise, that he could or would, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him. We think that the evidence, of what purports to be the evidence, printed in a newspaper, is a statement in a ‘public journal/ within the meaning of the statute, and that the judgment of the court, upon the competency of a juror in such cases is conclusive.” Reynolds v. U. S., 98 U. S. 145; People v. Hopt, 4 Utah, 250, 9 Pac. 407; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21; People v. McGonegal (N. Y. App.), 32 N. E. 616; People v. Wah Lee Mon (Sup.), 13 N. Y. Supp. 767. But, conceding that the jurors mentioned possessed actual bias, there is no question presented for review in this court. An issue of fact was raised, and the action of the trial court, no exception having been taken to any ruling admitting or rejecting evidence upon the voir dire examination, is final and conclusive. 2 Comp. Laws Utah 1888, § 5085; People v. Hopt, 4 Utah, 250, 9 Pac. 407; People v. Cotta, 49 Cal. 168; People v. Fong Ah Sing, 70 Cal. 8, 11 Pac. 323; People v. McGonegal, supra; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21; State v. Pike, 49 N. H. 399. The cases upon which counsel rely are not opposed to the views herein expressed. They present different questions, and most of them are decided upon statutes different from ours. Perhaps, a few years ago, before newspapers were so numerous, impressions and opinions founded upon reports contained in public journals would, in some jurisdictions, be deemed sufficient to disqualify a person for jury service.

6. It is further insisted that the court erred in over-xnling defendant’s challenge of Jnror Smith. Counsel’s ■challenge was for “ bias and prejudice.” Were it not for 'the importance of the case, we would not notice a challenge based upon a ground so general, and wholly •unknown to the statute. Moreover, after this challenge was overruled, the juror was peremptorily challenged by "the defendant. During the examination of this juror he was asked by defendant’s counsel whether, if it would appear that defendant was engaged in the saloon business, at the time and prior to the homicide, it would have a tendency to prejudice or bias his mind against him, and the reply was that he did not have “that respect for or regard for that class of men that I would have for men of other •occupations, generally, as men of a class.” He further ■stated that, if the defendant went on the stand as a witness, the fact might have some weight in his mind as to his credibility as a witness; that he knew nothing of the case or about the defendant, and had no bias or prejudice against him, and no opinion of his guilt or innocence, and would not allow the fact that he thought less cf a saloon keeper than men of other occupations, generally, to influence him in any way -in passing upon his innocence or guilt, and that he could pass upon that the ■same as he would upon any other person. Under the statute there can be no question about the competency of the juror. It is not required that jurors close their eyes to just observations and experiences in life. It is their ■exclusive province to weigh the evidence, and determine '.the credibility of the witnesses; and they cannot be required to state in advance — as a prerequisite to competency — that they will give the same credit to one witness that they will give to another, or to one class of witnesses that they would to other classes. It has been intimated by the supreme court of Indiana that in the trial of a cause in-Tolving tbe business of tbe defendant, wbo was a saloon keeper, a juror wbo stated that be was prejudiced •against saloon keepers, and would not believe defendant ns be would persons of other occupations, was not qualified; but tbe court limits tbe rule to cases concerning tbe •occupation or business against which tbe juror is prejudiced. State v. Dolan, 23 N. E. 761. But in the case at bar defendant’s business was not upon trial, and was not involved in tbe case. One of tbe jurors in the case of Spies v. Illinois, supra, in his voir dire, answered that be had a decided prejudice against communists and socialists. Defendants were not only communists and socialists, but anarchists. It was held that the court rightly overruled defendant’s challenge to the competency of the juror, and that its finding was conclusive. See Spies v. Illinois, 123 U. S. 131, 8 Supt. Ct. 21; DePuy v. Quinn (Sup.), 16 N. Y. Supp. 710; Fortune v. Trainor (Sup.), 19 N. Y. Supp. 598; People v. Carpenter, 102 N. Y. 238, 6 N. E. 584; Com. v. Poisson (Mass.), 32 N. E. 906; Stoots v. State, (Ind. Sup.) 9 N. E. 380.

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 appears upon the indictment, and no objection whatever was made by defendant to the calling as witnesses of Carl Soderholm, Eva Berg, and Lillie Birch. The witness-Striker was called on the 15th of October. Defendant was-notified on the 11th preceding that the prosecution would call him as a witness, which was eight days before the defense rested. We are not directed to any statute requiring that defendant shall be furnished with the names of the witnesses called by the prosecution, and there is no-authority, so far as we are advised, for holding that no-person can be called as a witness for the people unless his name is indorsed upon the indictment. Section 4925, p. 686, 2 Comp. Laws Utah, requires the names of the witnesses examined before the grand jury to be indorsed upon the indictment before it Í3 presented in court. If this is-not done, the defendant may take advantage of it before-entering his plea, by submitting a motion to set aside the-indictment. The failure to indorse the names of the witnesses examined by the grand jury upon the indictment is-waived by the defendant by pleading to the indictment. People v. Symonds, 22 Cal. 349; People v. Lopez, 26 Cal. 113; People v. Jocelyn, 29 Cal. 562. No objection was-made to these witnesses testifying for the reason that their, testimony operated as a surprise to defendant. In fact, in most, if not all, points upon which they testified, defendant introduced rebuttal testimony; and impeaching testimony was produced, with a view to destroy the weight of' the testimony given by the witnesses whose evidence seemed to be of great importance. There is nothing in the record to indicate that their testimony was unexpected by the-defense; no application for postponement was made in order to meet their statements; and upon motion for new trial no showing was made by affidavit or otherwise that-defendant was prejudiced by the failure to have their names indorsed upon the indictment, or that their- evidence was-ialse. But/ aside from all this, there is nothing in our .statute requiring the submission of the names of the people’s witnesses to the defendant, or-..permitting only those witnesses to testify for the people whose, .names., appear mpon the indictment.

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 nosky was sworn to act as interpreter for tbe witness-Later the wife of Jacob Lauenberger was called to testify by the prosecution, and defendant and his counsel again consented in open court that the juror should act as interpreter for her. Without leaving his place in the jury box, the juror acted as interpreter for these two witnesses. This was done with the consent of the defendant and his counsel, and no objection was made until after the case-had closed, and the jury'retired. Then defendant's counsel stated that he desired “ to enter an objection and exception to the action of the court in permitting the juror Gronosky to act and serve as interpreter/’

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, without being sworn. But if any one of the jurors has a> particular knowledge of the subject, as, for instance, as to-the value of a watch in a case where it is essential to-prove what it is worth, — he ought to be sworn, and examined as a witness.” We think, under the statute as welli as authority, a juror may be called as a witness in a criminal cause. The question, then, arises, is an interpreter a' witness? Upon this point there seems to be no controversy, the opinion being that he is. People v. Lee Fat, 54 Cal. 527; 1 Greenl. Ev. § 183; Schearer v. Harder, 36 Ind. 541. It is argued that the juror, while acting as interpreter, would be so engrossed that he could not fairly hear, weigh and determine the evidence; that he might, easily give evidence undue weight and credit by being the-medium of transmission; and that he might (and did in. the case at bar) hear incompetent testimony. These and other objections of a like character are urged. We think there is no merit in them. The defendant could not have-been prejudiced by permitting the juror to be the channel conveying the words to the court and jury. If he were-not acting as interpreter, he could hear the words of the-witness; if incompetent evidence were given, he would hear it. Instead of his forgetting the evidence, there-would be more likelihood of his remembering it, when he-had restated it as interpreter. He did not lose his identity as a juror. We can see no difference between this-case and one where the juror might have read for the-other.jurors some writing offered in evidence. Suppose' a. paper had been received in evidence, and a witness on the stand asked to read it, and, owing to some infirmity, he was unable to do so, and a juror sitting near should-volunteer or be asked to read it to the court and jury. He might give undue emphasis to some words; he might be so “engrossed” in reading as to “not remember” its contents. To hold that this would remove him from the. position of juror, that it would leave a jury of but 11', and would be ground for a new trial, and especially when it was consented to, would be sacrificing common sense to sophistry and absurdity. There is no pretense that the juror acted other than honestly and fairly. It is not even hinted that his interpretation was faulty or biased. With this record upon this question, it would be a monstrous perversion of justice to hold that this action of the court was reversible error.

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 counsel to seasonably call the court’s attention to proceedings in the trial thought to be error and prejudicial, so that the trial court can correct the error if made; .and a failure to do so is such a waiver that the party will not be heard to complain thereafter. Lewis v. U. S., 146 U. S. 379, 13 Sup. Ct. 136; Alexander v. U. S., 138 U. S. 355, 11 Sup. Ct. 350; Marks v. Tompkins, 7 Utah, 435, 27 Pac. 6; U. S. v. Carey, 110 U. S. 52, 3 Sup. Ct. 424; Railway Co. v. Jurey, 111 U. S. 596, 4 Sup. Ct. 566. “The rule in relation to exceptions to instructions is that the matter excepted to shall be so brought to the attention of the court before the retirement of the jury, as to •enable the judge to correct the error, if there be any, in ■his instructions to them, and this is also requisite in order that the appellate tribunal may pass upon the precise •question raised without being compelled to search the record to ascertain it.” Hickory v. U S., 151 U. S. 316, 14 Sup. Ct. 334; Jacobson v. State, 55 Ala. 151; Thomp. Trials, § 2394.

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 of all the testimony) that the defendant was either guilty of murder in the first degree or innocent. It was the exclusive province of the jury to determine whether premeditation and deliberation existed. They might have believed beyond all reasonable doubt that the defendant committed the homicide, and think it was done with malice, yet not have been convinced beyond all reasonable-doubt that the defendant acted with premeditation and deliberation. The case of People v. Hopt, supra, presented such facts as to irresistibly lead one to the conclusion that, if the defendant committed the crime, he was guilty of murder in the first degree; yet the supreme court of the United States (Hopt v. Utah, 110 U. S. 582, 4 Supt. Ct. 202), speaking of the ease, say: “It was for the jury, having been informed as to what was murder, * * * to say whether the facts made a case of murder in the first degree or murder in the second degree. It was competent for the judge to * * * inform the jury what, the statutes defined as murder in the first degree and murder in the second degree.'”

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, supra; U. S. v. Musser, supra. Admitting that tbe general exception taken to tbe refusal of tbe court to give defendant’s requests was good, we are of opinion that the case was fairly presented to the jury. We find no error in the record, and accordingly affirm the judgment of the lower court, and remand the case, with directions to the lower court to fix the day for carrying its sentence into effect.

Merritt, C. J., and Smith, J., concur.

Case Details

Case Name: People of the Territory v. Thiede

Court Name: Utah Supreme Court

Date Published: Mar 16, 1895

Citation: 11 Utah 241

Docket Number: No. 567

Court Abbreviation: Utah