38 Mich. 117 | Mich. | 1878
This is 'a case on exceptions certified before judgment. The defendant and one William Martin were charged as being present and aiding and abetting one Willard H. Chapman in the murder of Charles P. Ayres. The offense was laid November 12, 1876, at the town of Meridian, in Ingham county. July, 1877, she was tried separately and the jury convicted her of murder in the second degree.
The witness first offered by the people was John P. Marble. At the time of the homicide he was defendant’s husband, but living separate from her and carrying on proceedings against her for a divorce from the bonds of; matrimony. And a few days after the homicide, namely, December 29, 1876, the marriage was dissolved pursuant-to his proceedings therefor, and the marital relation previously existing was entirely extinguished, and under these circumstances the counsel for the people claimed that he was as competent as any one to give evidence
The court overruled the objection and decided that Marble was competent to give evidence of the charges in the information. He was accordingly sworn and • examined! There was no controversy about the fact that Ayres was killed in the evening or fore part of the night of November 12, 1876, and on the farm of witness, situated about five miles from Lansing. The witness had lived on this farm with the defendant for several years prior to February 24th, 1876, at which time, however, he left it.-
There were family difficulties and he was of opinion the defendant was unfaithful to him. She had obtained a lease of the farm from him and assumed to manage and control it. At the time of the homicide he was living by himself at Lansing and she was occupying the farm, and the alleged principal, Willard H. Chapman, who was her son by a former marriage, and her alleged co-abettor Martin, with whom, she was suspected of being criminally intimate, were staying there with her.
The witness swore that about eight o’clock in the evening of November. 12th, he, with Ayres and one Morley, left Lansing together in a buggy for his farm; that the object was to get proof of adultery- between defendant and Martin;. that they left the horse and buggy in a piece of woods about one hundred and thirty-five rods from the house and went on foot into the orchard' near the house and sat down under an apple tree. Beferring to a diagram he described their course thereafter and pointed out and explained their movements to places nearer the house and also described the observed doings of Martin and young Chapman, and then stated that himself, Ayres and Morley retired about eight rods to an elm tree and there sat down on some blankets and buffalo robes; that whilst in this position he noticed de
The counsel for defendant objected that it was not competent for this witness to testify to any thing which the defendant said or did on that occasion, on the ground that she was then his wife. The objection was overruled.
The witness further testified that the firing occurred immediately after defendant’s order; that Chapman fired first, but the intervening time was only long enough to enable this to be distinguished; that Ayres was “shot dead” and Morley got up and started for the road.
The defendant’s counsel objected to evidence of any acts of violence then and there done against Morley, and urged that according to the case shown by the witness the offense charged was completed by the death of Ayres. The court considered it admissible to give evidence of the entire transaction, not to show defendant guilty of Morley’s murder, but to fix the character of the homicide of Ayres, which occurred in the same affray, and to show how and in what way the defendant was connected, if at all, with the death of Ayres; and the objection was overruled.
The witness then testified that immediately after Ayres was shot Morley got up and started for the road and defendant Chapman and Martin immediately pursued him and fired upon him; that after they had gone some two or three rods Morley turned and fired back; that witness had remained at the tree, but seeing the “three pitching into him” — Morley,—he went down to relieve Morley, and on getting nearly up with them the defendant said, “There’s the old man; go for him,” and that they thereupon fired at him two or three times; ■that Morley got away and started for the fence and witness turned to go the other way and was then struck by
This reference to the evidence and some of the surrounding facts will sufficiently unfold the case to afford an intelligible view of the objections thus far mentioned.
Now it cannot be positively admitted that if Marble had been sworn and examined subject to the authority of the common law, his previous state of marriage with the defendant would have been adequate ground for precluding him from testifying to those matters he was allowed to testify to. At the time of the trial no marriage relation existed, and for the entire period which commenced several months before the events of the fatal night and extended to the divorce, the relation was practically ended. There was no association and no confidential intercourse or communication. There was no amity. They lived apart in a state of mutual distrust and hostility, and the events described by Marble were open and aggressive acts against him and his associates Ayres and Morley, and according to his representation of the circumstances it appeared that the defendant and Chapman' and Martin were acting in concert in waging
There would seem to be some reason for contending that the case would not be subject to the general rule of the common law which will not allow divorced parties to testify against each other concerning matters which occurred during the continuance of the married state, but would be considered as standing on different ground and to be viewed as an exception. Chamberlain v. People, 23 N. Y., 85; Ratcliff v. Wales, 1 Hill, 63; Coffin v. Jones, 13 Pick., 441; Dickerman v. Graves, 6 Cush., 308; Aveson v. Lord Kinnaird, 6 East, 188. But whatever force the point suggested may be supposed to possess, it is quite unnecessary to seek aid from it here.
The statute of 1861, as previously considered by this court, affords a complete answer to the objections founded on the former relation between the witness and defendant. Comp. L., §§ 5966, 5969.
The objection to the evidence" adduced of what occurred on the occasion after the fall of Ayres cannot be sustained. That it was adapted in its nature to prove or help prove a distinct offense could be no ground for rejecting it -if directly pertinent to the case on trial and exposed to no other objection. People v. Doyle, 21 Mich., 221; Com. v. Briggs, 5 Pick., 429; Osborne v. People, 2 Parker C. Rep., 583; Haskins v. People, 16 N. Y., 344; Weed v. People, 56 N. Y., 628; Reg. v. Morey, 1 Cox Crim. C. 236; Rex v. Moore, 2 Car. & P., 235; State v. Harrold 38 Mo., 496; State v. Braunschweig, id., 587; Mason v.
This disposes of the exceptions to evidence.
The circuit judge gave the jury the measure of belief they must entertain on the evidence to authorize them to find a verdict of guilty, and in so doing he told them they must be satisfied beyond a reasonable doubt. Having stated and repeated this rule, he proceeded to expound it in these terms: “What I mean by a reasonable doubt
In many, if not most cases, such an exposition of the rule which in this State at le'ast will generally be well enough understood without effort at analytical elucidation or explanation by analogies, would have to be considered misleading as well as inaccurate. But conceding its, imperfection, it nevertheless, seems plain that it could not have produced any practical consequence whatever in this case.
There was no chance for it to disturb the lawful operation of the recognized rule; nothing in the state of things which would allow a mere qualified belief, and hence there was no room for injurious effect. As to all but a very few incidents there was no controversy or any uncertainty whatever, and as to the few about which there was disagreement the evidence was all substantially direct and personal and was given by Marble and defendant. That he was present and was an eye and ear witness was admitted, and he testified that a certain train of facts took place and his version contained nothing improbable. The defendant made her statement, and in some respects it varied from his account and the event of the prosecution depended upon whether the jury would or would not believe her rather than him. They might do so; they could not believe both. The question was which was entitled to belief. It was entirely competent for them to believe him and disbelieve her if their understandings were honestly moved to that result in their investigation of the circumstances. But there was no ground in the nature of things'for any middle position or qualified belief. If Marble was believable at all he
The judgment they formed was governed by a rule of mental action admitting no such qualification. Hence it cannot be conceived that they were conscious of any such doubt. Consequently the explanation complained of was something abstract and uncalled for by the case and was wholly ineffective. Being practically harmless no new trial should be granted on account of it. People v. Scott, 6 Mich., 287; People v. Horton, 4 Mich., 67-85; People v. Wiley, 3 Hill, 194; Shorter v. People, 2 Comst., 193; People v. Lohman, 2 Barb., 216-221; People v. Gonzalez, 35 N. Y., 49; Com. v. McCarthy, 119 Mass., 354; Com. v. Barry, 11 Allen, 263; Com. v. Bailey, 11 Cush., 415; Harris v. State, 47 Miss., 318; Wilson v. State, 3 Heisk., 278; Ballew v. State, 36 Tex., 98; Stewart v. State, 1 Ohio St., 66; Sinard v. Patterson, 3 Blackf., 353; Cricket v. State, 18 Ohio St., 9; Kopitoff v. Wilson, 1 Q. B. Div., 377. As already suggested, the defendant made her statement under the statute to the jury, and it tended to show that Martin was her hired man, and that about nine o’clock of the night in question he and her son Chapman commenced loading a wagon with barrels of apples to be ready for an early start for market in the morning; that she had gone to bed; that her son informed her one barrel of apples was missing and took a light to look for it; that he soon returned with Martin and informed her the barrel was found down the road at the sluice way, being about one
In giving his charge the circuit judge several times referred to the evidence given on each side and to the facts it tended to make out, and he instructed the jury in substance and effect that if they were satisfied beyond a reasonable doubt that the facts were as claimed by the prosecution, it would be their duty to bring in a verdict against the defendant; but on the contrary, if they were not so satisfied, or if they thought the facts were as
These portions of the charge, with enough of the context to present them correctly, are too long to be here quoted. According to the record they truly recognized in their entirety the states of fact on each side which the evidence given was offered to show and conduced to make out, and fully and plainly covered them and were sufficiently favorable to the defense. We do not affirm their accuracy as against the people. It is enough at present that they did not err against the defense.
When the judge had finished what he had intended to say, the defendant’s counsel addressed him as follows: “I want to call your honor’s attention to one fact — that if the jury should find that the party went out to see who it was that came after the barrel of apples, and without any intent to kill anybody, and while they were going along, as stated by Mrs. Marble, they came upon the party, and Willard Chapman, without any knowledge on the part of his mother, and without saying a word in any way, suddenly took up his gun and fired, that her presence there would not make her guilty of itself.” The judge thereupon observed that “the jury were to determine from the evidence and facts of the ease whether she was there consenting to the transaction; that it was a question for them.”
The failure to charge in the terms of this proposition of defendant’s counsel is made a subject of exception. The response of the court was well enough. It submitted the point of her guilty participation on the whole evidence, and looking at the facts and the whole charge it is manifest the jury must have found as a distinct fact that she was criminally connected with the others, if not the leading assailant. The proposition assumed that the states of fact adduced in the case afforded a ground of charge for a finding that young Chapman, “without saying a word in any way,” suddenly fired the fatal shot, and that the' defendant was not privy to the
According to the case shown by the people’s evidence, the defendant ordered the firing, and hence was necessarily privy to it; and according to her own claim and voluntary declaration, she and her son consulted together on the field concerning the “dark objects,” and he thereupon called out, “Who’s there?” at the instant before the firing, and therefore did not suddenly fire “without saying a word in any way.” Whatever was said at the time and place -among these persons was part of the transaction and could not be lawfully excluded from the jury.
It is next to be observed that several circumstances bearing on the question of her complicity were conceded. The hostility between her and Marble; the close connection and unity of feeling subsisting between herself, her son and Martin; their joint movements on the night in question, and as though marshaled to the place of the homicide; the fact that she went and. was there armed with the other two; their conduct there as one band and the talk among them on the spot and at the very time were circumstances adduced by the defendant herself, and they had a tendency to show that she and those with her were combined and acting in concert, and that her will concurred in the commission of the violence which her associates perpetrated. Brown v. Perkins, 1 Allen, 89; 3 Greenleaf Ev., § 41; Com. v. Lucas, 2 Allen, 170; Com. v. Fortune, 105 Mass., 592; Ruloff v. People, 45 N. Y., 213, 217; Kelley v. People, 55 N. Y., 565; Breese v. State, 12 Ohio St., 146; The King v. Cope, 1 Strange,
No other points have been urged, and a careful examination of the record discloses nothing of which the defendant has any reason to complain.
The exceptions should be overruled and the court should proceed to judgment on the verdict.
Let it be so certified.
(5966.) Sec. 99. No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime, or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit, or proceeding in which such testimony may bo offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.
(5969.) Sec. 102. A husband shall not be examined as a witness, for or against his wife, without her consent; nor a wife, for or against her husband, without his consent, except in cases where the husband or wife shall be a party to the record, in a suit, action, or proceeding where the titlo tq the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation, in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a
