47 La. Ann. 1167 | La. | 1895
Lead Opinion
The opinion of the court was delivered by
The defendant, convicted of attempting to prevent a witness from testifying, takes this appeal, relying on various bills of exception to the admissibility of testimony and to the charge of the court.
The indictment has reference to an investigation of charges against members of the city council, intended to be made by the
The first bill to which our attention has been directed is to the admissibility of the testimony of Marshall as to the conversation between him and the accused, in the course of which the State claims he attempted by persuasion to prevent Marshall from appearing before the grand jury. It appears, from the bills, the defendant visited the witness at his house, referred to the intended indictment of the councilmen for bribery, then the subject of rumor and newspaper comment, and used the alleged persuasion charged .on the accused to prevent Marshall from appearing before the grand jury as a witness in the investigation of the bribery charges. The State could prove the offence of the-accused only by testimony of the conversation, and that conversation necessarily referred to the bribery charges against the councilmen then supposed to be intended to be laid before the grand jury. Marshall, in testifying, naturally stated the defendant’s visit; the reference by defendant to the approaching investigation before the grand jury, and Marshall testified that the conversation related to the subject of that investigation; that is, that the suspected councilmen had sought to obtain money of the railroad company for their votes, as councilmen, for certain railroad privileges the company sought from the city council. It is to the admissibility of Marshall’s testimony that in his conversation with the accused allusion was made to the suspected councilmen and their supposed effort to obtain money for their votes, that the bill of exceptions was reserved. It is urged on us, the testimony objected to tended to prove improper conduct on the part of the councilmen, and had no relation to the charge against the accused, not on trial for conspiracy with the council - men, but only on the charge of attempted persuasion to prevent
The same line of reasoning, we think, applies to the exceptions reserved by defendant to the admissibility of the indictments found against the councilmen. It was a part of the case of the ’State to prove the prosecution against the councilmen as a judicial proceeding, in aid of which Marshall was to give testimony, and to prevent the giving of which testimony was the object of the persuasion for which the accused was indicted. Offered for that purpose only, in our view, the indictments were properly admitted.
Another exception reserved by defendant’s counsel was to the admission of the testimony of the mayor that he had not sent the accused to Marshall, as stated by the accused, testified to by Marshall. The testimony of the mayor tended to prove that the persuasion charged to have been used by the accused on Marshall was accompanied with a false statement designed to make more effective the persuasion. The testimony that the accused stated to Marshall the mayor had sent him, the accused, had gone before the jury. If true, it tended to mitigate the intent of the accused in his visit to Marshall. Whatever the tendency of' the statement of the accused as to the mayor’s agency, if in point of fact the asserted suggestion or request of the mayor was a fabrication of the accused to enforce 'on Marshall’s mind the alleged persuasion, the falsehood then was pertinent to show the intent of the accused in
The defendant reserved bills to the charge of the court, as to the weight the jury should give that charge. In varied forms the question as to the functions of the judge and jury in criminal cases has been frequently presented to this court. The statute originally of 1858, now Sec. 991, of the Revised Statutes, and the somewhat broader enunciation in the Oonstitution of 1879,' have been interpreted to affirm the judicial function of giving the jury the law of the case, and while the right of the jury to determine the issue of fact and law has always been recognized, no decision of this court has ever detracted from the weight due the instructions of the court on questions of law. The statute that preceded, intended, and the organic law, as it stands, intends that the jurv shall heed the law as it is given to them by the court. By that is meant, the charge shall have its moral weight with the jury, just as the juror’s oath is presumed to exert its influence when he goes into the box. The exposition so often given substantially, that the jury should apply the law as given by the court, and while the jury has the physical power to disregard it, they are morally bound to apply the law as announced by the court, we think is the correct application of the provision of the organic law. Indeed, after the frequent judicial utterances on this subject, the question should be deemed closed. We do not appreciate that the decision in the Spencer case, 45 An. 1, at all conflicts with previous decisions. The jury was instructed in this case they must find the facts, and if any crime results, must apply the law given by the court, but the court also instructed the jury: “ A jury can not rightly exercise the physical power of disregarding the instructions of the court upon the law any more than they can rightfully find a verdict directly opposed to the proof of facts.” We shall be careful always to see that the legal instructions are correct. Courts of the last resort are not to set aside verdicts, on the form of statement used to announce the trite proposition contained in the organic law that the juries are judges of fact and law, if the substance of the constitutional mandate is observed, and the law, in other respects is correctly stated. We think the charge as given meets the test of the Constitution and our jurisprudence. State vs. Johnson, 30 An. 904; State vs. Ford
There are exceptions to the charge that to constitute the offence, it was not necessary that a criminal prosecution was actually pending before the grand jury, or that Marshall was actually under a summons to appear, when the alleged persuasion was used. These exceptions virtually affirm that the bribery statute has no operation to punish attempts to bribe or prevent witnesses from testifying, unless there is a criminal case pending, or an investigation actually pending at the moment of the persuasion. This discussion belongs to the consideration of the statute, its scope and purpose.
Our view of the statute will answer this last and other contentions. The statute badly worded and constructed, still presents, we think, the purpose to guard against improper interference with witnesses necessary in criminal prosecutions. Hence the language following the attempt prohibited “ to prevent any witness in a criminal case in any of the stages of the prosecution ‘ to the final trial inclusive,’ from making the oath to obtain the arrest from appearing or testifying as a witness.” The investigation before the grand jury on indictments laid, or proposed to be laid, before it, is the first and most important phase of the prosecution. The investigation is, of course, in advance of the finding of the indictment. It would, in our opinion, be doing violence to the meaning and language of this statute to hold it has no application to an attempt' to prevent a witness, known to be such by the accused, from appearing as a witness in support of an indictment, laid or proposed to be laid before the grand jury. When the indictment is found there is techni ally a criminal case, and then the argument concedes any attempt to prevent the witness from testifying' would be a crime. But the argument insists that until indictment is found, there is no “ case,” and hence there is no crime in improper appliances to prevent witnesses from appearing. The argument finds its answer in the phrase “ all stages of the prosecution” in the statute. The reasoning of the defence gives the protection of the statute to the administration of public justice after the indictment is found, but leaves wide open to the bribe-giver the portals of the grand jury room. Without witnesses there can be no indictments, and the construction of the defence leaves unpunished those who, through bribes or persuasion, seek to defeat the'action of the body charged with indicting for crime.
In supporting the motion in arrest of judgment the defendant insists that the statute does not recognize persuasion as an attempt, punishable as a crime. Persuasion is not the attempt but the means of making the attempt effective. The statute, in our view, punishes attempts by persuasion or other means to prevent witnesses from appearing or testifying. Reason suggests that such attempts should be punished, and the statute announces that purpose. The defendant’s construction is that the crime is committed only, when the witness is actually prevented from appearing or testifying.' That is', the successful attempt to prevent a witness from testifying is a crime, but the attempt that fails, though marked by all the bad intent, and defeated only by the integrity of the witness who is approached, according'to the theory of the defence, is to go unpunished. To apply this theory in this case, if Marshall had been prevented from appearing the accused could have been punished, but because the persuasion of the accused proved futile, therefore his attempt on Marshall’s integrity was innocent. In our view, statutes to protect the administration of justice would fall short of their purpose if improper solicitations to witnesses were not punishable, unless the witness succumbed and failed to testify. We can not give that narrow construction to this statute. Reason and the terms of the statute forbid it. We read this statute: “ Whoever shall attempt by persuasion or other means to prevent a witness from appearing or testifying shall be sentenced,” etc. We have given attention to defendant’s argument on this point. We note his reference to the act of 1869, and his view of the logical and grammatical arrangement of the section. We are dealing with this statute as we find it in the
Our attention has been directed to the special charges asked for by defendant. In our view they were covered by instructions given. One that the defendant was not tried for bribery or perjury was not calculated to confine the attention to the real charge, .but had a tendency to confuse the jury. We think it was rightfully refused.
The case has had our best attention, and our conclusion is there is no error on which this verdict can be reversed.
It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.
Concurrence Opinion
Concurring Opinion.
The defendant having been convicted, under Sec. 880 of the Revised Statutes, on the charge of having attempted to hinder and prevent one Charles Marshall from appearing and testifying as a witness in support of certain bills of indictment pending before the grand jury, and sentenced to five years’ imprisonment at hard labor in the penitentiary, prosecutes this appeal, relying upon nine bills of exception which were reserved during the progress of the trial.
The one of most importance is that raised on defendant’s motion in arrest of judgment which was denied by the trial judge.
The following is the tenor and substance of the motion, viz.:
In other words, that the statute denounces as a crime the prevention of a witness from appearing and testifying, and not the attempt to prevent such witness from appearing and testifying; and conse - quently the indictment does not charge an indictable offence known to the law, and therefore the judgment and sentence of the court should be arrested.
The court held the indictment good and sufficient in law, and, in all respects, sufficient to warrant the verdict and judgment pronounced, and defendant’s counsel retained a bill of exceptions to the ruling of the judge.
The following is the language of our statute, viz.:
R. S., Sec. 880: “Whoever shall be convicted of bribery, or attempting to bribe any witness, or by any force or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case, in any stage of the prosecution, from making the oath in any order to obtain a warrant of arrest, to the final trial, inclusive, from appearing or testifying as a witness, shall be sentenced to imprisonment at hard labor in the penitentiary not less than one, nor more than five years.”
And the indictment is couched in the language following, viz.:
“ The grand jurors of the State of Louisiana duly impaneled and sworn in and for the body of the parish of Orleans, in the name and by the authority of the said State, upon their oath present:
“ That one L. O. Desforges, late of the parish of Orleans, well knowing that certain bills of indictment ior felony and bribery were intended, and about to be preferred against certain councilmen of the city of New Orleans, who, as such, were municipal officers within the State, and that one Charles Marshall was a material witness in support of such bills of indictment, feloniously and corruptly contriving and intending to impede and obstruct the due course of justice, on the twenty-second day of June, in che year of our Lord one thousand eight hundred and ninety-four, with force and arms, in the
Omitting for the present other grounds of objection, the question is whether the statute charges a crime when charging defendant with an attempt to hinder and prevent a witness from appearing and testifying in any given case, by persuasion, or otherwise.
Whilst it is not doubted that an “ attempt to bribe a witness ” is a crime within the terms of the statute, the argument of defendant’s counsel is, that an attempt by solicitation or persuasion, to prevent a witness from appearing and testifying, is not a crime which is denounced by the statute.
At first glance, it is noticeable, that the statute is susceptible of such an interpretation, for it declares that “ whoever shall be convicted of bribery or attempting to bribe any witness, or by force or threat, or intimidation of any kind, or by persuasion, to prevent any any witness,” etc. — the words “ any witness” twice occurring, suggesting a division of the text into two distinct paragraphs, separated by a semicolon. And if this be done the word ‘ ‘ attempting ” would be entirely eliminated from the latter paragraph; and, considering the sense of the whole statute, it might well be divided thus, as the former paragraph would apply to the bribery, or the attempt to bribe a witness, and the latter to the persuasion of a witness not to attend and testify.
This section' of the Revised Statutes is but a reproduction of the first section of Act 63 of 1869, ipsissimis verbis; but the second section of that act is assisting, in that it makes a similar division of the sense of the statute, as follows, viz:
“ That any witness in a criminal proceeding * * * who shall fail to appear or give evidence, when legally required to do so, by reason of being bribed, or persuaded to do so, on conviction,” etc.
In States vs. Tisdale, 41 An. 338, the defendant was indicted under
In treating that case we made subdivision of the sense of the statute, as we have just intimated, and separated the two paragraphs by a semi-colon, thus:
“ The statute declares that, ‘ whoever shall be convicted of bribery or attempting to bribe any witness; or by any force or threat, or intimidation of any kind, or by persuasion, to prevent any witness in a criminal case,” etc. (Italics as in opinion.)
To clearly demonstrate that the expression was purposely used, we have only to refer to the following paragraphs of the opinion, viz.:
“ That the Legislature intended that any person tampering with, bribing or intimidating a known witness * * * should be punished,” etc. (p. 340).
It further speaks of “ the intimidated witness,” and of intimidating him and preventing him from testifying as a witness, as accom - plished facts (p. 341). No mention is anywhere made of an attempt to intimidate, solicit or persuade the witness.
State vs. Taylor, 44 An. 967, presents a case of an indictment under the first paragraph of Sec. 880, charging the defendant with an attempt to bribe a witness.
These two decisions interpret the statute and suggest its division into two distinct paragraphs, as denoted by the employment of the term “ witness ” twice.
The only difficulty that is suggested as, in any way, interfering with such subdivision of the section, is the absence of a semicolon. But it is a well established principle of jurisprudence that “punctuation forms no part of a law.” It is but the work of a draughtsman, or amanuensis, engrosser, or often of a printer. It is frequently altogether disregarded by courts and judges, and they invariably exercise the function of so punctuating a statute as to effectuate the manifest legislative intent. This is conspicuously true of the Supreme Court; as, for instance, in United States vs. Isham, 17 Wallace, 496; Hammock vs. Farmers’ Loan and Trust Co., 105 U. S. 77; United States vs. Lacher, 134 U. S. 624.
In this last case the court, speaking through the Chief Justice, said:
This court will adopt that theory as correct, and as one that is often necessary and useful in the interpretation of statutes, so as to avoid giving them a bias not intended by the Legislature.
We are indebted to counsel for the State for the foregoing authorities. Vide State vs. Payne, 29 Pac. Rep. 789.
On the foregoing hypothesis the defendant’s counsel substantially formulates the following proposition in support of their theory, that an attempt to persuade a witness is not a crime under the statute, viz.:
First — That the statute has two distinct offences in view, (1) the bribery or attempt to bribe a witness; (2) the intimidation or prevention of a witness from attending or testifying.
Second — The employment of the word “ witness” twice as indicative of the two different offences.
Third — The employment of the terms “ being bribed ” and “prevented,” in Sec. 881, likewise suggesting the two different offences.
Fourth — The character of the penalty — imprisonment at hard labor — putting the two offences upon the same plane.
Fifth — Imprisonment at hard labor in the penitentiary for a term of ñve years for an attempt to persuade a witness, being altogether incompatible with other criminal statutes of much graver import.
Generally speaking, under our law, punishable attempts appear to be restricted exclusively to consummated efforts, except cases which, in themseives, involve a breach of the peace; such as aiding or abetting in sending a challenge to fight a duel (R. S. 802) ; or furnishing tools or implements to assist a prisoner to break jail (R. S., Sec. 864) ; or attempting to rescue a prisoner after he shall have been arrested (R. S., Sec. 868) ; or attempting to rob another of money (R. S., Sec. 811) ; or attempting to set fire to any house (R. S., Sec. 845) ; or attempting to burn any bridge, shed, etc. (R. S., Sec. 847) ; or attempting to set fire to or burn any cotton (R. S., Sec. 848) ; or attempting to bribe any judge (R. S., Sec. 860) ; or attempting to corrupt or awe jurors (R. S., Sec. 861), and a variety of other attempts, which are enumerated.
To extend the theory of attempts to the persuasion of a witness not to appear and testify, would be an innovation upon criminal nomenclature.
“ Are solicitations to commit crime independently indictable?
“ They certainly are, as has been seen, when they, in themselves, involve a breach of the public peace, as is the case with challenges to fight, and seditious addresses. They are also indictable when their object is interference with public justice; as when a resistance to the execution of a judicial writ is counselled or perjury is advised ; or the escape of a prisoner is encouraged; or the corruption of a public officer is sought, or invited by the officer himself.
“They are' indictable, also, when they are in themselves offences against public decency, as in the case with solicitations to commit sodomy; and they are indictable, also, when they constitute accessoryship before the fact.
“ But is solicitation indictable when it is not either (1) a substantive indictable offence, as in the instances just named, or (2) a stage toward an independent consummated offence?
“The better opinion is, that when the solicitation is not in itself a substantive offence, or when there has been no progress made toward the consummation of the independent offence attempted, the question whether the solicitation is by itself the subject of a final prosecution must be answered in the negative. For we would be forced to admit, if we hold that solicitations to criminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories, are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed.
“It would be hard, we must agree, if we maintain such general responsibility, to defend, in prosecutions for soliciting erime, the publishers of Byron’s 4 Don Juan,’ of Rousseau’s 4 Emile,’ or of Goethe’s ‘Elective Affinities.’
“ Lord Chesterfield, in his letters to his son, directly advises the latter to form illicit connections with married women; Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such solicitations are so publicly and indecently made as to produce public scandal, they are indictable as nuisances. But to make bare solicitations or allurements indictable as attempts, not only unduly and perilously extends the scope of penal adjudications, but forces on the courts
“What human judge can determine that there is such necessary connection between one man’s advice and another man’s action as to make the former the cause of the latter?
“ An attempt, as has been stated, is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime.
“ But this can not be affirmed of advice given to another, which advice such other person is at full liberty to accept or reject.
“ Following such reasoning, several eminent European jurists have declined to regard solicitations as indictable, when there is interposed between the bare solicitation on the one hand, and the proposed illegal act on the other, the resisting will of another person, which other person refuses assent and co-operation.” 1 Wharton’s Criminal Law, Sec. 179, 1738.
On that theory it was held in Smith vs. Commonwealth, 54 Penn. St. 209, that an indictment would not lie for solicitations to commit adultery.
In Stabler vs. Commonwealth, 95 Penn. St. 318, it was held “ that A’s handing to B poison and soliciting him to put it in C’s spring, was not an attempt to administer poison under the statute.”
In Cox vs. People, 82 Illinois, 191, it was held that an indictment would not lie for solicitations to commit incest, and “ that the mere effort, by persuasion, to produce a condition of mind consenting to incest, * * * is not an attempt.”
But it is contended that an attempt to dissuade a witness from attending a trial and giving his testimony is an indictable offence at common law, and that statement is relied upon as a precedent for a contrary interpretation of the statute under consideration.
But is that statement correct?
Mr. Blackstone says:
“Lastly, to endeavor to dissuade a witness from giving evidence, etc., * * * are high misprisons and contempts of the king’s court, and punishable by fine and imprisonment.” 4 Black. Com. 126.
And Mr, Bishop says:
Mr. Russell says :
“All who endeavor to stifle the truth and prevent the due execution of justice are highly punishable; and therefore the dissuading, or attempting to dissuade, a witness from giving evidence against a person indicted, in an offence at common law, though the person should not succeed.” 1 Rus. Orim. 182.
It is noticeable that the author does not state that “attempting to dissuade a witness ” was an indictable offence, but “an offence at common law.” That it was “ highly punishable,” but it does not say that it was a criminal act, and, as such, indictable.
Mr. Archibold, under the title of “persons who solicit and incite others to commit offences which are not afterwards completed,” says nothing of attempting to persuade a witness. 1 Arch. Or. PI. and Pr. 8, and note.
Under the heading of “attempt to commit crime,” that author furnishes various illustrations, such as (1) an attempt to provoke another to send a challenge, Regina vs. Phillips, 6 East. 464; an attempt to bribe a juror, Young’s case, 2 East. 14; to attempt to corrupt a judge in a case pending before him, 3 Just. 147; to an attempt by soliciting a servant to steal, Higgin’s case, 2 East. 5. But nothing is said of attempting to persuade a witness. 1 Arch. Cr. Pl. and Pr. 896, and note.-
In Myers’ Federal Decisions, under the heading of “ miscellaneous offences,” is found the following, viz.:
“ Section 1247. Attempt. Every attempt, or offer to commit any crime or misdemeanor at commom law, or by statute, is not an indictable offence. Only those attempts, or offers to violate laws, are indictable, which, if the attempt were carried into effect, would invade the very safeguards of. social order.” (Our italics.) 12 Myers’ Fed. Dec. page 371, Sec. 1247.
That is all the digest contains on the subject. The American and English Encyclopaedia of Law collates no adjudications on the subject.
In treating on the subject of “ attempt,” in quite an extended article, Mr. Bishop says:
“ Some acts are made substantive crimes, not so much on account
But that author makes no mention of an attempt to persuade a witness, as a common law offence.
I have made diligent examination of adjudicated cases in other courts of the Union, and find but few of them bearing on the question.
State vs. Carpenter, 20 Vt., presents the case of a witness having been actually persuaded not to attend. In Commonwealth vs. Reynolds, 14 Gray, 89, the court said it was indictable at common law to “ dissuade, hinder and prevent a witness from appearing,” etc. Citing Regina vs. Wyatt, 2 Ld. Raw, 1191; Regina vs. Bidwell, 1 Dennison, 222; The King vs. Stephenson, 2 East. 363. State vs. Early, 3 Harrington (Del.), 562, presents the case of a witness who had been actually persuaded.
The only dictum that tends, in the least, to give support to the contrary contention of the State, is found in an isolated expression of Mr. Wharton, in his treatment of the persuasion of a witness “ to give particular testimony, irrespective of the truth, which is to the effect that an attempt to persuade a witness from attending a trial, is not merely a contempt of court, but may be punishable by indictment.” 2 Whar. Cr. Law, Sec. 1333.
In support of that dictum, the author cites the cases we have collated supra; but, as we have shown, they exclusively relate to cases in which persuasion has been successful. Of all the cases cited the only one which bears him out is that of State vs. Ames, 64 Maine, 386, which is strictly sui generis, and relates to a witness, in a prosecution for the violation of the liquor law, who was sought to be persuaded away.
To show that this dictum is quite exceptional it is sufficient to say-that the section quoted (1333) is found under the title of “perjury,” and is not found at all in the earlier editions of the author.
Mr. Bishop makes a similar alteration in a recent edition of his treatise on criminal law (Sec. 468), citing the same authorities to-which Wharton refers supra.
On the foregoing authorities it can be safely affirmed that a mere-
Let us see in what analogy this alleged offense stands to other punishable attempts in respect of the punishment which is denounced by our statutes.
For instance, murder is punishable with death (R. S. 784), but an attempt to commit murder is punishable with imprisonment at hard labor not exceeding two years. R. S. 792.
Whoever attempts to rescue any prisoner in custody shall suffer fine or imprisonment. R. S., See. 866.
Whoever shall attempt to rob from another person any money or other property shall be punishable with imprisonment not less than six months nor more than five years. R. S., Sec. 811.
Whoever shall give, or promise to give, any judge, or other person concerned in the administration of justice, any bribe or reward, shall suffer fine and imprisonment. R. S. 860.
That for every attempt to corrupt or awe jurors in trial of any cause, by menace, threats, giving money, or promise of any pecuniary advantage, or otherwise, shall, on conviction, be fined not less than one hundred dollars, nor more than five hundred dollars, and imprisoned not less than six months, nor more than two years. R. S. 861.
Yet, under the construction that has been placed on Revised Statutes, 880, the defendant has been convicted of the crime of attempting, by persuasion, to prevent the attendance of a witness before the grand jury, which attempt was unsuccessful, and, in this court, he is appellant from a judgment sentencing him to a term of five years’ hard labor in the penitentiary.
Taking into consideration the entire scheme of crime and its punishment — both at common law, and under our statutes — can it be reasonably deduced therefrom that it was the evident intention of the Legislature to denounce, in Sec. 880 of the Revised Statutes, an attempt, by persuasion, to prevent a witness attending a trial, as a crime which is punishable with five years’ imprisonment at hard labor in the State penitentiary?
'In my opinion, both the plain meaning of the statute and a reasonable and just interpretation of it indicate the opposite view.
In State vs. King, 12 An. 593, it was held that “in construing penal statutes courts can not take into view the motives of the lawgiver, further than they are expressed in the'statute.”
In State vs. Peters, 87 An. 730, it is held that criminal statutes can not be extended to cases not included within the clear import of their language, and held Act 64 of 1884 null and void.
In the recent and conspicuous case of State vs. Gaster, 45 An. 636, this court said:
“ All crimes in Louisiana are statutory, and there can be no crime which is not defined and denounced by statute.”
Again:
“The twenty-third section of the act of 1805, authorized a reference to the common law of England for the definition of particular crimes therein enumerated, but neither that nor any other law of the State has authorized reference to that system in order to ascertain the definition of any other crime not enumerated.”
And the court held that there was, under our law, no such crime as a “misdemeanor in the execution of an office,” and abated the indictment, holding that R. S., Sec. 869 was null and void.
This is precisely what we are called upon to decide in reference to R. S., Sec. 880, in so far as the charge of the indictment against the defendant is concerned.
And my appreciation of the statute leads to that end.
Entertaining this view, I concur in the decree.
Rehearing
On Application for Rehearing.
The argument on the rehearing insists that the testimony of Marshall, not embracing the conversation between him and the accused, should not have been admitted, and that the court misconceived the defendant’s exception to the testimony. The testimony of Marshall, the subject of defendant’s exception, relates to what transpired between him and the indicted councilman prior to the conversation. In the conversation it is in evidence Marshall stated he would have to tell all he knew that passed between him, the accused and the councilmen. The suppression of what he knew was the object of the persuasion of the accused, and it is defendant’s contention that what he knew, derived from what passed be
The witness had testified that in the conversation with the accused, on the night of the 22d of June, 1894, reference was made to the rumored grand jury investigation; that Marshall was to be summoned, and the accused had asked him if he could not go away to keep from appearing as a witness. The ordinance and “bargain” were mentioned, which, in the light of the testimony, was the basis of the charge against the councilmen of soliciting a bribe for the passage of the ordinance. Further along in the conversation it appears, in answer'to the question of the accused what Marshall would have to say before the grand jury, he stated he would have to tell all he knew that passed between himself and the accused, and on being asked “in reference to what,” answered it was understood. Up to this point there had been and could be no objection by the defence. The jury had derived the information that the approaching investigation had reference to Haley and Oaulfield, the councilmen; that Marshall had knowledge of the facts on which the charges were based, and that what he knew on the subject “ and would have to tell,” it was the design of the persuasion charged on the accused to suppress. What he did know, it would seem, was pertinent to go to the jury along with the other testimony. But precisely at this point the defendant objected to the testimony. The charge against the accused was the persuasion to prevent Marshall from testifying before the grand jury — i. e., telling “what he knew.” His knowledge on the subject had been alluded to in the testimony given, and we think that the State had the right to prove “ what he knew,” in order that the jury might appreciate the significance of that testimony already received. The contention of the defence is that after the testimony had reached the verge of disclosing to the jury the knowledge of Marshall, that the disclosure should have been prevented, leaving the jury to conjectures as to a fact of importance in the case. If Marshall had no knowledge, that circumstance would have had weight in estimating the motive for the persuasion. If, on the other hand, he had the knowledge to support the indictment against the alderman, and the accused, knowing that Marshall was the important witness, attempted the persuasion “he should go away and not
A witness is one who is cognizant or has knowledge of the fact. Webster’s Dictionary. The indictment charged that Marshall was a witness to support the indictments against the councilmen. Marshall in testifying to that which passed between himself, the accused and the councilmen, was simply proving his knowledge of the facts on which the indictments rested, and thus the State was maintaining by testimony essential to the indictment that Marshall was a witness. In the original brief for defendants it is conceded that it was competent for the State to show Marshall was a witness in the sense he had knowledge of the facts charged in the indictments, but it is said it was irrelevant and immaterial to show how far that knowledge extended, because the statute makes no distinction between the material witness or otherwise. The concession is unavoidable, but the distinction it draws is impracticable.
Relevant testimony is that tending to show the offence and the intent, and even collateral facts may be given in evidence when of a kind to furnish the basis for the conclusion of the jury. 1 Greenleaf on Evidence, Secs. 51, 52, 448. The testimony objected to is within the rule of relevancy as it is found in the text books and applied in the administration of justice.
The defendant insists that the testimony was calculated to leave the impression on the minds of the jury that the accused was tried on the charges against the councilmen; was designed by the State to exert an improper influence and did operate to the serious prejudice of the accused. The only test this court can apply is that of relevancy. We have examined it under that test. It was offered for the purpose only for which we hold it admissible. The charge of the court restricted it to that purpose and directed the jury to consider it only for that purpose.
On the other points made on the rehearing in relation to the admission of testimony and the charge of the lower court, this court, on full consideration, adheres to the views in the original opinion.
We have also considered, with the attention it deserves, the argument in the briefs and at the bar on the question of the construction of the statutes. We are sensible courts can not, on the theory of mischief intended to be prohibited, enlarge statutes beyond the fair significance of the language employed. But we think another rule
The rehearing is refused.
