62 N.W. 631 | N.D. | 1895
The plaintiff in error was convicted of the crime of murder. The jury, under the statute, decided that he should suffer death. Comp. Laws, § 6449. Having been sentenced to be hung, he obtained a writ of error, and the whole case is now before us for review.
The first point we will consider relates to the information. In it the accused is charged as principal. The information alleges that he himself held and discharged the gun by which the victim was killed. It contains no averment that he counseled and directed any third person to commit the crime. The undisputed fact is that the murdered person, who was Kent’s own wife, was shot and killed by another, and that Kent’s connection with the homicide, if any, was as the instigator of the accomplice. At the time the fatal shot was fired, Kent was many miles away. At common law, Kent would have been an accessory before the fact. He could not legally have been indicted as principal. Under s.uch an indictment he could not, at common law, be convicted. This rule, however, was purely technical, and was limited in its scope to felonies. In cases of misdemeanors all the guilty persons were, at common law, principals, — as well those who counseled and directed the crime as those who personally committed the offense. 1 Bish. Cr. Law, § § 681, 685, 686. There was a single exception to this rule in cases of felonies, in that there were no accessories in cases of high treason. An accessory after the fact could not be convicted in advance of the convic
This section, it is urged, is unconstitutional. We discover no provision of our constitution which it violates. Our organic law does not require that the accused shall be informed of the nature and cause of the accusation. The federal constitution does. Article 6 of the amendment to the constitution. But this provision of the constitution of the United States does not relate to proceedings in the state courts. Cooley, Const. Lim. (5th Ed.) p. 26. We are referred to § § 7241, 7242, Comp. Laws, as being repugnant to 7260. If they were repugnant they would, to that extent, have to yield to the latter section. But we are unable to find in these two sections anything which forbids the indicting of an accessory as if he were principal. Under them it would be proper to charge an accessory before the fact, in the case of a misdemeanor, as though he were principal, had section 7260 never been enacted. This latter section merely places felonies in the same class. Section 7241 declares that the indictment must contain “a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.” What are the acts constituting the offense? They are the shooting of the deceased with a gun, with the premeditated design to affect her death, and the killing of her by such instrumentality, used with
We now approach a very interesting question. The state’s attorney was assisted on the trial by Mr. Nye, — a citizen of Minnesota, and a member of the bar of that state. He was retained by the brothers of the murdered woman to assist in the prosecution. He stated to the trial judge that while he had been paid nothing by his clients, and had had no talk with them on the subject of fees, he presumed that they would compensate him for his services in the case. He was not employed by the County of Mox'ton, in which the crime was committed, or by the state’s attorney of that county, to assist in the prosecution;but the latter stated in open couxd that he desired to have Mr. Nye assist him, for the reason that he (the state’s attoxmey) was unable, because of physical ailments, to stand the labor and stx'ain of the case, without aid. Mr. Nye was allowed, despite the objection of the counsel for the accused, to assist in the trial of the case, taking a very active part thex'ein. Counsel for the accused insists that this was pi'ejudicial error'. There are two gx'ounds on which he assails the action of the trial judge in permitting Mr. Nye to participate in the tx'ial: First, that he was employed by private pei'sons,.and not by the public; second, that he was neither a resident nor a member of the bar of this state. We will discuss these two points in the order in which they ax-e stated.
In England, criminal pi'osecutions were as a rule genex'ally carried on by individuals interested in the punishment of the accused, and not by the public. The private prosecutor employed his own counsel, had the indictment framed and the case laid before the grand jury, and took charge of the trial before the petit jury. 1 Chit. Cr. Law, 9, 825. This system does not prevail in this state. Here, in each county, there is a public prosecutor, called the “state’s attorney” for that county. It is his duty to prosecute all criminal offenses triable in that county. He is paid a salary for that
Does the fact that he was not a member of the bar of this state render him an improper person to participate in a ciminal prosecution? This precise question was decided in favor of the contention of counsel for the accused in Wisconsin. State v. Russell,
We come now to what we regard as a fatal error. Section 7312 of the Comp. Laws, provides as follows: “A criminal action, prosecuted by indictment, may, at any time before trial is begun, on the application of the defendant, be removed from the court in which it is pending, if the offense charged in the indictment be punishable with death, or imprisonment in the territorial prison, whenever it shall appear to the satisfaction of the court by affidavits, or if the court should so order' by testimony, that a fair and impartial trial cannot be had in such county or subdivision, in which case the court may order the person accused to be tried in some near or adjoining county, in any district where a fair and impartial trial can be had; but the party accused shall be entitled to a removal of the action but once, and no more, and if the accused shall make an affidavit that he cannot have an impartial trial, by reason of bias or prejudice of the presiding Judge of the District Court where the indictment is pending, the judge of such court may call any other Judge of a District Court to preside at said trial, and do any other act with reference thereto, as though he was presiding Judge of said District Court.” On the very threshold of the trial the counsel for the accused presented to the court an affidavit, sworn to by the accused, stating that he could not have a fair and impartial trial, by reason of the bias, prejudice, and partiality of Judge Winchester, who was the judge of the district in which the indictment was pending; and thereupon counsel for the accused moved, under the above quoted section of the statute, that Judge Winchester call in another Judge of the District Court to preside at the trial. This motion was denied. In so doing the learned trial court erred. The error is fundamental, and because of it we are obliged to reverse the conviction. It is true that the statute declares that the trial judge “may” call in another judge. But permissive language is often construed as mandatory. If a comprehensive survey of a
On the trial the theory of the prosecution was that the murdered woman was slain in pursuance of a conspiracy in which her husband, the accused, figured as the originator of the criminal scheme, and the instigator of the homicide, and a Bohemian named Swedensky played the part of a venal tool. This theory the testimony of the accomplice fully supported. He told the story of this conspiracy from the time that the accused first unfolded it to him, about a month before the murder, to its horrible consummation in the death of the unsuspecting wife. He testified that when Kent first broached the subject he refused to aid him, because of fear; but that Kent was persistent in his importunities, constantly dangling before the eyes of the Bohemian the wages he could earn by executing for Kent his fell purpose. The price Swendensky was to be paid for this deed was, according to
It was objected that the accomplice was allowed to translate the story he had himself written in Bohemian in this book at the dictation of Kent, as he claims. His evidence shows him to have
On the cross-examination of the accomplice, Swedensky, counsel for the accused asked him whether he expected to be hung for his crime. This question being objected to by counsel for the state, the court sustained the objection. In this the court committed error. Oné who is on trial for his life should be allowed great latitude in the cross-examination of the witness who, by his own confession, can have no hope of escaping the death punishment save through the indulgence of those who, under the law, have his life in their hands. An accomplice, in such a case, in implicating another with him in guilt, is under the influence of the most powerful motive that can shape human conduct. For this reason the law looks with such distrust on his testimony that, as a general rule, it will not suffer another to be convicted on his evidence, in the absence of corroboration. True, the principle has often .been stated that one may be convicted on the uncorroborated testimony of an accomplice. But this princi
The accused interposed a challenge to the panel of the special jury summoned by the sheriff under a special venire issued by the court after the regular panel had been exhausted. The ground of the challenge was the bias of the sheriff. It was made under § 7347, Comp. Laws, which provides as follows: “When the panel is formed from persons whose names are not drawn as jurors a challenge may be taken to the panel on account of any bias of the officer who summoned them which would be good ground of challenge to a juror. Such challenge must be made in the same form and determined in the same manner as if made to a juror.” The test of the sheriff’s qualification to summon such special jury is whether he would be qualified to sit as a juror in the case. It has been so held in California under the same statute. People v. Coyodo, 40 Cal. 592; People v. Welsh, 49 Cal. 174. On his examination under-this challenge the sheriff testified that he had expressed to others his opinion that the accused was guilty, and it is apparent that this opinion was very strong. It would seem that it was derived from statements made to him by the accomplice, Swedensky. If so, it is very doubtful whether the sheriff would have been competent as a juror in the case, notwithstanding the fact that he testified that, if summoned as a juror, he would give the accused a fair and impartial trial according to the law and the evidence. Greenfield v. People, 74 N. Y.
The judgment and order are reversed, and a new trial is ordered.