141 P. 530 | Utah | 1914
Lead Opinion
The defendant, appellant here, was charged with murder in the first degree, and upon a trial was convicted of murder in the second degree. While appellant was informed against
The salient facts relating to the homicide, briefly stated, are in substance as follows:
One Thomas E. White, called “Eddie White” in the evidence, a chauffeur by occupation and about twenty-three years of age, was found dead in his automobile, a taxicab, so called, at about six or six fifteen o’clock on the morning of October 5, 1912, on Third East Street and a little below Ninth South Street in Salt Lake City. Death was apparently caused by bullet wounds. One bullet entered the back of the head or neck, passing through the spinal column, severing the spinal cord, and ranging upward somewhat it passed through the brain and out at about the center of the forehead. The other bullet entered the head just back of and a little below the left ear, passed through the brain, and passed out just back of and a little below the right ear. Either bullet inflicted a mortal wound. There were also other bruises on the head of the deceased made by what the doctors denominated a blunt instrument, but those were not fatal. There were powder bums showing that the shots were fired at close range. There was evidence that robbery was not the motive for the murder from the following facts and circumstances: The deceased, when found, had evidently been dead for some hours. He had on his person, when found, twenty-five dollars in cash, a diamond ring, a signet ring, a gold watch, and other trinkets of less value, all of which, the testimony showed, belonged to him. The taxicab in which he was found was lighted on the night of the murder by electricity, but the wires connecting the lamps had been severed from them, and thus the front or headlights were extinguished. The rear or “tail” light was an oil lamp, which, according to the evidence, was still burning when the taxicab was discovered on the morning of October 5th, as aforesaid.
The appellant was a resident of Bingham Canyon, a mining town about twenty miles distant from Salt Lake City. He and his wife came to Salt Lake City on the 4th day of
.On the night of the murder appellant appeared at the place where the deceased usually kept his taxicab' for hire and inquired from the chauffeur there in attendance where the deceased lived, whether he was married or unmarried, where his telephone was, etc. Upon • receiving the information and being told where the telephone was which was used by the deceased, and which was immediately across the street from where the taxicab was kept, the appellant went across the street to the telephone and was there seen and spoken to by the proprietor of the saloon where he went in search of the telephone. This was about ten thirty p. m., or a little thereafter. The appellant was not seen by any one so as to identify him thereafter until he and Mrs. Inlow arrived at the rooming house, as stated above. . About twelve fifteen or twelve twenty a. m. on the morning of October 5th, two shots were heard in the vicinity of where the taxicab with the dead body of the deceased were found by at least two persons. A witness also testified that at about that time of night he was walking near where the deceased was killed, and he saw the lights of an automobile approaching towards him from the south; that he saw the automobile stop, and soon thereafter heard two shots, and saw the lights go out, or that they went out, and then saw two persons, one tall and one shorter, apparently dressed in long coats, leave the automobile, and he immediately afterwards passed to the west of the automobile and saw a person in it on the driver’s seat, but the witness supposed that -the person he saw there was intoxicated and paid no further attention to the automobile. The taxicab was found in a somewhat lonely and unfrequented part of the city. The night of October 4th
- The blood stains on the coat which the witnesses said was worn by appellant on the night of the murder were tested by the state chemist, and he stated that the blood obtained from the stains was that of a mammal, but he was unable to state that it was human blood. The usual microscopic test was made as indicated in Stewart’s Legal Medicine, p. 319 et seq.
There were many other facts and circumstances which, at least to some extent, were either corroborative of those detailed or which in some degree tended to establish the theory of the State.
The appellant produced evidence which tended to controvert some of the evidence of the state, but, in order to bring this opinion within reasonable bounds, we cannot go into detail respecting those matters.
The appellant has assigned no fewer than 124 separate errors, fifty-four of which counsel have argued in their brief. They insist, however, in advance, that they do not waive any of the assignments.
“To entitle the state to introduce in evidence against the person on trial the acts and declarations of another relative to the offense charged, it is essential that the existence of a conspiracy or common purpose between the defendant and the alleged co-conspirator to commit the crime charged he shown, hut the law does not require direct and positive evidence of such conspiracy. It is sufficient if it may be inferred from the facts and circumstances in evidence.”
A mere cursory reading of the facts in that case will disclose that there were fewer and weaker facts from which a conspiracy or common purpose could be inferred than in the case at bar, but, notwithstanding that fact, the Supreme Court held the facts there shown were sufficient to authorize a submission of that question to the jury.
' In Kelley v. People, 55 N. Y. 565, at page 575 (14 Am. Rep. 342), the facts, in our judgment, from which a conspiracy or common purpose could have been inferred were far more meager than they are in this case. The court, however, in referring to the question of conspiracy, says:
“There was abundant evidence to justify the conclusion that the parties were all acting with a common purpose and a common design, and, although there may have been no previous combination or confederacy to commit this particular offense, the conduct and actions of the several parties, and the parts they severally performed in the actual perpetration of the crime, were sufficient to make the acts and declarations of each, from the commencement to the consummation of the offense, evidence against the others. A conspiracy may be proved, as other facts are proved, by circumstantial evidence, and parties performing disconnected overt acts,*496 all contributing to the same result and the consummation of the same offense, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offense. One party may allure the victim into the den, leaving it to others to effect the robbery, and all will be held equally guilty as confederates."
To the same effect are the following well-considered cases: Ferguson v. State, 134 Ala. 63, 32 South. 760, 92 Am. St. Rep. 17; Davis v. State, 114 Ga. 104, 39 S. E. 906; State v. Lewis, 51 Or. 467, 94 Pac. 831; State v. Dilley, 44 Wash. 207, 87 Pac. 133; Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; People v. Rodley, 131 Cal. 240, 63 Pac. 351; People v. Daniels, 105 Cal. 262, 38 Pac. 720; State v. Adams, 20 Kan. 311, 321. In the last case cited Mr. Justice Brewer says:
“It is not essential that the state establish beyond peradventure that the acts or conduct were based upon the conspiracy, or in reference to the crime; it is enough that they harmonize with and tend to confirm the charge of the conspiracy, and are reasonably indicative of the preparation for the crime.”
The rule respecting the admissibility and relevancy of evidence under circumstances like those in the case at bar is very clearly stated by Mr. Justice Straup in a case decided at this term and not yet published, namely, State v. Tidwell, 44 Utah, 248, 139 Pac. 863, in the following words:
“To be relevant and admissible, it is not essential that proffered evidence be by itself sufficient to establish a disputed point or fact in issue, nor is it required to be addressed with positive directness to such point or fact. It is receivable if it by itself, or in connection with other evidence, renders probable or improbable, or logically tends to prove or disprove, a disputed point or fact in issue.”
Applying the foregoing rule to all acts and conduct of both the appellant and his wife, and considering them together, as they must be, then the acts of each were clearly admissible in evidence and were ample to justify a finding by the jury that appellant and his wife were actuated by a common purpose or were endeavoring to accomplish the same end.
In Ferguson v. State, supra, the Supreme Court of Alabama, in referring to this question, held that acts and conduct after the direct object of the conspiracy is accomplished, but still so closely connected therewith as to be a part of it, are nevertheless admissible in evidence and may be considered if “they are such as under all the circumstances may afford ground for inference that such conspiracy existed.”
“Although the weight of authority sustains the view that a party cannot prove the contradictory statements of his own witness to discredit him, yet the “party is not wholly without remedy, if surprised or deceived, by the testimony. In such a case, he may interrogate the witness in respect to previous statements inconsistent with the present testimony, for the purpose of probing his recol*500 lection. He may, in this way, show the witness that he is mistaken, and give him an opportunity to explain the apparent inconsistency. ... If the recollection of the witness is not refreshed after such questions, the party cannot prove his contradictory statements by other witnesses."
Upon tbe record, we do not think it is made to appear that the court abused its discretion in what was done.
“I think the court is bound to instruct the jury that there is no evidence that any statement that she (the witness in question) may have made in the court below (on the preliminary hearing) cannot be considered as evidence here, and that there is no evidence before this court here that the defendant was on the street car on State Street.”
The State consented to this limitation. Counsel for appellant, however, did not seem satisfied, and offered their own instruction in which they requested the court to charge as follows:
“The evidence of the witness Ethel Pace, given by her, to the effect that she testified on the preliminary hearing, as to the identity of the defendant C. A. Inlow, that the person said to have been seen by her on the Sandy car on the night of October 4-5, 1912, is not in any sense evidence of said identity, but, on the contrary, is only to be considered by you for the purpose of determining the credit to be given to the witness and her truthfulness or untruthfulness.”
This request the court gave in substance, and in view of that counsel cannot now complain that their client has been prejudiced because the effect of the evidence was not wholly withdrawn from the jury for every purpose.
The court, on its own motion, also charged the jury that the testimony of the witness, given on the preliminary hearing, in no event could be considered by them “more favorable to the state than if such statement or admission had not been made.” In other words, the court told the jury that the
We remark that the case of State v. Callahan, 18 S. D. 145, 99 N. W. 1099, relied on by counsel for appellant, is clearly distinguishable from the case at bar. The attempt there made to get the testimony of a witness known to be adverse to the state before the jury, was clearly improper. No such attempt was made here. All that counsel for the state did was to call the witness’ attention to her former testimony, which was directly contrary to what she testified to at the trial. This, as we have seen, they had a right to do. Nor the reasons stated, therefore, this assignment cannot prevail.
It is next urged that the court erred in its definition of malice. The court, however, substantially followed the definition of malice, as given in Comp. Laws 1907, section
The other three instances of misconduct require no separate discussion. The one discussed was the most serious one, and all have been sufficiently answered by what has been said.
While we have carefully gone over all of the other numerous assignments, yet we have found none which, in our judgment, merits further consideration. Notwithstanding counsel’s most vigorous contention that the record teems with errors and that the “evidence is wholly insufficient to
The judgment of conviction therefore should be, and it accordingly is, affirmed.
Rehearing
ON APPLICATION POR REHEARING.
“The jury were in the dark unless they received information ‘outside of the record’ as to the punishment of the included offenses. The law seems to be our way under the rule-of stare decisis, and the point has been deemed important enough to be decided in some cases.”
In support of this statement, State v. Dye, 44 Utah, 190, 138 Pac. 1193, recently decided by this court, Brannigan v. People, 3 Utah, 488, 24 Pac. 767, decided by the territorial Supreme Court, and 21 Cyc. 1071, are cited.
Counsel have manifestly misapprehended the effect of the. decisions in the two Utah cases referred to. All that we decided in State v. Dye was that, in view of the verdict rendered by the jury in that case, the accused could not possibly have been prejudiced by the court’s failure to charge with
Upon the other hand, the question now raised by counsel is discussed in 12 Cyc. 641. It is there said:
“Where the assessment of the punishment is in the discretion of the jury, they should he charged that, if they find the accused, guilty, they should assess the punishment.”
It is further said, in the same connection, at page 642, that:
“An instruction as to the statutory punishment is properly refused where the jury has no power to fix or to recommend the punishment, and, where no statute confers on the jury the right to assess the punishment, it is not error to tell them that they have nothing to do with the punishment or with the consequences of the verdict, but that they are merely to determine whether or not defendant is guilty.”
"In jurisdictions where it is the exclusive province of the court to fix the punishment for the offense with which the defendant is charged, the refusal of an instruction as to the degree of punishment to he meted out to the defendant, if he should he convicted, is proper. The verdict of the jury should not he influenced by any consideration of the degree of punishment, and information with regard thereto is- likely to create sympathy or prejudice.”
To that effect is tbe great weight of authority. See State v. Daley, 54 Or. 514, 103 Pac. 502, 104 Pac. 1; Edwards v. State, 69 Neb. 386, 95 N. W. 1038, 5 Ann. Cas. 312; Clary v. State, 61 Neb. 688, 85 N. W. 897; People v. Ryan, 55 Hun, 214-217, 8 N. Y. Supp. 241; People v. Jordan, 125 App. Div. 522, 109 N. Y. Supp. 843; State v. Peffers, 80 Iowa, 580, 46 N. W. 662.
Counsel have cited no case, and we have found none-emanating from a jurisdiction, where, under tbe statute, tbe court must fix tbe punishment, wherein it was held that a failure or refusal to charge tbe jury with respect to the-punishment constituted error. We, however, are not inclined to hold that in no case and under no circumstances would it be proper for a trial court to charge the jury what punishment the statute imposes in case the jury shall find the accused guilty of the offense charged, or of an included offense, or of a particular degree, if the offense is divided into degrees. While theoretically it is true that the punishment should not influence or affect the question of guilt, yet, as a practical question, it is too well established to be gainsaid that all men, not excluding courts, are constantly influenced by the consequences that may result from their acts, especially where such consequences may affect liberty or life itself. We all know that such consequences may cause men to hesitate and more thoroughly consider and reflect before-arriving at a certain conclusion. We think there is much, force in the statement made by the New York Court of Appeals in the case of Keller v. Strasburger, 90 N. Y. 382, where it is said:
*508 “While a trial judge cannot ordinarily be called upon as matter of right, by either party, to instruct the jury as to the consequences which may flow from their verdict, yet he may, in his discretion, so instruct them. It is frequently important to give the jury such instructions to induce them to greater care in weighing and scrutinizing the evidence, and we cannot say that the judge erred in giving it in this case.”
In that case the question of fraud was involved, and the court charged the jury in case they found the defendant guilty of the charged fraud, the court, in addition to the civil consequences of their verdict, was also authorized by law to impose a sentence of imprisonment upon the defendant. The consequences were therefore criminal in their nature and effect. Where, therefore, the evidence with regard to the offense charged is not clear or specific, or is not free from doubt, or consists merely of circumstances, it may well be that such an instruction is proper and should be given, especially so when requested by the accused. In view that in all criminal cases the jury must be satisfied that the accused is guilty beyond a reasonable doubt (that is, to a moral certainty), and in view that the great weight of authority is to the contrary, we do not feel justified in laying down a rule making it error to fail or refuse to charge the jury respecting punishment. The trial court may, however, in its discretion, do so, as before indicated.
In this case, however, and especially in view that the evidence is such that the jury could well have found the accused guilty of the highest degree of murder, no error could have resulted from the court’s refusal to charge the jury as requested. It was for this reason that we refrained from passing upon the question in the original opinion. In view, however, that counsel seriously argue in support of the petition for a rehearing that the matter was stare decisis in their favor, we have deemed it best to clear up the matter.
The other matters raised in the petition for a rehearing have all been answered in the opinion. It could subserve no good purpose to go over them again and point out once more
The petition for a rehearing is therefore denied.
Concurrence Opinion
(concurring).
"Where the jury is not given power to fix the punishment or make a recommendation respecting it, there is ample authority for holding that it is not error to refuse to instruct what the prescribed penalty is for the charged offense. On the other hand, there is good authority for holding that it is not error to so instruct. State v. Burroughs, 12 Me. 479; Miller v. Commonwealth (Va.) 21 S. E. 499; Commonwealth v. Harris, 168 Pa. 619, 32 Atl. 92. I think it the better practice to give the instruction.
One reason urged against it is that the jury, in such case, has nothing to do with the punishment, or with the consequences of the verdict; hence, as stated in 12 Cyc. 642, it has been held by a number of courts that it is not error to charge that the jury has nothing to do with the punishment or with the consequences of the verdict. Of course no one would contend the contrary and that a charge would be proper that the jury had anything to do with the punishment. But to charge that the jury has nothing to do with the punishment, with the judgment to be rendered upon the verdict, and to charge what the penalty is, are two different propositions. If knowledge of what the prescribed penalty is can be considered only for the purpose of determining what the punishment should be, then, of course, should the court not inform the jury what the penalty is. Blit such knowledge has another legitimate and proper purpose. And this leads to another reason given by courts why such information should be withheld from the jury, which is that in all criminal prosecutions the same quantum of proof— proof beyond a reasonable doubt — is required for a conviction. Hence it is said that the jury in every case,-before they can properly convict the accused, must be convinced be
However, I am of the opinion that the defendant was not prejudiced by the court’s failure to so inform the jury in the particulars claimed. The court did inform them of the prescribed penalty for first degree murder. It failed to do so as to second degree murder and manslaughter, necessarily included offenses, and which were also submitted to the jury. On the record the defendant is guilty' of murder, or he is not guilty. The jury found him guilty of second degree murder. Though it was proper, as was done, to charge upon all the necessarily included offenses and to submit them to the jury, and though it was within their power to have rendered a verdict finding the defendant guilty of only manslaughter, yet, on the record, I cannot see how such a conclusion could have been reached without disregarding the evidence, for there is nothing whatever shown, either directly, inferentially, or argumentatively, to reduce the killing to manslaughter. The killing, beyond all question, was shown to be murder. That was not disputed, nor was the contrary claimed in either the court below or here. The whole controversy was as to whether the defendant did the killing or aided in t'he commission of it. The State having shown the killing to be murder, the burden was cast upon the defendant to bring forward whatever there was to reduce the killing to manslaughter. This he did not do. So it is almost inconceivable that, had the jury.been told'what the
For these reasons I think the defendant was not prejudiced, and concur in denying a rehearing.