*1 LAPAGE. real and It is rules both estate. of descent personal important estates, and distribution, and the administration of should especially and uniform. The rule of simple down, construction here laid me, commends itself to the seems common-sense of every one, into will oftenest effect the intention of testators. carry The decree of court should be set and a new probate aside, de- funds entered, cree in the hands of the administrator to the giving brothers sister the testator at the time of decease surviving Pinkham, Ann Mary representatives the deceased brothers shares. equal thirty The dollars advanced to per stirpes, Mrs. must be taken into account in determining her share. Chapman C. Ladd, J., J;,
CusniNG, concurred.
Decree accordingly. 1876, At the December term, appellants rehearing moved fora Note. last point, but the motion was denied. were decreed Costs favor the ap- pellants against the children of the testator’s deceased brothers sisters. Lapage. State v. Aug. 11, 1876. Criminal law—Dvidence—Intention.
The attack the prosecution cannot character of the prisoner unless he first
puts issue evidence of his by offering character. good The cannot prosecution defendant’s bad character by showing acts.
particular The cannot show in the prosecution tendency disposition
commit the crime with he is charged. cannot prosecution criminal give acts of the prisoner,
unless they are so connected by circumstances with the particular crime issue of one fact with its has circumstances some the issue trial other bearing upon than such as expressed three foregoing propositions.
From Merrimack Circuit Court. _ Indictment, charging respondent with the murder of A. Josie who was killed Langmaid, October about nine o’clock in while over the morning, road, in passing Academy Pembroke, on her way to Her school. head was severed from her body, removed a distance .of quarter mile. Another of her part body, including one half thirds of the two cut vagina, was out carried away, and LAPAGE. STATE v. out if there jump Locke, and way home. ball’s tober ing along within about brought that went house; and no, made, state respondent, as *2 lated. Mr. saw petrating pointed out and while we and wanted to crime, Adin As The government claimed that the murder if in toward she had must he him Lapage never was into the ; and # tending front- of next haste.” out toward get there, about half her Gr. and that he was pass into the where permitted the academy again, and told him two recovered. No Bowler was when Mr. been to came out and the same attempting night Saturday night I home, and thirty rods of were to work [*] view to show that bushes on Academy carried him down the house on that night [September 24] September Lapage was my didHe we — know and I past eight school. Then he wanted to sister went got all to way & bushes. He ascertaining academy, show, by one Clarence to wanted that was said that night. permitted then she road on down to Kuss’s corner he told making the side of the road. He testified took hold and that perpetrate rape.’j?'' 24, 25, post-mortem there got recognize o’clock him, [*] he came she had been to Suncook. to school. out of the Buck street place that antecedent my and know who as well as I —I passed whether the sister came home. testify way way the man. went when he came examination helped had an to (pointing), into the I told as follows: wagon morning, to conversations preparations that school, was B. murder, # far us for a could, carry miles, know him victim wanted Cochran, was, and went bushes, springing, when as he was pass- and he said him sorting potatoes. no, out to Sfc and I told how to commit he saw or a which I was few had been A to know house of therefor, and part that he arrived mile and a I told moments gentleman body : Mr. Kim- with the into the way to work “ only # go, pointed on Oc- I him; then man that him per- Mr. and vio- she don’t him a mile—“ half —I remember I I told exactly, believe said turn to that was then your And was right go up.” night. at a there I her Saturday street, sister and left carried on the my Mr. Lapage, and got where she Then I to Suncook roomed. went place * * * * him street. out. down Buck bring We came telling we went I remember When him there Academy past road] [the school.” went to that that is she the road went on when my sister he was while Bdward L.Mahair saw the respondent testified he about a for Mr. thus Fowler, occupied, at work While threshing. before the murder, lady passed by. a young week spoke me and asked When the [*] girl [*] passed by [*] me where he was [*] that gal threshing [*] was [*] going. [*] barn, told I [*] him he I v. LAPAGE. I him Then me what name was. told her didn’t know. he asked her was Sarah to know where she lived. name Prentice. Then he wanted Ias I him as near could. door, told him—went showed *' * to know with her. I Then he wanted who going * '* him I told didn’t know. And that is all that day. he said barn, I through there the next lie up day, going’ ”? said, that went down me, “Where did that gal stopped go I him Mr. told I know whether she into Fowler’s went didn’t went I I further. with her. told him couldn’t He know who went wanted him tell I didn’t know Then he asked me who who went her. him; was and lived, she where she and I showed and then the again, her, told him next time he asked me who went with I I didn’t know. said He she most. I told wondered road went on the him ” “ I on this guess she road the most. goes The witness repeated then an obscene and remark and vulgar inquiry *3 made by the concerning girl. respondent Hiram testified, and Harriet A. H. his in sub- Towle, Towle, wife, stance, second, that on A. Saturday, October nine o’clock M., about over they rods road, and when about riding Academy fifty sixty from of the murder they met the place carrying a respondent behind stick spects him. The stick in all was described as similar re- being three feet (about long, four-sided, about one and a inches quarter whittled a square, at one end for in court, a stick handle) produced had found, been broken stained with near blood, place murder. Alversia testified as follows: I live in Watson Allenstown. Have a son two daughters; youngest school my attending daughter at Pembroke but academy; did not attend last fall, taught school in Hooksett; I there; over go turnpike Chester she get came home Friday ; nights, and went back Sundays walked; first of term she part I went with went about a mile and generally three quarters. her— Saw Lapage on road once, last on Sun- part September, ; saw day him about a mile from standing my house the road, beside ; my ; some bushes opposite was with me noticed daughter nothing his hands first when I saw him. Saw him a about half mile fur- again ; me; on ther heard he was coming towards this was two I I weeks before of murder; had he in his hand something the second time ; ; him stick, saw it was a think cane that the stick cut newly was the, stick; think it than the larger was stick found in woods of the murder; had it in hand. The I right second time saw him he was feet; coming me, behind about hundred I him along behind watched me; was looking ; about twelve I saw him away feet when last me, he was very toward was moving rapidly partly running; my daughter ; much crying was and five frightened, was between four time; in the afternoon when I saw him the first saw him time half next a mile road, me; further on on following walking; after had been turning my look at saw a man daughter, picking top berries hill; when I into my turned to look at daughter, going saw Lapage ; bushes; sat my further with daughter went about half a mile of hearing hill till I had out my daughter got top thought —about ber- minutes, ; man who was picking I think Mack George fifteen [the I a club with met with waited, came home me. The person ries] was prisoner. Lapage, Hooksett; I going and wore My daughter Cross-examination. to where she taught it is miles from house my was on four Sunday; miles; woods school; are chestnut with her about two there went road; home, from he first the man about a mile saw along then, ; standing about feet fifty away outside road he was just I and turned still; did not him until the place, see again passed out of his ; sight him he stood still till I passed and saw again back I out road; before got turn in the it was two three minutes’ walk ; nearly him; a mile went more than my daughter of half a mile before saw have seen a man went with sight ; ; in the road could again coming I him he was him distance; last he was little I saw when quite of me to within a few feet saw me, came running towards partly there, distance a short shanty, near Lakin’s the man berries picking man with Mr. Mack’s little boy; saw no one but else away; where Mr. Mack on the side opposite stick went into the woods tan-col- whiskers, tall, with black very man I was. The saw was saw hat. Next coat. Wore a dark overalls, and mixed when; gray ored Mr. Hil- went there at the request man in can’t tell jail; me to wished any no name one the jail, dreth mentioned Mr. had seen before. one that I there see there go me; Mr. jail and some others went to Hildreth, Gault, Hattie if there look in cell and see every go asked me Sargent *4 him at knew and ; in, Lapage, I when I saw had seen there went features; moustache did Lapage’s and not notice his looks once in jail ; long as road don’t think his was I him in the beard when met road. when I him in the saw and at the jail, was clothing called some Redirect. attention My I he wore. was like the one thought I out a coat picked [Coat same shown, and to be the thought witness.] Watson; saw I Annie as follows: know Matthias testified Mercy about her saw Sunday last September; on Chester her turnpike road saw-mill; was miles from Suncook and a half or three two her; sat ; her; nothing seen her before said I had not when met ; I knew there road; I sat saw while Lapage down on a rock beside he came up ; towards the when running girl; he was before Lapage ; been he was and ;me his face red excited he faced me towards ;me he ; anything and more too he never said mile, half a running off started her; and then little, aup he slacked looked towards right saw me not. run; know whether he don’t on a ; road him in the before I saw I had seen Lapage Cross-examined. Sun- ; him in the road in his house in Potter’s block saw him saw day; ; in the month saw a man woman last Sunday day—the I ; when them Palmer; live Allenstown saw they their names were STATE LAPAGE. was ; when I as far as Lakin’s going up, and tlie came back went girl up hill, back; it is turned, and about two miles from Suncook came hill; Lakin’s, Lakin’s I saw as was from about back Lapage coming five o’clock met the side of Lakin’s girl at Watson the other night; hill; I ; walked about a mile sat down heard quarter Lapage minute; running hill, half saw walk Lapage up begin ; run when he reached the this was he me. after top passed Anna A. that she of Mrs. A. testified was the "Wat daughter Watson son, ; in Hooksett last Friday school came home taught September nights and On a fort Sunday nights, usually. Sunday night, returned night before Josie killed on she met Langmaid Monday, two per sons on road; ; T. road and her met she Marcy mother ; bushes, followed man that Sunday he was in the partly bent over, and she he had dark noticed whiskers. As were going up the hill aby shanty she looked back and man again, saw the coming after her, him, some where she first saw and he was on the ways side of ; as near as across this road, room he had stick
hands, fast; he wras travelling walking, nearly lie overtook us. She was so frightened that she hill thought she would go soon up as possible, ; and in a few minutes saw Mr. she Mack the man disap peared in woods, man; did not she see the went lie into the woods ; mother again ran; after her left her she she could identify the man, she was so frightened the time. /Julienne, Rousse testified that she resided Joliet, and was Canada, him; sister of wife, and Joseph knew Lapage’s saw him last four years ago home in Desier Marion. June, last before him in seeing Concord; saw him at her Went to a to milk cows while at St. pasture living Beatrice, Canada, and met there; Iwhen arrived at Lapage the pasture the cows were not there above Lapage pasture, with buffalo robe mask on his face, a home-made faded red shirt, and pair linen pants, with a him, leather belt around and a root in his hand pine the size of arm, her and about three feet he was four or long; five rails from her. A rail is ten feet; house; was not place sight seven 1871; o’clock in June, morning, he tried to catch she her shouted and tried run after she had away; gone four or rails five overtook her, her, hold and she round caught turned pulled mask off of face; him and recognized by his Lapage he then rolled his head into her skirt and tried to choke her. After he choked her she turned on her mouth after she and then he rubbed coarse sand belly, into her eyes and *5 ; and her; was choked lost her he strength outraged lost her her; and and did not know strength mind, when he she left was gone two hours she before reached the which was house, ten acres away, mile; about third did he not strike her with the stick, her; but to, after she went to rape upon coming her home. lie which hand, choked her throat with his left marks black upon month, her throat. were her throat for and The marks upon her neck was and for very black where his a month she- fingers were,
VOL. LVII. STATE LAPAGE. years twenty-seven and difficulty drinking; had great eating lived married; and old, time, and never at that married Lapage day, next ; thirty acres from her home saw twenty-five but Lapage then; ; a Marion had conversation with him was Mr. living no with States United ; to him to the had never seen or since he went spoken ' at once./ Joseph her to Cross-examined. First talked of the outrage o’clock, being they his the same at nine daughter, Lajeuunesse day oldest Marion, at Marion’s house at the time. Three children of old, ones years family, seven Lajeunnesse’s ; lived, except family couldn’t tell where the now house Lajeunnesse Acton; years in a three it was called left St. Beatrice place Ma- March, Mr. with she next talked of the thought; outrage next no ; wife, and his at three employed rion o’clock the same afternoon After ; throat. doctor her first seized her grabbed her Lapage injuries her to throw down on the he her the back ground, she was screamed, to commit when she down, the outrage, attempted her, her throat. He turned over after choked he seized her lie she time mouth, after the sand was sensible; into her at eyes was was put outrage, but she lost her senses when he.committed two senses, gone she and did not know when recovered her so mask off to the She hours before she fay back house. got pulled the mask and she knew the man she as see before eyes, pulled pulled and she mask was tied two black strings, from him. The it with him, ; saw she first saw his forehead had hat' on down so she when tried to she his mask his hat fell off. He murmur grabbed and when understood.that words of so as to himself. She English, disguise few at- himself him, she and so tried to disguise knew that knew Lapage screamed him, but talk had no talk with She English. tempting Edward it, which farm, belonged had a and worked on Lapage her. outrage upon Perrault about the Perrault. Edward Spoke but had not, home, him if was at and he said he was asked Lapage She did not she She said for the states. never to Perrault started him who it was that assaulted had no conversation her, know the outrage. about ex- respondent of all the foregoing testimony To the admission cepted. a' street, Lived on Pembroke testified follows: Hattie M. Gault October that school academy, this side and attended half mile at 8.25 rung 8.30 school about bells morning; and reached and saw o’clock; Lapage door of academy stood and 8.55 as she could and was as confident of building, pass she road, and and turned down the shoulder, Academy on his an axe him Next saw him as far as she could him on that road. see watched academy. him and identified as man who passed jail, jury court charged Concerning foregoing evidence, follows: effect to the Rousso “You of Julienne testimony have heard the y *6 her. June, this committed a rape upon consider- prisoner you you this believe the will be witness), required evidence ing (if in which it way use careful discrimination of the manner is to be case, if it is to be at all. to this applied applied “ evidence, not because it is con- We have admitted the necessarily which are to or in- you try, is, nected with the issue guilt —which he is here and now nocence of the offence which prisoner it legal because I shall endeavor to issue in charged, the bearing upon may —but and which I which invite way explain, your It your most may duty careful attention. the evidence en- reject case, your it out of the and out of minds. tirely, put may law, it. It is a fundamental to consider your duty principle evidence that defendant committed one offence cannot be received-to' committed another and distinct offence. This principle And, therefore, must care not to violate. we take are not re- you of Julienne the evidence Rousse as gard or evidence any proof that the killed Josie Langmaid. Therefore, unless find prisoner you evidence, from other of that of entirely independent Julienne Rousse, that the killed and murdered Josie prisoner you must re- Langmaid, her evidence ject altogether. “ your The evidence open consideration, all, so far as seem to to bear may you upon character the homicide of Josie as it Langmaid only may bear she upon question whether prisoner murdered or perpetrating attempting perpetrate ' rape. “ ‘ Oúr that All statute declares murder committed starv- by poison, or other deliberate ing,'torture, or premeditated killing, committed arson, or in.attempting perpetrate rape, robbery, is mur- burglary, first all degree der and murder not of the first degree, murder of the second degree.’ ‘u if. And shall find jury any prisoner murder, guilty they shall their verdict find also it is whether of the first or second degree.’ “ If you find, from other evidence in the case than that of Julienne Rousse, that the defendant killed Josie Langmaid deliberately and pre- meditatedly, perpetrating perpetrate attempting rape, you may is to her your duty altogether. But if reject testimony you are so not you satisfied evidence Circumstances of the case, may consider I hardly say her evidence. need that you must be satisfied that the is the man who upon point, prisoner Julienne Rousse. upon rape “ The you see, therefore, bears only upon question1 the intention of killing Langmaid, Josie thus upon i. degree guilt, e., whether offence murder of the first second degree. ‘Now, the unlawful intent case particular may sometimes be inferred necessarily, from a similar intent [not inferred] to have proved existed transactions.’ previous “ The that, admitted principle is, *7 ‘ to of the eyes jury the though prisoner prejudiced crime, admission of to another testimony tending prove the needless crime tends the evidence which tends to the other whenever prove yet, be a bad one, not the to merely by showing to this prisoner also in his the bad intent existed man, showing particular to have he did act it is admissible.’ complained of, the mind at time when “ of, or case, find it to you in show the commission If, necessary this in to find commit, Josie order rape upon Langmaid, the attempt degree, murder the first and the guilty prisoner of the are private body and concealment of her parts mutilation of that satisfy you fact, then what other you sufficient may inquire him kill her. induced motive “ testimony to show the existence in Rousse, Julienne or other evidence any Does aof mind of case, tend the prisoner tlie motive to of, or attempt which would render the commission passion Josie than would commit, upon Langmaid probable more rape ? a lust- Does or not tend to show that such you seem otherwise ren- in the heart of the as would the time prisoner ful intent existed aof ? probable sup- the commission more Does this rape der ^ for the commission of the offence ? a motive ply “ Julienne four years Rousse was upon The crime time offence under consideration. Since antecedent more for in mind. place have taken his There has been time may change and the lustful then have been bore disposition repentance; condition, more remote the this The evidence of mental eradicated. to it. belong less force weight e., concerning this inquiry, in connection with i. part your But remained intention, whether lustful still disposition the present G. Fow- heart, may consider the evidence of Adin you the prisoner’s concerning ler, inquiry three different occasions of the prisoner’s sister, school, where she went to and the she took road
Fowler’s Maliair con- fortnight murder) young there (within get re- way Sarah Prentice —the she and the travelled, obscene cerning Watson, her; Mat- Anna, of Mrs. her concerning daughter mark before concerning Anna, about two weeks Mercy, pursuit thias the murder./' remark, it is that if the killed Josie “And here proper all ani- necessary any it is not at lustful desire or Langmaid, mosity the victim shown, should be she became toward her provided particular lustful murderous intent. If commit of his else, chance upon girl some whom upon and murder rape he encounter, was consummated an attack Josie Lang- might is sustained.” the indictment maid, to the charge. were taken No exceptions of murder was convicted first and sen- respondent degree, to be hanged. tenced tendered bill was allowed exceptions, The respondent the same transferring consideration superior and, LAPAGE. STATE v.
court, as to circuit court and transferred questions reserved exercise of C. G. J., O., discretion. Transferred by Foster, Rand, J., O. O. W' n Lewis QlarJc, whom were Flanders, (with W- W. attorney-general solicitor, and G. P. for the State. Sanborn), There were two Was defendant questions 1st, jury: person 2d, who killed the deceased ? If did lie kill slayer, he was her in ? No perpetrating attempting rape exceptions perpetrate *8 were taken to and upon the Under an charge. charge, unexceptionable other testimony than that of have Julienne the answered Rousse, jury the first in question the affirmative. I. The of law only question is, raised bill exceptions the whether the objected evidence to is Does any admissible purpose. this evidence have a legal tendency to that the defendant killed the deceased, or that he intended ? to commit a her rape upon The burden was on the State to first murder. degree the prove Unless the State that proved degree doubt, all reasonable the beyond defendant not could be found The guilty degree. degree that as distinct separate the State the fact point to proved that there was such a that Josie the fact she is person Langmaid, dead, the fact death, that died she a violent fact that her death was suicide, the not accidental, the fact that she did or not the fact that commit the defendant is the who of this kind person killed her. cases we are to lose apt the wide homicide, the sight gulf between proved the necessity of the it proving of it. are to take degree as this apt We granted that such a murder was, homicide was a apparently the first of that degree; any there is no on need of evidence the question and that degree, the will find first find jury degree the homi- they cide. And when we infer the from the sex and of the degree de- age ceased, and the peculiar mutilation her we are to con- person, apt found court, the duties of counsel, and that presume the jury jury must draw draw, the same inference we think that counsel all distinct and in- need offer, not and that the court safely reject, dependent evidence on But question the counsel cannot degree. argue here, and the hold, court cannot that as matter of fact the jury must found sex, have the first degree the evidence age, mutilation. That we here have do. question nothing which The only is, law the here whether evidence to had objected any legal tendency any material fact. prove This evidence was it a fact cumulative, is, tended or —that evidence, faóts which All prove. other evidence also tended to except scintilla, cumulative; the first on. but all ex- every point, the cept first scintilla is not therefore incompetent.
If at the trial the court had believed that this evidence was super- fluous, and was faith for the offered bad purpose prejudicing than on jury some other those improperly points v LAPAGE. any court, that, within discretion of offered, ground its received, court exercised discre- ought not would have here. But no cause for tionary exercising power appears power. in issue by fact tendency put Had the evidence a legal prove any was his killing ? fact thus issue the defendant’s One plea put her, not acci- killing fact thus issue was his deceased. Another put of cir- variety not in not under self-defence, any great dentally, that would make his or for of the numerous reasons any cumstances but degree, homicidal act or murder the second manslaughter of or under other cir- rape, commission to commit a attempt or for other reasons that would make his homicidal act cumstances murder for man- not degree. State, asking conviction, the first satisfy not degree, or murder second were bound to slaughter, was committed court, not that the homicide the jury, the first de- defendant, but also that the homicide was murder of beyond bound to satisfy jury State was gree —and doubt. The could not instruct the jury reasonable were court find, received without objection, bound in such murder of first instruc- homicide was error degree;—for objected tions the would be reversed. Without the evidence judgment doubt, all reasonable might satisfied, beyond to that been jury or did not com- disease, deceased did not heart suddenly die suicide, running mit over accidentally carriage killed *9 In dead have her, body might or random either case the gun-shot. of her been found and some who was innocent mangled by person her, or have insulted might death. The defendant some other person her; and in the that indecent assault struggle or ensued the homicide or degree, murder in the second might have been State, The bound to being or voluntary involuntary manslaughter. doubt on these every from the minds of the reasonable jury remove of murder and all other involved possible points charge had a points. to introduce evidence those first degree, right 401, 403, N. H. decision in 52 Westmoreland, Since the v. Darling to cite au- state, it cannot in this or 405, 406, argue be necessary, prop- to show that several prove independent thorities the evidence dif- or facts of different kinds and drawn requiring distinct bemay ositions be confined the that sources and the rule evidence ferent issue, character disposition, evidence excluding general point rule that merely the issues, trial of is collateral prohibiting irrelevant; and is what relevant,'and evidence to be excludes requires when such it is because evi- admitted, is it is admitted not transaction, but be- or such other disposition, of character dence Character, or transaction relevant. character, disposition, cause acts, not being pri- and certain innocent criminal disposition, relevant, issue, may subject and immediate mary, express, involved in a material fact tendency a legal prove is, may that often are they And because And be irrelevant. may the issue. it is often said in evidence, and therefore inadmissible irrelevant, y. STATE LAPAGE.
there is a rule
than
of law
excludes evidence of other crimes
charged,
to commit the same
general disposition
kind of offence. But the books abound in
there neither
cases that show
is nor can be
such rule. What is often
called a rule
erroneously
of that kind is
to a
case of the rule
merely
application
particular
requiring evidence to
relevant. When
tends
certain evidence
prove the commission of another crime than that
or a
charged,
general
disposition
crime,
to commit such or any other
the circumstance that the
act or
disposition,
directly
the evidence tends
crim-
prove,
inal, is wholly
criminal,
immaterial. The
is not
it is
whether
but
it
whether
it has a
relevant —whether
legal tendency
prove
a fact material to the issue.
Although evidence offered in
of an indictment for
support
felony be
another
felony,
circumstance does not
it
render
inadmis-
sible. If the evidence offered tends to
fact,
material
is admis-
prove
sible,
although
also tend to
the commission of another
distinct and separate
;
;
offence. Mason v. The
42 Ala.
State,
532, 537
Kirkwood's
103;
Case,
Stearns,
1 Lewin C. O.
Com. v.
256
the
the
Voice,R. & R.
it was
on
531,
by
judges,
In Rex v.
held
kill,
of
at
shooting
of
with intent to
charge
shooting
shooting
at another time was
to show that the
competent
same person
In
Journal
Geering,IS
Mag.,
was not accidental.
v.
Law
Reg.
charged
cas.
a
for
murder of her husband
was
wife
215,
charge
against
Evidence
three of her sons
by
being subsequently
poison.
poisoned
that his
received, to show that her husband died of
poison,
was
400, the
In
v.
O.
Cotton,
not accidental.
12 Cox O.
Reg.
death was
charge
Evi-
a mother for
against
was
her child
murdering
poison.
a
hors,
dence was held admissible
two other children
v.
house,
died of
In
Garner
lodger
previously
poison.
Reg.
681,
&3 E. E.
was
of Garner’s mother
Wife,
charge
the murder
$
his
His wife had lived
his
as a servant when
family
poison.
His
died.
mother died of
Evidence was received
former wife
poison.
first
show that his
wife died
and to show the circumstan-
poison,
Roder,
trial of
630,
In
v.
12
on the
Reg.
ces of her death.
Cox C. C.
bed,
her infant
evidence
suffocation
murdering
defendant
to show the
deaths of
other children
tending
was received
her
previous
Clewes,
221,
In
v.
4
P.
of murder-
Rex
C. &
on a
early ages.
charge
to show
H. had
Watkins,
H., evidence was received
been employed
ing
P.
In
v.
9
47,
to murder
State
Conn.
the defendant
wife,
the defendant’s
evidence was received
charge murdering
show the defendant
adulterous
another woman
intercourse with
Ala. 618
months before his wife’s death.
Johnson v.
17
State,
some
In Com.
258 STATE v. AGE. a mob to give money ecutor was advice induced the defendants’ To mischief. house, rid of them prevent who came to show to get robbing mere mode fraudulent, and a that the advice was had de- same mob that the was to show evidence received prosecutor, of the defendants some manded at other houses when money another in- 62, was State, 53, et ad. v. The 3 Heisk. present. Defrese Verdict, of the larceny prosecutor’s dictment for robbery. guilty the pretence under watch, was the defendant by. which obtained at- had defendant that the bet. was held to show Evidence competent on other oc- the same artifice on other tempted casions. practice persons law, proposition court a say general (p. 63),— “As be shown crime can true that no and substantive undoubtedly distinct given as it is the trial. But this rule is better understood to the par- relevant text-books, strictly should be the facts proven of property ticular whether purchase charge.” Upon that the to show is admissible fraudulent, was evidence person Brad- persons. of other fraudulently purchaser bought property And H. 569. 52 N. ; Grant, v. Olear, 10 N. H. 480 v. 477, ley Hovey a to show transaction fraudulent the same rule admits evidence of one in civil as well in criminal transaction, fraudulent intent another Bleasdale, 2 v. 456,457. Johnson, 441, Beg. cases. State v. C. & K. 33 H.N. lessee The defendant coal. 765, stealing was a charge wrong- had mine he leased mine, of a coal and from the shaft of the during period coal and taken fully cut into the adjoining premises, different own- thirty forty fields of years more than four ers. All from the coal felonious on the question this was held competent the coal of one taking person., Mass., in Com. Train’s, In an Attorney-General admirable brief of indebted, am much I November, v. which Essex, 1875 (to McCarthy, are authorities similar a few I send to the chief-justice), goods, passing stolen in receiving cited on knowledge guilty rule notes. The coin, application counterfeit and uttering forged too are authorities familiar, and the such cases too common of the this branch numerous, length in dwelling counsel justifv In Bex V. & P. 429), C. G. 7 O. 470 Balls, Moody (S. 1 C. subject. Poland, kingdom note of the on a trial for forging uttering defend- to show that 1835, on ant, and received evidence was September notes, Austrian a thousand forge 24,1835, on August agreed *13 The fact of his a being professional counterfeiter, a common dealer in counterfeit was relevant money, to the of know- particular charge ingly it; a with having being counterfeit bill intent to and rele- pass vant, it could be other as evidence his own proved by by well state- ments. aOn trial for it is no valid to burglary, evidence, objection tending to show the act, burglarious intent the defendant’s proves another and offence; distinct but the with intent which he entered may be shown by proof felony committed an adjoining store. Osbornev. 2 R. Parker C. 588 People, v. 57 Barb. Phillips People, 353. In Mason State, 539, v. The 532, 42 Ala. evidence was held ad- missible to show that the had prisoners committed other burglaries than that charged. The court say, The evidence tended to show —“ that there was a and privity community between the design prison- ers to commit offences of the character them.” charged against ” Privity and community of is a design than larger phrase “intent,” but it means the same thing. intent, To show their written articles of agreement, signed by defendants, forth their setting intent of going into the burglary business, wouldbe And it competent. would not be nec- essary that their agreement be reduced to writing. Their oral statements would be equally as in the competent, case the dealer counterfeit money. And the intent bemay proved by as well as burglaries, by written or oral statements; acts, as by well words written or spoken by the executed, as well as by the executory And agreement. in the case of a his single defendant, be shown same kind of evidence that would against be admissible several joint defend- ants, as in the case dealer money. counterfeit Evidence that a man has often counterfeit has passed money a legal tendency show that he intends to more of pass the same kind of found in money his possession. The his number of attempts to previous pass money affects the weight, competency, of this kind of evidence. So, when A has broken and B’s and house, entered question whether lie broke and entered it with a burglarious intent, evidence having broken and repeatedly entered other houses the pur- pose tends stealing intent with which he broke en- tered B’s house. Shearer, Com. Turner 25, Met. rule of general evidence to a applied case The indictment was for kidnapping. a kidnapping negro boy, Sidney, with intent him out of send state. There was evidence tending prove'that got the defendants Sidney into their possession Worcester, by the false representations
of both the defendants to
in' Palmer
his father
Shearer resided
kept
there,
store
and that
was wanted
Shearer
Sidney
assist him in that store.
was sent to
Evidence was
Sidney
Virginia.
that,
received to show
Turner endeav-
day
Sidney,
before
got
ored to
get
negro
another
from the almshouse in
boy
Shirley, upon
representation live with
boy
was wanted
Turner’s father to
him in Palmer. This
say,—
held
The court
competent.
“ Evidence of other facts than
immediately
those connected
act are
admissible,
always
when the intent of
defendant forms
material
issue,
part
when those facts can be supposed
proper tendency
establish that intent.
recurring
Upon
trial,
the indictment and
will
proceedings
thereon
be seen that the intent with which
did
complained
the defendant
the act
of became
was,
material,
fact,
directly submitted
jury to
in obtain-
pass upon. The intent
of the defendant
purpose
ing the
unlaw-
possession
the individual
to be
alleged
custody
fully taken, were to
circumstances,
be inferred from a
great variety
wide door for the introduction
necessarily opened
the acts of the
of con-
accused,
reasonable
party
having any
degree
nection with the
of.
the view
particular act
was with
complained
*14
the character of this last act that
received
fixing
evidence was
of the
and at
day
conduct and
of the
previous
declarations
defendant
in
about
another
and
reference to another individual
place,
whom
overtures
with a view of
his
were made
obtaining possession
person.
limited,
With
and
seems
reference
thus
purpose,
to us to have
a charge
keeping liquor
been
admitted.” On
properly
sale,
for
sold other liquor,
the defendant
previously
sale,
other
for
or was a
is admissible
kept
dealer,
liquor
liquor
Qom.
534;
Stoehr,
v.
64
v.
Plunkett,
intent. State
Me.
Qom.
;
Dearborn,
109 Mass. 365
v.
STATE v. will sufficient to bo showing guilt, justify circumstances the inference taken that criminal intercourse has The intent and actually place. of the each other must parties give towards character to disposition ascertained, all and can relations, their moral qualities are, from to be acts and declarations is true that parties. the fact disposition is the existence criminal at the time proved it is but the indications which the act charged proved may extend both do over of time ordinarily period extend anterior and sub- human conduct, it. The rules which govern sequent known to common observation are are to be experience, applied * * * * all as in of fact. investigations these cases the rule laid down in these cases By v. application Hor- (Com. ton and Com. tending v. establish an ThrasherJ, indepen- dent crime is to be acts rejected, although which are only acts admitted in are to be familiarity proof. There improper is no sound thus There is no distinction drawn. difference between committed, adultery familiarity acts of purpose actual when offered for the indicated, weight the additional except significance of fact. the latter adulterous disposition concurrent the defendant and the shown by crimiriis cannot be stronger particeps evidence than criminal act itself.” ” “A concurrent adulterous both disposition parties is not neces- a case of v. The sary proved rape. State, Williams Humph. 585, was an indictment for an assault with intent commit a rape upon the defendant’s Evidence was daughter. received showing previous with her. to have sexual intercourse attempts was held com- And.this to show the assault which the petent charged the indict- ment committed. The same doctrine prevails this state. Even who is Judge Bellows, understood to have entertained extreme opinions issues, adverse to collateral was not aware of reason that would court in departing our justify principle own decisions. H. 148,156, 45 N. State 157. Knapp, breaking the defendant tried Suppose entering the store at the north end Elm street in Manchester —the most northern of *15 all the stores to on street —witli intent steal: suppose it were and that he broke entered that store that he proved as was.arrested soon as entered and the were it, only question he whether he intended to steal: there were one hundred other on suppose stores that street, and had broken and entered one every them, he and stolen some- in the them, one of south thing every beginning end of the street in on his succession, and the stores taking burglarious march from did end the other : he one of the street to this in suppose one night, and was his work when night’s arrested: the completing question entering the hundred and of his intent in one first store, would-any- to his one think evidence hundred larcenies in body other one objecting the His hundred stores? one hundred robbing stores would to rob one tend to show that he intended hundred and first, as just in the one hundred tend his counterfeit would to money passing his found money possession that he intended to counterfeit pass his no between one hundred would be difference and first. There store, having and his counterfeit in the hundred and first one presence of intent, would, on the store, question in his money pocket done what had the other he affect the the evidence admissibility he had robbed stores, per- of robbing hundred stores. instead Suppose, one end-of down knocking to sons, other, the street going a other, touching men, one hundred one after the robbing the one hundred : had knocked single woman he down when suppose, arrested, had to rob been man, him, first had time he before he»had his to him, he intended rob question and last offence were an were whether —whether or an assault assault, rob, to or a mere attempt other hun- his robbing intent to kill: would anybody suppose with of the in- down, no after evidence men, dred he knocked them ? the one hundred which No. 101 tent with he knocked'down Suppose he touched women : one were suppose whom he assaulted persons hun- ravish one : unsuccessfully man attempted no he suppose his down the knocking the instant of them, and were arrested at dred last assault his and the or an assault with were whether first, question one hundred and a robbery, intent to commit assault, a mere were last woman a an assault with intent to commit rape: suppose or indicted should die of her the defendant were assaulted injuries, some necessary it were this (as judges her murder: and suppose Pike, 49 it be—State v. state, elsewhere, as as N. thought well the offence allege indictment which 404, 405, 406) H. when struck defendant was commit he the blow that attempting if Honors, to be fatal: would Your proved were unexpectedly your think it indictment, necessary allege draw other at- duty than an a ? Would think it you to commit attempt rape neces- tempt an to commit ? And robbery how would allege attempt you sary to find officers, better evidence you prosecuting expect, of the intent than his the other attempts upon defendant’s one hundred ? It was state to necessary for the in- women defendant’s if it had commit a been rape case to allege tent necessary indictment. intent were indicted for kid- If the defendant kidnapping attempting of the 13th boy adoption negro amendment), would nap (before whether, tiiink doubtful at- intent, other anybody tempts other into his negro boys of the defendant’to get possession ? slaveholding And, would competent when purpose to be what difference there affects thing proved, acts, similar whether the admissibility of defend- into intent to boy possession send him into gets negro ant into his girl or whether makes as- gets possession, slavery, to commit a ? with intent rape her intent with proved sault upon he takes one possession person boy girl tends to he takes with which show the intent possession person *16 In Com. v. the girl. Turner, or another evidence that another boy v. LAPAGE. 263 in boy Shirley, defendant of negro under attempted get possession false into boy tended to show his intent to send pretences, slavery; in show a similar that intent that case tended to evidence of intent in in It was precisely the other case which he was indicted. if he had into sent boys slavery. one hundred from Massachusetts The number of of the evidence, instances would affect not its weight from slavery His one more into admissibility. sending Shirley, or of one or getting possession more in attempting get possession would be of the Shirley tiiat which purpose, purpose he feit Worcester, got possession of in as his Sidney just passing counter- on one occasion would be of his intent to money pass other counterfeit found in his on another money possession occasion. What the legal distinction there of the intent with between proof Worcester, in of boy Sidney captured with which ? Why Josie in Pembroke captured Langmaid should crimes, sexual of be so aggravated pitch butchery, fav- highly ored by the law as to be licensed exempted punishment aby special dence ? dispensation rule of peculiar suspending general evi- exclusion of its in The evidence on account of remoteness of point time or is the exercise of the place discretionary power court, passing upon question one Darling fact and not of law. Palmer v. Westmoreland, Concord, 219; H. 48 211, N. v. 52 N. 401, H. 408, 411, and authorities v. B. I. Co., there cited Haines T. 52 N. Grant, H. 467 v. 52 N. H. 569. If in Hovey too remote point time, evidence of other will in adulteries be rejected, discretion of who tries case. v. 101 judge Ill, Mass. Thayer 114. Thayer, detached, time, more point previous utterings forged [of are, bank relation will the less bear to that stated in the notes] * * * indictment. would not make the evidence inad- v. 1 missible.” Bex New 2 94—S. O. Leach O. Rep. O. Wylie, “ 973, 985. the trial that case v. judge, Knapp], [State discretion, exercise what called judicial allowed parties go fifteen years; back and if he had allowed them back sixteen go years, fourteen, no of law would arisen as to the question proper v. Darling Westmoreland, time.” 52 N. H. length 410. case, Wentworth, On court v. refer State page 196, 211, N. H. it is where held that commission the defendant other crimes like the one admissible to show that he charged indictment; to commit the crime strength ability alleged and the whole drift of every opinion Darling West- page favor But, moreland of that distinctly the course of a principle. discussion of the distinction between as a lengthy relevancy question fact, law, or local remoteness as it is question said temporal that in State v. the defendant’s strength, Knapp, evidence of his various the crime of having persons offered, which was accused would not is understood to because This made connection incompetent. remark, hearty ap- *17 v. LAPAGE. Wentworth, doctrine State v. seems the and State v. proval Knapp either the erroneous crimes give impression sexual court, evidence, that the subject general the rules or to suggest discretion, in its can exclude evidence of to show other rapes tending avail- must be strength, strength on the that other evidence of ground able, and offered would not rapes ordinarily on the mere faith good question strength. case, All the to in this Julienne objected that of except Rousse, was on but also intent, the competent, question whether the defendant killed the deceased. 4,1875, Josie was killed October about nine o’clock Langmaid road, her first Academy day on the on to school. On the morning, way half October, about o’clock in about time past eight morning, on their to the saw a way boy would be the Cochran girls academy, road, on the side man ing the into the jump bushes, Academy spring- if short On within a of death. haste, distance place defendant, house, see- twenty-fourth of September, Fowler’s house, Fowler Fowler’s sister come home and who go into the asked ing if was. him. The know she she Fowler told defendant then wanted to him no; been to told school. The Suncook. Fowler she had been to Fowler then wanted to know which defendant she there. way get went him, direction; and out toward the to show the academy told pointed said must that that he when he way and defendant be the came out to Kimball’s. On Fowler carried the September twenty-fifth came cor- as far at Russ’s home, street, down Buck as Locke’s and defendant wanted to know his the defendant there was where (Fowler’s) ner sister him toward went to school. Fowler told out no, and pointed half, told him two mile and or a and academy again, mile, miles, and then turn right Sunday, September and your go up.” Suncook, his sister twenty-sixth, back, Fowler carried went road, Fow- out. As went Academy the defendant brought past went defendant was the road which his sister ler told the that that the der October, About a week when to school. before fourth of by. grain ba’rn, was in Fowler’s threshing young lady passed fendant said defendant asked Mahair Mahair gal going. The where Mahair didn’t know. The asked what her name was. defendant to know him name was Sarah wanted told her Prentice. The defendant him, showing she lived. Mahair told to the door and where going who was as near as he could. The defendant wanted know him as Ma- Mahair didn’t The next day, with her. said he know. going him, and asked barn, the defendant through stopped hair going said know. by. down Mahair he didn’t where that went went gal didn’t went with her. Mahair said he defendant wanted to know who The know. The defendant lived; who she asked she was where again asked him Mahair she lived. defendant Again showed where road went said he she her, went with wondered who concerning and made an remark most, vulgar inquiry obscene STATE LAPAGE. her. On second of o’clock in the October, about nine morning, about the would their to the girls way academy, time be on Towle Academy road, wife met the defendant on the about fifty or sixty rods from place death. defendant carrying stick similar in all to a stick *18 him, found, behind afterwards respects
broken blood, and stained with near the of death. On the place last Sunday Anna on her from Watson, weekly return her September, home in Hooksett, Allenstown to her school in was pursued by de- fendant a until distance, considerable and he came of Mack sight Mercy, when he woods. He suddenly earned a disappeared club, and his red and He ran her more face was excited. after than half a mile. All this tends to show that the defendant killed Josie Lang- evidénce maid. It shows that the his death was hunt- neighborhood place ing-ground, and it shows the intent his object habitual hunt. Change this far to so partridges substitute women, were, whether this suppose defendant killed —and a partridge, found cut where the remains of pieces Langmaid Josie were scattered: if his talk with to Fowler, relating Fowler’s sister, had related to if he had she partridges; inquired, was way school, accustomed go to to but where partridges were if plenty; Fowler had twice told him road, abounded Academy pointed out if and inquiries his remarks to place addressed Ma- liair had not to the road related Sarah Prentice and she went most, and had not but had been obscene vulgar, been such as to show he was meditating his partridge-hunt; interrupted chase of Anna Watson had to been an kill interrupted* attempt partridges,— would any to all this one evidence on the that did object ground show a special to kill the intent that particular partridge was found dead ? If a man had been robbed at the would all death, place evidence, so far altered as to relate to men accustomed to carry large amounts money, excluded, because the man who was rob- bed was not one of those whose route the concerning defendant had previously the whom he ? inquired, previously pursued How would competency evidence be affected by that, such circumstance by some whom accident, concerning the travellers the defendant in- quired that to happened to another be the happened escape, vic- tim ?—or by one robbing circumstance instance the was exhibited more than such an pursuit significant inquiry about a person’s route as to show a to ? design waylay pursue tends him The gist merely such evidence is not an intent to showing rob travellers, the particular but in who providentially showing an escaped, intent to rob who have what the likely would be defendant wanted. be acquitted by Are professional highwaymen the exclu- sion of previous intentions, because attempts, preparations, meet, and not to the they may relates anybody particular victim named in Is round about region indictment ? every girls’ school in infested, the land to as the this acad- neighborhood lyii. vol. STATE v. LAPAG-E. was, from women, hunter of emy by professional fugitive justice, from a continuance of to this for the safe
flying business ? And are foreign country encouraged by being such men to be excepted ? of evidence that counterfeiters forgers the rules apply Are our to be beasts incited daughters prey, to human exposed their those gen- diabolical work from the operation exemption ? our currency eral which even miserable principles protected about school- testimony boy of the Cochran tends show that un- time some man willing about who was Academy road, prowling seen and It tends to be recognized boy. death allowed Langmaid’s Why boy Josie to was not accidental.’ fair in- unharmed ? His sex him. Is not that matter of saved pass nor boys, The defendant hunted neither men, ference argument? women. The fact that was accustomed go nor old Fowler’s sister road, that interested academy, Academy subject to the over the 25, him and 26. about the time the On October on September a stick, he walked on that road school, would be girls similar in all going carrying *19 afterwards, to the found broken days one two respects blood, near the of His talk with Fowler and stained with death. place and Prentice, his talk with Mahair about Sarah sister, about Fowler’s death Langmaid’s of Anna tend to show that Josie Watson, his pursuit accidental; for which that she fell a victim to the was not purpose for which he so region, eagerly hunted purpose defendant —the of sister and about the usual routes Fowler’s repeatedly inquired and Sarah Anna Prentice, liotly for which he so Wat- pursued purpose —the hunted of the of the air in that neigh- If he beasts field fowls son. whether beast borhood, that fact would be evidence on the question he killed in that neighbor- the class which found or bird hunted), (of rob he him. If he forth to one any might was killed went hood, evidence on of robbery. that fact would be meet, question Cochran, wife, and Mrs. Fowler, Mahair, Towle testimony The tends to show that the defendant Mercy, daughter, Watson for some that his not to about district purpose; purpose roamed not the the did, as Mack not to rob one of to escort berries, money, pick feebler woods and them bushes, against through sex protect solitary to which that sex is outrages insults exposed peculiar places, the defence spirit practice chivalry revive reviving them the of barbaric women, practice upon ferocity mutilated in man- Langmaid was found killed and And Josie age. of the which he ranged part ner corresponding purpose country. I have tends to show which thus far All the evidence considered he and also the with which deceased, defendant killed the intent killed her. found, of Julienne on other evidence than that having II. jury homicide, her testimony, committed the that the defendant
Pousse, it. Her testi- intent which he competent STATE LAPAGE. was, her, that he committed a at St. Beatrice Can-
mony rape upon ada, four months before the homicide. It was neces- years and four for the defendant’s intent to commit a on sary the rape state If killed her without in a premeditation, struggle deceased. her, his an indecent assault consequent upon insulting committing intent, her, without there was no which he any raping ground could And all be found first murder. the other degree guilty kind, on a of that explained hypothesis evidence consistent might with his of that of murder. such an ex- degree innocence Whether would raise doubt in the mind who planation reasonable juror, can tell duty ? It was of the state leave no room for doubt. And on his whether intent was to commit indecent as- question sault, or to commit a what evidence be had than better could rape, his intent on other similar occasions when he was not and de- interrupted feated, as he was his Watson ? If Anna a man’s pursuit intent counterfeit pass money at one time evidence his intent to pass other counterfeit found his at if money another time possession his intent to sell at liquor one time evidence of his intent to sell liquor another time his intent to send boy into evi- negro slavery is dence his to make same found disposition another his his intent to commit possession, why a rape upon Julienne — Rousse, took her, when he possession intent to make the same of Josie when he disposition Langmaid, took of her? possession Manifestly the objection remoteness of rape of time It is point place. settled by the authorities which I the cited, that that objection raises a fact within court, discretion of a question and not of law. The question of discretion is reserved. Should the reversed, judgment a new trial granted, ground that, a matter of fact, rape Julienne Rousse or locally testified temporally too remote to be *20 entitled to on the whether any weight question intent with which the defendant assaulted the deceased same as with which he ? assaulted Julienne Rousse If he had counterfeit at the and passed money place time when and ryliere Rousse, Julienne raped and other counterfeit money had been found in his at the time and possession when and place where he killed Josie if he had sold Langmaid; liquor the former time and and other had been found in place, liquor his at the possession latter time and if he had into his place; got negro boy at the possession former time and to send him with intent into and place slavery, another got boy into his at the latter negro possession time and place,— would there be doubt that his on the member intent former occasion would in considered, by fact be every intelligent of the human family, as entitled to some weight on the of his intent latter occa- question sion? If a lands in obtains a ship-master Congo, cargo blacks, of and car- ries years them four months afterwards he is Cuba, four found at another as far from coast, on the African as Pembroke place Congo is academy from St. with a hundred in his Beatrice, blacks possession,— v LAPAGE. occasion on the former think that his intent proved anybody would had, do what he intended tendency of no to show fact, as a matter mak- ? is What want there between analogy on the latter occasion making an'd times and places, of blacks at such different ing prisoners color two women ? What there these young prisoners more carry significance, case that can in the former the captives question abduction to the of their one intent captor proved ? sex another, age than is in this case their intent carried ? or place time interval of greater or across carry significance kidnap- or the intent circumstances, act, is there What us feel makes or selling counterfeit money, liquor, passing ping, ques- intent of one occasion upon force four the proved the probative our afterwards, months and prevents and four tion of intent years There of the ? case of such the present force evidence feeling probative effect from the that can sexual cases exempt is no distinction those mind, shorten the human of such evidence upon operation in other such evidence or local distance reached cases the temporal mat- a mere true, fact; That is as matter plainly cases. are of fact that we considering. ter could immaterial. The defendant The distance of place Rousse, Julienne hours from where he clutched a few the place gone noth- Langmaid. There where he Josie pounced upon to the place destroy calculated to create in either of the ing places peculiarly crime. or to commit a sexual money counterfeit intent pass distance of time is possible ground objection. a jury, I I appeal this must the court as would On point appeal honors If law, your not of but of fact. because indictment, and tribunal, were the sole the defendant trying hu- reason, and natural law, natural grounds sworn to decide upon capa- seemed as on grounds man ble of Rousse weigh those experience, upon Julienne testimony light, would receive the affording any you it, and ? would receive I do not hesitate assert that you it, or to consider it, it. would No man earth refuse hear overriding rule some and irrational arbitrary unless he were bound his his common- at war with course understanding, dictating in- would you Your honors would it some because give weight, sense. fallibly and universal know, experience, from the teaching history su- intuition of an authority of human nature, your knowledge that the reasoning, to all artificial perior which the defendant to show tendency seized Julienne Rousse has some notwithstanding which he the intent with seized Josie Langmaid, four years four seizures the distance of separated by two by that *21 is diminished months. Whether of the evidence weight here. arise much, if that do not time, of and so how are lapse questions re- trial, would your honors, supposed But the whether question be it give very and some weight, question ceive the evidence should it is case, in this settled whether evidence decided —for and fact, for local a question remoteness excluded temporal LAPAGE. STATE v. 269 law; is, whether, not a and the of fact here on question question and human grounds law, reason, those of natural natural experience, must the intent with decided, which such a fact upon which the defendant question assaulted Julienne Rousse affording capable with any assaulted the deceased. light he law, For error in on a feel might a court bound ruling question trial, new that no by precedent had been grant although injustice satisfied on this discretion, law, But in which not done. the court justice concerned, judgment alone is will reverse circuit without that the court, any cause believe defendant has ? suffered actual wrong admitted, will I suppose, every intelligent person, untram rules, will melled technical concur of the circuit court. opinion And one of law, fact unmixed question being pure there fore not what rules, any to technical will subject ground dissent from the unanimous If judgment a the rest mankind ? that unani mous were conclusion of judgment subtlety, metaphysical scholastic faith, sophistry, or a blind based on an evident of mental or obliquity moral of natural vision, misunderstanding phenomena, ignorance of laws of material or universe, or a spiritual tradition super stition that had survived the low civilization of its be a origin, might But it is authority. feeble irreversible spontaneous judgment of intellect that grade has or is every likely appeared, appear, It is this state of existence. and unavoidable involuntary percep tion of the inherent self-evident relations of conduct inten ; a tion mental revelation natural as and as memory, trustworthy and Why unanswerable as consciousness. anxious, should one be particularly case, in this introduce nob but a legal principle, dogma fact, refuted the instinctive human knowledge whole ? race If, the administration justice, experiment is to be tried of of fact this in deciding questions defiance of innate and creatures, universal of rational logic certainly not necessary that class for of cases should be selected In attempt. asking the the fervent be first in a experiment may kind, tried case of this I utter of every remonstrance father and mother prayer who has at school or at home, fate of daughter, exposed Georgie and Josie Lovering Langmaid.* T, whom Norris were S. B. and H. Page W. W. (with GrreeneJ, the respondent. Hawkins, clergyman, * In the trial of Mr. and a stealing money ring from. Henry September, Larimore Lord admitted Hale Chilton, that, had once year of boots from pair stolen a a man called more than a before, summing picked pockets up, he had of one Lord Hale Noble. said, Noble, true, referring after to the cases of would ren This, Chilton —‘‘ der the the bar now at obnoxious to Trials jury.” State Howell’s years 935.” (This ago.) *22 v. LAPAGE. what of to the testimony our bill it-relates urging exceptions, will first considered. Julienne Rousse be it, make of the court might gave the use the Commenting jury “ law, is that evi- It a fundamental them this instruction: principle cannot be received the offence dence that defendant is a and distinct offence.” Here that he committed another It stated. is fundamental —old enough familiar indeed well principle as the common and wise as common-sense. law, use, under testimony No us to exclude her claim made it offence, it because court, direction another but proves because the word transaction place distinct offence. Put proves word It all rests bn the offence, and we the same objection. encounter Want disclosed with of connection—the crime ground distinction. It has no other reason the exclusion. the crime charged —is foundation. in- and intent combined. Without evil Crime is of act made up tent, it is no Without the there law, guilt. what amounts it sin, in of human tribunals. And seems eye act there is no overt such evidence hers not competent on all hands that agreed controversy. murder. there no Up point of the act of “ thus Only intention, degree upon question it to make attempt competent. does the court below guilt,” was because the use the charge, jury No to the taken exception to, in, it after was as well perhaps instructed to the evidence put have directed. Our went any7 objection for our client as could charge in, to our As it objection. to its admission. went subject went If two only it before them. question were to use free jury But court tells use it on either. could questions issue, they were we obiect to of the two. How could must on but one them use ? charge deferring unduly, to that After that ? What the exception did, our to what the ex exception, and against as we believe the court what clamorously right cause demanding, ternal exigencies correction of the error and to a partial preven had we then object ” “ an ? talk about Why charge ? unexceptionable tion the injury in our wish was, favor. Our charged not what could object We how this evidence be used. Our might as to charged nothing its full If the charge then have force. would to its admission objection all, no valid ob charge we not used at had been that evidence, and we might have had But would jection. jury say What the court its admission. did lost our objection to, more it did not the better still, say, object not we could charge strait, in a with the less taken. We were the objection already “ “it Take unexceptionable.” But do call said better. tremble, firm and our nerves that,” adroit friend. Our my shape cheeks right slaughtered shade blanch, ghost before even try your by making Do to save verdict negligence. our lost ” “ “ What then is charge. to the on us for not excepting corner ” sub Not, ? the bill of we exceptions of law raised is admissible for mit, any purpose. whether the evidence objected *23 has any No claim is now considering made that the evidence we are Has killed the deceased.” legal the defendant tendency “ a rape upon that he intended to commit any to show legal tendency ” ? It is her her in ? Is to commit rape upon question the in act, crime, resulting the or of that either of attempt perpetration murder, about intention. any that must shown. No matter express be One Our to the evidence may be if the act be implied objection proved. It may reason. raised the it was inadmissible any whether be ground. but on another competent ground, incompetent of Under it we have this dis our we take the benefit general exception, away tinction. of it is taken from us special charg How much And, ing then, of us all there is left. even Pray, the court? give do in not assigning our client because the court below erred hang him all and counsel for regular special counsel a match for state, aided train of from over the border. by whole them Malice, Actual always of intention needed. the essence proof crime, may express implied. Commonwealth, of all or Brown v. 76 Penn. 319. It is not to a conviction that a motive be Peo- indispensable proved. v. R. Robinson, Parker C. 644.
ple Murder moral when no motive or by free agent, provocation shown, must first it, we take be of the Under the laws of degree. universal, claimed to be sane men act from motives. causation, Mad- it; ness may hhve but with a sound mind and well method proved act as all And in given data, needed motive is the case at presumed. bar, no real intention to murder need be either or proved It implied. if a or and murder fol- enough rape attempted perpetrated, it, lowed. and of fix Take and the act of away rape attempt crime, killing intent, and then his without other of respondent, proof “ Sex, takes the utmost of degree enormity. age, mutila- ” ” lation may not alone over the wide between bridge gulf murder suicide, and death accident, disease, or or the thousand and one mere figments may the brain to hold the door conjured up open the circuit court to have shut and barred. But ought securely kept we make no actual point is, here malice express any essential, kind was made or answer either phase allegation or the case pleadings presented. proofs arson, murder, Under our statute defining degrees rob- rape, in conditions bery, merged there are burglary, given, greater crime, Hence, as mucli as or none of these starving, torturing. poisoning, acts thus or in murder can motive of the murder. No be the act ending it, nor its can be the cause of own Instead thing, being. part motives, acts or are methods or occasions then, these mere attempts of act Hence, murder. tending rape tends prove murder; by and if it is to same token to the act be ex- prove cluded because it tends to the act of rule it murder, the same must be excluded from the act of proving rape. LAPAGE. do it crime, with, may or the means to precede Premeditation Hence, of them seem to take may act of it a time. long
bare shown, bemay in both time range space. Buying poison wide ; doubt, arson, no with crime, it, perhaps may or stealing burglary turn criminis liable to of a former a witness state’s partieeps ; on the evidence, out of the like attempts who put way prior standing or like crimes on other thing, persons, same person crimes, same motives sexual similar relations rise giving all or acts a desire of relations: —in these indicating change marriage cases, more found a is a crime be dis- many books, prior incident, not, this as in closed but them disclosure mere element, And bar, the case at the burden the evidence. understand to be the true rule and of all the authorities. spirit we of all murder cases cited on the covers completely other side: on disposes *24 a of shoot- intent charge shooting proof, kill— time; murder of her hus- at the same at another ing band charge, person of her subsequently poisoned; three sons by being poison proof,— other children children two murdering by her charge, of der Garner’s mother poison proof,— hers, ; mur- house, charge, a in the had of lodger died poison also had wife, charged, of by poison proof,— died, in as a his first and that she lived his servant when wife family ; in bed— infant suffocation charge, murdering died her poison of her other children at early ages; charge, murdering deaths proof, P.; H. had been the defendant murder proof, employed H.— inter- defendant’s adulterous charge, murdering the proof, wife— ; adulterous inter- with another woman charge, course proof, murder — deceased; a between the defendant and the wife course —not down in v. of them in of the rule laid violation single Shaffner “ To act evidence Commonwealth,72 -Penn. 60. make one criminal in mind a between them must have existed another, connection intended to for some he ac- actor, them linking together purpose complish.” in "Wheneverthe quoted charge: Take authority one, this not other crime tends also prove tends which merely man, but by showing to be a bad by showing did in his mind at the time he bad intent to have existed particular as in admissible;” showing, merely by itof, act complained —not him held a native case, propensity, this the prisoner in- them, to be men, in him liable, in kind with all other common ordinately man, be- him to be bad inflamed nor by merely showing aby single so in a instance single him it had been inflamed cause of familiarity per- of his after family, years a member person, bad or inflam- this fascination, but by showing particular haps time, him at this and on mation of to have actuated passion occasion. On on the other side. Take our own case—State Knapp —cited It is not well considered. its doctrine. we do not believe one point it is not logic, it is not sound cases, It has some aid from other B27 act of such infer, does, it is law, common-sense, not good less from much ordinarily having extreme acts criminality incipient to commit strength criminal but more natural ending; but proving is a it is as a alleged, Physical physical crime sound rock. strength fact, fact, to be courts juries like other when proved physical are natural observation expected use their experience own course of defendant case, ability things. Suppose, another he was direction to commit had been issue —that rape man or his might gone victim then, needed, a woman : evidence back to the of discre- time of their births without touching My tion. and on the first point, brother does venture this case out on the last its mistakes have no discretion meaning. Courts entirely or admitting strength life a man’s rejecting middle legal testimony. well twenty it fifteen or back. years shown exertions of It would not do boy twenty, so far back on go those made or an old man would In either seventy-five. case evidence. And this is on questions about there of discretion evidence. When the scienter or essential factor animo becomes an quo problem of guilt be- innocence be solved when malice proof comes acts indispensable conviction, evidence of other like —such may then be Wharton’s Crim. Laws 649. is so when competent. the motive some becomes material account of peculiarly peculiarity its crime, motive,— on some peculiar dependence when the act innocent, as a and its rule, criminality the exception. Under this head we can of all cited on the side, the cases dispose or found in books, base forgery, counterfeiting, uttering paper *25 coin, and under false embezzling, money goods obtaining pretences, fraudulently or and conveying property, kidnapping boys, pledging other fraudulent In intent is transactions. such cases the mate- always rial to be ever, inferred, act, It can if proven. rarely, because the or what constitutes that is like what inno- part crime, is just done cently in of life. everybody every-day *26 money or putting are dark, horses, hunting killing partridges,
purse. crimes tendency has a commit It is not to show that competent with, ¡¡¡¡¡.ate It 15 N. 169. Renton, v. II. like the one he charged that, ground having on the of guilt not to raise a proper presumption likely it he makes it exhibits crime, committed one the depravity would commit another. in a case, strong is modern Oommomvealth, 72 Penn. Shaffner court, considered, and exactly well almost by Case:—Shaffner point. June, 1871; ; indicted for murder of wife wife died evidence poison to show death from main was it hus- question, administered poison; ; Sharlock; band evidence of with one evi- intimacy Susan improper ; dence of who wife’s that a first wife, death evidence offered symptoms husband, died and John Sharlock, Susan’s September, who house, died in 1871, both died at the defendant’s February, similar care wife, as last and that all them were under his symptoms ; at the as as John they wife, time died. Evidence to first rejected Sharlock, trial ; verdict, admitted motion for new overruled guilty — court; or- sentenced to be dered, writ of trial hung; error to new supreme cases, because admission of this Here have two evidence. we might cited, one, back, by others be as able own, our some time — a court as we had : other, date, court, ever able very recent fully sustaining the whole of our now under con- ground exceptions sideration. No well read lawyer need told of these cases is be doctrine the doctrine of all best until Indeed, earlier authorities. re- quite times, cent it far was so removed from as not to be debatable ground questioned. We differ a of its may about the existence. It may reason its owed birth life, to sacred a judicial pro- care for human test against sanguinary conviction that legislation, to a disposition of mind, even when use has too draw habit, bred a frail premise from, inferences on its rea- bearing issues life or death. Whatever son, nobody doubts And ask the to consider existed. we court whether or not may constitution, come under the provision “ all the laws which have on courts usually practised been laws, shall remain and be in full until force altered and repealed the legislature.” much How rules of come within the may scope this provision, has never been determined. We are perhaps, not sure, but think the result point considering. worth Interest as a bar cause, to the was let had to be or down person testifying, act of legislation. “ No rule of law is than shall con- better seitled that the fined to the it, in issue.” insists but likes the point My brother ” ” “ “ terms it, and We insist pertinent relevant better. dp care about the terms. no odds how makes that we know many is, circumstantial facts are that rule put demands evidence. What be each standing around, one circumstantial —circum stems— each one as an proved inference primary premise, which the conclusion is to Plucking verdict be drawn. grass ” to know where sits the wind throwing be sensible enough, straws to tell lacks wit as up well way years hence, it will blow four hill—it has a It is of the nature of water to run down poetry. think hence strong tendency way; inferring but who would alone hill no Making water run down a ? given given point will remoteness in time or how well this evidence space, let us see in no bear analyzing. rape, Premise proved: *27 LAPAGE. general : a way, kind, in except connected this Inference with crime. general : this disposition commit this kind premise of offence. Next offence. disposition in : him. Inference this he committed particular “ Hence, as of fact in Presumptions are truth but mere arguments.” all the is through aid of evidentiary these acts from the gets No this presumption of it is but general argument. mere disposition, And mark, why mark in except the class of common. kind, have such far-fetched too proof lias not been used is argument because the —“ reasoning too thin ”—an of inference from a a chain presumption of fallacies. links, two or three for abundant ample hiding-places “ It bemay arguments.” tried validity the common test of the a ten- Some men acquire, who commit a or single have, thereby crime to commit dency crimes; the same kind of this man —if com- tendency he rape, might have therefore or thereby acquire and if mit other tendency, if he or so such a acquired rapes; be reach, another therefore rape might was committed within his he if more ; if likely rape, to be so guilty likely more guilty to perpe- there was a attempting murder committed in perpetrating this trate rape, guilty to be might likely therefore be more rape, conviction murder; hence of this sort of an ex-parte —a single disposition find a rape, from which are to jury general that kind crimes, in order them out presuming to help We murder. commission can find of another of the a motive occasion rape ability best like it in the and much books: nothing arms profession is all this innovation. up against yAs in this a question evidentiary is no logic, then, power there testimony, As a question it to use trial of this kind. entitling power, law, we have if it that, has already attempted it cannot be any question And if used here. we there say, now reasoning discretion it, about used. On this ought point, cited, already suggests court in v. Commonwealth, Shaffner If the point need be said. But we no point. take time law much does not cannot, case, hope nature of the us, save we of dis that of fact, questions we much discretion. do not believe dis cretion not to go when a man’s life Hanging ought stake. to a cretion. It is entitled for his life. He is our client’s last chance “ “ fair be perfect trial due law,” complexion even process All gallows.” discretion. much on And not go due law does process It testimony. the light the legal his case in to be pure sees jury ought tragedy. should all from the and incidents emanate elements rays of transmission, not unlike shaded in may get toned or to the panel, the bench sunlight by refraction, but, when it passes be free must from court coloring discretion.^ If need witnesses, dumb, speak. Murder will out. Its will though Each from the ground. voice blood will out be, cry of murdered “ devil, born and then case has its horror. Now new peculiar run a ter- must will prey,” who the shark and devil,” like tiger find him will sure his crimes race detection. But be rible crime before *28 LAPAGE.
STATE v. 277 “ out. the most guilty- be accused. Even Innocent men will sometimes charged him, criminal of against be innocent of other offences may “ which he if be guilty tried.” He of fairly may himself might acquit them, and stands still of No charged.” innocent the one with he which one circum- may can tell how be victim of adverse soon seeming again. law, stances. be And been, Such have when things may come, do a wise and firm administration of the the face and eyes of of popular city is our indignation, refuge. “ Who knows committed defend- by found the homicide jury ” ant, on other than that we ? Is it considering have been so said It is so said by general by verdict of ? case made guilty the court says argu- it exceptions. My brother allowing ment. it me, And it is our seems to here that just exceptions, take on brother, their most formidable Even learned after my proportions. years of trial of confused and experience cases, gets criminal mis-' led, of mislead, means as to the use It is testimony. made said by the court, Commonwealth, Logically, commission —“ Shaffner of an of offence is not of itself the commission independent of proof another said crime. Yet cannot be to be without on influence for, mind, be shown to be of certainly, guilty another crime equally henious, it will a more prompt ready belief he might have the one with which he is it therefore charged predisposes mind juror prisoner guilty.” believe the It tends to give undue prominence and to all the weight force other evidence in the case for the It prosecution. detracts, like but in manner, double all portion, from in his the evidence defence. prejudices jury against and inclines them to look him, with on who suspicion come “ forward to Hence, in his favor. is testify only unjust him to himself of two offences instead of compel acquit one, but it is detrimental to that tend to burden a trial with justice issues, multiplied confuse mislead the And jury.” problem “ ” “ human solve, reason and human view this na- experience tural law,” is, not what rule desirable be in a given case, applied but what one, whole, wisest and best to be in all applied cases. ” “ Who can no has ? say that been We found injustice done crime, neither evil nor bad character can tendency disposition, enter the lists as circumstantial 1 Ev. evidence. Phillips (7th ed.) 181. Even mind that Proof that the crime, and admissions made of a similar tendency cannot 1 way, Chitty Crim. Law 504. competent. a strong accused was influenced motive of interest to commit the offence never to charged, proof ought operate delicti. corpus Ev. mind is ex- tendency Starkie 490. When cluded, left, what first which the crime is defendant vestige is to ? has traced to last one Neither mental nor moral science as yet bounds, been out a nor able to mark metes even path blaze a trail, by this border land of safely probabilities entered in criminal legal investigations. facts character, it of isolated is held mere questions proof Ev., 326; and if not no see. Taylor’s can afford presumption —1 character, mind mere element how of tendency disposition—a nobody. it is of everybody; probable character? Crime possible much of authority against inviting juries, We cite amount might In- them, conjecture speculation. more out sending voyages ; and this testi- of crime is not their province vestigating possibilities “ with mony possi- touches on Seven hundred possibilities. pounds, bilities, agone, But a single crime, good gifts.” years bad after, is evidence. possibilities brother this evidence was cumulative.” What evidence says My *29 If what wre have been he means we are not certain. he means quite or evidence, it, no then his notion of with cumulating about as talking it?— is, estimation, Hood, in our like is it, somebody what —Tom be it was salary: nothing about a wife’s says increasing, cumulating, court, status in it can fore, and so it was doubled. If it has no legal can be no distinction neither cumulate nor be cumulated. Here there its or local law, between its as a and relevancy question temporal as a discretion. connection question faith in it in in We say Nor is the good question. putting without indication any it was to the the counsel put by prosecution court, as to how it counsel, jury, respondent, till all the be used. No such indication came from court might its closed, this evidence had done work. evidence case state fact. If make no or bad faith we good merely We point homicide, this found the defendant on other evidence guilty the jury v. need more evidence. Commonwealth any then there ster., no Web- 305; Commonwealthv. 9 Met. and cases there 93, 5 Cush. York, other state and courts. foreign cited from faith, not driven to bad even that was done. charge We are injustice it may have been It done. enough “ In v. 4 Cox C. Lord after The C., saying order to raise Regina Oddy, Campbell, not allow one crime be law of does England proved crime has that another been committed probability perpetrator adds this caution : first,” common-sense logical “Allowing of the of other notes to uttering forged per- be given and I should be to see lengths, unwilling sons has gone great administration of the criminal laws.” generally rule applied had full is a fellow a He license—carte wily jury-box. Prejudice called time, for a before the court testimony long blanche—with Not one the burden is on the other side. him to account. Hence any mind or misled. tell how much his was confused of the can jurors of both these clouds on reason and jealous judg- Law is exceedingly there, and that testimony liable to do mischief, ment for our enough purpose. case, T. it is said Coleman 55 N. a late People, rule is on this court, concurring general all the judges point,—“ “ offence,” evidence of another however receiving persuasive against v. LAPAGE. in a moral of view.” Same case before point the evidence same court in 56 N. Y. affirmed. in N. Y. Up again 555; reaffirmed, said, the court true where rule, doctrine general —“The is, that can sustained principle, and the rule the in- error in the that an admission evidence is tendment of law is preju- and will be for reversal of the ground dicial to objecting, judg- party clearly repelled the intendment record. The unless error ment, must be innoxious.” conclusively be shown who alone is on trial not this defendant this court. If he we he has, contend wrong,” “has received no actual and as ¡there is, for, in up the least, a chance detached say piecing fragments of justice law and the course of case, in his have a right com- integrity for the of the rules now We evidence. plain. speak We of crime in our day. Old-fashioned may have monsters notions may anxiety in my dealing brother’s cases of quite up modern still haunted ghost He seems depravity. subject on his own to the halter confession. mad-house, sent And has he him- root, insane that he self would obliterate the partaken line be- and let men be tried for tween their lives on judges juries, law, reason, natural of natural human grounds experience,” as from like men, by chance chance twelve picked pickings from men without special aptness selected reference training, may chance to ? Is to denounce adopt prepared jury-room rule evi- salutary hitherto, wise dence, deemed arbitrary irrational, *30 way to stand the because it in conviction of a man happens whom, come to he has as ? zeal, regard his surely guilty Your hon- to weight some evidence on might ors the give question of inter- were and est, committed, if certain both crimes same person. here, history But just teaching universal experience, of human nature, and your own knowledge authority an intui- all tion to a to all artificial admonish reasoning,” superior you not to trust a fact entirely evidence of disconnected from the jury main fact certain, from which to draw and not made inferences as their dictate of a man who whim has been caprice followed aby hue whole ever since the cry community detectives first thought track, they scented his trail were crossing following man beat out of first cover hunting them author of this onman earth would be willing terrible No tragedy. to trust his life an ordeal. to such will
In the we make short work of next the rest of place, our bill of exceptions. said that has been It need what hardly considered we regard to its I front. I justice myself, head and perhaps, ought to say of the rest. but little on rely tending All testimony prove chasing the Watson girl we on the clearly irrelevant, ground that it comes regard to nothing, ; it murder weeks before the and therefore is mischievous. It was two same it, was three or four miles from the scene away of day, time same direction from his it was day, residence no they, on what locality, other were out the same when people are shown men doubt, two other deemed At least innocent pastimes. when times be on or near the same road same places him haste but bad is shown of Nothing and where was seen. mother when her excitement. He was never seen near girl except present. testi- this class as to all We wish make this remark general necessity itof It is all mony. two constructions. None open suspi- it becomes Taken man suspected, anything. against points cious what But it is all indifferent. aid, entirely without exti’aneous point. said on this is all that need be submitted a former brief us a Give no we crave fa.ir right justice. We make appeals: us with connecting trial. to meet all the evidence properly We expect if the But no can take exception. this horrid crime. we Against testi- influenced in findings incompetent their
jury improperly mony, it so much ‘‘ —be light, heavy,
As mates the substance the division the twentieth Or part one poor scruple,” Of right complain. then we Olarlc,attorney-general, reply.
Lewis W. of this is unexceptionable, For case legal charge purposes its correct- is no before this court in question regard there because ness. OP
THE TESTIMONY JULIENNE ROUSSE. contends that is not I. The defendant whether for any pur- is admissible there is purpose, whether admissible, which it is not and that the should be judgment pose this evidence is not show that he killed because competent reversed should is, His claim the degree guilt deceased. case; that excluded, every tends part unless *31 “ or to show a in tending homicide, perpetrating evidence attempting is incom- arson, robbery, burglary,” to or rape, perpetrate murderer; is the it also tends to that defendant unless petent, arson, robbery, in a murder is committed the perpetration that when set, empty of a fire left pocket-book open burglary, or it does broken, door or is inadmissible if or a lock the highway, in into may by which the issue question general bear upon every on any short, no evidence is admissible be divided ingenuity —in think I every I do not it other point. tends unless point answer with any time the court occupying should be justified argument. defendant’s to this part 281 II. The inadmissible, defendant contends that the evidence because no actual made essential of a intent was proof raping any of kill- or answer in that the act allegations pleading proof; ing fixed other being defendant, his without crime, proof intent, would be murder the first Under the decision degree. State v. 49 al- Pike, necessary N. H. it 404, 405, was not in this lege of, indictment or attempt defendant’s perpetration perpetrate, But, of murder rape. the defendant order convict in the first it was degree, for the State to prove degree necessary of murder as if it had been it in in which necessary allege the terms it is described is no statute. The first more degree presumed without than it, or a without proof lower mere homicide degree proof of it. v. Bartlett, 224; Jones, State N. v. 50 N. 43 H. State H. 369; State v. N. 510, 525, 50 H. 526. The Sodge, English presump- tion (accepted by the court in Com. that all majority York), homicide is malicious, is an error old barbarous or semi-barbarous times not adopted here. “ may many Homicide be is so in lawful. It well known cases. In many it extenuation; more is and if it may excusable capable so, it often so, is reason, whence where the of attach- justice, ing that which an of law that lawful inference unlaw- ful, and not only unlawful, but unlawful in the highest degree,—or murder ? Why does not the attach as much of innocence presumption to the motive, done, with which act is as to the act itself act, Innocence means innocent as of unlawful well act all. If the burden of the act itself on the proving government throughout, is there not the in- same burden of the malicious proving ? tent It is an evasion of that the latter be- say proved, point cause it is law inferred from the act itself. That assumes wrongful the very ? homicide unlawful The Was the dispute. gov- ernment it; asserts it. accused denies The malice principle, is to be legally inferred from commission of act wrongful done solu- intentionally without us excuse,” cause or does just help tion of the question. remain, still Was homicide questions ? wrongful Was ? Was it without intentional or accidental done just cause or excuse ? In im- cases, always criminal malice is not plied from commission act. it is many of a states wrongful made a crime another’s maliciously injure personal prop- destroy erty yet it is such an offence is not made perfectly well settled that out by simple to or destruc- wrongful injury voluntary tion of such malice. 1 must actual Ben- property. There be proof nett & Heard L. C. C. 361 ed.). (2d A legal malicious, are could be based presumption, all homicides on nothing but the fact that malicious. But generally homicides are is, fact legal that not sense,— a thousand malicious %.e., during malicious. all the murders criminally Europe Compare the last lawful hundred caused years with the number deaths orders of necessary the first time would be Napoleon. long How
vo'l. lvii. *32 murdered lawfully find as in this many persons country War is an ? We are at war Virginia slain exception. of now, nearly and all time since the first settlement have been be, is, or law nothing War but self-defence country. presumed —a of which men Whether the rights may legally defence defend. by be exercised an or a by organized community of defence right single it; in- of or sheriffs military join battle, member whether powers or shot, resisting rioters are or punishment, persons flict capital of atro- authority killed, are or individuals take life for the prevention crimes which cannot otherwise be homicide prevented; cious whether necessity rights under unavoidable the defence of private of advancement is the same. And public justice, or the principle —the a of unlawful, so small homicides are portion ground when what them all unlawful ? presuming there and official destruction of life out the ac- military Leave are so homicides. them count, only private consider Many a grand are never to the notice of they brought lawful that clearly And, found, are in how are when indictments small portion jury. how much degree; convictions murder second there vil- are the first Vice adjudged degree. smaller a portion abound; that kinds and but a all degrees legal lany presumption truth, crime, would be a violation of and a gross capital homicide of the accused. cruel oppression instructed that cannot find defendant they are juries always Our the evi- they first unless are satisfied degree murder, by guilty that killed the de- doubt, all reasonable the defendant dence, beyond “ or other starving, torture, premedi- deliberate ceased by poison, arson, rape, attempting killing, perpetrate tated perpetrating case, comply In this the state undertook burglary.” robbery, by by the first other evidence requirement, proving, with that place, Rousse, and killed Julienne that the defendant assaulted than that of evi- variety the second and, place, proving the deceased dence, including his Julienne assault Rousse, objects made with a intent. The defendant raping deceased which tends to one of the intents neces- unnecessary prove evidence as the is on the court tell the first On degree. degree, to the sary must satisfied state, proof that the burden jury asks reasonable doubt: defendant beyond the evidence was admitted aside, be set because evidence the verdict murder. would be a judicial execution without point The exclusion of an elemen- of intent would be the of evidence repeal on trial sacrifice of vital right every and the person tary principle, con- such a subversion of From law seeking justice, his life. inhumanity. its shocking deterred is not vict of a distinction between the introduction defendant III. The proposes ” “ of the evidence.” or the burden an element incident a mere an attenuated exceedingly amendment of the law would Such *33 283 of legal language, refinement and a Proof perversion legal principle. intent, motive, competent is malice, or mental when condition, intent, motive, malice, or condition is fact material in mental case; material, and when such fact is distinction be- proposed and element is immaterial. incident tween IY. The admits no would think of lawyer defendant (what denying) “ animo an factor in problem when the becomes essential quo “ guilt solved,” innocence to be such evidence of other like acts “ fact is a may be What in this case more essential competent.” fac- tor,” animus, relevant material fact, more than the the intent, ? trial, with which defendant assaulted the deceased At the that intent for him an issue of question life death so it now, and is will be while this remains in the hands case a human 0/ tribunal. His life And in depends on that what intent. sense would if it used, were said that a fact which language his life the law upon makes is immaterial. intent is as depend His material as his life, is the which the against runs, thing judgment against which the would run if judgment the intent had not been proved trial. In a number of the great decided cases which evidence of in- with which other tent similar acts were committed has held been com- “ the defendant petent, claims the intent peculiarly material.” “ “ cases,” In such he the intent says, is material to always be proven.” Intent is either or immaterial; material and its materiality is a legal But, in question. evidence, admitting the law rejecting does not a distinction proceed upon between evidence that is and evidence that “ is not And peculiarly material.” if there a rule of evidence “ based on such indeterminate distinction, what be more would pe- ” material culiarly the defendant’s than an case, intent which is decisive whether shall ? he live die The defendant admits criminality that when the of an act depends “ the intent with which the done, act the intent may well be from other learned acts kind.” lawful; the same may Homicide unlawful; it may be Its it it may be a crime a moral may be and legal occasion, duty. character depends upon the circumstances, and the intent. Of itself, it as indifferent as any other act the guilt of which consists in intent. 4 Bl. Com. 176-188. if the defendant killed fault, the deceased and without accidentally, innocent. If he killed necessary child, her defence his his act was meritorious. His proved because it raping material. It must be in order to convict him a proved proved, mistake. crime. If capital not been I should have moved to set aside the verdict aas murderous Y. The defendant Courts no says, discretion admitting —“ “ or rejecting legal testimony,” go by not to hanging ought discre- STATE v. LAPAGE-. “ court, In tlie bill of exceptions, questions tion.” transferring ” “word discretion discretion,” evidently to the exercise of used the in legal argu- sense in which is used decisions and technical “ Judicial discretion is exercise of final ments. judgment as, in tire decision fact from their nature questions court case, province the circumstances come within peculiarly 116,120. N. H. to determine.” presiding judge Bundy Hyde, *34 technical, in de- discretion, legal sense, Judicial its is the name the of “ the court.” v. questions by
cision of certain fact Westmore- Barling land, limits as to 52 N. H. 408. No doubt there would be some uttering evidence in- beyond forged time circumstances which would not What these struments on occasions permitted. his Roscoe are, limits is for the in discretion to determine.” judge “ In Ev. 95 to the distance of time ed.) regard place) Crim. (7th (or the in between fact issue the collateral facts proposed principal intention, admissibility shown in the so far as it the affects proof no rule has laid rests down, the evidence been but the precise cited Gr.Ev., discretion of the 8 and authorities the my sec. judge.” former brief. the dis- VI. of intent is by The of evidence not affected competency that When capital. between are those that are not tinction offences was sixty crimes, there were hundred and the question capital were, what were not counterfeit Passing what offences capital. servants, insignifi- offence), trifling by embezzlements money (third thefts, great as well and a variety delinquencies, cant petty 1 arson, &c., by death. robbery, were forgery, burglary, punished The of the legislative penalty on Punishment 82. reduction Montague is increas- no for a alteration of the rules of reason evidence judicial intent, criminal the difficulty the ing proving the defend- Com., v. Pa. St. 60 case which (a VII. In upon Shaffner evidence reversed that the ground ant relies), judgment that evidence Sharlock was having received the defendant’s poisoned “ “ this court, substance,” say Nancy. own wife he poisoned Sharlock, as evidence to show that the prisoner poisoned an offer no his own It was held there also wife.” that he poisoned wife Sharlock’s marry previous purpose the defendant’s evidence Susan. Susan to marry The The court say, previous purpose —“ connection, without link in the chain to complete broken as to make Sharlock’s are so connected of both probably the deaths If that decision on the trial the death of Nancy.” evidence death inter- case, I insist that the adulterous should point were life insurance Susan, and Sharlock’s between defendant course link; and that defendant, no such broken obtained left money, an in- drawing weighing decision was reached oflaw not be a court passing could drawn of fact which ference on the has bearing competency But that decision no question. the legal v. LAPAGE. of intent. The in relation to only question considered was, competency tended to the act of Sharlock poisoning whether act of The instructed prove the poisoning Nancy. jury no “ if difficulty guilty all, there can be ascer- taining murder of for, must degree guilt, being by necessarily poison, administered ”—and that in- first degree, purposely struction was held was based on right. reversal judgment a supposed broken link in necessary the chain to the inference of one act from and not on a another, violation of rule allows the intent of act,— one act be inferred the intent of similar distinct a rule which court, 169,175, State 15 H. Benton, N. expressly declared did not infringe. VIII. When says, the defendant claim is the evi- No made dence to find intent helps in so far forth find as it helps bent of mind or inclination to kind crimes,” commit that he misap- prehends the argument which I endeavored former present my brief. The State claims that it is settled ad- authorities, mitted by the defendant, that when intent with which the defend- ant’s act was done, or the intent with which he had possession *35 or person is a material thing, part him, crime charged against evidence is admissible to show the intent of his acts on other occasions. The State claims that a charged against is a raping intent material of the crime part defendant; that, this the under circumstances this case, without such an intent, ought could not be and not to be murder; convicted of the first degree that, the under spe- cific instructions given found, the by the on other court, jury than that of Rousse, Julienne that the killed defendant Langmaid. Josie With that verdict, the facts stated the bill of exceptions show that he killed her, her, not or by poison by starving, seizing taking pos- session of her, her; an assault making the State claims upon that, as matter law, the seized, intent with which he took possession of, and assaulted other women, evidence of the intent young which he seized, took of, and this victim. possession assaulted Whether the fact that he assaulted, or had sexual killed, others, intercourse with is evidence that deceased, he committed a like act the is not a question here. For case, the of this let purposes it be well settled as the wish, defendant have may reason to that the fact of his having- committed a certain act and his upon others, general disposition commit such an act, are not that he legal evidence committed a similar act upon the deceased. It is well settled that his equally intent, one act or possession, evidence of his intent in another similar act or possession. The defendant admits that the law is so when intent the case, peculiarly intent, material. And in this his is not peculiarly material, there is no in which it in- imaginable case would be. Mere criminal; tent kill is when homicidal intent acquires criminal occasion, motive, character the or the circumstances, it does homicide to in the carry degree the highest guilt, except v. LAPAGE. to kill the statute. The defendant’s intent few cases specified which he has been not the gist deceased offence capital it must be fatal, intent is the fatal fact. raping convicted. His To be The methods it are rules prescribed general
proved. proving intent, and not those to acts. relating relating no law inconsistency There is when the admits special peculiar as evi- occasions intent of other similar acts of defendant on other admit such of his in the and does not dence act question, case, may other acts as evidence of the act. In the former alleged done similar were fairly inferred acts different occasions or intent,'though any unity continuity plot. with like without case, act on one latter it would be a different to infer an very thing occasions, with- from his commission of similar acts on other occasion within settled plan out to show came anything If mysteriously disap- or mine—should yours fixed purpose. child— that the of Charlie Ross tended not think abduction pear, might we that ifBut person. children had been taken same both yours taken boy the Ross kidnapper proved seizure, intent he made mine, and were with what a ransom from doubt that his intent to extort would anybody proved same man- show an intent you Mr. Ross tended to to rob me evidence appli- ? is there ner What difference principles other, are sex or the money by cases, to such the victims of one cable whether extort- intent of the is make alleged brigand whether as in into captives slavery, ransoms from sending ing parents as in Turner, avarice, or to other than gratify Com. some passion and in State v. ? Evans case simi- from the intent of other may The intent of one act be inferred If from the others. acts, lar one act not be inferred though ais mere said inferences legal difference between such is, that the law permits answer strength, my difference their ; and two, and does not drawn stronger permit *36 to and not is, to the as business here is contend for law my that toler- law so changed whether the ought the question argue both inferences or both. prohibit ate forbids and rule, qualifications exceptions) various The which (with same acts, or the from similar (what act to be inferred other one to commit inclination, tendency from a thing) general disposition, com- the of world where is found in that small acts, part Westmoreland,pp. As Darling in suggested mon law prevails. of judicial been a may piece of law English this peculiarity severity and in merciless undiscriminating mitigation legislation IBut sixty offences. criminal of one hundred and capital code rule; I do of that do not the court to investigate origin invite ceased, adapted of and that it is reason it has argue that court ; I not ask the offence do to criminal code of a solitary capital in that, our I do insist it on other any that reject ground: of the defence- perils in of the new crime, humane the increase code, v. LAPAGE. of less, the and in panic reigns many the terror parents, as well as on and fre- places quent roads, in the constant obstruction academy defeat of influences, mistaken justice sentimental pity, relaxation of general decay demoralization of and of society, principle, government, there is wish they that can induce the court to nothing had the in the law the defendant’s intent power change by excluding one act on the of his in similar How fear- another act. fully such a change would arm of and endanger pri- cripple justice, vate rights person, been en- reputation, they who have property, gaged the administration of know. need the criminal law well We reasonable, all the just, efficient means now available for detecting, convicting, punishing lawless, restraining the elements society that are hostile to its welfare. No evidence can be be cannot be competent An spared. inference as to the defendant’s intent act, may drawn his intent in other similar That acts. rule safely annulled. I contend for it, law, rea- required by imperatively son and justice, and ex- indisputably authorities, established admitted plicitly defendant; and I suc- anxiously my hope cessors may not be disabled in of their duties performance abolition of a rule so necessary protection community. Cushing, C. J. The testimony Mahair, Fowler, Towles, the was, Watsons, and I Mercy, think, It all properly admitted. tended to show that the prisoner, murder, about the time was frequenting neighborhood a view to the commission of the crime of rape upon the person some one of the he knew females whom young have occasion to over that pass road. The obscene and filthy language he is described as using, connection with about one of inquiries ladies, young tends to show mind, what in his thoughts what he was meditating. of the Watsons and testimony Mercy tends to show, not merely commit the attempt design crime on the person Miss Watson, but also to show generally, connec- tion with the other testimony, he was about that prowling place purpose lying wait for whom sacrifice person might his base and cruel It furnishes an designs. illustration the doctrine which I shall attempt illustrate maintain. The attempt com- mit one stances which put offence when attended with circum- it a give connection with the fact in logical issue, not otherwise. The admission of the testimony Julienne Eousse rise gives to by far the most important question the case. That testimony tended to prove that the about prisoner, four and a half years before the trial, at a place beyond the jurisdiction States, the United committed the crime other than deceased and rape person the question is, whether that bald, fact, naked in evidence, ten- being put dency to prove any matter in issue the State and between the de- *37 fendant.
These in questions regard to the items of relevancy tes- particular v. LAP AGE. case, of the
timony circumstances always depend upon peculiar and must be solved of sound and common judgment application sense. It as men in the very often happens, practical profession well facts which in one of the and one as- know, that state evidence pect in the entirely irrelevant, change the case are suddenly, slight conditions, necessity, become of Hence the great importance. in- which in testimony, so often take written happens attempting en- into a so facts which at first seem troducing many sight deposition tirely irrelevant, may which become admissible important; hence, too, in one reason criminal causes it is so why important court, should in and in the of the testify witnesses open presence all in order that their should be available to respondent, knowledge trial. meet exigencies It is this reason that so many for cases in the law of evi- reported valuable, not in dence are so much as establishing law, principles of those illustration principles. mass of similar in circumstances, There is a cases so their great often, occurred so of the they may which have betaken as evidence many of the common-sense cultivated reason of
application great and so come to have the force and individuals, of established authority law. assume, outset, in may I think that it is of an ac- we not the quality otherwise, tion, bad, lawful, as as unlawful as which good criminal or true, I to determine its take it to relevancy. be generally be it has prisoner may put him, act of the provided against tendency to matter issue legal prove any which logical thestate, him and an indirect bear- notwithstanding might between have, not to other matter ought which strictness some ing, that in some be, resulting in issue. It cases the may danger be so with its might great importance indirect bearing comparison its ought on which that it bearing to matters regard legitimate, I think is, But that no general testimony to be admitted. rule has issue can ex- bearing upon any a legitimate point cluded. because, al- I hearing advisedly, already suggested, say legitimate a matter relevancy undoubtedly testimony originally though common-sense, many still there are instances which the of logic has facts issues been bearing upon particular of particular evidence so often the law, in courts of and so often ruled of discussion subject great lawyers may logic many judges that the united upon, individ- common to many furnish of the sense a great said evidence of what called may the best uals, and, therefore, properly common-sense, of law. It is authority acquire and thus become, has to so relevancy testimony that the subject reason and that we authority, matter extent, precedent great with relevancy. of its legal entire propriety speak outset, to me to in the notice what however, appears proper, for the the able argument commencement very be fallacy *38 v. LAPAGE.
STATE
It
State.
timony
other tes-
says, Under
charge,
upon
unexceptionable
—“
than
of
the
Eousse,
that
Julienne
the
have answered
first
jury
e., Did
in
affirm-
question
ative.”
the defendant kill the deceased
the
?]
[i.
If
could
did
it
known
that the
not
certainly
give
jury
weight
determining
to
to in
whether the
testimony
pris-
the
excepted
act;
oner did the
if it
that
certainly
could be
known
the evidence
did
Julienne Eousse
of the
jury
create in the minds
prejudice
against
case,
on all the
his
remark might
points
—the
is
know,
well founded. But that
do not and cannot
what we
just
although what we do know of
the constitution
temper
juries
in
creates
us a very
belief of the
strong
contrary.
I
this
it
case
to be
that
government
conceded by
understand
is not
killed
relevant
who
showing
purpose
deceased, but that it is
to
claimed
be relevant for the
of show-
purpose
ing the
act that he was
in
when lie committed
particular
engaged
doing
the murder. For the
to be murder in
purpose
the offence
showing
that,
the first
it is claimed to
to
be relevant as
show
he
degree,
tending
committed the
in
murder while
as
the act of
iiut
committing rape;
intent is
mysterious
solvent which
for the admission
opens
way
of the
testimony, would not be
purpose
showing
relevant
that he had first committed a
did
after-
then
the murder
rape,
ward.
then, to consider
Proceeding,
matter,
what has been settled
I
think we
state the law in
:
following propositions
1. It is not permitted to the
to
attack
character
prosecution
the prisoner, unless he first
his good character.
that
issue
puts
by offering evidence
2. It is not
permitted
show the
bad character
show-
defendant’s
ing particular acts.
3. It is not permitted to show in
tendency
the prisoner
disposi-
tion to commit the crime with which he is charged.
4.
is not
permitted
evidence other crimes
give
pris-
(It
oner,'
unless
are so connected
with the
circumstances
particular
crime in
issue
that the
fact with its circumstances has
some
bearing upon
issue
trial other than
is
expressed
three
foregoing
propositions.
law,
is a maxim of our
that
man is
to be innocent
every
presumed
until he is
humanity
to be
of all
proved
It is
guilty.
characteristic
the English
the character
speaking peoples,
you cannot blacken
party
ordinarily
who is on trial for an
come
alleged crime.
/Prisoners
before the
court
jury
disadvantages.
very
under manifest
fact that
is
a man
is
charged
many
with a crime
sufficient
create
minds a
that fair-
belief
he is
It is
guilty.
quite inconsistent
ness of
every
trial
which
man
should be
entitled,
jury
that the
him
the is-
prejudiced against
what relates to
evidence except
sue
character,
should
above all
it not be
blacken
permitted
show
worthless,
the sense of
lighten
responsibility
rests
worthy
that he
jury, by showing
painstaking
v. LAPAGE.
anato-
trial is what the chemists
care, and,
short,
mists
vili.
call
in corpore
experimentum
issue
fit
Of
if the
his character
course,
put
sees
respondent
that it is
then permitted
tending
good,
offering
*39
bad;
it is
showing
to
that
testimony
to rebut this
by
prosecution
must be
that
but I
is to
this
authority
think
the effect
the,weight
but
evidence,
facts,
done
not of
by
reputation.
particular
I
no
is,
The
in
in
intent,
particu-
law
regard
apprehend,
proof
unless
facts,
lar
in
to the
other
law
proof
different
regard
it may
ordinarily
that a
general
presumed
be
principle
person
evi-
But
always
intend-the natural
of his actions.
consequences
dence,
and logically
that
it
subject
legally
will be
the condition
other
it
intent or
issue,
tends
in
whether
facts
prove
fact.
established, by
think
illustrated,
are
and I
foregoing positions
citations:
following
“
issue, and
in
a
has
his character
Where defendant
voluntarily put
has
said the
it
been
introduced,
evidence for the
has
prosecution
been
has
facts,
though
examination may be extended to particular
—
it is
certainly
lately been denied
courts
by
high respectability;
issue,
real
defendant,
irrelevant
very
to
a
as well
oppressive
con
a
facts, forming
in
admit
rebuttal a series
independent
cited,
687.
sec.
Law,
1
and cases
stituent offence.” Wharton’s Am. Crim.
“
in
issue
While, however,
by
prose-
character cannot
put
bad
where
misconduct,
cution, it is
to introduce evidence
permitted
prior
or
individual,
guilty
it is
either to
malice towards an
relevant
prior
Wharton, sec.
and cases cited.
knowledge.”
“
into the
cannot enter
But in other criminal cases the prosecutor
him to
so
call-
enable
do
character,
defendant’s
unless
defendant
ex-
it,
in
then the
cannot
ing witnesses
even
support
prosecutor
—and
facts,
of the
amine
character
defendant
into particular
general
296.
Prius
Buffer’s Nisi
being
issue,
coming
collaterally.”
put
“
bad
for
to give
But it is not
the government
proof
competent
line
first
defendant,
opens
inquiry
unless he
character
Com. v.
presumption ground having one it depravity exhibits makes it would commit another. likely commission Logically, the of an offence is not independent proof, itself, crime; to be yet commission another it cannot be said mind, without certainly, influence on the if one shown to be guilty heinous, ready another crime it will belief equally more prompt that he might with have committed the one which he is charged. therefore the mind of the predisposes believe the juror prisoner guilty. To another, make one criminal act evidence of connection between actor, them must have them linking existed the mind together some lie must be or, intended to purpose accomplish; necessary to indentify of the actor connection person shows that he who committed the must the other. have done Without connection, obvious it is not unjust' him compel one, himself of two offences instead of acquit detrimental tend burden a trial with justice issues multiplied to confuse and be in criminal jury. guilty mislead most nocent of which, if him, fairly tried, other offences charged against he might himself. From the nature and character acquit prejudicial of such it is it should not unless received, obvious mind tends, plainly the commission of the one perceives visible oner. connection, to the commission the other pris If the be so clearly dubious that the does not judge connection, doubt perceive benefit of the should be given prisoner, suffering instead of the minds of the to be jurors prejudiced by an independent fact it no evidence of the par carrying proper ticular Commonwealth, 13 Am. guilt.” R. 651. Shaffner *41 “ It is, for therefore, not the to evidence competent prosecutor give of facts to another distinct offence the tending prove purpose an raising inference that the has committed the crime in ques- prisoner tion nor is it to has show that he commit tendency to competent the Thus, for an offence with which he charged. prosecution offence, infamous an admission that had committed prisoner he re- such time was to have offence another held been properly Rex v. cited in 1 Ev. 499 State jected. Cole, ed.).” Phillipps (8th Renton, 15 N. H. 174. The v. Corbin, case of 56 N. Y. well illustrates the prac- People tical doctrine. indictment was for application forging of this The defence endorsement of one Van on a note. The Ambui’gh promissory was, name. that was Van sign authorized prisoner Amburgh’s The prisoner authority, attempted had but prosecution had of the that had been authority revoked. or innocence Avhether guilt depended upon inquiry prisoner’s that authorized to endorse- believed he was make the honestly revoked, and that had ment, authority whether he knew been signed with To Van name criminal intent. establish such Amburgh’s intent, was offered show his tending acknowledgment he had made a law on use of name of similar unauthorized his father-in- The county jury other notes. as follows : judge charged “ While that he has been of other evi- proof guilty forgeries not dence him you are convict of this forgery, yet this, far in connection so are in the forgeries case, you at consider, in have the his what intentions right determining far, time this made uttered. So con- paper you may sider all case, of evidence character determining the intent at the this made time and uttered.” The paper judge also, said, The fact that the defendant is charge, guilty of other —“ forgeries is no he committed forgex-y. So far as his Ganoung admissions to concede the commission of forgei’ies n against they may by you be considered Ganoung, determixxingwhat was his intent at the time this note made uttex-ed.” - The verdict was set and a new trial aside, granted. coui’t, J., in delivering judgment said, The—“ Rapallo, cases in which other than offences those chai-ged the indictmexxt may be for the proved, showing guilty purpose knowledge intent, are very think, few and this, we one of them. The fact that the prisoner made an unaxxthorized use of the name of Ganoung, if established, shows that was morally he capable committing the same show offence that he did Van does not against Amburgh, tend legitimately so, or that he knew and understood that Van Am withdrawn, or that bux'gh’sauthority tion had been iix signature ques People with criminal been made intent. v. Corbin, ” 15 Am. R. 429. The cases been cited counsel which have for the government af- ford full laid illustratioix of the down in what has been principles said before. ,It is what remark seems to however, me to be a proper, fallacious use of the word law fx’om I Ordinarily, is, think, intent. an infex-ence of is, The maxim that every acts man must be proved. taken acts; to intend of his if the natural he consequences knowingly law, an act which is in violation of voluntarily does held I true, have intended to the law. This think would be violate whether he did or did know the act was unlawful. a man Thus, voluntarily should utter a foi-ged bank-note, or a coun- knowingly coin, he would held whether he did or did xxot guilty terfeit know that the act was unlawful. admit of being
The cases cited counsel classi- government into several fied distinct groups. *42 of In the fix’st the class cases offences are place which To this guilty knowledge. for the of class be- purpose proving shown / for which, uttering iix the trial ixxdictments forged those cases long coin, of other offences of the bank-notes, counterfeit same proof It that a might might is admitted. well happen person kind v LAPAGE. it to be knowing bill coin without counterfeit liis a possession single twice, repe- and every do so such; likely be much less but he would that he knew an act would increase probability tition it, If did know guilty counterfeit. lie bills or coins were the would be To this fact. not an inference law, an implication v. in the brief. cited belongs Roebuck, case Reg. class becomes neces- those in which class of cases consists /Another was was indicted for which the to show that the act sary prisoner twice same had shot the person where the prisoner g., accidentalyAe. grain had fired rick of the same a time, within a short or where person in the same had taken place or where several deaths twice, poison died. had mysteriously of the same mother or where children family, ac- shoot another should well that a man happen
In such cases it might time would be short do it easily within a but that he should twice cidentally, using gun man that a unlikely. So, might happen very do it that he should accident, but a rick of once barley fire might very improbable. times in succession would be several several per- but that of accidental So, might poisoning, die person very times would so same at different family sons should unlikely. die might hap- its mother that a should be suffocated bed So, child could once, family similar deaths in the same but several pen as accidents. reasonably be accounted for entries, false means of So, in the case of effected by embezzlement made; the probability entry might accidentally false single increased. least as fast as the instances would diminish at of accident v. Reg. v. Geering, Rex v. Voke,Reg. To this class of cases belong v. Dossett, Reg. v. Bailey, v. Rex v. Cotton, Roder, Mogg, Reg. Reg. for the prosecu in the brief Proud, Richardson, v. v. cited Reg. Reg. tion. , commission of the There is another class of cases which proof the crime one crime tends to show motive the commission is charged. the prisoner / A., hav H. “A. was indicted for the murder of opined did so H. him, and that hired H. to murder P.,had malice against ing a discov detected, prevent A. had murdered H. to but that H. being P. murder of of his Evidence ery guilt respecting (A.’s) P., and it was A. of malice used towards given expressions H. to show also might give held prosecutor Rex v. P. had been murdered.” in fact the whom person by 221; P. D. Clewes, Littledale, 1, 1942. 6 Car. & Har. ab wife, in the of his trial of for the murder On the petitioner between intercourse evidence, of direct adulterous sence admissible, repel presumption and another woman Watkins, from the relation.” State arising innocence conjugal ; 2 D. 288. Conn. U. S. 47 defendant in Com. v. the adulterous intercourse So, Ferrigan, murder. for the motive tends to with the the deceased wife *43 LAPAGE. STATE v. In cases goods pretences, under false indictments obtaining kind
very often that the has some of busi been respondent happens ness of which a credit makes buying selling goods part; such case the to draw line between the difficulty is, points where single legitimate and fraud In such cases begins. business ceases purchase goods might ordinary on credit course of happen business; but if should make several goods party purchases time when have failing circumstances, he was in fact would some .that tendency to that he was in failing circumstances, show that knew and that he did intend them, to that he should pay expect able to be upon do course the of such would it. Of effect testimony depend and amount of such number purchases, after-disposition the goods and all To this purchased, the other circumstances. class v. belong cases of Com. Eastman, Obear, v. v. Bradley Hovey Grant. Another class of cases consists of those which the evidence tends show a act of general that which plan conspiracy, is in To v. The this class Mason belong State, and Com. perhaps issue./' Turner & v. Shearer. If the indictment were for a common seller being spirituous liquor, proved could be than charge way hardly any acts; showing many conversely, a man were specific proved a professional that would be counterfeiter, tending show Of this are Rex guilty intent. Balls Com. description v. v. Edgerly. !In crimes, the case of as fornication and adultery, sexual where the object is has prove that committed the crime with respondent particular individual, evidence acts of tending inde previous cent familiarity would have a tendency breaking down and removal of the and the safeguards self-respect modesty, gradual Proof advance, to the crime. the actual commission step step, still strongly same crime would more tend to show the removal and still those more to make safeguards, probable commission belong crime on To this class v. Horton, trial. Com. Com. v. Thrasher, Wallace, Marvin, State v. State Com.v. and Com. Merriam, v. Lahey. should also being remarked that matter of judgment, likely always would not some quite agree, is might extreme the case courts courts see a where others But connection could not. however logical Ibe, think it be found that will the courts always ter the admission on the ground professed put testimony there connection between the logical crime proposed some tendency other than the to commit one proved crime manifested the other. tendency commit consideration, In the I cannot see con- logical case under nection, commission of the Julienne Rousse and rape between the I murder as the law am unable requires. Langmaid, Josephine see from the first be inferred connection which crime can AGE. LAP STATE v. when he rape that tbe tlie commission respondent attempting *44 such it, other than inference murder, committed the if he did Proof crime
understand the law exclude. the first to expressly would bad man—would very show that the was perhaps respondent crime; that but it show a tendency particular to commit disposition little more than an would amount to further, would no and in fact go inadmissible character, attack which is unless the respondent’s upon issue, it in an puts by showing particular attack character upon acts, which is also inadmissible. necessary There is which makes the extremes! another consideration testimony, is, caution in of this kind of and that the the admission the such respondent by which hardship upon raising would be imposed issues, might which be introduced collateral and the great complication to assert that this into the I do not intend consid- trial. means by any if the collateral has how, eration do see fact is conclusive. I not to fact in stated, the legal tendency, issue, the I prove principles it can be excluded. of the It Julienne clear, rape seems to that the evidence me to admissible the Pousse commission would be admissible, were it equally offence, and that government similar the any other the fact. would not be to confined direct that is day the there a vehement We learn the newspapers murdered Josephine Langmaid that who the same suspicion person would be admissible equally Miss and it Albans, murdered Ball at St. The necessity other. try to that case and that as the prov- fact combination of circumstan- by elaborate ing fact, wholly an partly admissible. evidence, see, tial make less not, would that lean on the It prisoner compel would hardship extreme certainly I mention this case to illus- him to enter such an upon investigation. such to admit un- testimony trate of extreme caution necessity connection, such as the logical less there can distinct be seen some to be and the fact law requires, between fact proved proposed issue. 342, the law in regard 119 Mass. O’Brien, the case of State fully satisfactorily is very as to character admissibility of evidence what term character concerns that the distinction, discussed. The him, what is said of is kept is, man and the concerns term reputation mode view; only legitimate shown clearly plainly reputation! by showing character proving charge of that part I think Now, a careful examination substance, amounted that it really, to this will show relates find of the the character pris- were instructing jury from such character Pousse, and infer from the by oner fact proved It and lust. by passion that he would to be actuated likely from- act find, particular that they might really instructing jury unlawful and man possessed' character as proved, prisoner’s pas- that he was from that actuated lustful and infer passion, reduces itself matter really sion his conduct to the deceased. attacking prisoner’s acts, character particular which the authorities inadmissible. clearly show be This portion to, charge, though expressly excepted mentioned as with which the showing view evidence ex- particular cepted was admitted. * ** Ladd, J. All murder committed or at- perpetrating * n * * tempting murder perpetrate first rape degree.” Gen. Stats., ch. sec. State claimed 1. The (1) murdered Josie A. that the murder was Langmaid; (2) her crime perpetrating attempting perpetrate rape. Both these facts of not in issue put plea guilty. its supposed testimony issue that the bearing the second Julienne Rousse admitted; and the who judge charged jury guarded *45 against any evidence, other that so far as a of application direction from the bench could that the minds of upon effect the jury. The ground which the upon it, told consider they might were jury deter- mining whether the or to prisoner perpetrating attempting perpe- trate rape when he that it murder, was, the committed bore the upon question intent; of and to say subtle, the ingenious, of argument the attorney-general I it, rests as understand on the wholly, same ground. He says, If he had counterfeit money at the passed prisoner] —“ [the time and place Rousse, when Julienne where and other raped counterfeit money had in his at been found the possession time place-when if where he killed Josie he had Langmaid got negro boy into his at possession the former time with place intent send him into boy another slavery, got negro into possession at the latter time and place, any there be doubt that his intent —would on the former would occasion in fact be considered by every intelligent member of the human as to some family weight question entitled the * * * of his intent on the latter occasion? What is there in the act, the circumstances, or the intent or of counter- kidnapping, passing feit money, us the that makes feel force the probative proved intent of one occasion four years the intent and four upon question months afterwards, and our force of such prevents evi- feeling Starting, probative ” dence in the then, ? present case the claim that this evi- dence was it is intent, admissible upon question under- necessary stand just what intent to intent is'meant. Was an commit the crime of murder ? Certainly out, not. That crime must be made as fully the learned judge by told the other and inde- correctly entirely jury, pendent said, evidence. He It is a fundamental law, principle —“ that evidence that a defendant committed one offence cannot re- ceived to that he another and distinct offence. This And, principle must take not to violate. are not therefore, you we care to regard as or evidence of Julienne Rousse evidence that Therefore, you killed Josie unless find prisoner Langmaid. Rousse, of that evidence, entirely Julienne independent must Langmaid, you killed and murdered Josie prisoner (cid:127) VOL.lvii. . This, reject b'er evidence all altogether.” course, covers questions intent, as so far regards crime murder.. itWas an intent to commit ? The an- murder first degree only swer to surely this Such a intent could negative. general be shown in one killing deliberate premeditated statute, Besides, out this ways ques- or otherwise. pointed tion, like the seems to The other, answered fully charge. consideration, told that jury open your all, far you so may bear the character upon s.eem homicide of Josie as.it Langmaid; only bear may whether she was murdered attempt- perpetrating this evi- ing rape.” then, The which it is perpetrate intent, claimed establish, or at- was admissible to dence was an to perpetrate intent at the Langmaid the crime of A. tempt time he murdered her. But an intent to perpetrate upon Josie rape orto attempt perpetrate rape, to make crime, the the of that is not what the statute perpetration requires is, said murder in the first that can be degree. most killing most others. may crimes, constitute an element in as in those statute, as the intent To meet the as well requirement act be shown. The whole must crime perpetrating attempting in- out, must be made and that rape includes questions perpetrate or at- be involved. tent Was he the act of perpetrating ? To at the time he did perpetrate killing tempting the state said issue; rape Tes; distinct No. Here was clear prisoner, noth- as distinct as had been just clear and there just though to commit in the case. The state charged attempt else ing rape, be mur- as the basis of their claim that should crime, the verdict *46 claim or the in the first This must degree. charge they der prove, ? What is, it fails. The is it to How be upon question proved based to ? Is upon rule of evidence be evidence to be received applied is the the ? If alone trial that would be inadmissible charge rape humanity, ? What of or so, what ground principle law, logic, upon of a finding to when the prove rape admit evidence consequence will death, is the same when exclude evidence prisoner against of ? I the..argu- loss do know whether in liberty consequence should be that a for the holds distinction this State respect ment industry attorney-general Certainly, ingenuity made. be to out which evidence that would any ground upon point have failed that indictment for the trial of an rape upon inadmissible trial of be when on the can received alone, prove rape charged' crime an indictment as in the first on the State degree, for murder relied And I confess of that offence under the statute. element essential which shadow reason imagine upon for me isit impossible then, What, sustained were forth. put claim could be such this : ? no other than Clearly, exception presented question liousse, that the committed Julienne prisoner rape upon Was evidence or at- admissible to show that he committed in legally Canada, A. Pembroke, Josie rape upon Langmaid, to commit tempted ? 1875 There was no and as question strength to the defendant’s physical ability refinement, therefore, commit the crime of noBy rape. can State v. 45 N. H. be said to There is no room apply. Knapp, nor occasion to tliát actual argue of perpetration rape upon woman tends to show sufficient to commit the strength same physical crime another. No such link is in the case. The connecting simple naked stated, namely, that Can evidence that he question just committed one woman be received which rape upon the jury may find that he another ?—the two committed rape -upon events being entirely distinct, connected in independent way —no time, or place, cannot, or circumstances and we suf- my judgment, fer form, question and dis- changed covered up guised by intent, observations as to vague general the matter however astute and without imminent our plausible, danger losing inway fallacy wilderness error. The answer to question is to be sought for common law recognized authorities and I must that if say, authorities, there break those any want unanimity answer which I have they give, failed discover it. Doubtless some of we the cases which have been referred run pretty near said, the line. But my no court has yet knowledge, that the commission of legal one crime is commission of another, when there is time, no connection of or circumstance, or in- place, tent between two, the commission of first except tends to show a heart committing second. capable me, This very question was answered in the .'same seems to way, by the said, learned when It is a judge, fundamental principle —<£ law, that evidence that a defendant committed one offence cannot be received to prove that lie committed another and distinct offence.” But it is nevertheless argued behalf of the I State have not (if wholly drift of the misapprehended the that the evidence argument) because, admitted as matter its fact, natural tendency was to produce conviction mind that the rape upon his victim at the time he took her life. The learned attorney-general says, is, here question whether, fact on those of nat grounds —“ ural law, reason, natural and human experience, upon question fact must decided, which the defendant with0 assaulted Julienne Bousse is the intent capable affording any light * * * with which he assaulted the deceased. be admitted, will I suppose, every intelligent untrammelled technical person, rules, will concur in the of the circuit court. And the opinion *47 being one fact unmixed with pure law, therefore not subject technical rules, on what will unani one dissent from the ground ” mous ? judgment of the rest of mankind unanimous further, And that ££ judgment is every and irreversible spontaneous judgment grade of intellect that is has this state appeared, likely appear, of existence. It is an involuntary and unavoidable perception inherent and and intention, self-evident a mental relations conduct revelation as natural as and as and unanswerable memory, trustworthy as consciousness.” STATE v LAPAGE. this., in-
I shall If I know deny not undertake a man has broken am for ready house stolen I that reason more my my goods, him my into and commit- breaking neighbor’s believe house guilty not trust a noto- the same crime there. We do our with ting property infa- rious cannot a man life and thief. We of evil help suspecting every mous character sooner than one who is be free from known to loath- naturally taint of or crime. recoil with fear and dishonesty We and watch his murderer, from known conduct as we would ing á beast of When the is startled community motions prey. is crime, commission some our first search for the great perpetrator directed, not naturally lives, those who lived among have hitherto blameless among but those whose conduct has such as to create be- been is that This lief human have the of heart to do the deed. depravity human experience. nature —the teaching law, If it that which has everything tendency natural crime mind with person lead the is towards a conclusion that charged trial of that must be admitted in him on the guilty against answer. charge, State would doubtless be hard to argument false,T I know a.man has once been cannot after that believe If did I know crime his truth as I before. If he has awful once, I more believe he will commit same readily perjury his and I trust ci'ime cannot accoi-d same and confidence again, Yet, law under oath I otherwise should. does the per- statements that acts mit credit of a individual witness to be by showing impeached liar the ? can not a known of falsehood We do not and we believe man of truth. evi- then, ought same as we believe known Why, dence that a has lied occasion showing witness particular testimony by received, in order that we the credit of may weigh xxaturally we rules derived from human natux’eand such as experience, the other affairs life ? instinctively aild apply is infamous of one with crime general charged character Suppose nothing to the that his life has been degree; the last degraded and a does of crimes of most sort: revolting succession atrocious the mind in the direction not the of all this knowledge inevitably carry which he has a conclusion he added crime particular then, list' ? Why, tried to the of those before being gone tend so facts not the to show prosecutor permitted should to all ? The of his answer guilt conviction naturally produce It is the : The is otherwise. decisive law plain these questions until his guilt innocent law, that-the shall presumed not be shown law, it is tlie that his bad character shall proved: to show good matter in issue by attempting until has put State law, shall it is that the credit witness? for himself: character against of falsehood instances impeached by showing specific not be crime : is the commission law, and it evidence of the him there is of another when not be received to show commission shall this respect the two. Whether the law no connection between reason and experience, it accords human unwise, whether wise *48 y. LAPAGE. it affords too to the criminal or too little to whether great protection are not with which we have to do. It has community, questions trial for thought, been that to confront a a crime that involves .man life, no more than his and act his former liberty every property him to from the which suspicion may himself require purge guilt be raised to individual instances of by testimony of witnesses unfair, alleged only oppressive would be wrong-doing, inhuman.. arbitrary The rules of the common to the detection and law reference pun- of crime, ishment which are the growth ages, embody prac- tical wisdom men, and learned experience many carry great upon every unmistakable were devised as well page they to shield the innocent as to rec- guilty. Throughout punish the fact that A ognize innocent men be accused of crime. highly condition wrought of the horror mind, popular indigna- public tion that arise a dreadful are not favor- crime, commission of able to the calm and aof and humane dispassionate application just law. do not They always leave clear. But clamor, the vision popular however loud, cannot be to invade this without permitted place imperil- the most ling sacred of the innocent as rights well The guilty. rule which we apply trial of a has wretch who ravished and killed an then, innocent girl, with the incarnate spirit fiend, torn and cut and mutilated her in a that causes the blood to body way curdle and the heart to rise in almost uncontrollable is the rage, same rule which we must in the trial of innocent victim a apply of wicked and audacious or of who, fault, has conspiracy, without become en- life; tangled a mesh of circumstances an which threaten innocent I think the admission of the of Julienne testimony error, Rousse was because it law, violated the fundamental principle that a defendant committed one offence cannot be received to prove that he committed another and distinct offence. The other exceptions, I think, should be overruled, for by the reasons given attorney-gen- eral in his brief. J. The were instructed jury Smith, that the of Julienne testimony Rousse should be considered them so far as it seem to them might to bear upon the whether question Josie was murdered Langmaid should find (if they from other evidence that he did murder her) perpetrating attempting perpetrate rape. once arises whether her evidence had any legal tendency prove the character of the homicide. It was stated at the trial correctly to be presiding judge fundamental principle law, evidence that defendant committed one offence cannot be received to that he committed another and distinct rule, offence.” are There to this seeming exceptions when guilty crime, knowledge or the intent with ingredient a particular act is done is These have been exceptions very material. clearly classified and I shall not chief-justice, attempt go over *49 302 to I in have occasion the same what ground, except incidentally, may all I to exceptions found, think, by prin- The will be governed say. that exclude this case from their ciples operation. The such evidence is the great objection injustice admitting in J., done which is thereby, very forcibly would be stated Allen, Y. 90 : receiv Coleman v. 55 N. The rule is general against People, another offence. A cannot be convicted evidence ing person ain another, that he upon proof persuasive offence moral however to be such It easier view evidence be. would be point person guilty may crime, had committed lieve a of one if it was known that he character, character; the indeed, a but any another of similar or, lead of such a in courts It would rule injustice justice apparent. acts of other upon to convictions made particular chai'ge by proof it, and offences in no connected of several way with evidence uniting a conviction for one.” produce single It is to introduce always competent government to show which such intent, facts an evil or from tending directly in inferred; rela reasonably evil intent justly connected with intimately par tion to transactions directly evidence, or in defendant, ticular accusation necessary explanation or with the against of the in support evidence introduced inadmissible. indictment, is irrelevant and contained charge down, is laid Tuckerman, Com. 10 198. In that case the rule Gray v. also an if not
that such have and intimate evidence should peculiar characterize, with, tending explain connection inseparable the only admissible act in issue and is against charged prisoner, on-the of intent. in Com.v. that such evidence So 7 Allen was held Campbell, to be proved inadmissible where the offence and that offered charged distinct. are N. H.
In our own
State v.
it was
Renton,
very clearly
case of
had a
it is not
that the
ten
competent
held that
show
respondent
commit
with
the offence
which he was
dency
charged.
is,
killed the de-
State
that this respondent
made
charge
her.
As
upon
ceased
perpetrating
attempting
perpetrate
rape
to com-
attempted
some
to show that he committed or
having
tendency
to show
mit a
that four
Julienne
the State was
rape upon
Langmaid,
permitted
Josie
years
rape upon
more
he had committed
previously
?
Rousse,
tendency
Had the
testimony any
Canada.
the two offences
connection whatever between
There was
no
obviously
com-
transactions, either in the
the crimes
persons upon whom
The evidence of
mitted, or
or times when committed.
places where
Rousse, most,
respondent
Julienne
would
only
or that he
enough
possessed
to commit
crime of rape,
depraved
lustful desire
his heart which he on that occasion did
hesitate
violent means.
gratify by
3 But
than
fact that the
more
how does the
committed a
respondent
rape
ten-
Canada,
four
another
years
person,
previously,
upon
LAPAGE.
Josie
?
killed
Langmaid
to show
dency
the intent
him to commit
rape:
not claimed that he killed her to enable
was done to conceal the
killing
and the
rape
preceded
killing,
rape.
crime of
rape upon
had committed
Suppose
respondent
case can
life:
I think no
Josie
and then had
her
Langmaid,
spared
trial
an indictment
be found
State,
that would authorize the
com-
rape
against the
rape,
give
respondent
No case
mitted
than four years previously.
more
upon another person
time,
victims,
offence, as to
place,
more
and distinct
marked
How,
does such evidence become
circumstances,
then,
can
found.
bo
*50
indictment for
while
any
killing
more
trial is
an
relevant when the
upon
a
?
committing
rape
“ : When
Lord
in
words
rule
these apt
has
expressed
Mansfield
a
act,
indifferent,
in
done with particular
itself
becomes criminal
intent,
; but
the act is
then
and found
when
the intent must be proved
in itself
or excuse lies on the defend-
unlawful, the proof
justification
;
ant
and in
law
a criminal intent.”
thereof,
case of failure
implies
Thus,
that the
passing
money, proof
counterfeit
upon
charge
respondent
intent
necessary,
knew it was
showing
counterfeit
with which it was
under
charge
obtaining goods
passed. Upon
false
intent
pretences,
necessary. Upon
of fraudulent
proof
in
charge murder,
absence of
the malice
being
implied
the killing
proved,
In this case
by the
act.
explanation
prisoner
there was
of Julienne
no connection whatever between the
Rousse
rape
in
Canada,
1871 in
in
and the murder of Josie
New
Langmaid
Hamp-
shire in
be no
that
are continuous
1875. There can
pretence
;
parts
one transaction
that when the
was committed upon
rape
Julienne
had
a
Rousse,
1871,
in
commit
any design
prisoner
in
rape upon
woman,
or to murder Josie
other
1875.
Langmaid,
The
that
two
so
when the
wholly
prisoner
acts are
distinct
separate,
Rousse,
formed
a
Julienne
design
committing
upon
rape
did
not,
carried that
in
he
not and could
as a
design into effect
thereof,
act,
that evil
or as a
have then
part
consequence
design
or the
premeditated the murder
Josie Langmaid,
perpetration
rape
her.
upon
No
cannot
point is better settled than that the State
evidence of
give
the bad
shall
character of the
unless he
first
char-
respondent,
put
in
acter
thereof. As
evidence
introducing
support
only
effect
the State’s
another
introducing
rape
he
a
disposition
is that it tended to show that
respondent
possessed
crime,
commit that
which would incline him
particular
disposition
occur,
how
might
whenever the
perpetration
rape
opportunity
as to the
bad
prisoner’s
does such
character,-
differ from that of evidence
testimony
and that too by
has
question,
before he
elected
put
?
of an
fact
introducing
isolated
of Julienne
the evidence
whole answer to the position,
show or
that it does not
Rousse
to the issue tried, is,
was relevant
tend to show that the prisoner
perpetrated
attempted
perpetrate
Josie
Proof
rape upon
Langmaid.
that he committed a
in Can-
rape
four
ada,
years previously, upon Julienne Pousse shows
? Not
what
that he then had
any design
intent to
four
perpetrate
rape
years
afterwards
another woman
had
whom he
never seen
of,
or heard
or in a
two hundred miles
place
been;
distant
he
where
never had
that he had then formed a
design
and murder
rape
women whenever
he
not that
might
opportunity
he had ever before or
com-
.since
that crime,
mitted
the crime of
that the defendant had a
to commit
disposition
—but
four
rape
years previously. No one will
pretend
evi-
dence
committed another
murder, Canada, or
Texas, or
could be shown on
Europe,
this trial. One cannot be Con-
of murder,
victed
that he has at
showing
some time and somewhere
else committed another murder; or of
larceny, by
showing
’has committed the crime before, and therefore has an evil disposition
n -
him towards
inclining
that particular crime.
j.
The trouble with the position of the State is,
that it
not a question
of motive or
Certainly, committing
intent.
in Canada in 1871,
rape
would not not show any motive for
committing
rape
New Hamp
shire
1875 nor does it disclose any
so to
do./Evidence tend
collateral
ing
facts is
admissible
when.it has a
natural
establish
the fact in
tendency
or to
controversy,
corroborate
direct
the case. Com. v. Merriam,
A new trial granted. notes Polish printing he plates in September, indictment, and caused was the subject different from that which was re- The case from those plates. five hundred notes to be printed Such evi- was admissible. served, held the evidence judges be prior or utterance whether possession dence is competent, documents, be of money, notes, false whether subsequent, the O. 456 Dearsly O. Foster, v. description. Beg. or a different same 834; E. Com. & 3 Salt, v. E. 6 Cox 320 Nisbett, Beg. O. O. Beg. 472. Gray v. Price, having charge 187, 134,186, Com.v. 10 Allen Fdgerly, counterfeit bank bill with intent to was it. It was held that pass admissible to show the defendant had and kind different passed of counterfeit made to a witness statements which at various times and and that he had money places; an admission amounted to that he “ was a doubted,” dealer in counterfeit cannot be money. say the court, that a direct statement made defendant, previous indictment, transaction which forms the subject ac- customed to and sell buy money,” counterfeit would be admissible.
Notes
the business Notes and obligations are and clerks and are signed negotiated, agents trusted and entrusted, boys hired, with traffic in all its endless ramifi- cations, in running debt, away, failing running tight places, tempta- tions, pride, hands, in hard soft, all poverty, money pinching going the circulation, rounds of the it, a love root begetting evil, and or giving offences, occasion motive for number of both great malum in se et malum known to civilization and law, modern prohibitum, where intention of is almost the index wrong-doing often and ex- ponent of the mind cases, In the is criminality. these done thing with is the question and, mind the act is or questions; you, proved, not questioned. Hence, it stands reason that or knowl- edge this act —innocent in it itself, may or indifferent be —is done with may well be kind, acts the same done learned other under direction the same mind. rule best Perhaps put the. words of Lord in itself “When indifferent,-be- act, Mansfield: AGE. LAP v. must comes then the intent intent, criminal done with particular proved unlawful, proof and found but when the act is in itself of justification in failure lies on case of defendant, excuse —and thereof the law a criminal implies intent.” 92, Ev., in a case, murder cited note in Roscoe’s Grim. page case, competent prove Heath’s Harnsou was held accused, killed, shortly on same the deceased day it a distinct before third proved shot a killing, person,' though— aas felony, part as it with the crime charged to be connected appeared case, full of the same transaction. Not able to see the reported being “ distinct” its term doctrine as is not digested Obviously verified. is not to mark two in than used the sense of further disconnected, any con- acts distinct felonies. has no to a reference separation transaction. crimes; of one connected as stituting they parts one crime Hence the case rule, competent, comes within the other, slight expansion, must be With connected. chain of to cover enough this case seems well perhaps without, fer- in brother’s my facts so tile in closely Elm street together connected meaning the brain, it from one end extending other — “ “ all in succession,” night.” street, of course—taken a trial where, on Oobben, exactly 3 E. & E. Regina point, ad- station, for railway into a breaking officeof booking other into three had, mitted broken night, that- the on the same of the four cases be- ground offices of booking ing stations, all mixed up together.” more cited by It is cases worth to review hardly for while me trial, counsel proposed is murder. On Our case prosecution. to perpe- or attempting show a murder committed perpetrating offered, tending trate that charge Evidence rape. rape before, show that without the defendant four years more objected: country. in a distant We murder person another it in instructed to use Objection Jury overruled. Evidence admitted. crime. No claim is finding made that degree intention and thus only, finding in so far forth intent, only find the evidence helps kind to commit to find a mind inclination helps bent of as a question crimes. claimed We whether say help legal, no law, our looking objec- No has been cited case logic, discretion. evidence, for by sought if the rule of tions face. And squarely eases, court will seek found in prosecution, capital cannot be ways out men’s in tracing far taken this case guides paths