81 Mo. 185 | Mo. | 1883
Lead Opinion
The defendant was indicted in the circuit
“The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and allows this presumption to continue until overcome by evidence proving his guilt. And on the other hand where property has been stolen, and recently thereafter, the same property is found in possession of another, such person is presumed to be the thief, and, if he fails to account for his possession of such property in a manner consistent with his innocence, this presumption becomes conclusive against him; but in this case, the jury are instructed, that the defendant relies, in part, for his defence upon the claim that he was not present when the mare was stolen, as charged in the indictment, but was some distance from the place where said mare was taken at the time of said taking. Now if the jury find and believe from the evidence, that at the time said mare was stolen, the defendant was not present at the place from which she was stolen, but was some distance from said place, then the jury must acquit him, as the presumption of guilt from such recent possession would be rebutted by such proof made to the satisfaction of the jury.”
The rule announced in that portion of the instruction which relates to the presumption arising from the recent possession of stolen property has received the repeated
The remaining portion of the instruction, which counsel for defendant claims to be misleading, and subject to be construed as assuming that defendant was in the possession of the mare, the subject of the larceny, recently after she was stolen, when considered with reference to the other instructions given and the evidence, could not have prejudiced defendant nor misled the jury.
On the trial the State sought to establish the guilt of defendant by showing that he was seen in Warrensburg about 8 o’clock in the morning, of the day after the theft was committed with the stolen mare in his possession, and that he sold her there for $65, she being worth about $150. The evidence introduced by the State tended to establish the above facts. On the other hand, the evidence introduced by the defendant, tended to show that at the very same time the State’s witnesses said defendant was in Warrensburg, he was at another place, twenty odd miles distant from Warrensburg. In this conflicting state of the evidence, it was for the jury to determine the question, as to whether or not, defendant was seen in possession of the mare the morning after she was stolen, and this question, as well as all others, were fairly submitted to the jury in other instructions, in which they were told that they were the sole and exclusive judges of the credibility of. the witnesses and the weight to be given their evidence; and, if from all the evidence in the case, they entertained a reasonable, doubt of defendant’s guilt it was their duty to. acquit him. "We do not understand the instruction to assume as a fact, that defendant was in possession of the stolen property recently after it was stolen; but as a direction to the jury that although they might believe that defendant was seen in the possession of the animal soon after she was stolen, yet if they further believed that defendant was not present at the place from which she was stolen, but was some dis-: tance therefrom, that this would rebut the presumptipp
It is also insisted that the court erred in overruling defendant’s application for a continuance. It appears that the application was based on the absence of two witnesses who had been subpoenaed, but were not in attendance, and that an attachment, which, so far as the record shows, was not asked, would have been ineffectual to secure their attendance had it been asked. Upon the admission of the prosecuting attorney, that said witness, if present, would testify to the facts stated in the affidavits, and that such statement should be read as their evidence, the continuance was refused, and the trial proceeded with. This action of the court is fully sustained by the cases of State v. Hickman, 75 Mo. 416; State v. Underwood, 75 Mo. 280; State v. Miller, 67 Mo. 601; State v. Hatfield, 72 Mo. 518; State v. Underwood, 76 Mo. 630.
It is claimed that the act of the legislature authorizing such action as was taken by the court in this case in regard to the continuance, is in violation of the constitutional right given to a defendant in a criminal prosecution to have compulsory process to procure the attendance of .witnesses in his behalf. In the case of State v. Hickman, supra, this precise question was before the court, and it was held that when a defendant had availed himself of the process pf the court to procure his witnesses, and it had failed, to
“ The power of cross-examination has been justly said to be be one of the principal, as it certainly is one of the most efficacious, tests which the law has (devised for the
The act in question gave to the defendant the benefit of the evidence of his witnesses, without the severe test of a cross-examination being applied to discover the truths of such statements. The above principle doubtless gave rise to the constitutional requirement, that the accused should have the right to meet the witnesses against him face to face, in order that the truth of their statements might be subjected to the test which a rigid coss-examination always affords. The argument which would strike down the act in question as being in contravention of the constitutio n, would also strike down that rule of law which makes the dying declarations of the victim of a murderer evidence against the person charged with the crime. And this court has held, all the judges concurring, that such testimony is admissible, and the rule authorizing its acceptance is not in violation of the constitution, which expressly declares, that the accused shall have the right to meet face to face the witnesses against him. State v. Vanzant, 80 Mo. 67.
Revised Statutes, section 1886, which is claimed to be in contravention of defendant’s constitutional right to process, does not deny to a person criminally charged the right to resort to the process of the court to bring in his witnesses ; byut provides, as construed by this court in the case of State Hickman, supra, that the trial shall proceed when the process, when resorted to, has been ineffectual to secure the presence of the witness, upon the adpiission of the prosecuting attorney that the statement contained in the affidavit fpr continuance as to what the absent witnesses would swear to should be received as their evidence. It was held in that case, that the above section “ can only be in» yoked by the state, after the, accused, by exercising reasop
Judges Hough, Henry and Ray concur in the views expressed herein in reference to the action of the court in overruling the application for continuance, and Judges Ray and Sherwood concur in the views expressed in reference to the action of the court in giving the instruction complained of. This results in an affirmance of the judgment, and it is hereby affirmed.
Dissenting Opinion
Dissenting.—On one of the points decided in the foregoing opinion, I do not concur, and, therefore, I will now discuss the correctness of the ruling which compelled the defendant to go to trial, notwithstanding his affidavit and application for a continuance. This discussion will, of course, involve the constitutionality of section 1886, which is as follows:
“ Section 1886. Testimony of absent witness may be admitted—effect of. If in any such case the adverse party will consent that on the trial the facts set out in the application or affidavit, as the facts which the party asking the continuance expects to prove by the absent witness, shall be taken as and for the testimony of such witness, the trial shall not be postponed for that cause ; but the facts thus set out shall be read on the trial and shall be taken and received by the court or jury trying the cause, as the testi
This section has been passed upon heretofore, but its constitutionality was not even alluded to in the case of State v. Miller, 67 Mo. 604; nor in that of State v. Hatfield, 72 Mo. 518; though it seems to have been taken for granted. But the constitutionality of this section was evidently questioned in the case of State v. Underwood, 75 Mo. 230, and the former cases were very doubtingly and with extreme reluctance followed. The judgment in that ease, however, was reversed solely because the trial court, in its instructions, took an unwarrantable distinction between the testimony of witnesses personally present, and the statutory testimony of those who were absent. The latest adjudication on the subject is the State v. Hickman, 75 Mo. 416. In that case, though section 22 of article 2 of the constitution is quoted, the constitutionality of section 1886 is not discussed.
It is impossible to overestimate the importance of the point thus presented, since, upon its proper determination, may depend the life or liberty of every citizen against whom is brought a criminal accusation. In discussing a topic of such importance, all questions of expediency, all questions of cost, all questions of convenience, all questions of a rapid disposition of causes on the criminal calendar, are not entitled to a moment’s serious consideration. When compared with and weighed against a great fundamental right, such minor questions as above noted resemble indeed the “ small dust of the balance.”
The only point to be looked to, therefore, is, what does section 22 of article 2 of that portion of our constitution, commonly called the Bill of Rights, mean when it says that “ in ' criminal prosecutions the accused shall have process * , . to compel the attendance of witnesses in his behalf?” Mr. Justice Story has said in reference to the
“ They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understanding. The people make them, the people adopt them; the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in' them any recondite meaning or any extraordinary gloss.” Story Const., § 451. In short, that the words of such an instrument are to be taken and received in their ordinary acceptation and import, and no hidden, abstruse, specious, plausible, out-of-the-way meaning is admissible. And that learned author and eminent jurist elsewhere says that “the first and fundamental rule in the interpretation of all instruments, is to construe them according to the sense of the terms and the intention of the parties,” and that “ words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use.” lb., § 400.
It would only be the assertion of an acknowledged fact to say of the words under discussion, that “ in their usual and most known signification,” that in “ their general and popular use ” they mean, and have always been construed to mean, the right of the accused, in his own behalf, to compel the personal presence of his witnesses at the time when and the place where the “ criminal prosecution ” is in progress. Eor what purpose are those witnesses thus compelled personally to attend at the time and place of such “ criminal prosecution ?” Only one answer can be given to this question, an answer derived from contemporary construction and habitual practice, ever since the constitutional provisions were adopted, and that is, that those witnesses may testify orally and in open court touching the innocence or guilt of the accused.
The framers of our American constitutions were well acquainted with the history of criminal trials in the mother country. They were many of them profound and learned’
“ In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the
Of a similar provision in the amendment to the constitution of the United States (article 6, amendments,) Mr. Justice Story remarks: “ The wisdom of these provisions is, therefore, manifest, since they make matters of constitutional right what the common law had left in a most imperfect and questionable state. The rights to have witnesses sworn and counsel employed for the prisoner, are scarcely less important privileges than the right of a trial by jury. The omission of them in the constitution is a matter of surprise, and their present incorporation is a matter of congratulation among all the friends of rational liberty.” 2 Story Const., § 1794.
Mr. Justice Cooley, when treating of the force and effect of that portion of a written constitution, termed a Bill of Rights, says: “Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared, what indeed is implied without the declaration, that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. * * While they continue in force they are to remain absolute and unchangeable rules of action and decision.” Cooley Const. Lira., 46.
In the light, then, of the obvious meaning of the words employed in the section of the constitution under discussion, in the light of their usual signification, in the light of the contemporaneous .construction of those words, in the light of the habitual practice in the courts, in the light of the authorities I have quoted, not a doubt lingers in my mind that section 1886 of the statute, is in conflict with section 22, article 2, of the Bill of Rights; that those rights are “ excepted out of the general powers of the government ;” that they constitute absolute and unchangeable
There were no statutory provisions, however, in the state where those cases were decided, but if it be true, as the autorities hold, that over the rights secured by the Bill of Rights no department of the government, neither executive, legislative nor judicial, has any control, and all laws contrary thereto are void, the case at bar must be regarded in the same light as if the statute under discussion had not been enacted; and if this be true, then those cases are not without bearing upon the present investigation, holding, as they do, that an admission of the allegations of the affidavit by the prosecuting attorney, such as that provided by section 1886, and which that-offieial was allowed to contradict, was altogether insufficient.
In Vermilyea’s case, supra, "Wadsworth, J., in speaking on this point, said : “ The defendants were entitled to the oral evidence, or what was equivalent, or they were entitled to nothing. Is it, then, an answer to say ‘Glen. Swift would
And in that case that of Hooker v. Rogers, 6 Cowan, 577, is spoken of approvingly, where the judgment was reversed because the witness, being unable to attend, this was held sufficient cause for putting off the trial, on the ground that “ substituting the examination of witnesses on interrogatories for their personal attendance might prejudice the defendant’s rights. He was entitled to their personal attendance.” N ow, if this be the rule in civil cases, then, a fortiori, it should be the rule in criminal cases. In
Eor these reasons, already stated, and others presently given, I am of the opinion that the better view of this subject is that taken by the supreme court of Tennessee, where it is held that even an unqualified admission of the truth of the facts set forth in the affidavit, will not answer the demand of the constitution. Ruse, J., remarking: “In the case referred to in 10 Yerg. we say that the practical operation of such an arrangement upon the rights and fate of the defendant must often, if not always, be perfectly illusory. We now go further than the intimation contained m that ease, and say that where the admission of the counsel for the State is not merely that the witness would testify as stated, but that the facts are true as set forth in the affidavit, such admission should not preclude the defendant, in a criminal ease, from his constitutional right of having the witnesses personally present at the trial. It were needless to urge upon practical and intelligent minds the difference in point of legitimate effect between the personal presence of candid, respectable witnesses, who testify to facts in detail, ramification and bearing, and the general admission of these by an attorney-general, little impressing perhaps the minds of the jury, and constituting as to its extent and bearing a fruitful source of difficulty and dispute. It were needless to urge how such a practice would tempt the unfortunate defendant, if he must forego the advantage of personal attendance of his witnesses, to seek an undue equivalent by amplifying at the hazard of perjury, the statement in his affidavit so as to obtain the broadest possible admis
But I am told that the sole object of the section 22, aforesaid, “is to enable the defendant to get the testimony of his witnesses.” If such was the purpose of the section, the framers of the constitution were singularly unhappy in the employment of words whereby to convey their meaning. If those framers of the constitution had intended any such thing they would unquestionably have left out the meaningless words, “attendance of witnesses,” and substituted therefor, “ the testimony of witnesses in his behalf,” thus keeping alive and fostering the very evil which the whole history of the subject shows they intended to pluck up and destroy root and branch.
If, as Judge Cooley says, the rights secured by the Bill of Rights are “ absolute and unchangeable rules of action and decision;” if “they are excepted out of the general powers of the government; ” if “ all laws contrary thereto should be void,” by what authority is it, the legislature can say that any assumed equivalent can be given the defendant in lieu of these rights, which the constitution, in such plain and unmistakable terms bestows?
By what authority is it that the legislature makes this forced exchange with the accused ? By what authority do they wrest from him his clear, simple, and plain constitutional right, and give him in lieu thereof such a beggarly substitute ? By what authority do they give him a paper for a man.
If the legislature may thus emasculate one provision of the Bill of Rights, why not another ? Why may they not, with equal propriety and consistency, go further, and deny the accused, when on trial, the personal presence of his counsel, and provide in lieu thereof, that “ it shall not be
“ Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions, which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained, by pushing the powers of government beyond their.legitimate boundary. It is by yielding to such influences, that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people
“ To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers, is to repeat what has been already said, more at large, aiid is all that can be necessary.” Ogden v. Sanders, 12 Wheat. 213.
And Chief Justice Black has said:
“I am thoroughly convinced, that the words of the constitution furnish the only test to determine the validity of a statute, and that all arguments based on general principles outside of the constitution, must be addressed to the people and not to us.” [Sharpless v. Mayor, 21 Penn. St.]
All lawyers experienced in criminal trials, feel and know the supreme importance of oral testimony, of the personal attendance of witnesses. They know full well the difference between a written statement and oral testimony, between a paper though admitted to be true, and the personal presence and demeanor of a witness, who looks the jury in the eye when telling his story of the transaction. They know that very often the statement of a witness when made in chief, appears highly improbable, but that
In Kansas, a state possessing constitutional and statutory provisions substantially similar to those under discussion, the supreme court there says: “ The defendant has a constitutional prerogative to have compulsory process to compel the attendance of witnesses in his behalf. [Sec. 10, Bill of Rights.] This privilege is stripped of all its benefits to a defendant in a criminal case, if such defendant is forced to trial, and his trial is concluded before the return of the compulsory process issued to bring into court witnesses in his behalf who have disobeyed subpoenas duly served upon them. Of course, no court has the right to limit or deny this constitutional guarantee against the protest of an accused.” Whether the statute now being discussed as to witnesses who are confessedly non-residents ’ would be obnoxious to constitutional objections, it would be premature now to discuss. It has been held, however, by this court, that compulsory process cannot, under the constitution, be demanded for witnesses who reside beyond our state boundaries. [State v. Butler, 67 Mo. 59.]
In the case at bai’, the affidavit shows grounds amply
I will not be understood as meaning that section 22 of article 2, is to receive any unreasonable construction. I will not be understood as abating the exercise of that reasonable judicial discretion, which the law confers on the trial courts. But I do mean that when the affidavit for a continuance discloses all the diligence of which the circumstances of the case admit; that when that affidavit discloses fair and reasonable grounds for the belief that a material witness is within the compulsory process of the court, or only temporarily absent from the territory of its jurisdiction, and that his attendance can be secured by the next term, that then the constitutional right of the accused asserts itself, compelling a continuance, and imperatively forbidding any legislative makeshift from being foisted upon him. If it be asked how often is a continuance to be granted to a defendant, I reply, each case must be governed by its own circumstances, and if it be in doubt whether the trial court exercised its discretion soundly or unsoundly, the presumption will be in favor of its action. State v. Farrow, supra
But I certainly would not undertake to say in advance, that a case might not present such features of diligence, such features of the material nature of the desired testimony, such features of inevitable accident and unavoidable delay, as would, if a second affidavit for a continuance were denied, shock any man’s sense of native justice, and compel the declaration, that the judicial discretion had been unsoundly exercised.
Under the ruling in Hickman’s case, supra, the issuance and service of a single subpoena, and the issuance and attempt to serve a single attachment, although the witness resides within the jurisdiction of the court, and within a stone’s throw of the court-house, exhausts the constitutional right of the accused, and leaves him to the tender mercies of
Under that ruling the application for a continuance is in reality addressed, not to the discretion of the court, but to that of the prosecuting attorney, and in his hands are the issues of life and death
The constitution confides that discretion to the breast of the court, as its sacred and only repository, and the fact that the statute, in order to become operative, removes that discretion and arbitrarily lodges it in the breast of the prosecuting officer, is sufficient of itself to brand the section in question with the stigma of unconstitutionality. I cannot persuade myself that the constitutional rights of a defendant, in a criminal case, are held by so slight a tenure, or that they can so easily be abrogated.
In marked contrast with, the ruling in that case is a decision of that eminent j urist, Lord Mansfield, where no constitutional question was indeed involved, but only such rights as appeal to the best emotions of our common humanity.
A poor woman was indicted in England for having received a pension as an officer’s widow, the indictment charging she was never married to him. Brought to the bar of the court to answer to the charge, it became known that her witnesses resided in Scotland. No process could issue from England to that country, nor was there any means known to the law for obtaining their testimony. Upon the facts becoming known, the court told the prosecutor that, unless he would consent on record that the depositions of the witnesses should be taken in Scotland and read in evidence on the trial, they would “continue the case forever.” Cited in Mostyn v. Fabrigas, 1 Cowp. 161.
I have spoken of cases of inevitable accident, unavoidable delay, etc. I will instance one such case, and then I havb done:
“ For the Argument, both apt and ample,
Is, for instance, the example.”
"With all deference to my associates, I can only say that such a conviction, amid such surroundings, though secundum legem, as goes Hickman’s case, is worthy alone of “ tioelve butchers for a jury and Jeffries for a judge l” And I here confidently venture the prediction that when a real case like the hypothetical one shall come to this court, my associates will say aye to this declaration.
Dissenting Opinion
Dissenting.—The fact that one is found in the possession of goods, recently after they are stolon, is a circumstance tending to prove that he stole them; and the force of the circumstance is strong or weak, according to the character of the property, and the period of time which has elapsed between the commission of the crime and the possession proved. If the property be of a kind which readily and rapidly passes from hand to hand, as a piece of coin or a bank bill, and many days have elapsed since the theft was committed, the possession of the stolen coin or bank bill could be, of itself, no evidence of guilt. If one be seen standing over the dead body of another with a weapon in his hand, such as the man was slain with, it would be the strongest evidence that he slew him, but no court or author ever held that the law, from that circumstance, presumed him to be the murderer, or that he committed the homicide. Why should there be a presumption of guilt from the recent possession of stolen property, and not in the case supposed, from a circumstance tending more strongly to prove guilt ? In either case the evidence would warrant a conviction, but to presume, in the latter case, that the man found standing over the dead body was the murderer, would be to presume from a circumstance only
In his work on Evidence, Prof. G-reenleaf, section 34, volume 1, says: “ But possession of the fruits of crime recently after its commission, is prima faeie evidence of guilty possession; and if unexplained, either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.” In that paragraph the true
Mr. Starkie classes the presumption in question under the head of presumptions of mere fact and says: “ The recent possession of stolen goods, on a trial for larceny, is recognized by the law as affording a presumption of guilt, and therefore, in one sense, is a presumption of law, but it is still in effect, a mere natural presumption; for although the circumstance may weigh greatly with a jury, it is to operate solely by its own natural force, for a jury are not to convict on this, or any charge, unless they be actually convinced in their consciences of the truth of the fact. Such a presumption is, therefore, essentially different from the legal presumption of fact, lately adverted to, where the jury were bound to infer, that a bond had or had not been satisfied, as a few days or even hours more or less had elapsed.” Again, “ although it be the peculiar province of the jury to deal with presumption of this description, and to make such inferences as their experience warrants, yet, in some instances, where particular facts are inseparably connected, according to the usual course a,nd order of nature, and the interposition of the jury would be nugatory, the courts themselves will draw the inference.” Starkie on Ev. (9 Ed.) 67, Between the fact of recent possession of stolen property and the original taking, there is no inseparable connection “ according to the usual course and order of nature,” and, on the authority of Starkie, it is not fon the court to
Whether the possession of stolen property is sufficient to authorize a conviction, depends upon so many collateral circumstances which the jury are at last to pass upon, and even if very recent, the character and past life of the accused may be so irreproachable as to be strongly against the accusation, that no legal presumption can, or should be based upon such possession. That the error is hoary with age gives it no sanctity, but that it has no support in reason, affords ample ground for its extermination as an anomaly. Nor is such a return to correct principle to be characterized as a “ bold innovation.” It is the elimination of a “ bold innovation” from our criminal law, which has marred its harmony and consistency. The correct doctrine will not help a thief to break through the meshes of the law, while the false doctrine asserted in this instruction, may greatly embarrass an innocent man in his defense.
The instruction is equally faulty in casting upon the accused the burden of proving his innocence. We held in the State v. Wingo, 66 Mo. 181, that the burden throughout is upon the State to prove guilt. That the burden never shifts; and yet, because the State has proved one circumstance, tending however strongly, to prove the accused guilty, the burden is then thrown upon him by this instruction to disprove his guilt by a preponderance of evidence. In other words, by such preponderance of evidence, to show that his possession was not a guilty possession. It is not sufficient, that he proves facts which may beget a reasonable doubt of his guilt in the minds of the jury, but the presumption of innocence is overcome and the burden of proving it is shifted and imposed upon the accused. In the State v. Babb, 76 Mo. 508, involving these questions, I am marked as concurring, but this was through mistake. I have never assented to the doctrine held by the court in that case. The weight of authority supports the proposition that the recent possession of stolen property affords no
Eor the reasons herein assigned, and upon the foregoing authorities, with the utmost deference to my associates, who are of a contrary opinion, I think the judgment should be reversed.