124 Mich. 527 | Mich. | 1900
Lead Opinion
(after stating the facts). 1. I can find no evidence upon this record from which it can reasonably be inferred that the respondent was guilty of murder. Unless the people produced evidence from which it could ■ fairly be inferred that respondent shot, believing that the person in the yard was Bowen, and intended to kill him, the conviction is wrong. This is the claim of the people, and the sole theory on which they asked conviction. There is, in my judgment, no such testimony. The court should, therefore, as requested, have directed the jury to acquit him of the crime of murder.
2. It was error to permit evidence that Mr. Bowen’s life was insured. The prosecuting attorney stated that he would connect this evidence with what the prisoner had stated,- — that “there was a thousand dollars in it for any one who would do away with Dave Bowen.” The court admitted it, stating that, if the connection was not made, it would certainly be immaterial. The prosecution did not show that respondent had any knowledge whatever of this insurance; yet it is evident that this was urged as one of the reasons for his conviction. It is especially important in criminal cases that the proper order for the
Conviction reversed, and new trial ordered.
Dissenting Opinion
I cannot assent to the conclusion of my Brother Grant that there was no evidence in this case justifying a verdict of murder in the second degree. If the case of the people rested wholly on the testimony of Mrs. Bowen, the conclusion might be justified; but it does not. The people called witnesses who testified, in substance, to a statement of respondent that it would be worth $1,000 to one who would make way with Bowen. There was also testimony to the effect that, at some time before he took his residence at Mrs. Bowen’s the last time, he attempted to borrow a revolver, saying he was going over to Bowen’s, and that he had heard that Dave (Bowen) was prepared for him, and he wanted' to take it in case of any trouble; he wanted to defend himself. He was advised by the witness to stay away from Bowen’s if Mr. Bowen did not want him there. Another witness testified that he had a conversation with respondent in regard to the talk of lynching him, and that respondent said that there was some jealousy, and, when asked who it was, replied that it was Bowen, and applied an offensive epithet to Bowen.
In the face of this evidence, it seems to me that there was ample basis for the jury to find malice towards Bowen. When we consider, in connection with this fact, that respondent was living at Bowen’s house, which Bowen had left because of his jealousy, and that respondent understood that it was Bowen who threatened him with mob law, is not the inference justifiable that on the fatal night, when respondent claims to have thought that some person bent on doing injury to himself or Mrs. Bowen had invaded the premises, he believed that person to be Bowen,
I am also of the opinion that there was testimony tending to show improper relations between the respondent and Mrs. Bowen. True, she testified that there were no such relations, but she was a necessary witness to the res gestee, and cannot conclude the people. There was testimony that respondent was charged with such relations, and did not deny it, but gave an evasive answer. There was testimony that Mrs. Bowen visited him at a lumber camp where he was at work at $26 per month, and that he shortly after returned to her home to work at $20 per month, and continued there, although he knew of the husband’s jealousy, and that he attempted to hire another to make way with Bowen. These facts, I think, have some tendency to show improper relations.
I have some doubt upon the question relating to the life insurance. The record discloses that Mrs. Bowen knew of the insurance. There is no direct testimony to the effect that respondent did, but I think the jury might be permitted to infer such knowledge from the other circumstances of the case. If it is found that he was paramour to Mrs. Bowen, this fact, taken together with his offer of $1,000 to any one who would make way with Bowen, might justify an inference of knowledge.
Complaint is made that the court did not, in the charge, define involuntary manslaughter. But the court did what was more favorable to respondent. At the request of respondent’s counsel he charged that :
“If you have any reasonable doubt as to his intention, or the killing being accidental, or as to whether he intended to aim in the direction of any one, or whether he was reckless or heedless or not, the respondent is entitled to the benefit of the doubt, and you must acquit.”
Dissenting Opinion
I cannot agree with Justice Grant that a verdict of acquittal should have been directed, nor can I agree with Justice Montgomery that the case should be affirmed. The record is barren of any testimony from which the inference can be fairly drawn that respondent had knowledge that Mr. Bowen had a life-insurance policy which was payable to Mrs. Bowen. It is the testimony of Mr. Bowen that when he left Mrs. Bowen he took this policy with him, and that he could not say that his wife knew whether the policy was in force since then or not. There is no testimony that the respondent ever knew of the existence of this policy. I agree with the opinion of Justice Grant as to the incompetency of the testimony in relation to the life insurance, and, for this error, think the conviction should be, reversed, and a new trial granted.
