7 Utah 170 | Utah | 1891
Lead Opinion
The indictment in this case charges this defendant and two others with the murder of Henry Jones on the 24th day of April, 1858. It was found by the grand jury on the 8th day of March, 1890, or thirty-two years after the alleged crime had been committed. Defendant Hancock was tried separately. The record shows that on April 24th, 1858, the deceased, Henry Jones, was living with his mother, Hannah Jones, his brother, John Jones, and little sister, now Ellen H. Brown, in a small dug-out at Payson; that at this time Ellen was a child about five years of age. It appeared from Ellen’s testimony, given at the trial, that about nine or ten o’clock, in the evening of April 24, 1858, she was awakened by a disturbance outside of the dug-out, caused by the firing of guns. She remembers seeing her two brothers, Henry, the deceased, and- John, get up, hurriedly dress themselves, take their guns and go out on the roof through a chimney hole. Soon after this five or six men came into the cabin and wanted her mother to tell them something, but what they wanted her to tell she could not remember, it was so long ago. She does remember, however, that her mother
While walking along in the direction of Payson and talking about stealing horses, Jones remarked that he didn’t want to go with them, that they had killed his brother and he was not going with them. About this time Jones looked up and saw some other people coming towards them and remarked: “There comes some more of the d-d cusses after me.” He then stopped and threw up his hands, at which time the prosecution claims that Hancock remarked to his companions: “How slap it to him, boys.” A gun cracked, and then another, and Jones fell mortally wounded, and soon afterwards died where he w.as shot. There was a large party present at this killing, most of whom have since died. The next day Jones’ body was taken by some one other than the defendant and placed with that of his mother, without washing or changing the clothes. The supports . to the roof of the dug-out were taken down and the roof lowered to cover the remains, and they were both left thus entombed. It also appears from evidence, objected to by defendant’s counsel, that a long time prior to this killing Jones had been castrated by parties then unknown. The
Defendant’s counsel assign twelve errors as grounds for a reversal of the verdict and judgment of conviction. Among them are the following: “(3) The court erred in allowing Henry Gardner, against the objection of counsel for the defendant, to testify that Henry Jones had been castrated and had no testicles.” “(7) The court erred in refusing each one of the several requests asked for the defendant, to-wit, severally, each one of the twenty-one requests appearing in the record. (8) The court erred in charging the jury as to the effect of good character. (9) The court erred in charging the jury upon the facts as to the belief to be attached to witnesses who testified to the exact language, thirty-two years after the transaction. (10) The court erred in charging the jury that time does not run in favor of murder, and in charging that no lapse of time washes out the stains that the blood shed by the murder makes, and in charging generally upon the facts of the case.” “(12) The court erred in charging the jury upon the subject of justification, the defendant not having made or asked for justification, but denying the killing; and the charge on the subject of killing was an argument that the defendant was guilty.”
We do not consider it necessary to review each assign
Error is assigned upon the refusal of the court to instruct the jury as follows: “(16) In a criminal trial evidence of the good character of a person is of value, not only in doubtful cases but also when the testimony tends very strongly to establish the guilt of the accused. It will of itself sometimes create a doubt, where without it none would exist. (17) There is no case in which the jury may not, in the exercise' of a sound judgment,
This charge, as given, limited the effect of good character to doubtful cases; and that, in cases where the evidence was clear, such evidence would only have the effect to cause the jury to hesitate and think about the matter.In other words, in clear cases of guilt, good character should have no weight, except for the jury to stop and think, but in doubtful cases it was all-important. We think the charge was misleading. In doubtful cases the jury should give the defendant the benefit of the doubt
This charge also gave the jury to understand that a man was expected to commit his first offense; and the jury may have been lead to believe from it that the offense charged might be one of. those crimes that the defendant might be expected to commit for the first time, and that, as a matter of course, if the defendant had a good character and had never been connected with any crime before, he might now be expected to be guilty of this one; that the time had come at last for the defendant to break over the rule of good conduct and commit his first offense, and that, this might properly be expected from all men. We think this was error and that it was not cured by a subsequent instruction to the jury at the close of the case, wherein the court said: “Gentlemen of the jury, I may have overlooked one important matter. I do not remember now what I said to you in reference to the character of the defendant. The character of the defendant is to be considered by you in weighing all the testimony in the case. If his character, notwithstanding all the evidence in the case, raises a doubt in your minds as to his guilt or innocence —a reasonable doubt — he is to have the benefit of it.” This instruction in no way modifies the erroneous instruction first given, nor does the court withdraw his first instruction from the consideration of the jury, but leaves it to stand as the law in the case, which it is presumed the court did_ not intend to do. Where conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which is erroneous. Railway Co. v. Monroe, 47 Mich. 152, 10 N. W. Rep. 179; Jones v. Talbot, 4 Mo. 285; Brown v.
The court also instructed the jury as follows: “ The length of time that has elapsed since the murder that is charged was committed and the commencement of this prosecution is not to be considered at all. It is not an element to determine the guilt or innocence of this party. It is a matter not affecting his guilt or innocence one way or the other. Time does not run against the murderer or in his favor. Ho lapse of time washes out the stains that blood shed by the murderer makes.” This charge was possibly given under a mistake of fact. We think it had a tendency-to mislead the jury, and that from it they might infer what the opinion of the court was as to the identity of the murderer, the degree of the offense and the guilt of the defendant. This homicide was committed thirty-two years ago, and when we consider that the witness, Ellen Brown, was only five years of age at that time, and that other witnesses had grown old, arid possibly forgetful with increasing age, we cannot conclude that the length of time that has elapsed since the homicide should not be a strong circumstance to enter into the consideration of the jury in testing the truthfulness, forgetfulness, candor, or bias of those left to relate the circumstance of this alleged murder, and as bearing upon the probabilities of the guilt or innocence of the accused. Hopt v. People 110 U. S. 574, 4 Sup. Ct. Rep. 202. Eor the reasons stated the verdict and the judgment of the court below should be set aside and a new trial granted.
Concurrence Opinion
concurred only in the result, but not in the reasoning of the opinion or the reasons given for reversal.