140 Wis. 104 | Wis. | 1909
Lead Opinion
The place of the homicide was in a sparsely settled wild country in which the plaintiff in error and the' deceased lived. The latter was the sole occupant of a homestead claim, called the Morrison homestead, about a mile and
The story of the accused was, that upon waking up after sleeping off his debauch of the day before the homicide, he went on a fishing trip of several miles and. at his destination used a particular boat; that he returned in the afternoon about 1 o’clock and, upon finding the body of the deceased in the road, put down his sack of fish at the side of the house and went to the Barnes place and reported the fact. There was circumstantial evidence that his story was false, such as there being no sack of fish found at the side of the house by any one attracted to the place by the report of the homicide before the accused returned from the Barnes place, and the boat he claimed to have used on the fishing trip not having been disturbed on the day of the homicide.
Several errors are assigned, not argued in the brief of coun•sel for the accused, though some of them were mentioned incidentally, or argued briefly, on the oral argument. We will pass them with this mention thereof and with the statement that they have received sufficient attention to satisfy the court that neither of them is material.
The court properly sustained a challenge of a juror because he testified to having conscientious scruples against convicting a person of a capital offense on circumstantial evidence alone. Such a person is manifestly incompetent for jury ■duty. By the law of the land, which every citizen is bound
It is suggested that in view of something said or decided in Kollock v. State, 88 Wis. 663, 60 N. W. 817, the court committed error by not instructing the jury on the subject of circumstantial evidence, though no request was made in that l'egard. We do not find anything in that case so holding. 'The difficulty there was that the trial court not only omitted to give any instructions in the general charge, specially on the subject of circumstantial evidence, but refused to give instructions embodying correct legal principles in respect to the matter, requested by counsel for accused. While it would be well to give such instructions in any case like this, it is a matter so largely within the discretion of the trial judge that omission to do so cannot be regarded as ground for reversal, unless the omission is in face of a proper request for such instructions.
One Beauregard was called as a witness for the state to prove that he found the accused in a drunken stupor beside the road where, as before stated, he had fallen or lain down while returning from the Barnes place after having been there and ■reported the homicide. An attempt was made on cross-examination to show he had ill will toward the deceased and had
' The claim is made that the evidence being all circumstantial, and there being indications that some other person than-the accused might have committed the homicide, the jury were not warranted in finding the circumstances pointed so-, strongly to the accused as the one who did the deed, as to exclude every reasonable hypothesis to the contrary. We shall' not take time .to go over the evidence in detail. It has been stated in a general way and sufficiently for the purpose of this assignment of error.
True, .it was improper to convict the accused unless the-evidence established the material evidentiary circumstances-beyond a reasonable doubt, and all such circumstances pointed so unerringly to the accused as the guilty party as not to be-reasonably reconcilable upon any other reasonable theory than that of his guilt. But the degree of certainty in such a casé-is no greater than in one resting wholly upon direct, or partly upon direct and partly upon circumstantial evidence. The-subject was discussed at considerable length in Schwantes v. State, 127 Wis. 160, 106 N. W. 231, where occasion was improved for correcting the erroneous notion that circumstantial evidence should be viewed with such distrust as. to be inefficient in face of mere conjecture or possibility of incorrectness of its indications, upon the theory that to be efficient it must establish guilt with some appreciably higher degree of certainty than direct evidence. Experience shows that the-former is quite, if not more likely, to lead to a wrong result than the latter.
“Much embarrassment has arisen over the position advanced by two eminent text-writers, that, to justify the inference of legal guilt from circumstantial evidence, the existence of inculpatory facts must be absohitely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Judges, on hearing these expressions, have been very apt, in the hurry of a trial, to accept and apply them; and hence have sprung up a series of dicta to the effect that circumstantial evidence is to be viewed with distrust, and that, to justify a conviction on circumstantial evidence, it is necessary to exclude every possible hypothesis of innocence.” Whart. Crim. Ev. (9th ed.) § 10.
Speaking on the same subject, said Whitman, O. J., in In re Thorn, 6 Law Rep. 49, 54: “Circumstantial evidence is often stronger and more satisfactory than direct, because it is not liable to delusion or fraud.”
And Gibson, C. J., in Comm. v. Harman, 4 Pa. St. 269, 271:
“Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete it may be infinitely stronger. A fact positively sworn to by a single eye-witness of blemished character is not so satisfactorily proved as is a fact which is the necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility.”
We repeat the summing up in the Schwantes Case, 127 Wis. 160, 177, 106 N. W. 237, 243:
“Evidentiary facts established by evidence more or less direct pointing logically to the ultimate subject of search, have always been, and must necessarily always be, essential instruments in the administration of justice, and when established as they all should be, with the same degree of certainty as the ultimate fact is required to be established, they do not fall below, in probative force, direct evidence. One is as competent*114 as the other to prove the real subject matter of the inquiry. From such evidentiary facts we reason inductively. Certain indicia are known by experience to characterize human actions. Those concomitant with any particular act being ascertained with the degree of certainty required as to the main fact, the latter, we reason logically, must necessarily exist also. Such process of reasoning goes to the ultimate point of inquiry with well-nigh, if not quite, the certainty of exact demonstration. We first conjecture that the subject of search exists and is discoverable. We prove its concomitant facts according to human experience and by the illumination thus produced we dissolve the mist characterizing the conjecture and bring into definite outlines that which was before hidden. People v. Kennedy, 32 N. Y. 141. If the picture thus disclosed to our view is the only one that can reasonably exist under the circumstances we stamp it, so to speak, as the truth of the matter to a moral certainty — the highest degree of certainty attainable in human affairs. People v. Harris, 136 N. Y. 423, 429, 33 N, E. 65. So it is said that ‘certain laws of moral conduct operate almost as infallibly as the mechanical laws of thé material world.’ ”
Courts, very properly, in giving instructions in cases of this sort, say commonly, substantially:
You should not render a verdict of guilty unless after a careful consideration of all the evidence in every reasonable aspect, each material circumstance is established beyond a reasonable doubt and they are unexplainable upon any reasonable hypothesis other than that the accused is guilty; in other words, unless all material circumstances are consistent with his guilt, establishing it with such high degree of certainty as to exclude any reasonable theory that any other person did the deed.
Thus enlarging on the subject is not to be regarded as a requirement because of any specially inherent infirmity in circumstantial evidence, but as indicating the care which it is appropriate and quite becoming for the judge to exercise in presiding upon so grave an occasion; as a method of emphasizing the rule that an accused is entitled to go free un-
Applying the foregoing to the evidence, it is the opinion of the court that the incriminating circumstances which the evidence tended to establish sufficiently to make the existence or nonexistence of each of them a jury question, i. e. sufficiently to render it competent for the jury to find as to each in favor of the state beyond a reasonable doubt, made a network around the accused so complete as to justify the jury in finding that it singled him out as the only person concerned, criminally, in the homicide and the one who committed it beyond .any reasonable doubt.
Barnes was permitted to testify -that the deceased told him the accused killed his cattle and that, subsequently and before the homicide, he told the accused he had been so informed, but did not tell him who imparted the information. There was no direct evidence that the accused, previous to the homicide, knew the deceased was the informant. The ■evidence was permitted to go to the jury, with all the other evidence in the ease bearing on the question of whether there was any ill feeling between the accused and the deceased, furnishing any motive for the former to do the deed of which he was accused. In connection with the evidence there was the circumstance that the deceased was Barnes’s foreman — the •one most likely to have investigated respecting the loss of the cattle and to have aroused Barnes’s suspicion of the accused, if he did not convey direct information to him, that the latter was the suspected party, and, further, the circumstance that
The district attorney in the course of his address argued that circumstances indicated that the accused knew before the homicide that the deceased, and only he, was in possession of the secret about the shooting of the cattle. That was objected to, whereupon the district attorney conceded there was no-direct evidence to that effect, but insisted that it was a legitimate deduction to make from the whole evidence that he in fact did know of it, and that the trouble between him and the deceased, some time before the homicide, resulted therefrom. With that explanation the court said, in effect, that he would permit such theory to be argued to the jury. Thus they must
It was certainly competent to show motive of the accused for the homicide. Motive is not essential in such a case, but presence or absence of it is an evidentiary circumstance bearing, with more or less weight according to circumstances, on the question of guilt. In a case resting, as this does, wholly on circumstantial evidence, presence or absence of motive may well be the deciding factor. So if the evidence in question was improper, it was manifestly prejudicially so.
It being proper for the state to show motive for the homicide and by circumstantial evidence, would not the fact, if it be a fact, that the accused killed the cattle and to his knowledge the deceased knew and had informed Barnes of it, or the fact, if it be a- fact, that the accused knew the deceased believed and had reported to Barnes that he killed the cattle, particularly by reason of the character of the accused and the debauchery immediately preceding the homicide, afford some reasonable explanation of how he might either have conceived the idea of killing the deceased and lay in wait for him where he could safely and surely accomplish the homicidal purpose by shooting from the inside of the house through the screen at the open window, or had some altercation with him about the cattle,'preceding or during which the jug of whisky played a part and was partly emptied by both, or by the accused and, following that, after the deceased left the house and proceeded a little distance might have fired at him through the screen at the open window or in some other way, being so intoxicated as not to have a definitely formed design to kill, have done the fatal deed.
In the situation stated the question presented to the court •on the objection to the evidence was-one of competency. In
In the last case cited the court said:
‘■‘The question of competency respecting evidence is always one of law to be solved by the-court.” It might well have been said in connection therewith, underlying it, however, is the question of fact as to whether the evidence, if admitted, will tend to prove a fact in issue, or any evidentiary fact. “If the test to be applied in determining the first question was whether the evidence, if true, would in the mind of the trial judge establish the fact in controversy, it is obvious that the court, in ruling thereon, would often be called upon to determine questions of credibility and weight. Such is not the test. If evidence, in the judgment of the trial court, if true, will tend within reasonable probabilities to establish the matter in dispute according to the claim of the party of*119 fering it, and there is a reasonable probability of tbe truthfulness thereof, the true test of competency is satisfied and the evidence should be admitted. . . . The court’s decision in such matter, following the propef test, is regarded as a verity unless manifestly wrong. . . .”
Erom what has been said it is evident that the learned circuit judge, in admitting the evidence in question, applied the proper test. Precedent to the ruling he determined, considerately, in view of all the circumstances, the matter of fact involved in favor of the state, which required him to rule, as matter of law, to admit the evidence. Was the ruling on the matter of fact wrong, especially in view of the whole evidence as it stood when the case was submitted to the jury? If it were true that the circumstances were not sufficient at the time the ruling was made, — were not sufficient to warrant, reasonably, the belief that the accused knew before the homicide, the deceased was the one who had charged him with killing the cattle, but before the case closed the circumstances developed were sufficient, — the vice of the ruling was effaced.
After a careful consideration of the case in all its bearings it is the opinion of the court that the trial judge did not, manifestly, commit error in admitting the evidence complained of. It was not necessary to show by direct evidence knowledge of the defendant that the deceased was his accuser. It was as competent to prove that by circumstantial evidence as it was to thus prove any other evidentiary circumstance or the main fact.
It is not often easy to refer to judicial authority supporting a situation which is somewhat uncommon, but that does not, legitimately, suggest doubt as to its propriety where the principles involved are plain. Cases show merely application of principles. New combinations of circumstances call for new applications of old principles and result in the creation of new precedents. If courts were to feel lost as to what to do when out of sight of precedents they would be quite in
Tbe case cited to our attention by tbe attorney general, People v. Chin Hane, 108 Cal. 597, 41 Pac. 697, is a very clear illustration of tbe principles we bave discussed. It is on all-fours witb tbis case. For tbe purpose of showing motive for tbe homicide, evidence was received, over objection, that tbe deceased went upon tbe bond of a third person who had been charged by tbe accused witb having attempted to murder him. Tbe ground of tbe objection was that there was no evidence that tbe accused knew, prior to tbe homicide, that tbe deceased was instrumental in bis assailant’s regaining bis liberty after being arrested on tbe charge of attempted murder. Tbe court, on appeal, said:
“Tbe objection, we think, goes to tbe weight of tbe evidence, rather than to its competency. We think it fairly in-ferable from all the facts and circumstances that be was possessed of such information, but, if be bad no knowledge of tbe fact, then tbe evidence was entirely harmless, and no injury to him could bave possibly resulted from its admission.”'
We may well assume that, in making tbe last remark, tbe .cause was submitted, as it' was here, so tbe jury must bave understood that tbe test of whether tbe evidence complained of was to be considered, was whether they believed, from all tbe circumstances bearing on tbe question, that tbe accused knew, before tbe homicide, of tbe act of tbe deceased which was offensive to him.
.The learned circuit judge said to tbe jury:
“Tbe evidence of tbe state tends to prove that defendant is guilty of murder in tbe first degree.” But in connection therewith tbe court said: “Tbe evidence of tbe defendant tends to prove be is not guilty. You must arrive at tbe truth from tbe evidence, and you will be governed by tbe evidence alone, -in deciding tbe case. Your especial duty as jurors is to arrive at tbe truth- from tbe evidence.”
“Certain evidence has been introduced here tending to prove that certain alleged admissions have been made.” But also said in connection therewith: “The rule as to admissions or confessions is, that such evidence is the weakest kind of evidence and that such evidence, if taken at all by the jury, should be taken with great caution,' but if the jury is satisfied that admissions have been actually made, then they should give such evidence the weight, when they consider the whole evidence, that they believe they should receive.”
Counsel for the accused selected out of the charge the openr ing statement on each subject and in that way suggested that prejudicial errors were committed. We see no reason for thq claim of counsel that the court gave undue prominence to the evidence against the accused over that in his favor or intimated to the jury, in the slightest degree, what weight they should give to any of the evidence. There is nothing in the instruction within the condemnation of anything said in Ferguson v. Truax, 132 Wis. 478, 491, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513, or Till v. State, 132 Wis. 242, 248, 111 N. W. 1109.
There may be a difference of opinion as to the best way to refer to the fact that there is evidence to carry the question •involved in such a case to the jury, and whether it is best to specifically refer to it at all. But, certainly, any man of sufficient intelligence to perform, properly, jury duty must know, in case of submission to him to find facts1 from conflict ing evidence and inferences therefrom, that in one aspect it is supposed such evidence will admit of a finding one way and in another in a different way. Otherwise there would be no jury question to be solved. It is a common, way for a trial judge to say, in terms or effect, there is evidence tending to support the claim of one side and evidence tending to support the claim of the other; it is your particular duty to reconcile the conflict, and find the truth. And, certainly, there is at least no harmful error in such common method of
The second part of the instruction above quoted, if faulty at all, is too favorable to the accused. We will not discuss that part of the charge but leave it by saying that, perhaps, the trial judge was a little overcautious in favor of the accused in some of the language used. It is not thought best to pass it with such approval as to suggest use of the same' language in the same or similar circumstances.
The jury were instructed thus:
“(1) A witness may be impeached by proving that the testimony that he has given is false, or he may be impeached by proving that he has made statements on material facts different from what he has sworn to in court. (2) You should not reject the testimony of any witness, without due consideration and reasonable grounds therefor. (3) It is your duty to consider the interest of the defendant, or any other witness, if you find that any other witness is interested in fact, in the result of this trial, as going to the credibility of such witnesses. (4) If you should find, when you consider the whole evidence, that the testimony of any witness is false, it may be your duty to reject the testimony of such witness, unless it is corroborated by some credible evidence.”
In addition to this and entirely separate from it the court gave correctly the rule on. the subject of falsus in uno, falsus in omnibus.
It is strenuously argued that the first period, which was segregated from its context for the purpose of an exception, is erroneous and condemned in Colbert v. State, 125 Wis. 423, 104 N. W. 61. We fail to find any such instruction in that case. The one condemned was entirely different. The one here is the same as was given in Miller v. State, 139
True, a wdtness may be impeached by proving that his testimony is false. A jury need not be told that; it is so self-evident. True, also, a witness may be impeached by proving statements made by him out of court are inconsistent or contradictory of those made under oath in court. Those methods, of impeachment are laid down in all elementary works on evidence. Jones, Ev. § 847; Greenl. Ev. § 461; Taylor, Ev. § 1470. So that part of the charge excepted to, by itself, is. faultless. Rut why was it followed by the statement, “If' you find, when you consider the whole evidence, that the testimony of any witness is false; it may be your duty to reject the testimony of such witness, unless it is corroborated by some credible evidence ? ” Why was it suggested to the jury that they had discretion whether to reject or give weight to-testimony believed by them to be false ? Of course, they must reject such testimony. And why was feasibility of corroborating utterly false testimony by credible evidence so as to render the former worthy of being given credence in discovering the truth, suggested? As said in the Miller Case, rejection of testimony of a witness believed to be false does not fall within the principle as to permissible rejection of' all of a witness’s evidence because of some material part of' it being wilfully false. The improper use of the word “may” and the improper addition of the words respecting corroboration, led counsel to conclude here, as it did before, that the language of the court was an erroneous statement of the rule of falsus in uno, falsus in omnibus. The improper addition made the whole involved in such absurdity, as said in the-Miller Case, that no sensible juror could reasonably have
The jury were instructed that:
“The burden of proof rests upon the state from the be.-ginning to the end of the trial, and defendant, when placed ■upon his trial, was presumed to be innocent.”
We see no error in that. The better way is to say, in connection with what was said: Such presumption continues from the beginning to the end of the trial and entitles the .accused to an acquittal, unless overcome by evidence establishing his guilt, to the satisfaction of the jury beyond a reasonable doubt. Emery v. State, 101 Wis. 627, 78 N. W. 145.
But the language used seems to mean that, with sufficient clearness to leave the accused without reason to complain, •since no more plainly worded rule was requested.
It is urged that in no event can the conviction properly stand because the accused was, manifestly, guilty of murder in the first degree or not guilty; that there is no reasonable ground in the evidence for belief in a killing by the accused without design to produce that result. The border line between murder in the first degree and murder in the second -degree is very plain in statutory characterization, but whether it is one or the other is often very difficult of determination • on the evidence. So it has been said that if the jury, in any given case, conclude from the evidence that the accused is guilty beyond a reasonable doubt of either one or the other of two offenses, and they are not wholly convinced that it is the greater, they should find a verdict of guilty of the lesser. Ryan v. State, 115 Wis. 488, 92 N. W. 271; Miller v. State, 139 Wis. 57, 81, 119 N. W. 850, 860.
The following cases sufficiently point to the last conclusion,
The next day after the case was submitted to the jury they requested further instructions and pursuant thereto the court instructed them at length to the effect that, commonly, the prosecution, and the defense as well, in the trial of a case have to resort to circumstantial evidence; that it is a legitimate method of establishing the truth; that justice could not be otherwise administered; and further instructed them as to the scope of the term “beyond a reasonable doubt,” and said:
“The evidence which you are compelled to pass upon is not so complicated and so voluminous and difficult to understand that a jury should not arrive at the truth within a reasonable time.”
“I can see no reason, gentlemen, why you should not agree upon a verdict in this case, and we expect you to do so.”
“The real question for you to determine in this case is, what is in fact the truth.”
It is argued that the quoted language contained a pretty plain intimation that the evidence tended strongly to establish the guilt of the accused and to impress the jury that they were under some measure of coercion to find a verdict accordingly, and to do so without much further delay. The
It is not infrequent that jurors fail to fully realize their high duty to reason with each other, to compare opinions, and to each be considerate of the views of his fellows, leading to undue hesitation in reaching a verdict or failure to reach one at all. Wise judicial supervision of a trial, in that regard, is necessary and is none too often exercised.. Manifestly, the court should be mindful of where that duty •ends and the duty of the jury begins so that an attempt to discharge the former will not invade the latter. The trial .judge in his legitimate field has very broad discretion, and it needs a pretty plain case of prejudicial overstepping of it to warrant condemning the result as tainted with harmful error. Odette v. State, 90 Wis. 258, 264, 62 N. W. 1054.
The jury in this case must be presumed to have been men of ordinary intelligence. As such they probably understood from what the court said that a verdict of acquittal or .guilty would be received without judicial question of its correctness.
The language complained of was certainly as faultless as that used in Schwantes v. State, 127 Wis. 160, 191, 106 N. W. 237, or that used in Odette v. State, 90 Wis. 258, 263, 62 N. W. 1054, where the court, among other things, admonished the jury that it was their duty to harmonize the evidence if possible ; that they ought not to stand back obstinately, “but should reason together and talk over the exist-
There are two or three other points, briefly presented in the printed argument, but they do not seem to be of sufficient moment to warrant extending this already quite lengthy opinion for the purpose of discussing them. The accused seems-to have had a very fair trial and to have been ably defended by a member of the bar appointed for'that purpose. The record is exceptionally free from error, and wholly free from harmful error. All of the instrumentalities of the law of' the land have been gratuitously at the disposal of the accused to safeguard him against being convicted unjustly. The law has run its full course, and he has had all the advantages he could have had, had he been of high degree and possessed of wealth. If he has been unjustly convicted, which is highly improbable, it is one of the inevitable individual' sacrifices for the good of the whole which must, now and then, be the result of any system of law of human origin.
By the Court. — The judgment is affirmed.
Dissenting Opinion
(dissenting). I am reasonably satisfied that, with one exception, all the assignments of error might fail' of fatal effect upon the conviction, though not always upon-
The argument in the court’s opinion that admissibility of hearsay evidence may sometimes be sustained by peculiar facts, as to which great deference is due the trial court’s decision, is met, primarily, by the circumstances that there
I cannot avoid the conclusion that in the respect mentioned error was committed, obviously prejudicial to accused, and must dissent from the affirmance of the conviction.