44 Kan. 618 | Kan. | 1890
The opinion of the court was delivered by
The defendant, William Douglass, was prosecuted criminal!y in the district court of Shawnee county, upon information, under §§103 and 106 of the act relating to crimes and punishments, for willfully and feloniously, on October 22, 1888, placing an obstruction, a railroad tie, upon the railroad track of the Chicago, Kansas & Nebraska Railway, St. Joseph & Iowa Railroad Company lessee, about four miles west of the city of Topeka. He was tried before the court and a jury in January, 1890, and was convicted; and was afterward sentenced to imprisonment in the penitentiary for the term of five years from February 15, 1890. Afterward he appealed to the supreme court, and on November 8, 1890, the judgment of the district court was affirmed. (The State v. Douglass, 24 Pac. Rep. 1118.) In due time a motion for a rehearing was filed, and it is now presented to this court for consideration.
The defendant claims that the court below erred in giving the following, among other instructions, to the jury:
“ 8. If you believe, from the evidence, that another person than the defendant willfully placed the railroad tie on the rails or track of the railroad described in the information, on or about October 22, 1888, in this county — actually placed the tie of solid piece of timber on the said rails or track of the said railroad — and you further find from the evidence,*620 beyond a reasonable doubt, that the defendant was present when the tie or timber was placed on the railroad track, and encouraged, consented to, aided or advised such other person to place said obstruction on the said railroad track, 'then the defendant will be equally guilty as if he had willfully placed the obstruction on the track himself, with his own hands.
“ 9. If you believe, from the evidence, that the special agent, Thompson, or any agent of the railroad company, had reason to believe that the defendant, on October 22, 1888, intended to go up the railroad from Topeka, and that it was suspected that the defendant might place an obstruction on the railroad, in such case it would be proper for the agent of the railroad to send agents or servants along the railroad track, to observe and watch the movements of the defendant. Such diligence on the part of the railroad company was not only lawful, but highly commendable.
“10. If you believe from the evidence that the defendant and one Spenk, on the afternoon of October 22, 1888, started in company with each other from Topeka to the point on the railroad where it is alleged that the obstruction was placed on the railroad track, and that said Spenk was' in the employment of the railroad company, or had been in the employment of the company, and that at some time before the obstruction was placed upon the railroad, if you find it was placed on the railroad track as charged in the information, the said defendant agreed or had an understanding that an obstruction should be placed on the track of the railroad by either of them, or both together, and you find from the evidence, beyond a reasonable doubt, that the defendant placed the said obstruction on the railroad track at the time and place and in the manner charged in the information, or that Spenk placed the said obstruction on the railroad as charged in the information with the consent of the defendant, or that the defendant counseled, aided, or abetted Spenk in placing the obstruction on the track as charged, then it is your duty to find the defendant guilty as charged, notwithstanding you may believe that Spenk was in the employ of the railroad company.”
“ 12. If you believe from the evidence that on the afternoon of October 22, 1888, the defendant was in a state of intoxication, still this would not constitute a defense of the offense charged in the information, if the offense was committed by the defendant or by his consent, unless the defendant was in such a state of stupefaction as to be unconscious of right or wrong; and then the defendant would not be excusable if you find*621 from the evidence, beyond a reasonable doubt, that the defendant started from Topeka with the formed plan or design to accomplish,the offense charged in the information, and in pursuance of such plan or agreement the defendant started from Topeka, alone or with another, and placed the obstruction on the railroad track as charged, or counseled, aided, abetted, or advised another to place the obstruction on the track of the railroad.
“13. There has been evidence offered by the defendant respecting his good character as a peaceable, orderly, law-abiding citizen, and such evidence is competent and proper to be considered by the jury in connection with other evidence in the case in determining the guilt or innocence of the defendant of the matters charged against him; and such evidence is particularly important for the defendant in cases where there may be a doubt as to the guilt, and in all such cases the question of character should resolve such doubt, whatever it may be, in favor of the defendant; but in all cases, where all the evidence clearly shows guilt beyond a reasonable doubt, then such former good character can be of little value.”
The principal objections urged against the foregoing instructions are as follows: First, it is claimed that these instructions told the jury in effect that if the obstruction was placed upon the railroad track by some person other than the defendant, and if the defendant was present and “consented to” the same, (see eighth instruction,) or whether he was present or absent, if the same was “done with the consent of the defendant,” (see tenth instruction,) “or by his consent,” (see twelfth instruction,) he should be found guilty of the offense charged^ against him. Second, it is further claimed that the twelfth instruction, with regard to intoxication, does not correctly state the law. Third, it is also claimed that the thirteenth instruction, with regard to good character, is erroneous. We shall consider these matters in their order.
Evidence was introduced on the trial tending to prove, among others, the following facts: Prior to October 22,1888, the defendant believed that he had a grievance as against the railroad company. He claimed that he had discovered an obstruction upon the railroad track, had removed it, had reported the same to the railroad company, and that the railroad
“ If she [the defendant] was present at the time and place of the murder, in any way assisting, aiding, encouraging or contributing toward the murder, she would be guilty as a principal in the crime. So, if the murder was perpetrated with*626 her knowledge and consent, or connivance, she is a principal.” (Pages 430, 431.)
Upon this instruction the supreme court commented as follows :
“Question is made as to the correctness of the last clause of this instruction. When the jury was told that if the defendant ‘ was present at the time and place of the murder, in any way assisting, aiding, encouraging or contributing towards the murder, she would be guilty as a principal in the crime/ language was employed embracing every possible case in which she could be guilty as a principal in the second degree. The definition given was full and exhaustive. Nothing could be added to it without error, though it might properly enough be illustrated and explained, that the jury might understand fully the meaning of the language employed, and how to apply it to the facts of the case on trial. This, if done correctly, might be an aid to the jury, and would be entirely unobjectionable.” (Page 431.)
“Under this instruction the jury would understand that if they believed, from the evidence, that the prisoner was present when the murder was committed, and was willing or desirous that the bloody deed should be done, they must find her guilty, though that desire had been kept by her a secret, and was entirely unknown to him who inflicted the deadly blow.
“It is plainly not the law that one can be guilty of murder without overt act, who by neither word nor gesture has done anything to contribute to the commission of the homicide, or to assist, encourage, or evince approval of it at or before the fact, and of whom it only appears that he was present and knew of the crime and mentally approved it. The silent thought, however wicked in view of the Searcher of Hearts, is not a crime against our laws, but is left by them to another than a human tribunal.” (Page 432.)
In the case of The State v. Cox, ante, it was held that “The mere mental approval by a bystander of a murder committed in his presence, does not make him an accomplice in the murder.” In the case of White v. The People, ante, the supreme court of Illinois used the following language:
“By the second instruction the jury are told that one who stands by when a crime is committed in his presence by an*627 other, and consents to the perpetration of the crime, is a principal in the offense, and must be punished as such. The law is, that one who ‘stands by and aids, abets, or assists . . . the perpetration of the crime/ is an accessory, and ‘shall be considered as principal/ etc. (R. S. 1874, p. 393, §274.) There is a plain distinction between ‘consenting’ to a crime and ‘aiding, abetting, or assisting’ in its perpetration. Aiding, abetting, or assisting, are affirmative in their character. Consenting may be a mere negative acquiescence, not in any way made known at the time to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words of the statute. The words of the statute are stronger than those of the instruction.” (Page 337.)
It is now the opinion of this court that the court below erred in its use of the words “consent” and “consented” in the foregoing instructions, and for such error its judgment must be reversed. At the time of our former decision in this case we entertained a different opinion, but the argument on the motion for a rehearing has convinced us that we were in error. The words “consent” and “consented” should be eliminated from the instructions.
The question with reference to intoxication we do not think, under the evidence in the case, requires any comment, as it does not appear from the evidence that the defendant was intoxicated at all at the time when the tie was placed upon the railroad track, or at the time when it was taken off.
Our former judgment, affirming the judgment of the district court, will be set aside, and the judgment of such court will be reversed, and the cause remanded for a new trial.