41 N.J.L. 370 | N.J. | 1879
Lead Opinion
This record and the proceedings at the trial are before this court for the single purpose of obtaining a review of the law as it was administered in the ■Court of Oyer and Terminer, and as it was re-established in the Supreme Court. . The testimony is before us in extenso, but with it we have, officially, no concern, except so far as it elucidates, or is connected with, the procedures and legal rulings at the trial. So entirely is this true- that even if we were satisfied that these defendants were innocent of the crime of which they have been convicted, we could not, on that account alone, interfere in anywise with this judgment, for the power of giving relief in such a juncture is in other hands ■than onrs. When we shall have responded to the question whether these defendants have been tried according to the modes and rules established by the laws’ of this state, our whole duty will be performed, for to do more than this would be an intrusion upon that authority with which, by the constitution, another tribunal has been invested. I shall, therefore, address myself exclusively to an examination of the errors in law that are alleged to have supervened in the course of these proceedings.
The first objection to be noticed is a formal one. It appears that the defendants, prior to the occasion that resulted in this verdict, had been put upon their trial, on this same indictment, before another jury, and that a member of such jury becoming insane, such jury was, on that account, discharged by the trial court. This circumstance appearing on the record before us as a part of the course of law taken in the case is now assigned as error, the ground being, not that the court, if the necessity arose, could not have rightly discharged the jury, but that in this instance the proceedings on which such judicial action was based, were irregular and illegal. The recital on the record of this affair is as follows, to wit:
With respect to the procedure thus presented, two errors are assigned — first, that the defendants were not present when the physicians examined the juror; nor, second, when the testimony of such physicians was taken in court. Touching this latter exception, it is sufficient to say that it is not sustained by the proof, but, on the contrary, the record, read according to legal intendment, shows the reverse. The statement is that the trial was continued to the day <m which this examination was taken, and it is also averred that such examination was in open court. When a defendant is shown to be present at the commencement of the trial, the presumption of .law is that he is also present at each day to which the trial is regularly, de die in diem, continued. It must, therefore,
The second objection, which embraces the contention that ■the defendants should have had the opportunity of being present when the juror was undergoing examination by the physicians, is not valid. The court could have examined any person Avho was acquainted with the mental condition of the juror, and without regard to the fact whether such person had acquired his knowledge touching such condition in the presence or in the absence of the prisoner. Such is the every-day practice of the courts in this class of cases. These proceedings are always summary in their character, and of necessity ■must rest almost entirely in the discretion of the court, and ■the exercise of such discretion must be deemed conclusive, except it may be in a clear case of the abuse of such authority. Nothing of the bind in this instance is pretended, and no objection whatever, so far as appears, was taken at the time by the counsel of the defendants to any part of this transaction.
Before leaving this topic it is proper to say that the objection of the attorney general to the right of the defendants to assign as errors the foregoing matters, has been considered, and that it is deemed such objection is not tenable. The contention was, that what had taken place at the former trial was a matter of fact which, if a bar to a further prosecution, should have been pleaded at the last trial, and that if the state should, in 'the common form, deny such assignments, an issue of fact would be raised. But this view, I think, is not in harmony with the precedents. The general rule is that whenever a material error is evident on the face of the record, the judgment must, on that account, be reversed, and consequently any error thus appearing may be assigned for error. The issues thus raised, as they are to be proved by the record itself, are issues of law and not issues of fact. If, however, a former trial is set up, being no part of the proceedings in the pending case, but a distinct thing from it, the fact of such former trial
The series of exceptions that next require attention approach more nearly the merits of the case, relating as they do to alleged misconceptions of the judge as to various matters of fact, and his instructions to the jury founded on such misconceptions. These exceptions are fourteen in number, and it is obvious, at a glance, that the bulk of them cannot be of any avail to the defendants in this court, as they seek to call into-question certain expressions of judicial opinion on the facts and weight of evidence. That a judge has a right to give his own views to the jury with respect to the value of the testimony, or upon the merits of the case, is, and always has been, the law of this state. Such, therefore, of the objections in question as are of the character just indicated, will receive no attention; but there is an objection that has been taken to the charge of the judge, which is of a different nature, and which is clearly outside of the protection of the rule just mentioned. The instance thus referred to is of vital importance, on-account of its close connection with the merits of the case, and of the effect the judicial remarks in question may reasonably be presumed to have had on the minds of the jury.
The portion of the instructions of the judge to the jury to which I now refer, occurs in that part of it which contains a-summary of the facts tending to show the connection of Mrs. Smith with this crime, and this is its language, viz.:.
“ The doctor is called, and the officers come in, and they commence an investigation. As they walk through the rooms-looking for signs, she points out to them a bottle of chloroform and a towel; she calls their attention as they pass — I am speaking now of the testimony of the officers — she calls attention, by the opening of a closet door, to the removal of the board, making an opening in the floor, and the change of the position of the crocks. The crocks were changed, and
“It is possible and probable that you will ask yourselves whether it is likely that one could go up through that floor— the floor seven feet, I believe the witnesses say, above the cellar floor. There is a ledge along the wall, the precise height of which I don’t remember, but there is testimony to show, and it appears upon the drawings. A man must draw himself from the cellar floor on this ledge, up through this hole, which was about two feet wide, without the crocks being there; fourteen or sixteen inches high, between the other boards and the stairs above, a man must draw himself up; he must have the use and force of his arms to do it, with such aid as he can get with his feet on the ledge. It may be, perhaps is, a possible thing to be accomplished. The jury will look at that. If it were not possible to do, it is an important circumstance in the case, as it is the only place where there is any sign of violence
It will be observed that, in these remarks, the learned justice ascribes to this defendant the “ story ” that “ somebody came in by this broken -floor and removed the crocks,” just as he ascribes to her the story of her having been stupefied by chloroform. With regard to the use and effects of the drug upon her, he had a clear right to hold her responsible for such statements, because that she had made a statement to that effect was an incontestable fact in the case, and was admitted on all sides; but had he a right to assert, in his charge to the jury, that the “story” of this defendant was that the murderer had entered by removing the board in this closet ? If it- was her story, then she had narrated the fact as a part of her experience, just as she had the fact of having been made insensible by the chloroform. In the judicial statement, the one circumstance is as much a part of her story as the other is; they both are represented as portions of her narrations of matters that had equally come under her own observation. The language used is: “ Either this story is true, that somebody came in by this broken floor and removed the crocks, and used chloroform upon her, and struck her husband, and left while she slept.” Now she had testified that she had tasted and had felt.the effects of the chloroform, and when but semi-conscious had heard the sound of the assassin's blow. These things she had told, and they were her story. Had she stated in the same way that somebody had come in through the broken floor of this closet? And not only in the clause just quoted
The inquiry then arises, was this defendant liable at all, under the evidence, to the imputation of having told this improbable, not to say impossible, story? Was the learned justice justified, in any degree, in laying to her account the story that the murderer had entered in this way, in the same sense that he could lay to her account the statement with regard to the chloroform. The answer to this depends altogether on the circumstance whether there was any evidence whatever in the case tending to show that this defendant had made the statement in question. Was there any proof, direct or inferential, that she had ever told any story whatever on this subject? If there was, then the judicial assumption from such evidence of the fact, and the presentation of it as a fact, however indiscreet or ill-advised such an assumption may have been, and however clearly such indiscretion would have been effective in procuring a new trial on a motion for that purpose, will not constitute an error in law upon which this court can reverse this judgment. The ques
The first witness testifying on the point was John A. O’Neil, a police officer, and the following is a transcript of his deposition. He says—
“A. I arrived there about ten minutes past eight that morning; I immediately began a search for weapons, and didn’t find any; I found a board underneath the stairway leading from the basement to the first floor. Q. Point out on the diagram where you found that board ? A. [Pointing on the diagram] — It was right underneath here; under that stairway, down in the cellar. Q. In a closet, was it ? A. Yes, sir. Q. That is, under the closet that was in the kitchen ? A. Yes. Q. What sort of a board was that ? A. It was a common pine board, eight or ten inches wide, about twenty inches in length; I showed it to officer Mc-Horney in the presence of .Mrs. Smith, and she said that was the board that belonged in the end of the pantry ; she said it was a board that was missing from that closet7; there was a board missing from the farther end. Q. Did you notice any plaster on the board ? A. Yes. Q. Was the plaster broken in the closet? A. Yes. Q. What else did you do in connection with the case ? A. That is all I done to the house.”
The next witness was Michael Gr. Lepnon, the captain of the police, who said—
“ I then left the bed room and went into the kitchen, and Mrs. Smith opened the closet door and told me that the jars in the closet had been moved; she made an exclamation, ‘Oh, they have moved my jars, or crocks;’ and there had been a board taken out of the end of the closet; I looked into the closet and found the jars had been arranged on the right or eastern side of the closet, and there was space enough at the
Hattie Smith was then sworn, and said, referring to the defendant—
“A. She showed me the closet; I believe Mr. McHorney was with me at the time, and I noticed there was a board off; she said the board was loose, it was only nailed temporarily. Q. Did she say anything about her crocks there ? A. I believe she described to officer McHorney how the crocks were sitting before, but I don’t exactly remember; she told him that the ones that had stood on the board before had been disturbed.”
The testimony of Jennie R. Smith, the defendant, who was then examined, was as follows—
“ Q. The next morning, after the people came there, and McHorney was there, what, if anything, attracted your attention to the closet over the cellar ? A. I was in the parlor, sitting by the bed room door; the captain called me to the bed room, and asked me about the windows — whether I left them in that condition; I said,‘Yes;’ he was speaking to me, and he said, ‘ Come this way,’ and passed into the kitchen; he asked me if the small window that was up that morning, if I always left that open; I said, ‘ Yes;’ he then attracted my attention to the window by the hydrant, and asked me if that window was alwrays so; I think that is what he said, and I said ‘Yes;’ then pointing to the door that led upstairs, I said, ‘ That leads upstairs into the bath room;’ he had a little lamp in his hand; he was about to open the door leading into the yard, on the back stoop; he opened the door, and as he did so he noticed the closet door slam; he said, ‘ What is this ?’ I said, ‘ This is a closet;’ and as I opened it he looked at me; I suppose I must have been surprised ; I saw everything in a different manner from what I had been in the habit of keeping it; he said, ‘ Do you keep those things that way?’ I says, ‘No; I generally keep them crosswise;’ there
And on her cross-examination she further answered—
“Q. Was the board evér out of that closet on any other occasion ? A. No, sir; not since my husband put it in ; he made the flooring and put it in; I never saw it after. Q. Did you call the attention of the persons, there present to the condition of -the closet and crocks, or did they call your attention to it ? A. When Captain Lennon opened the -back door it attracted my attention,' and also his attention, and I said that was a closet, and I think he made a move to open it himself; I put my hand on it, and opened the door, and I said it had before been a stairway to get into the cellar, and my husband had boarded it as a closet; he noticed the place, and asked me if that was usually so, and I said ‘ No;’ that I kept the pots , and crocks in a different position, and that that space looked larger. , Q. You have not answered my question; did you call the officer’s attention to the condition of the closet in which the crocks were, or did he call your attention to it ? A. He asked me if I generally kept it in that condition, and I said no, I did not. Q. Was there a market basket in the room? A. Yes; in the middle of the floor. Q. Where was that market basket in the morning? A. In the middle of the floor. Q. What kind of a basket was it? A. One with two lids on it; I generally kept it in the closet; I suppose it was there. Q. Did you call the attention of any of the offi
Then Captain Lennon, being recalled, said—
“ Q. Do you remember stating in your original testimony about Mrs. Smith finding the bottle and the towel, and showing you the closet ? A. Yes. Q. Do you remember opening the kitchen door at that time? A. Before going to the closet? Q. Yes. A. No. Q. You did not open the kitchen door before going to the closet ? A. No. Q. Do you remember whether or not the wind, coming into the kitchen door, shook the door of the closet, and that attracted your attention to it? A. No, sir. Q. What attracted your attention to the door ? A. Mrs. Smith opened it; I was passing along, looking for evidence; I went through the place, and this closet door was the first that attracted attention in passiug from the bed room. Q. Who first went to the closet, you or Mrs. Smith ? A. Mrs. Smith; she was in advance of me; she preceded me; she opened the closet door before I got to it.”
The last witness on the subject was Mary E. Phillips. This woman, a considerable time after the murder, was in jail with the defendant, being imprisoned on a charge highly criminal, and of which she admitted her guilt. She was asked if she had held a conversation with the defendant,- and having answered in the affirmative, was asked what it was. She said—
“ A. One day we were speaking about her husband’s death, and I asked her how she thought the person came into the house that done it, and she said that they came in through the closet. Q. Anything else? A. No, sir. Q. Is that all she said about it? A. That is all.”
This is the sum of the testimony on this topic.
From this series of citations it is, in my opinion, conspicuously evident that there was no foundation in the testimony in this case for the attribution to this defendant of a story on
And at this point it is well to notice that there was nothing
Nor is there, to my mind, any relief to the situation in the suggestion that from the nature of the -proofs it is obvious that the imputation of this story to this defendant, as a part of her narration of the things seen or known by her, was not -designed or intended to be made, but was a mere slip in phraseology, and that it must have been so regarded by the jury. I cannot get rid of the difficulty in that way, for it appears to me that it is impossible to square the context of
It has already been said that it is competent for the judge presiding at a criminal trial to lay before the jury for their consideration his own views and inferences from the proofs, and that such expressions, no matter how ill advised or erroneous, can be reviewed on a motion for a new trial, but not on a writ of error; but the defect in this case is that a story is imputed to this defendant, and put in her lips, which she never uttered, and thus a fact, of the utmost importance, is, by unguarded expressions, imported into the testimony, and the introduction among the proofs of such foreign admixture must of necessity be held to constitute error in law.
Believing as I do, therefore, that at the trial at the Oyer errors appear in these important particulars, and that such errors must have prejudiced both these defendants on the trial of the merits of the case, I shall vote to reverse the judgment contained in this record.
Concurrence Opinion
I do not understand the opinion just read by the Chief Justice at all unsettles the rule heretofore adopted and long acted upon in this state, that a judge presiding at the trial of an indictment may comment upon the facts and circumstances in evidence. I therefore concur in the reversal of the judgment below on the legal point taken in the opinion read.
I desire further to say that what is called in the case the eight-page letter was, if not the turning point in the case, most important evidence. The court was asked in substance to charge that if that letter was susceptible of two constructions, one going to show guilt, and th'e other consistent with innocence, the juiy should adopt the latter. I cannot find that this request was granted in terms, or otherwise. In this, I think, there was error, and for this additional reason I vote for reversal.
I cannot concur in the reversal of the
The counsel for the defendants requested the court to charge the jury that, “ in construing the letter, if the words are susceptible of two meanings, the presumption is on the side of innocence,” which request was refused.
This letter was of such importance in the case that the judge told the jury “ that without it the testimony would have been quite weak to connect Bennett with the transaction.” It was of the highest importance, therefore, to the defendants that the legal rule for its interpretation should have been accurately stated.
In the absence of the special request, no error could be found in the instructions of the judge on this point; the general rule he laid down was correct, but a further duty devolved upon him when the specific request to charge was made.
It was'not competent for the defendants to ask the court to charge that if this letter, standing by itself as ah independent, isolated piece of evidence in the cause, was susceptible of two meanings, that in favor of innocence should be favored.
The defendants had no right to separate any matter of evidence from the whole case, and demand such instructions with reference to it exclusively. If such a request had been made, it would have been properly denied, but-I do not understand that to be a fair interpretation of the request to charge.
It must be understood to have been made with reference to the attitude in which the parties defendant were placed by all the testimony in the case, as the case of the state was presented when all the testimony was in.
In that view the request was a proper one, and the court should have charged the jury that, in construing the letter, if the language of it was susceptible of two meanings, under a fair consideration of all the testimony and circumstances of the case, giving to such testimony and circumstances due
In the failure so to charge, in my opinion, there was error, for which the judgment should be reversed.