43 Cal. 137 | Cal. | 1872
Lead Opinion
By the Court,
The appellant was found guilty in the Court below of the crime of murder in the first degree, in the felonious killing of A. P. Crittenden, and was, thereupon, adjudged to suffer
First—In impaneling the trial jury, Henry M. Beach, being examined as to his qualification to serve as a juror, stated, in substance, that he had read in the newspapers an account of the homicide; that he had not conversed with any one about it; had heard but little said upon the subject; that he had neither formed nor expressed an unqualified opinion as to the guilt or innocence of the prisoner; that his mind was entirely unimpressed upon that point, and that he could give the prisoner a fair trial, etc.; and he was thereupon accepted and sworn as a juror.
A verdict of guilty having been rendered by the jury, the prisoner moved for a new trial on many grounds—among the rest, that Beach was not a competent juror—he having, in fact, as the prisoner alleged, both formed and expressed an unqualified opinion, before he was called as a juror, that she was guilty of murder in killing Crittenden, and that she ought to be executed. Humerous affidavits were produced and read at the hearing of the motion, which tended to show that Beach had, in point of fact, shortly after the killing, openly declared that he considered it a willful murder, and that if he should be upon the jury he would consider that the offense of the prisoner was murder in the first degree, and would hang her. Counter affidavits were also produced and read, going to show that the statements contained in the affidavits, upon behalf of the prisoner, were incorrect and untrue.
The alleged disqualification of Beach to serve as a juror is relied upon here; and it is claimed that in view of the affidavits in the record the Court below should have set aside the verdict on that ground.
Could the question of practice involved be quite regarded as res integra here, this mere reference to the terms of exclusion employed in the statute would be sufficient to dispose of the point; but in The People v. Plummer, 9 Cal. 298, it was held by this Court that under this statute an objection to the competency of a juror might be made by the prisoner for the first time after verdict rendered, and might be relied upon as a ground of motion for a new trial.
We have carefully examined the elaborate and able opinion rendered in that case, and we find in it nothing whatever as to the construction or interpretation of section four hundred, and forty in the particular already referred to. It is undoubtedly true, as there remarked by the Court, that every citizen has the right “to demand that all offenses charged against him shall be submitted to a tribunal composed of honest and unprejudiced men, who will do equal and exact justice between the Government and the accused, and, in order to do this, weigh impartially every fact disclosed by the evidence.” The right of trial by jury is unquestionably a sacred right, and one secured by the guarantees of the Constitution; and this is much, if not all, of what is said in the opinion delivered here in the case of Plummer. But when this proposition of constitutional law is conceded, we have advanced but a little way toward the point of practice involved here and in the Plummer case as well. The jurors
Second—The evidence of the defense having been concluded, the prosecution were permitted, against the objection of the prisoner, to prove that her general character for chastity was bad.
The nature of the charge against the prisoner certainly did not per se involve an inquiry into her character for chastity. A good reputation for that virtue, had it been
Mr. Phillips, in his work on evidence, expresses the true rule upon this subject, and which will be found to accord with the current of judicial decisions, and the opinions of the text writers upon the law. He says: “ On a charge of stealing it would be irrelevant and absurd to inquire into the prisoner’s loyalty or humanity; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which is alone the subject of-inquiry. It would not afford the least presumption that the prisoner might not have been tempted to commit the crime for which he is tried, and is, therefore, totally inapplicable to the point in question.” (Page 490.) It is apparent that if such an inquiry must, upon objection by the prosecution, have been excluded for mere irrelevancy, had the prisoner sought to introduce it in her own behalf, the same rule
Supposing, however, that an investigation upon that point, or upon any other given point of the general character of the prisoner, had been pertinent in itself, it is, nevertheless, settled by an overwhelming current of judicial decisions that it is not competent to the prosecution to initiate the inquiry, and that it is only after the prisoner has elected to put his character in issue, by calling witnesses and adducing evidence in its distinctive support, that the prosecution is permitted to follow and disprove the evidence so offered, if it can. iSTor is the prisoner to be held to have thus led the way, and opened up her character to the attack of the prosecution, merely because the ease made or attempted in the defense is rendered more formidable when considered in connection with the good character—good in the sense of not being bad—which the law assumes the prisoner to possess in cases in which no evidence upon the subject of general character is offered. The presumption of a character of ordinary fairness, with which the law clothed her for the purposes of the case, was one to the benefit of which she was entitled, and which could not be put in peril unless, discarding the presumption thus afforded her, she had elected to put it distinctly in issue, and so constitute it a fact to be determined by the jury as other facts in issue were to be determined.
“Whenever the defendant chooses to call witnesses to prove his general character to be good, the prosecution may offer witnesses to disprove their testimony. But it is not competent for the prosecution to go into the inquiry until the defendant has voluntarily put his character in issue.” (Comm. v. Hardy, 2 Mass. 317.)
“A prisoner on trial may show what his reputation is, and then the question is open to the prosecution, and for the jury
We have remarked already that the defense called no witness to establish the general character of the prisoner, and when she objected to the attack of the prosecution in that respect, the learned Court below said: “It is very certain that in the opening of the case the counsel for the defendant took the ground that the prisoner’s prospects had been ruined by the acts of Mr. Crittenden. The evidence, as I had supposed, has been given tending to show that fact, and given for that purpose. It is true the books say that no evidence of that character can be given by the prosecution unless some evidence has been given on the other side by the defense. In other words, there must be something to rebut or counteract. But I think the tendency of the evidence introduced by the defense was to show that her prospects had been injured, even taking the testimony of the defendant herself. That being the case, the testimony is admissible.”
We are of opinion, however, that the mere fact that the evidence, as introduced upon the part of the prisoner, tended to show that her prospects had been injured by reason of her relations with the deceased, was not of itself enough to authorize the prosecution to begin a direct assault upon her character. Ho adjudicated case nor treatise upon the law brought to our attention maintains that it was, and such a doctrine would operate a grave innovation upon a recognized rule governing the introduction of evidence in criminal trials—an innovation, in our opinion, totally irreconcilable with the principle of law upon which the rule itself is founded, and which would, in practice, insensibly lead to its entire abrogation.
The authorities upon this point support the rule laid down by Mr. Btjeeill in his work on Evidence (p. 533): “ When the prisoner has once voluntarily offered his character as a
It is not' sufficient, within this rule, that there be something in the facts or line of defense relied upon by the prisoner which might be made to appear in a less favorable aspect for her, by instituting an inquiry into her character and proving it to be other than of that ordinary degree of fairness which the law presumes it to be, for however peculiar the facts or circumstances may be in a given case, the rule is absolute upon the point that the character of the prisoner is not open to assault, as a distinctive feature of the case, until the prisoner shall have brought it forward and invited the attack of the prosecution, by arraying the evidence in its support. Until the prisoner thus initiates the inquiry, the prosecution are bound to assume it to be, as the law presumes it, ordinarily fair, and must establish her guilt, if at all, in the face of this presumption, and despite the benefit it affords her.
We are therefore of opinion that there was error in the ruling of the Court below in this respect.
The third and last point which we shall notice concerns the relative order in which the respective counsel—two upon either side of the case—were permitted to address the jury in summing up.
It appears by the record that on the fifteenth day of April the associate counsel of the District Attorney opened the argument and concluded on the same day. The Court then adjourned until the seventeenth of April, on which day Mr. Quint, one of the counsel for the defense, opened upon behalf of the prisoner, concluding on the twentieth of April, and that during his argument on the nineteenth he referred to the statute, and asserted that the defense had the right to finally close the argument. On the conclusion of Mr. Quint’s
Section three hundred and sixty-four of the Criminal Practice Act'provides as follows: “Section 364. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. If it be for any other offense, the Court may, in its discretion, restrict the argument to one counsel on each side.”
It is to be remarked that section three hundred and sixty-four, as above recited, formed a part of the Act to regulate proceedings in criminal cases, as enacted April 20th, 1850, where it is to be found as section three hundred and ninety-four (p. 303.) In 1851 (pp. 251, 252) it was reenacted in totidem verbis in the new statute of that year regulating proceedings in criminal cases, where it appears as section three hundred and sixty-four, and it has ever since then remained upon the statute book, without express alteration, amendment, or repeal.
The distinctive features apparent in this section, considered by itself, are two:
First—That in capital cases the prisoner may insist upon being heard through two counsel, and is not to be restricted to one, as may be done in other cases.
Second—That in such cases the counsel addressing the jury .must do so alternately.
As originally enacted, in 1850, it was preceded by sections three hundred and ninety-two and three hundred and ninety-three of that Act, which provided, in substance that, unless the Court should otherwise direct, the counsel for the people must commence and might conclude the argument, but that
The absolute right of the prisoner to conclude the argument being insisted upon under the Act of 1850, it would result that the prosecution must open; and the rule of alternation being then observed, the prisoner’s counsel would necessarily make the closing argument. But if the counsel for the prisoner should not assert their right to make the closing argument, but, waiving that, should nevertheless insist upon the alternation of argument provided for by section three hundred and ninety-four of the Act of 1850, then the Court, under the authority conferred by section three hundred and ninety-three, might change the order of argument so that the defense would open, and the argument thence proceeding by alternation, the prosecution would necessarily make the closing argument.
In 1851 (pp. 251, 252,) the Act of 1850 was repealed, and a new statute enacted—in which statute sections three hundred and ninety-two, three hundred and ninety-three, and three hundred and ninety-four of the Act of 1850 were introduced as sections three hundred and- sixty-two, three hundred and sixty-three, and three hundred and sixty-four, without any change of expression—and thus the statute remained until 1854. But in 1854 the right of the prisoner to conclude the argument, theretofore absolute in every criminal trial, was taken away by amendments then made
By these amendments (yet in force) it was provided, in substance, that the counsel for the people must open, and might conclude the argument, but that, by the permission of the Court, this order of argument might still be departed from. Section three hundred and sixty-four was, however, suffered to remain without express alteration or amendment. Of course, under the settled rule of statutory construction, that section of the statute is not to be considered as repealed by mere implication, either in whole or in part, except in so far as its provisions are found to be absolutely inconsistent with sections three hundred and sixty-two and three hundred and sixty-three, as amended in 1854. If, therefore, after giving full effect and scope to the amendment of 1854, section three hundred and sixty-four, as enacted in 1851, is still found to include any subject matter not at all embraced in the amendment of 1854, or if including the same subject matter as that embraced in that amendment, it still deals with that subject matter not inconsistently with the amendment itself) then so far forth the provisions of section three hundred and sixty-four of 1851 must continue to be observed in the conduct of that class of criminal cases to which it especially refers.
And after an attentive examination of the statute, and a consideration of the numerous amendments, which portions of it here have undergone, we are unable to discover any repugnance between section three hundred and sixty-four of 1851, upon the one hand, and sections three hundred and sixty-two and three hundred and sixty-three, as amended in 1854, upon the other. It is clear that the admitted right of a prisoner in capital cases to be heard at this day through two counsel, instead of being possibly restricted to one, as he may in cases of a lesser grade, exists solely by force of section three hundred and sixty-four of the Act of 1851,
The Court having given no direction upon the subject at the trial, and the counsel for the prosecution having opened
Judgment reversed and cause remanded for a new trial.
Concurrence Opinion
concurring:
The defense relied upon in this cause is, that at the moment when the fatal shot was fired the accused was laboring under a temporary insanity, proceeding from certain physical causes, aggravated by the extraordinary mental excitement occasioned by the circumstances which immediately preceded the killing. The proof of the defendant’s bad reputation for chastity was offered and submitted solely on the ground that it tended to rebut the inference that the alleged mental excitement of the defendant was occasioned by a sense of shame and mortification which she experienced on account of the damage which she supposed her reputation had suffered by reason of her connection with Crittenden. The proof was, therefore, admitted for the purpose of throwing some light on the question of her mental condition at the moment when the deed was committed. If the defendant had offered any proof whatever that, previous to her relation with Crittenden, her reputation for chastity was good, and that the damage to that reputation which ensued from her connection with Crittenden so preyed upon her mind, in her then state of physical debility, as to result in a state of temporary insanity, it would have been clearly competent for the prosecution to rebut this presumption by proof that she had no reputation to lose, and consequently that she could not have experienced any great mental excitement occasioned by the loss of a reputation which she did not possess. But the defendant offered no proof whatever as to her previous reputation; and even in her own account of the transaction, and of the state of her mind at the time, did not attribute
I am, therefore, of opinion that the proof offered by the prosecution on this point was improperly admitted, inasmuch as it did not tend to rebut any proof offered by the defense, nor to elucidate the causes to which she attributes her alleged insanity. I have deemed it proper to add my views on this branch of the case to those of Mr. Justice Wallace, not because I dissent from any proposition stated by him, but for the reason that it has been insisted with much earnestness by the counsel for the prosecution that the proof of reputation in this case does not fall within the general rule which allows the reputation of the accused to be assailed only in rebuttal of proof of a good reputation offered by the defendant.
I concur in the judgment and with Mr. Justice Wallace on the other questions discussed in his opinion.