92 N.W. 809 | N.D. | 1903
The appellant is charged with the offense of killing one Andrew Mallem, with malice aforethought and premeditation, in the county of Cavalier, on the 3d day of January, 1901. After pleading not guilty, the defendant was tried by a jury, and found guilty of the offense charged in the information, and as a penalty the jury directed that the defendant should be confined in the state penitentiary during the remainder of his life. Defendant is now confined in the penitentiary upon a sentence entered by the district court pursuant to the verdict. The trial commenced on July 16, 1901. I11 this court counsel claim that the defendant should be awarded a new trial upon the ground that prejudicial error occurred in the case during the proceedings in the district court. Appellant’s counsel does not ask 'for a review of the evidence, or claim that the verdict returned by the
A proper consideration of the errors alleged requires that a preliminary statement should be made of the more important facts of the case as, disclosed by the record. Many very important facts are uncontroverfed, and there is a mass of evidence in the record which is not attempted to be contradicted, and counsel on both sides have presented in their briefs a succinct statement of the facts of the case which are not contested, and these statements do not differ, exce'pt in details which are relatively unimportant. The uncontroverted facts, as gathered from the record, may be stated as follows: On January 3, 1901, the defendant, who is a farmer, was residing on his farm, which was situated within a few miles from the village of Milton, in Cavalier county. Defendant was a bachelor, and at the time in question his family consisted only of himself, an unmarried sister, Mary Ann Barry, and the deceased, Andrew Mallem. A neighbor, one J ohn Wild, lived about three-quarters of a mile distant from the defendant’s residence. It is undisputed that parties -residing at Milton, after hearing certain statements in the nature of confessions made by the defendant at Milton on January 3, 1901, visited the defendant’s farm on that day, arriving there about noon. These parties went to defendant’s barn, and there, behind a‘horse called “Joe,” they found the dead body of Andrew Mallem. The body was still warm. There was a rope around the neck of the body, one end of which extended downward in front, and then, after passing between the legs, extended out behind the body. There was blood on the rope and on the floor near the body. A wound about one inch wide at the -surface was found on the right side of the neck of the deceased. This wound penetrated to a considerable depth, and the post-mortem held later showed that the carotid artery and the jugular vein were both severed, and it appears that the wound was necessarily a mortal wound. The evidence shows that all the inmates of the Barry home, including the deceased, were at the house in the morning of the day in question, and that shortly after 9 o’clock a. m. of that day defendant started from home, taking his sister with him, and that he drove his own team; and that the defendant then drove to Milton, arriving there about 10 o’clock a. m. What was said and done by the defendant during this drive to Milton and after his arrival there are facts of very great importance in their bearing upon the controlling questions in this case, but the evidence upon which these facts rest, except in minor particulars, is not at all conflicting. We find a succinct narrative of these facts in the brief of counsel for the respondent, and oné
As bearing upon the defendant’s mental condition at the time these statements in the nature of confessions were made by him on the 3d of January, his counsel calls attention to certain discrepancies in such statements. Upon this point we quote from the brief of appellant’s counsel: “Some one asked if he was sure Mallem was dead, when the defendant replied: ‘Yes, I stayed with him until he died. He died in two minutes.’ He then related the claimed confession of his sister as to, Mallem’s conduct with her. Again, while in the same store, he told that his sister had made a confession to him the night before, had then lost her mind, and gone out on the prairie, where she remained all night. That he found her in the morning, took her over to Jack Wild’s, and drove back home, found Mallem in the barn, couldn’t control himself, and killed him. As showing the different stories told by Barry, take the testimony of T. W. Cocks, on cross-examination. He said: ‘Barry told the story in different ways. He told me, when I went in first, that he had taken his sister over to. Wild’s, and when he came back he found the man in the barn, and killed him. Then he told some other parties in there that he had taken his sister in the house when he found her hands and feet were frozen, and then went out and killed him. And then he told somebody else that he had made up his mind to kill him three or four days before. These were all told in my presence during the one visit to the drug store. He told me that Mallem said, ‘Lord help me!’ two or three times, and in his story to Mr. Helgesen he said, ‘God have mercy on me!’ The Rev. Sykes heard Barry talking that forenoon, and heard Him say, ‘It is an awful thing, an awful thing; but I couldn’t help it, Hut I couldn’t help it.’ ”
The defense of insanity was interposed, and at the trial the defendant’s mental condition on January 3, 1901, was a subject of special inquiry, and a very large amount of testimony was offered upon this question. The defendant testified in the case, and stated, in substance, that he had only a dream-lilce recollection of the events that occurred on the day of the homicide, and had no recollection whatever of driving to the house of John Wild, or of leaving his sister there; and further testified that he had no recollection of seeing or conversing with the various parties with whom he undoubtedly conversed at Milton, and to whom he gave the details of the homicide. Defendant
The first error assigned arose upon the examination of Clarence Mears, a nonexpert witness, sworn for the defense, who, after testifying, in substance, that he knew the defendant in 1892, and that after an absence of some years he had met defendant, and had business relations with him in 1898 and 1899, and after that had a speaking acquaintance with the defendant, and met him frequently, and saw
The fifth error assigned relates also to nonexpert testimony, and is based upon a ruling of the trial court permitting one Robertson, a witness for the state, sworn in rebuttal, to give his opinion upon the question of defendant’s sanity on the day of the homicide. Counsel assails this ruling as error, and contends that the evidence was insufficient as a foundation to show the competency of Robertson to express an opinion upon the question. In ruling upon this assignment we shall deem it unnecessary to set out the foundation evidence in extenso, for the reason that we are quite clear, after a perusal of Robertson’s testimony, that the ruling of the trial court admitting the same does not indicate any abuse of discretion. This witness was sherifi of Cavalier county on January 3, 1901, and had been treasurer of the county, and had known the defendant for - six years. He saw him on the day of the homicide, and observed his manner, expression and conduct; but did not then converse with him, but was present and heard a conversation between defendant and others, had about 1 o’clock the next morning, in which the witness participated. The conversation did not relate to the homicide, but dealt with early frontier experiences and with defendant’s experiences while threshing in earlier days. Witness also was present and heard defendant talk with a number of parties on the following day; among others, with a priest, who visited the defendant. Upon this foundation the witness was asked for his opinion upon the question of the defendant’s sanity. Against objection, his opinion was expressed as follows: “Well, I would say that Mr. Barry was in trouble — trouble of mind — at the time, and the question of his sanity or insanity never occurred to me at all at that time. But I would say from his acts at that time and his conversation that he appeared to me to be sane.” It is our opinion that the data upon which this testimony was permitted to be given was, if not sufficient to justify its admission, at least of a substantial character; and hence the ruling admitting the testimony cannot be condemned as an abuse of judicial discretion. No inflexible rule has been formulated by the courts which will exactly measure the amount
As has been stated, numerous errors are assigned in the record which are based upon refusals of the trial court to give instructions to the jury as requested in behalf of the defendant. In this opinion we shall not deem it necessary to refer to any of said assignments save one, and this is mentioned only because it involves an important question of practice, and one likely to arise frequently. The facts upon which this assignment rests are as follows: The trial court had concluded the reading of its charge to the jury, and the jury were about to retire for deliberation upon their verdict, whereupon counsel for the defendant, before the jury retired, requested the court to give a certain instruction to the jury which counsel had written, and which was then delivered to the presiding judge by counsel. This request was in the following language: “If you find that the defendant was not conscious of the act which resulted in the death of Andrew Mallem, you must acquit the defendant.” This request was refused, and the court indorsed on the request its reasons for such refusal as follows : “Refused. Handed me too late, and substantially covered by the charge.” In our opinion, this instruction embodied a proper statement of the law of the case as applicable to defendant’s theory of the evidence, and hence the same should have been given in charge to the jury, unless the reasons given by the trial court for not giving the same furnish valid grounds for the refusal to do so. After a careful consideration of the authorities upon the point, we have reached the conclusion that the request for the instruction, though tardily made, should not have been refused upon the ground that it was handed up too late. See People v. Sears, 18 Cal. 635; People v. Demastors, 105 Cal. 669, 39 Pac. Rep. 35; Chapman v. McCormick, 86 N. Y. 479; Pfeftelo v. Railroad Co., 34 Hun. 497; Leydecker v. Brintnall, 158 Mass. 292, 33 N. E. Rep. 399; Brick v. Bosworth, 162 Mass. 334, 39 N. E. Rep. 36 ;Crippen v. Hope, 38 Mich. 344; Carey v. Railway Co., 61 Wis. 71, 20 N. W. Rep. 648; Allen v. Perry, 56 Wis. 178, 14 N. W. Rep. 3. In a majority of the cases cited requests for instructions had been presented too late under rules of court, and in refusing the requests the trial court in some of the cases placed their refusal upon that ground. In this case the record discloses no rule of the district court, and we know of none, forbidding counsel to ask requests after the charge has been delivered to the jury, and before the jury retires; but, in'the absence, of any written rule regulating the practice, it is quite clear, in the nature of the case, that counsel are under an obligation to the court to frame and present their requests for instructions at some period prior to the delivery of the charge to the jury. To spring a request at the conclusion of the charge is often a source of embarrassment to the court, and, if this should be done by counsel purposely, and with a view to any such result, the act would be one
In the course of its charge the trial court read from the statute relating to homicide, and explained to the jury that, in order to convict the accused, it would be necessary for the state to show beyond a reasonable doubt that the homicide was committed with malice aforethought. The jury were further instructed generally upon the matter of a reasonable doubt and as to the presumption of innocence; and the provisions of the statute enumerating the classes of persons incapable of committing crime in this state were read to the jury, and, in this connection, in commenting upon the statute which refers particularly to lunatics and insane persons, the jury was informed — and very properly — that persons of unsound mind, including those partially or temporarily deprived of reason, are, in this state, not incapable of committing crime, but, on the contrary, such persons are legally- responsible for criminal conduct where the proof shows that at the time of committing the act they knew that the act was wrongful/ After these and similar instructions of a general nature were given to the jury, the trial court, coming to the particular facts of this case, proceeded to instruct the jury as follows: “With regard to the evidence in this case there is very little comment required from the court except upon one question; the others being hardly matters of dispute. That the defendant struck Andrew Mallem with a knife is abundant
From our standpoint, the question, presented is not difficult of solution. The point turns upon the construction to be placed upon the language of two sections of the Code of Criminal Procedure, — sections 8176 and 8217, Rev. Codes 1899. The important language of section 8176 is as follows: “In charging the jury, the court shall only instruct as to the law of -the case.” Section 8217 declares: “In charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdict, and if it states the testimony in the case, it must, in addition, inform the jury that they are the exclusive judges of all questions of fact.” After repeated perusals of the language we have quoted from the existing statute, and after a careful comparison of the same with the language embraced in section 7370, Comp. Laws, we have no hesitation in saying that the rule of the common law permitting judges to instruct juries as to the credibility of witnesses and the weight of the evidence has never been established by the legislature of this state. It is certain that the existing statute, which was in force when this case was tried, does not declare in terms that the presiding judge may give his opinion to the jury upon the weight of the evidence or the credibility of witnesses, and we are wholly un'able to draw any such inference from the statute, when the same is properly construed and Considered as a whole. We concede that the terms of section 8217 imply that the court, in charging the jury, will be called upon to state “the testimony in the case.” In fact, the court cannot, as a rule, discharge its duty by declaring the law of the case without stating, or in some way referring to, the testimony. But the language of section 8217, Rev. Codes, so far as we have quoted the same, is a literal copy
In charging the jury, the trial court' distinctly stated that the jury were the exclusive judges of the credibility of the witnesses, the weight of .the evidence, 'and of the facts of the case; and further stated that the court did not desire to express an opinion upon the weight of the evidence or upon the facts of the case. This feature of the charge, however, was not repeated in immediate connection with that portion of the charge which is under consideration here. But if this feature had been stated in close connection with the language we have quoted from 'the charge, the same could not, in our judgment, operate to cure the error involved in giving the jury the clear and emphatic expressions of opinion from the bench as contained in the language which we have quoted from the charge. The question whether an error of this grave character can be cured by telling the jury that they are the exclusive judges of the facts and the weight of the evidence was presented in the case of Territory v. O’Hare, and what is said in that case is equally applicable to the charge under consideration. As supporting our views, see, also, section 49, Blashf. Instruct. Juries. In the states where the court is permitted to express its opinion to the jury on the weight of the testimony, the judges are free to do so, and such expressions are not' error where the jury are told by the court that they are the exclusive judges of the weight of the testimony and of the facts. But where the common-law rule is abolished a different rule necessarily obtains.
The reason underlying the rule we are considering is well expressed in People v Williams, 17 Cal. 142. In its opinion in that case the court said: “The court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave-such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the court, and the great deference which they pay to the opinions and suggestions of the presiding judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision of the issue from themselves to the court. Á word, a look, or a tone may sometimes, in such cases, be of great, or even controlling, influence. A-judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts; for of this; matter, under our system, they are the exclusive judges.” In People v. Casey, 65 Cal. 260, 3 Pac. Rep. 874, the trial court stated to the jury what certain testimony “showed.” Commenting upon this, the supreme court used language which is in point under the statute of this state. The court said: '“This is in clear violation of that clause of the constitution, which declares that ‘judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.’ To state the testimony is one thing. To' declare what it shows is another, and very different, thing. It is for the jury exclusively to determine what the testimony shows.” Similar language was employed in People v. Gordon, 88 Cal. 422, 26 Pac. Rep. 502. In a recent California case — People v. Webster, 43 Pac. Rep. 1114 — the charge was assault with intent to commit a rape, and the prosecutrx testified that she was under the age of consent, and no evidence was introduced contradicting the witness. Upon this testimony the frial court instructed the jury, in effect, that the prosecutrix was under
The court, in charging the jury in the case at bar upon the subject of insanity, used this language: “The defense of insanity has been so abused as to be brought into great discredit. It has been the last resort in cases of unquestionable guilt, and has been an excuse to juries for acquittal, when their own and the public sympathy have been with the accused, especially when the provocation to homicide has excused it according to public sentiment, but not according to law. For that reason it is viewed with suspicion and disfavor whenever public sentiment is hostile to the accused. Nevertheless, if insanity be established to a degree that has already in part and will hereafter be further explained, it is a perfect defense to the information for murder, and must be allowed due and full weight and consideration.” In our opinion, this portion of the charge was error. It did not permit the defendant to interpose the defense untrammeled and free from condemnation from the bench. In the language quoted the trial court, while conceding that this defense might lawfully be interposed, placed the same under the ban of judicial disapproval by stating that the defense of insanity had been abused and 'brought into great discredit, and that it had been the last resort in cases of unquestionable guilt, etc. The defense of insanity is dictated by an enlightened and humane public sentiment, and in the state of North Dakota society is amply protected against the possible abuses of the defense by a somewhat drastic statutory provision under which an insane person may be punished for a criminal act, if, ¡at the time of its commission, the proof shows that he knew the same was wrongful. See section 6814, subd. 4, Rev. Codes 1899. In this case the only defense sought to be supported by testimony was that of insanity, which is a strictly legitimate and legal defense under the statute in any criminal case. In such a state of facts we have no hesitation in holding that it was highly prejudicial to the substantial rights of the accused to handicap his sole defense by an instruction to the jury, which, in effect, disparaged the defense of insanity in its entirety. It fnay be quite true that this defense has been much abused, and it may be right and proper for courts of last resold and for the text-writers to animadvert upon the defense of insanity. Nevertheless, we think a jury should be left free to consider the defense upon its merits, and from their own point of view, uninfluenced b)r adverse comment from the bench. Our views have the support of judicial opinion. In Alvin v. State, 63 Ind. 598, the court said: “Where the judge is forbidden to express his views upon questions of fact or regarding the credibility of witnesses, he is necessarily inhibited from criticising any particular defense or cause of action, unless it be when proved insufficient in law. Therefore instructions respecting the defense of an alibi cannot be
It follows, from the views we have expressed upon the charge to the jury, that the judgment entered in the court below should be set aside, and a new trial awarded to the defendant, and this court will so direct.