1 Colo. 121 | Colo. | 1869
The plaintiff in error, George Smith, was indicted at the May term, 1868, of the district court of Gilpin county, for the murder of William Hamblin. He was arraigned and pleaded not guilty, and was tried at the same term, the chief justice presiding. The jury returned
The argument of the case in this court was not confined to the exception taken as mentioned above, but extended to a discussion of such instructions given by the court below, as the counsel for the prisoner conceived to be erroneous, and to the refusal to give other instructions asked for by the prisoner. We permitted this, reserving the right to consider whether we could, in accordance with the law, regard matters which were not contained in the record before us.
It becomes us then to determine on this presentation of the case the appellate jurisdiction of this court, and to ascertain whether agreeably to the forms of law we can decide upon matters, which in no legal manner have been submitted for our consideration. At common law a writ of error only carried to the superior court such matters as appeared of record. The testimony of witnesses, the opinions of the court upon questions of evidence, the charge of the court and other incidents attending the trial of a cause never appeared upon the record, and therefore were never removable by writ of error. This rule being extended as well to criminal as to civil cases it followed, as a necessary sequence, that a person convicted of crime, although many errors might have intervened in the course of the trial, was remediless except by an appeal to the consideration of the same court in which such errors occurred.
To remedy this evil the statute of Westminster 2d, 13 Edward I, chapter 31, was enacted, which gave the bill of exceptions. It was considered in England, however, and so adjudged, that this statute, although general and unrestricted in its phraseology and terms, had no application to criminal causes. This statute has been substantially enacted in this
In the case of Hopkins v. The Commonwealth, 50 Penn. 9, which was also an indictment for murder, the chief justice, in delivering the opinion of the court, with great emphasis inquires, in regard to a point to which no exception had been taken at the trial, if it would not be an impertinent interference with the established course of administering criminal law to obtrude a discussion of the point which was suggested by counsel in the argument. And the court, in that case, held, that they could not legally inquire whether that part of the charge of the court below, to which no exception had been taken, was correct or otherwise. The courts of this country, which proceed according to the course of the common law, have been nearly uniform in their decisions upon this question. There is one remarkable exception, which we will presently notice. The supreme court of the United States has expressed but one language, and has always held that objections to instructions given, or to the refusal to give instructions asked, can only be taken advantage of and preserved by bill of exceptions. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 592 ; Thompson v. Riggs, 5 id. 663. The latter case is somewhat remarkable in this, that the counsel for the defefidant in error waived the objection that there was no proper bill of exceptions to raise the principal question involved in the case. Notwithstanding this waiver, the court declined to discuss it on the ground that the record was not properly before them. Justice Clifford, in rendering the .Opinion of the court, says: “ Settled practice in
Mr. Bishop, in his very excellent work on criminal proceedure, vol. 2, sec. 627, says : “ That a general verdict of guilty convicts the prisoner of all matters which are well charged against him in the indictment.” So are the cases of The People v. Marsh, 6 Cal. 542 ; Bond et al. v. The People, 39 Ill. 26, and numerous others which might be cited. We are of the opinion that this verdict is sufficient in form. The prisoner made a motion in the court below for a new trial, on the ground, among other things, that the verdict was against the law and the evidence, and also because of newly-discovered evidence. This brings up the question as to whether there was sufficient evidence to sustain the verdict. It seems, from the evidence, that the prisoner and Robert Reynolds, both colored men, were at the cabin of Hamblin on the night of the affray, which resulted in his death. For what purpose they were there, is not disclosed. The evidence consisted mainly of the confessions of the prisoner;
Such were mainly the confessions made by the prisoner. The body of the deceased was found in a shaft as proven, some twenty or thirty yards from the house ; when found, there was a rope tied tightly around the neck so as to be imbedded in the flesh; another rope, also, loosely drawn around the neck, and another around the wrist were dis
Murder is defined in our statute to be the unlawful killing of a human being in the peace of the people with malice aforethought, either express or implied. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, or ivhere all the circumstances of the killing show an abandoned and malignant heart. These are statutory definitions (Laws of 1861, page 292) and are similar to the common law. We presume that if Reynolds and the prisoner had been tried together, there could have been but little question as to the correctness or justice of the verdict. We also presume that if the confession of the prisoner, as narrated by the witness Harper, stood alone, disconnected from that made to the witness Grimes, there could no lawyer be found, who would question it. In Rex v. Shaw, 6 Carr. & Payne, 480, the prisoner confessed that he and the deceased quarreled; that the deceased struck him and the prisoner knocked him down ; he got up and the prisoner knocked him down again and kicked him, and then put a rope around his neck and dragged him into the ditch. This case only differs from the one at bar in this, that only two participated in the fight and the deceased struck the first blow, certainly under greater provocation than is proven to have existed in this case. “But,” said Pattebsow, Justice, “if two persons fight,
The motion for a new trial was further made on the ground of newly-discovered evidence after the trial and ver
The prosecution might well have admitted every thing stated in the affidavit as true without any injury to its cause. We believe, therefore, on this whole record, that the prisoner, upon the law and evidence, is guilty of the murder of William Hamblin, and that the jury, in rendering a verdict of guilty, arrived at a correct conclusion.
The judgment of the district court is affirmed.
Affirmed.
A petition for rehearing was presented by counsel for the prisoner, and, at an adjourned session of the court in January following, the petition was denied.
Mr. Justice GtOESLIíte was not present at that session, and the opinion of the court was drawn up by
The plaintiff in error asks a rehearing in this cause, mainly upon the ground that the opinion of the court is erroneous upon the question of practice respecting exceptions to instructions given in the court below. This point was very fully considered in the opinion of the court, and we have re-examined it with such care and attention as we are able to command. It is urged that the authorities cited in the opinion of the court are not to be regarded in this territory, for the reason that, in the States from whence they are taken, it is the practice to charge juries orally, while our statute requires such charges to be reduced to writing. In the first place, it is to be observed that it was always the practice in civil cases, and in criminal cases where exceptions were allowed, to write down the part of the charge objected to, and the statute has simply changed the time for putting the charge into writing and
“In a criminal case, after the caption stating time and place of holding the court, the record should consist of the indictment as found by the grand jury, the arraignment of the accused, his plea, the impaneling of the traverse jury, their verdict, and the judgment of the court. This, in general, is all the record need state. If, during the progress of the prosecution, motions are made and 'overruled, the facts can be preserved by a special entry on the record, or by bill of exceptions. In one or the other of these ways it is necessary to preserve every fact that the prisoner may deem essential to his rights, and a fair and regular trial.”
We believe this to be good law, although the same court seems to have adopted a different rule in Falk v. The People. According to this rule, instructions do not become a part of the record unless made so by bill of exceptions.
“In all cases in the district court where either party shall except to any ruling, decision or opinion of the court, and shall reduce such exception or exceptions to writing, it shall be the duty of the judge to allow the same, and to sign and seal the same. * * * And when such bill of exceptions is so allowed, and signed and sealed by the judge, % * * * it shall thereupon be filed by the clerk, and shall become a part of the record in such cause.”
It will be noticed that the statute does not declare that the ruling of the court alone, however certified, shall become part of the record. It is only when such ruling is accompanied by an exception, and is properly certified, that it gains the legal quality necessary to its admission to the record. Bouvier defines an exception to be, “the statement in writing of the objection made by a party in a cause to a decision of the court on a point of law, which, in confirmation of its accuracy, is signed and sealed by the judge or court who made the decision.”
From this, it appears that three things are comprised in an exception ; the ruling of the court, the objection thereto, and the authentication. The objection of the party appears to be quite as indispensable as either of the other qualities, and we know of no ground upon which it can be said to be unnecessary. It is one of the essential elements of an exception, and the exception cannot exist without it. In Falk v. The People, the supreme court of Illinois assumes that the record shows the instructions, which is the very point in controversy. How can the record show the instruction when the exception for which the statute calls, and which is the essential condition upon which they are to be entered of record, is wanting ? For ourselves, we must continue to say that we cannot thus interpret the law. It is written that exceptions to the rulings of inferior courts shall be
“In capital cases the courtis so far of counsel with the prisoner that he should not suffer him to consent to any thing manifestly wrong, and to his own prejudice,” but this is not saying that the court is bound to object to every thing that is done in the progress of the cause. A proper respect for the maxim would doubtless restrain the judge from misapplying or misinterpreting the law. But if, after stating the law as judge, he should be required as counsel for the accused to state an objection to his ruling, he would appear to be in an exceedingly perplexing situation. One who is bound to lay down the law correctly, and immediately show himself wrong by stating a valid objection to it, is certainly in need of an ingenious mind. If a judge believes a ruling
“ It is insisted on behalf of the appellant that the circuit court committed errors to his prejudice in admitting important evidence against him. It does not appear from the record, however, that any exceptions were taken to any of the evidence offered by the Commonwealth and permitted to go to the jury, and for this reason, even if it appeared that improper evidence had been admitted upon the trial, the appellant could not avail himself of such error as a ground of reversal.”
So also in 1 Bishop’s Crim. Law, § 843, it is said: “If the defendant permits illegal testimony to be given to the jury, as shown by his making no objection to it, he cannot afterward claim any privilege on account of its admission.” The rule is here stated with reference to testimony, but it is the same in respect to instructions, as we may learn from the case of Hopkins v. Commonwealth, cited in our opinion in this cause. If a superior court is required to assume that objection has been made to an instruction or to testimony upon a trial in an inferior court, or if a judge upon a trial of a capital cause is bound to interpose an objection when none is made by the prisoner, these authorities are strangely silent upon those points. Upon a careful examination of the opinion drawn up by our brother Gorsline, we are again compelled to express our concurrence therein, and we are constrained to add that we do so under a profound sense of the responsibility resting upon us, as the minister of the law, listening to the last appeal of a wretched man who is about to take his place upon the gallows.
In this connection we will briefly allude to the instructions given upon the trial below for the purpose of freeing
“It is next claimed that the court erred in giving the following instruction : ‘In the case that is now being submitted to you, there is no evidence on any points or matters given in proof which reduce the crime charged in the indictment to manslaughter; if the defendant be found guilty, therefore, you cannot consider the question of manslaughter upon the evidence in this cause.’ This instruction is not a little obscure, and if it was given as represented in the transcript, it is quite possible that the jury may have found some difficulty in determining its exact meaning. The record does not contain the evidence, or any part thereof, and we cannot, therefore, read the instructions in the light of the testimony in view of which it was given, but are forced to determine its meaning by its own terms. If there was any evidence before the jury tending, however slightly, to reduce the homicide to the grade of manslaughter, this instruction was erroneous. If the expression ‘ there is no evidence on any points or matters given in proof’ is to be understood as admitting that there were ‘points and matters given in proof’ which, if true, would reduce the offense to manslaughter, but declaring the evidence as to such points or matters to be insufficient to warrant the jury in finding them to be true, it was erroneous, because it assumed to pass upon the weight of evidence which, under our constitution, is left entirely to the jury, and in regard to which the judge, contrary to the rule of common law, is not
So, also, in The People v. Byrnes, 30 Cal. 207, the court say:
“ It is neither necessary nor proper for the court, on the trial of an indictment for murder, to give an extended or any definition of murder in the second degree, unless there is evidence in the case tending to prove that the crime was or may have been of that grade in the given instance. Instructions are always to be given with reference to the facts proved before the jury. * * * The circumstance that counsel conducted the defense on the theory of murder in the second degree, assuming that he did so, did not in itself make it necessary that the court should deal with the case in an aspect which it did not in fact present.”
We agree, that if the evidence tends to prove a case of
The evidence in this case shows that the deceased, after being twice knocked down upon the floor of his isolated cabin by the blows of the plaintiff in error, was strangled to death by the latter’s companion in the terrible crime. The combat was commenced by the plaintiff in error, so far as we know, without provocation, and after he had reduced his victim to a condition of helplessness, the cause of death was applied by this man and his associate, or by his associate alone. The guilty pair then bore away the body of deceased and threw it into a neighboring mining shaft, and together fled from the scene of the tragedy. According to the statement of one witness, the prisoner protested against the act of Reynolds in tying the rope around the neck of deceased, but if the jury accepted this as true we cannot say that it tended to reduce the crime to manslaughter. The only effect of it would be to deny on the part of the prisoner any participation in the killing. The statute declares, that “in cases of voluntary manslaughter there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury upon the person killing. The killing must be the result of that sudden violent impulse of passion supposed to be ..irresistible. And again, the killing being proved, the burden of proving cir
With the law and the evidence in this case, before us, we are' unable to perceive that there was any question of manslaughter arising in the case. The accused must be guilty of murder if he is guilty of any thing, and we have already said that we' entertain no doubt as to his guilt. We deplore thfe necessity which rests upon us to declare this conclusion and we'would gladly avert the dreadful doom of the wretched man, who now invokes our aid, if it were possible to do so, but we have a duty to perform as officers of the law which cannot be controlled by any feeling of sympathy for the prisoner, and it is in the discharge of that duty that we now declare that the petition for rehearing must be denied.
Petition denied.