People v. Jennes

5 Mich. 305 | Mich. | 1858

Lead Opinion

Chkistiancy J.:

This cauge comes to this Court from the Recorder’s Court of the City of Detroit.

The charge against the defendant in the information (which, except as to matters of form, is to be treated as an indictment) is, that the defendant, on the 24th day of February, 1858, at the city .of Detroit, did commit fornication with Delia E. Ashcroft, by then and there having carnal, knowledge of the body of the said Delia E. — the said defendant and the. said Delia E. being then and there within the degrees of consanguity within which marriages are prohibited and declared by the laws of this State to be incestuous and void; the said Delia E. being the niece of the said defendant, and being the daughter of Martha Jane Ashcroft, who was "the sister of the defendant — contrary to the form of the statute, &e.

The defendant was tried in the Recorder’s Court, before a’ jury, and found guilty.

On the trial, numerous exceptions were taken by the defendant to the ruling of the Recorder on the admission and rejection of evidence, his refusal to charge the jury as requested, and to the charge as given. Upon these exceptions, the defendant moved the Recorder’s Court for a new trial; which being refused, the exceptions and the record are removed to this Court, in pursuance of Chap. 197 of Compiled Laws, and the Revised Charter of the City of Detroit, Sec. 24, “Recorder’s Court.”

Many of the exceptions in the Court below were Abandoned, or not urged, in this. Court. We shall notice only those relied upon on the argument.

The first of these exceptions raises the question whether the testimony .of Delia E. Ashcroft, showing the admissions of the defendant that he was her mother’s brother, and Ms treatment as such in - her father’s family, was properly admitted. This is an objection to the competency, not to the sufficiency of the evidence. We think the objection wholly untenable, and that the evidence was properly admitted. Neither the question of legitimacy, nor of actual marriage, is properly involved in the case. The charge is sexual intercourse between persons within the -degrees of consanguity within which marriages are proMbited. By reference to the statute prescribing these deg-rees (Comp. L. Chap. 107, §§3, 4), it will be seen that no man is. permitted to marry his sister’s daughter, and no woman her mother’s brother. And we think it quite clear that such marriages are equally prohibited whether the parties or their parents are legitimate or illegitimate, or of the whole or the half blood. And the same may be said of the relationship between the defendant and his sister Mrs. Ashcroft; fwhether brother and sister of the whole or half blood, legitimate or illegitimate, a marriage between him and the daughter of Ms sister, would, we think, be within the prohibition of the statute. — See Bishop on Marriage and Divorce, §§216, 217; 2 Bishop Cr. L. §15: and as to the admissibility of such evidence, 1 Greenl. Ev. §§104 to 106; Clayton vs. Wardell, 4 Comst. 235. No-objection seems to have been made, and none could properly have been made, to the testimony of Mrs. Ashcroft, the mother of Delia and sister of defendant, which clearly and directly proved the relationship.

The second exception is to the ruling of the Court in excluding- the testimony offered by the defendant to impeach the testimony of Delia E. Ashcroft, in reference to her belief in a-Supreme Being, and previous statements which she denied having made in reference to such belief. This exception is based upon the hypothesis that the witness Delia could herself be properly interrogated upon the subject of such belief, and that it was competent to show her disbelief, to impair her credibility.

The Constitution, Art. VI., §34. declares that “No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.” This refers only to the competency, and not to the credibility of a witness. But section 4336 of Compiled Laws goes much farther, and provides that “No person shall be deemed incompetent as.a witness in any court, matter, or proceeding, on account of his opinions on the subject of religion, nor shall any witness be questioned in relation to his opinions thereon, either before or after he shall be sworn.” Under this section, it was clearly incompetent to question the witness in this case, in.reference to her belief in a God, unless it can be shown that belief or disbelief in a God has no reference to “ opinions on the subject of religion.” Belief is a-stronger term than opinion, and necessarily includes the latter. Belief or opinion in reference to the existence or non-existence of a Supreme Being, is, we think, not only a belief or opinion “on the subject of religion,” but on the most important of all subjects of religion, and that which controls and gives form to all other religious opinions. We think, therefore, it was clearly the intention of the Legislature to prevent the first step, and every subsequent step, in all inquiries of this kind; that the question was therefore improperly addressed to Miss Ashcroft ; that her answer was not evidence in the case; and that the Recorder properly excluded the evidence offered to contradict her.

The third exception relied upon is to the' admission in evidence of other previous acts of sexual intercourse between the defendant and said Delia, at various times, within and without the city of Detroit, from the year 1853 down to about the time of the act of intercourse between them at the Howard House on the 17th of January, 1858, to which she had already testified, and upon which the prosecution relied for a conviction. The evidence of these previous acts was admitted by the Recorder “not as evidence of substantive offenses, but in explanation and corroboration of the evidence of the act charged in the information.”

The general rule in criminal cases is well settled, that the commission of other, though similar offenses, by the defendant, can not be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial, nor as corroborating the testimony relating to the commission of such principal offense. But the courts in several of the States have shown a disposition to relax the rule in cases where the offense consists of illicit intercourse between the sexes; and it is principally to the American cases that we are to look for authorities upon this subject, as such intercourse is not generally rendered criminal in England, or prosecuted by indictment; being only of ecclesiastical cognizancS.

In Massachusetts it has been held (Commonwealth vs. Merriam, 14 Pick. 518) that evidence of this character was admissible to corroborate the testimony of a witness who had testified to subsequent acts of adultery, for which the defendant was on trial. And the reasoning of the Court goes to show that such evidence tended to corroborate the witness by its tendency to show that the offense charged had been committed. The Aan alone was on trial for adultery, and the Court remark: “ The circumstances thus proved were such as naturally to excite in the mind a belief that a woman who would so conduct herself would be more likely to commit the facts alleged against her than if her deportment had been modest and discreet.”

In The State vs. Wallace, 9 N. H. 517, on an indictment for adultery, evidence of previous acts of improper familiarity was held admissible “as having a tendency to render it more probable that the act charged in 'the indictment was committed.” And referring to the case of Commonwealth vs. 'Merriam, above quoted; they say that is- an authority “except that in that case there was an attempt to impeach the witness who gave more direct evidence of the fact of adultery; but its admissibility does not depend on an attempt to impeach, but it has a tendency to establish the facts”; and they cite 2 Stark. Ev. 440; 2 Yeates, 466.

In Lawson and Swinney vs. The State, 20 Ala. 65, which Avas an indictment for living together in fornication within a specified period, evidence of former acts was held admissible, though not within the period, and for which the parties could not have been found guilty under that indictment. The Court say: “In all cases, whether civil or criminal,- involving a charge of illicit intercourse within a limited period, evidence of acts anterior to that period may be adduced in connection Avith, and in explanation of, acts of a similar character occurring within that period, although such former acts would be inadmissible as independent testimony, and if treated as an offense, Avould be barred by the statute of limitations.”

We think there is much good sense in these decisions, and that a crime consisting of illicit sexual intercourse, like the present, involves different principles in this respect, and should be governed by different rules from those which apply to offenses generally, or perhaps to any other class of offenses. This offense can only be committed by the concurrent act of tAvo persons of opposite sexes; and the assent or concurrence of the one is as essential to the commission of the offense as that of the other; and, as a general rule, hoth must be guilty, or neither.

- In the case of an indictment against the man for such intercourse (and it might be the same if the Avoman were on trial, though the inference would be less strong), previous familiarities, and the general or habitual submission of the female to his sexual embraces, must, in the nature of things, tend to render it much more probable that the like intercourse took place on the occasion charged — the opportunity being shown. And such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man’s judgment can resist the force of such an inference to be drawn from previous acts of intercourse between the same persons. See the force of such evidence illustrated in Weatherly vs. Weatherly, 29 Eng. L. & Eq. 605. This is not showing the commission of other merely similar offenses, but a repetition of the same offense between the same persons, and in all its criminal features necessarily identical.

Again: Such previous acts necessarily show concert and a common design of both the parties to commit the act charged, and habitually to indulge their criminal desires as opportunity might offer, and making, in some respects, the act of each the act of both. Hence, such evidence shows a much greater probability of the commission of the offense charged, by showing her habitual willingness to yield to his embraces; thus removing a chief obstacle to such intercourse, and furnishing a better opportunity, greater temptation or motive, and superior facilities for the indulgence of his pas sion in accordance with such common design.

Previous familiarities, not amounting to actual intercourse, but tending in that direction, must have a strong bearing in all cases of this kind; and we can discover no just principle on which they could have been excluded, without setting at defiance the common sense of mankind. Such evidence was given in this case by the father and mother of the girl, without objection from the defendant; and if such familiarities may be shown because they tend to prove actual interuourse, or to corroborate other evidence of such intercourse, upon what principle can previous actual intercourse be rejected, when offered for the same purpose? It is the principal and most important act of familiarity, to which the ■■others only tended. If offered as proof of substantive offenses on which a conviction might be had in the case, it should, of course, be excluded; but as it was not offered for this purpose, and could not be allowed to have such effect, we can see no objection to its reception.

It may be said that the reasons above given do not apply with much force to the testimony of Delia E. Ashcroft herself as to these previous acts- — she having already testified ■directly to an act of intercourse at the Howard House, which must be taken to be the offense charged. It is true the considerations already stated do not apply to her testimony with the same force as to that of other witnesses; but we think they fiilly justify the propriety of the admission of Mary Ann Ford’s testimony, and of all the other witnesses who testified to acts of familiarity tending to show sexual intercourse; and that there is no ground upon which an accomplice can be excluded from testifying to any facts to which any other witness may testify. The credibility of the witness is a question for the jury.’ But we think there are 'other reasons which clearly prove the propriety and admissibility of Miss Ashcroft’s testimony as to the previous acts of familiarity and sexual intercourse, and which apply with at : least equal force to her testimony in reference to such facts as to that of any other witness who might have testified to ■ the same facts.

■ In any case where a witness has testified to a fact or transaction which, standing alone and entirely unconnected with- anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable; such previous facts are not only admissible and relevant, but they constitute a necessary part of sucb principal transaction — a link in the chain of testimony, without which it would be impossible for the jury, properly, to appreciate the testimony in reference to such principal transaction. And such previous facts should therefore be elicited by the examination of the party producing the witness. Any other rule, in such a case, would be grossly unfair towards the witness; render a trial a process for suppressing, rather than eliciting, the truth, and defeat the very objects for which courts of justice are instituted.

In the order of nature, facts do not occur single and independent— isolated from all others — but each is connected with some antecedent fact, or combination of facts, from which the fact in question follows as an effect from a cause. Tom from this necessary connection, and exhibited alone, many real occurrences would appear under the guise of falsehood, and truth itself would be made to lie.

To permit the evidence, therefore, of an isolated transaction, which could only be made to appear probable by exhibiting the antecedent facts which induced it, and yet to exclude from the investigation all such antecedent facts, would be to set at defiance the order of nature, and the laws of truth which God has stamped upon the human mind.

These considerations are peculiarly applicable to the present ease. The act of sexual intercourse at the Howard House, testified to by Miss Ashcroft, and the whole transaction on that particular occasion, standing alone as' an isolated transaction, without any of the previous facts which led to it, and which, in the natural order of things, usually precede such a transaction, would strike many minds as wholly unnatural and improbable in itself, and all minds as much less natural or probable than if the previous facts which led to the transaction had been stated. Standing alone, this single transaction would appear as the first act of sexual intercourse, or even of familiarity, between the parties; and,, in fact, the first to which she had ever yielded; and, as such, to many minds, its recital wouH? constitute its own refutation. Most men would say, It is not thus instantaneously that female modesty is overcome, hut by more gradual approaches; by a long-continued and more artful excitement of the passions; especially in a case like this, where the man was her own uncle, and the relationship would naturally excite horror and disgust at the idea of such intercourse, until the mind had become familiarized with such ideas, and reason habitually yielded to the control of passion. The boldness, and want of care to avoid detection, exhibited by both parties, might seem unnatural unless it were shown that habit had already rendered such intercourse a matter of course between them. In such a case, therefore, we think all the previous familiarities and intercourse between the parties, from the first approaches of seduction, if such there were, down to the transaction in question, were relevant and proper evidence, tending to throw light upon the transaction itself, explaining- and rendering more natural and probable that which, without such explanation,' might appear unnatural and improbable. Without this evidence, the jury could not properly appreciate her evidence in relation to the particular transaction in question, nor render a verdict not based upon a partial, and, to some extent, a false, estimate of the evidence. We think, therefore, this •evidence was properly admitted. It tended to explain what might otherwise have appeared improbable or unnatural, in ’the transaction at the Howard House, and to this extent is to be considered a part of the testimony in reference to that transaction, and tending to the proof of the issue; and in this sense to corroborate the testimony of the witness herself,

We do not think the evidence in reference to such previous acts can be said to operate unfairly upon the defendant in such case; as he is not exposed to the risk of a conviction upon them, and every such previous fact stated by the witness, opens a wider field, and gives more ample facilities for ■contradiction if the testimony be false. If the evidence were confined to a single transaction, a designing witness might more easily contrive a fictitious case, which should appear1 consistent with surrounding circumstances, and which, therefore, might be difficult of contradiction. But by admitting evidence of such previous transactions, the difficulties in the way of such fabrication are increased, as every additional transaction testified to multiplies the chances of detection and contradiction if the transactions be not real.

The next exception relied upon is, that the Court, after the evidence was closed, allowed the Prosecuting Attorney “to contend before the jury that if they were not satisfied from the testimony that the alleged act at the Howard House' was proven, it was competent for them to find the defendant guilty of any other act which they should be satisfied from the testimony had been committed between said defendant and said witness at any other place within the city of Detroit, and at any time in said city within six years before the filing of the information.”

However erroneous this view of the law might be (and it was clearly so), yet, as it was a question of law for the-Court, and not for the jury, we do not think it could be treated as an error for which a verdict should be set aside, if the Court, in his charge to the jury, should correct the-error, and truly state the law upon the point. It is to the charge, and not to the argument, we are to look for the decision of such a question.

This brings us to the exceptions taken to the several refusals of the Court to charge as requested, and to the charge as given.

The first request was properly refused, for the reasons, already given.'

To .avoid prolixity, we shall consider the second and third requests together, and, with these, the second and third points, in the charge applicable to these requests. To comprehend fully the questions arising upon these requests, we must go-back to the charge in the information, and the position of the case when these questions arose.

The charge in the information was for a single act of incestuous intercourse, committed at the city of Detroit, o,n the 24th of February, 1858; but the time stated was not material, and, under the well settled rule in criminal cases, the prosecution, before the evidence was introduced,, might have selected any one act of such criminal intercourse which occurred within the jurisdiction of the Court, and within the period of the statute of limitations applicable to the offense. It was not a case in which the Court could compel the prosecutor to elect, because the charge, on the face of the information, was confined to a single act.

It was not claimed by the prosecution, and could not legally be claimed, that it was competent to convict the defendant of more than one act\mder this information. But the prosecutor having the right to select among all the acts of the kind which he could prove to have been committed between the parties, within the period alluded to, and within the jurisdiction, any one of those acts, before evidence had been introduced, was as properly the act charged in the information, as any other. In other words, until evidence of some such act had been given, the charge in the information was floating and contingent, aimed as much at one as another, and at no one act in particular; and it remained' for the evidence to point the charge to the particular act intended. But when evidence had been introduced tending directly to the proof of .one act, and for the purpose of procuring a conviction upon it, from that moment that particular act became the “ act charged^ What had, till then, been floating and contingent, *had now become certain and fixed. The prosecutor had made his election, and could not elect again; nor could he be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be -had in the cause. The information could be used as a dragnet only till the first act had been entangled in its meshes; every other act must be allowed to escape this throw of the net; and thenceforward the evidence must be aimed at this act. If others of the same kind lie in the same range, they can only be noticed for a secondary purpose, as they may be connected with or bear upon this.

The act at the Howard House being the first to which evidence was introduced, and the evidence bearing directly upon that act, became from that moment the only offense chai’ged — the only offense the jury were to try, and to which their verdict of guilty or not guilty must relate. Such must have been the view taken by the Recorder when the evidence of previous_acts of intercourse was admitted; as he admitted evidence of such acts “not as substantive offenses, but in explanation and corroboration of the evidence of the act charged in the information.”

But after the evidence had been admitted for this purpose, the Prosecuting Attorney changed his ground, and claimed that the jury might select any one of the acts on which evidence had been given, as the ground of their verdict. And the Recorder seems to have yielded to this change of purpose. It is true, in the second paragraph of his charge on this subject, he tells the jury that “the evidence of other acts of criminal connection is admissible only to corroborate” (he should also have said to explain) “the testimony as to the offense charged.” But what was the “offense charged”? He does not tell the jury, nor can it be learned from his entire charge, which, among all the acts in Detroit of which testimony had been given, was, in his own view, the “ offense charged.” The prosecution claimed that any act of intercourse proved was the offense charged. The Court gives them no information on the subject. It was a question of law, important for the government of the jury. He leaves it to them to ascertain. Will the jury be likely to find it out if the Court can not?

But the third paragraph of the charge clearly adopts the theory of the Prosecuting Attorney, and holds that any one of the several acts of sexual intercourse proved, or attempted to be proved, may be selected by the jury as the “offense charged,” and that they may find the defendant guilty of the one thus selected; as he tells them, “they may find him guilty- if, from the evidence, they believe that the act was not committed at the Howard House, but was committed at some other place in the city of Detroit, within the period of six. years prior to the time of filing this information.” Now, there was no dispute whether that particular act of intercourse, stated to have occurred at the Howard House, occurred there or at some other place in the city, nor whether it occurred at a period materially different from that stated by the witness; and neither the jury nor this Court could possibly derive any other understanding from this charge, than that the jury were at liberty to select among the numerous acts of intercourse in the city of Detroit of which evidence had .been given, and to find the defendant guilty of the act so selected.

This was subjecting the defendant to the risk of conviction upon a great number of acts, occurring at different times and places, against which he could not be expected to be prepared to defend; and yet an acquittal or conviction would be no bar to a future prosecution of any, except that at the Howard House. The jury can not be thus sent fishing'for the charge which they are to try.

Under such a charge, as was appropriately said by the defendant’s counsel, the Recorder might, in his own mind, assign the information to one act, the Prosecuting Attorney to another, the defendant’s counsel to a third, and the jury to a fourth; and it was even possible that part of the jury might base their verdict upon one act and part upon another, and a verdict of guilty might result without an actual agreement of the jury. At all events, under such a charge it would always be legally impossible to know of what particular charge the defendant had been actually found guilty. The Court should have charged the jury on this subject as requested by the defendant’s counsel in his third request. The law applicable to this point could not be more logically and accurately stated than in the language of this third request.

The second, as regards this question, is the same in substance, but it does not, like the third, contain within itself the demonstration of its correctness.

The fourth request was that the Court should advise the jury that they ought not to convict the defendant upon the evidence of the complaining witness, Delia E. Ashcroft, unless she is corroborated in some matter material to the issue. All the evidence in the ease (and there was a great amount of it) besides that of Miss Ashcroft, which went to show previous familiarities between her and the defendant, tended to corroborate her testimony touching matters material to the issue, as we have already shown. But had it been otherwise, we do not think it would be error for the Court to refuse so to -advise the jury. We think the credibility of an accomplice, like that of any other witness, is exclusively -a question for the jury; and it is well settled that a jury may convict on such testimony alone without confirmation. There is no good sense in always applying the same considerations in every ease to every witness who may stand in the relation of partieeps criminis. We think ^dt is the duty of a judge to comment upon the nature of such testimony, as the circumstances of the casé may require; to point out the various grounds of suspicion which may attach to it; to call their attention to the various temptations under which such witness may be placed, and the motives by which he may be actuated; and any other circumstances which go to discredit or confirm the witness, all of which must vary with the nature and circumstances of each particular case. But here we think the duty of the Court upon this subject ends. All this was done, and well done, by the Recorder in the present case. If any thing more than this is meant by “advising the jury” in such cases, then (though we are aware of some high authorities to the contrary) we are compelled to dissent from the correctness of such “ advice.” On principle, and without confounding the respective duties of the Court and the jury, we think the Court have no more right directly to advise a jury to give a verdict of guilty or not guilty, than the jury have to advise the judge how to decide upon a matter of law. We think the charge in relation to this question was in 'all respects fair and just. But for the error in submitting several acts to the jury for their verdict, as we have already explained, the verdict must ,be set aside, and a new trial granted.

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Concurrence Opinion

Manning J.

concurred. Martin Ch. J. and Gampbelb J. concurred in all respects, except that they reserved the expression of any opinion whether the religious views of aÉ witness may not be subject to proof by other witnesses, upon the ground of credibility.

New tried directed.