57 N.H. 245 | N.H. | 1876
Lead Opinion
FROM MERRIMACK CIRCUIT COURT. The testimony of Fowler, Mahair, the Towles, the Watsons, and Mercy, was, I think, properly admitted. It all tended to show that the prisoner, about the time of the murder, was frequenting that neighborhood with a view to the commission of the crime of rape upon the person of some one of the young females whom he knew to have occasion to pass over that road. The obscene and filthy language he is described as using, in connection with his inquiries about one of the young ladies, tends to show what thoughts were in his mind, and what he was meditating. The testimony of the Watsons and Mercy tends to show, not merely an attempt or design to commit the crime on the person of Miss Watson, but also to show generally, in connection with the other testimony, that he was prowling about that place for the purpose of lying in wait for any person whom he might sacrifice to his base and cruel designs. It furnishes an illustration of the doctrine which I shall attempt to illustrate and maintain. The attempt to commit one offence may be put in evidence when attended with circumstances which give it a logical connection with the fact in issue, and not otherwise.
The admission of the testimony of Julienne Rousse gives rise to by far the most important question in the case. That testimony tended to prove that the prisoner, about four years and a half before the trial, at a place beyond the jurisdiction of the United States, committed the crime of rape upon a person other than the deceased; and the question is, whether that bald, naked fact, being put in evidence, had any tendency to prove any matter in issue between the State and the defendant.
These questions in regard to the relevancy of particular items of *288 testimony always depend upon the peculiar circumstances of the case, and must be solved by the application of sound judgment and common sense. It very often happens, as practical men in the profession well know, that facts which in one state of the evidence and one aspect of the case are entirely irrelevant, suddenly, by a slight change in the conditions, become of great importance. Hence the necessity, which so often happens in attempting to take written testimony, of introducing into a deposition so many facts which at first sight seem entirely irrelevant, but which may become admissible and important; hence, too, one reason why in criminal causes it is so important that the witnesses should testify in open court, and in the presence of the respondent, in order that all their knowledge should be available to meet all the exigencies of the trial.
It is for this reason that so many reported cases in the law of evidence are valuable, not so much in establishing principles of law, as for the illustration of those principles.
There is a great mass of cases so similar in their circumstances, and which have occurred so often, that they may be taken as evidence of the application of the common-sense and cultivated reason of a great many individuals, and so come to have the force and authority of established law.
I think we may assume, in the outset, that it is not the quality of an action, as good or bad, as unlawful or lawful, as criminal or otherwise, which is to determine its relevancy. I take it to be generally true, that any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue. It may be, that in some cases the danger resulting from such indirect bearing might be so great in comparison with its importance in regard to matters on which its bearing was legitimate, that it ought not to be admitted. But I think the general rule is, that no testimony which has a legitimate bearing upon any point in issue can be excluded.
I say legitimate bearing advisedly, because, as already suggested, although undoubtedly the relevancy of testimony is originally a matter of logic and common-sense, still there are many instances in which the evidence of particular facts as bearing upon particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and, therefore, the best evidence of what may be properly called common-sense, and thus to acquire the authority of law. It is for this reason that the subject of the relevancy of testimony has become, to so great an extent, matter of precedent and authority, and that we may with entire propriety speak of its legal relevancy.
It is proper, however, in the outset, to notice what appears to me to be a fallacy in the very commencement of the able argument for the *289 State. It says, — "Under an unexceptionable charge, and upon other testimony than that of Julienne Rousse, the jury have answered the first question [i. e., Did the defendant kill the deceased?] in the affirmative." If it could be known certainly that the jury did not give any weight to the testimony excepted to in determining whether the prisoner did the act; if it could be certainly known that the evidence of Julienne Rousse did not create in the minds of the jury a prejudice against the prisoner on all the points of his case, — the remark might be well founded. But that is just what we do not and cannot know, although what we do know of the constitution and temper of juries creates in us a very strong belief of the contrary.
In this case I understand it to be conceded by the government that the evidence is not relevant for the purpose of showing who killed the deceased, but that it is claimed to be relevant for the purpose of showing the particular act that he was engaged in doing when he committed the murder. For the purpose of showing the offence to be murder in the first degree, it is claimed to be relevant as tending to show that he committed the murder while in the act of committing rape; but as the intent is the mysterious solvent which opens the way for the admission of the testimony, it would not be relevant for the purpose of showing that he had first committed a rape, and then did the murder afterward.
Proceeding, then, to consider what has been settled in this matter, I think we may state the law in the following propositions:
1. It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character.
2. It is not permitted to show the defendant's bad character by showing particular acts.
3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged.
4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.
It is a maxim of our law, that every man is presumed to be innocent until he is proved to be guilty. It is characteristic of the humanity of all the English speaking peoples, that you cannot blacken the character of a party who is on trial for an alleged crime. Prisoners ordinarily come before the court and the jury under manifest disadvantages. The very fact that a man is charged with a crime is sufficient to create in many minds a belief that he is guilty. It is quite inconsistent with that fairness of trial to which every man is entitled, that the jury should be prejudiced against him by any evidence except what relates to the issue; above all should it not be permitted to blacken his character, to show that he is worthless, to lighten the sense of responsibility which rests upon the jury, by showing that he is not worthy of painstaking *290 and care, and, in short, that the trial is what the chemists and anatomists call experimentum in corpore vili.
Of course, if the respondent sees fit to put his character in issue by offering evidence tending to show that it is good, it is then permitted to the prosecution to rebut this testimony by showing that it is bad; but I think the weight of authority is to the effect that this must be done by evidence, not of particular facts, but of reputation.
The law in regard to proof of intent, is, I apprehend, in no particular different from the law in regard to the proof of other facts, unless it may be in the general principle that a person is ordinarily presumed to intend the natural consequences of his actions. But always the evidence will be subject to the condition that it legally and logically tends to prove the facts in issue, whether it be the intent or any other fact.
The foregoing positions are illustrated, and I think established, by the following citations:
"Where a defendant has voluntarily put his character in issue, and evidence for the prosecution has been introduced, it has been said the examination may be extended to particular facts, — though this has lately been denied by courts of high respectability; and certainly it is very oppressive to a defendant, as well as irrelevant to the real issue, to admit in rebuttal a series of independent facts, forming such a constituent offence." 1 Wharton's Am. Crim. Law, and cases cited, sec. 637.
"While, however, bad character cannot be put in issue by the prosecution, it is permitted to introduce evidence of prior misconduct, where it is relevant either to prior malice towards an individual, or guilty knowledge." Wharton, sec. 639, and cases cited.
"But in other criminal cases the prosecutor cannot enter into the defendant's character, unless the defendant enable him to do so by calling witnesses in support of it, — and even then the prosecutor cannot examine into particular facts, the general character of the defendant not being put in issue, but coming in collaterally." Buller's Nisi Prius 296.
"But it is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character." Com. v. Webster, 5 Cush. 325.
It will be seen that these authorities support not only the first proposition above stated, but also the others.
I also cite the following authorities in support of the other propositions, which it seems to me, need no further support.
"It is here, however, that the fundamental distinction begins, for while particular acts may be proved to show malice or scienter, it is inadmissible to prove, either in this or any other way, that the defendant had a tendency to the crime charged. Thus, in England, it has been held that on the trial of a person charged with an unnatural crime, it was not permitted to prove that the defendant had admitted that he had a tendency to such practices; and so, on an indictment against an overseer on a plantation for the murder of a slave, evidence as to the prisoner's general habits as to punishing other slaves is not admissible *291 for the prosecution." 1 Wharton's Am. Crim. Law, sec. 640, and cases cited.
"So, proof of a distinct murder, committed by the defendant at a different time, or of some other felony or transaction committed upon or against a different person and at a different time, in which the defendant participated, cannot be admitted until proof has been given establishing or tending to establish the offence with which he is charged, and showing some connection between the different transactions, — or such facts or circumstances as will warrant a presumption that the latter grew out of, and was to some extent induced by, some circumstances connected with the former; in which case such circumstances connected with the former as are calculated to show the quo animo or motive by which the prisoner was actuated or influenced in regard to the subsequent transaction are competent and legitimate testimony." 1 Wharton's Am. Crim. Law, sec. 647, and cases cited.
In Regina v. Oddy, 4 Eng. L. E. 572, it was held that "On an indictment for feloniously receiving goods knowing them to have been stolen, it is not competent for the prosecutor, in proof of guilty knowledge of the prisoner, to give in evidence that the prisoner, at a time previous to the receipt of the prosecutor's goods, had in his possession other goods of the same sort as those mentioned in the indictment but belonging to a different owner, and that those goods had been stolen from such owner.
"Lord CAMPBELL, C. J. I am of opinion that the evidence objected to was as admissible under the two first counts as it was under the third, for it was evidence which went to show that the prisoner was a very bad man, and a likely person to commit such offences as those charged in the indictment. But the law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the perpetrator of the first. The evidence which was received in the case does not tend to show that the prisoner knew that these particular goods were stolen at the time that he received them. The rule which has prevailed in the case of indictments for uttering forged bank-notes, of allowing evidence to be given of the uttering other forged notes to different persons, has gone great lengths, and I should be unwilling to see that rule applied generally in the administration of the criminal law. We are all of opinion that the evidence admitted in this case with regard to the scienter was improperly admitted, as it afforded no ground for any legitimate inference in respect of it. The conviction, therefore, must be quashed." Regina v. Oddy, 4 Eng. L. Eq. 574.
In Schaffner v. Commonwealth, 72 Pa. St. (13 Am. Rep.), the prisoner was indicted for the murder of his wife by poison. There was evidence of his criminal intimacy with the wife of S., on whose life was an insurance, the proceeds of which, on his death, the defendant had tried to procure. Held, that evidence that S. died with the same symptoms as the defendant's wife, and had been attended by the defendant, was inadmissible. *292
AGNEW, J., in his opinion, said, — "It is a general rule, that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt, on the ground that, having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offence is not proof, in itself, of the commission of another crime; yet it cannot be said to be without influence on the mind, for certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged. It therefore predisposes the mind of the juror to believe the prisoner guilty. To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or, it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evidence it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt." Shaffner v. Commonwealth, 13 Am. R. 651.
"It is, therefore, not competent for the prosecutor to give evidence of facts tending to prove another distinct offence for the purpose of raising an inference that the prisoner has committed the crime in question; nor is it competent to show that he has a tendency to commit the offence with which he is charged. Thus, on a prosecution for an infamous offence, an admission by the prisoner that he had committed such an offence at another time was held to have been properly rejected. Rex v. Cole, cited in 1 Phillipps on Ev. 499 (8th ed.)." State v. Renton,
The case of People v. Corbin,
The verdict was set aside, and a new trial granted.
RAPALLO, J., in delivering the judgment of the court, said, — "The cases in which offences other than those charged in the indictment may be proved, for the purpose of showing guilty knowledge or intent, are very few; and this, we think, is not one of them. The fact that the prisoner made an unauthorized use of the name of Ganoung, if established, shows that he was morally capable of committing the same offence against Van Amburgh, but does not legitimately tend to show that he did so, or that he knew and understood that Van Amburgh's authority had been withdrawn, or that the signature in question had been made with criminal intent." People v. Corbin, 15 Am. R. 429.
The cases which have been cited by counsel for the government afford full illustration of the principles laid down in what has been said before.
It is proper, however, to remark what seems to me to be a fallacious use of the word intent. Ordinarily, intent is, I think, an inference of law from acts proved. The maxim is, that every man must be taken to intend the natural consequences of his acts; and if he knowingly and voluntarily does an act which is in violation of law, he is held to have intended to violate the law. This I think would be true, whether he did or did not know that the act was unlawful. Thus, if a man should knowingly and voluntarily utter a forged bank-note, or a counterfeit coin, he would be held guilty whether he did or did not know that the act was unlawful.
The cases cited by counsel for the government admit of being classified into several distinct groups.
In the first place is the class of cases in which other offences are shown for the purpose of proving guilty knowledge. To this class belong those cases in which, in the trial of indictments for uttering forged bank-notes, or counterfeit coin, the proof of other offences of the same kind is admitted. It might well happen that a person might have in *294 his possession a single counterfeit bill or coin without knowing it to be such; but he would be much less likely to do so twice, and every repetition of such an act would increase the probability that he knew that the bills or coins were counterfeit. If he did know it, the guilty intent would be an implication of law, and not an inference of fact. To this class belongs the case of Reg. v. Roebuck, cited in the brief.
Another class of cases consists of those in which it becomes necessary to show that the act for which the prisoner was indicted was not accidental, — e. g., where the prisoner had shot the same person twice within a short time, or where the same person had fired a rick of grain twice, or where several deaths by poison had taken place in the same family, or where children of the same mother had mysteriously died. In such cases it might well happen that a man should shoot another accidentally, but that he should do it twice within a short time would be very unlikely. So, it might easily happen that a man using a gun might fire a rick of barley once by accident, but that he should do it several times in succession would be very improbable.
So, a person might die of accidental poisoning, but that several persons should so die in the same family at different times would be very unlikely.
So, that a child should be suffocated in bed by its mother might happen once, but several similar deaths in the same family could not reasonably be accounted for as accidents.
So, in the case of embezzlement effected by means of false entries, a single false entry might be accidentally made; but the probability of accident would diminish at least as fast as the instances increased. To this class of cases belong Rex v. Voke, Reg. v. Geering, Reg. v. Cotton, Reg. v. Roder, Rex v. Mogg, Reg. v. Dossett, Reg. v. Bailey, Reg. v. Proud, Reg. v. Richardson, cited in the brief for the prosecution.
There is another class of cases in which proof of the commission of one crime tends to show a motive for the commission of the crime with which the prisoner is charged.
"A. was indicted for the murder of H. It was opined that A., having malice against P., had hired H. to murder him, and that H. did so; but that H. being detected, A. had murdered H. to prevent a discovery of his (A.'s) guilt respecting the murder of P. Evidence was given of expressions of malice used by A. towards P., and it was held that the prosecutor might also give evidence to show that H. was in fact the person by whom P. had been murdered." Rex v. Clewes, 6 Car. P. 221; Littledale, Har. D. 1, 1942.
"On trial of the petitioner for the murder of his wife, in the absence of direct evidence, proof of an adulterous intercourse between the prisoner and another woman is admissible, to repel the presumption of innocence arising from the conjugal relation." State v. Watkins,
So, in Com. v. Ferrigan, the adulterous intercourse of the defendant with the wife of the deceased tends to show a motive for the murder. *295
In cases of indictments for obtaining goods under false pretences, it very often happens that the respondent has been in some kind of business of which buying and selling goods on credit makes a part; and in such case the difficulty is, to draw the line between the points where legitimate business ceases and fraud begins. In such cases a single purchase of goods on credit might happen in the ordinary course of business; but if a party should make several purchases of goods at a time when he was in failing circumstances, that fact would have some tendency to show that he knew that he was in failing circumstances, and that he did not intend to pay for them, or expect that he should be able to do it. Of course the effect of such testimony would depend upon the number and amount of such purchases, the after-disposition of the goods purchased, and all the other circumstances. To this class belong the cases of Com. v. Eastman, Bradley v. Obear, and Hovey v. Grant.
Another class of cases consists of those in which the evidence tends to show a general plan or conspiracy, one act of which was that which is in issue. To this class belong Mason v. The State, and perhaps Com. v. Turner Shearer.
If the indictment were for being a common seller of spirituous liquor, the charge could be proved in hardly any other way than by showing many specific acts; and conversely, if a man were proved to be a professional counterfeiter, that would be evidence tending to show his guilty intent. Of this description are Rex v. Balls and Com. v. Edgerly.
In the case of sexual crimes, as fornication and adultery, where the object is to prove that the respondent has committed the crime with a particular individual, evidence tending to show previous acts of indecent familiarity would have a tendency to prove the breaking down and removal of the safeguards of self-respect and modesty, and the gradual advance, step by step, to the crime. Proof of the actual commission of the same crime would still more strongly tend to show the removal of those safeguards, and still more to make probable the commission of the crime on trial. To this class belong Com. v. Horton, Com. v. Thrasher, State v. Wallace, State v. Marvin, Com. v. Merriam, and Com. v. Lahey.
It should also be remarked that this being a matter of judgment, it is quite likely that courts would not always agree, and that some courts might see a logical connection where others could not. But however extreme the case may be, I think it will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other.
In the case under consideration, I cannot see any such logical connection, between the commission of the rape upon Julienne Rousse and the murder of Josephine Langmaid, as the law requires. I am unable to see any connection by which from the first crime can be inferred *296 that the respondent was attempting the commission of a rape when he committed the murder, if he did it, other than such inference as I understand the law expressly to exclude. Proof of the first crime would show that the respondent was a very bad man — would perhaps show a tendency or disposition to commit that particular crime; but it would go no further, and in fact would amount to little more than an attack upon the respondent's character, which is inadmissible unless he puts it in issue, and an attack upon his character by showing particular acts, which is also inadmissible.
There is another consideration which makes necessary the extremist caution in the admission of this kind of testimony, and that is, the hardship which would be imposed upon the respondent by raising such collateral issues, and the great complication which might be introduced into the trial. I do not by any means intend to assert that this consideration is conclusive. I do not see how, if the collateral fact has a legal tendency, on the principles I have stated, to prove the fact in issue, it can be excluded.
It seems to me clear, that if the evidence of the rape of Julienne Rousse were admissible, it would be equally admissible to prove the commission of any other similar offence, and that the government would not be confined to direct evidence of the fact.
We learn from the newspapers of the day that there is a vehement suspicion that the same person who murdered Josephine Langmaid murdered Miss Ball at St. Albans, and it would be equally admissible to try that case and show that fact as the other. The necessity of proving that fact, partly or wholly by an elaborate combination of circumstantial evidence, would not, that I can see, make it any the less admissible. It would certainly be an extreme hardship on the prisoner to compel him to enter upon such an investigation. I mention this case to illustrate the necessity of extreme caution not to admit such testimony unless there can be seen some distinct logical connection, such as the law requires, between the fact proposed to be proved and the fact in issue.
In the case of State v. O'Brien,
Now, I think a careful examination of that part of the charge which relates to this evidence will show that it really, in substance, amounted to instructing the jury that they were to find the character of the prisoner from the fact proved by Rousse, and infer from such character that he would be likely to be actuated by passion and lust. It was really instructing the jury that they might find, from a particular act proved, the prisoner's character as a man possessed by unlawful and lustful passion, and infer from that that he was actuated by such passion in his conduct to the deceased. The matter really reduces itself *297 to attacking the prisoner's character by the proofs of particular acts, which the authorities clearly show to be inadmissible.
This portion of the charge, though not expressly excepted to, is mentioned as showing the particular view with which the evidence excepted to was admitted.
Concurrence Opinion
"All murder committed * * * in perpetrating or attempting to perpetrate rape * * * is murder in the first degree." Gen. Stats., ch. 264, sec. 1. The State claimed (1) that the prisoner murdered Josie A. Langmaid; and (2) that the murder was committed in perpetrating or attempting to perpetrate upon her the crime of rape. Both these facts were put in issue by the plea of not guilty. It was for its supposed bearing on the second issue that the testimony of Julienne Rousse was admitted; and the judge who charged the jury guarded against any other application of that evidence, so far as a direction from the bench could have that effect upon the minds of the jury. The ground upon which the jury were told they might consider it, in determining whether the prisoner was perpetrating or attempting to perpetrate a rape when he committed the murder, was, that it bore upon the question of intent; and the ingenious, not to say subtle, argument of the attorney-general rests wholly, as I understand it, on the same ground. He says, — "If he [the prisoner] had passed counterfeit money at the time and place when and where he raped Julienne Rousse, and other counterfeit money had been found in his possession at the time and place when and where he killed Josie Langmaid; if he had got a negro boy into his possession at the former time and place with intent to send him into slavery, and had got another negro boy into his possession at the latter time and place, — would there be any doubt that his intent on the former occasion would in fact be considered by every intelligent member of the human family as entitled to some weight on the question of his intent on the latter occasion? * * * What is there in the act, the circumstances, or the intent of kidnapping, or passing counterfeit money, that makes us feel the probative force of the proved intent of one occasion upon the question of intent four years and four months afterwards, and prevents our feeling any probative force of such evidence in the present case?" Starting, then, with the claim that this evidence was admissible upon the question of intent, it is necessary to understand just what intent is meant. Was it an intent to commit the crime of murder? Certainly not. That crime must be fully made out, as the learned judge correctly told the jury, by other and entirely independent evidence. He said, — "It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence. This principle we must take care not to violate. And, therefore, you are not to regard the evidence of Julienne Rousse as any proof or evidence that the prisoner killed Josie Langmaid. Therefore, unless you find from other evidence, entirely independent of that of Julienne Rousse, that the prisoner killed and murdered Josie Langmaid, you must reject her evidence altogether." *298 This, of course, covers all questions of intent, so far as regards the crime of murder.
Was it an intent to commit murder in the first degree? The answer to this is surely in the negative. Such a general intent could only be shown by evidence of a deliberate and premeditated killing in one of the ways pointed out by the statute, or otherwise. Besides, this question, like the other, seems to be fully answered by the charge. The jury were told that "the evidence is open to your consideration, if at all, only so far as it may seem to you to bear upon the character of the homicide of Josie Langmaid; only as it may bear upon the question whether she was murdered by the prisoner in perpetrating or attempting to perpetrate rape." The intent, then, which it is claimed this evidence was admissible to establish, was an intent to perpetrate or attempt to perpetrate the crime of rape upon Josie A. Langmaid at the time he murdered her. But an intent to perpetrate rape, or to attempt the perpetration of that crime, is not what the statute requires to make the killing murder in the first degree. The most that can be said is, that intent may constitute an element in those crimes, as in most others. To meet the requirement of the statute, the act as well as the intent must be shown. The whole crime of perpetrating or attempting to perpetrate rape must be made out, and that includes all questions of intent that may be involved. Was he in the act of perpetrating or attempting to perpetrate rape at the time he did the killing? To this the state said Yes; the prisoner, No. Here was a clear and distinct issue; just as clear and just as distinct as though there had been nothing else in the case. The state charged rape, or an attempt to commit that crime, as the basis of their claim that the verdict should be murder in the first degree. This charge they must prove, or the claim based upon it fails. The question is, How is it to be proved? What is the rule of evidence to be applied? Is evidence to be received upon the trial that would be inadmissible if the charge were rape alone? If so, upon what ground? What principle of law, or logic, or humanity, will admit evidence to prove rape when the consequence of a finding against the prisoner is death, and exclude the same evidence when the consequence is only loss of liberty? I do not know whether the argument for the State holds that a distinction in this respect should be made. Certainly, the ingenuity and industry of the attorney-general have failed to point out any ground upon which evidence that would be inadmissible to prove rape upon the trial of an indictment for that crime alone, can be received to prove rape when charged on the trial of an indictment for murder in the first degree, and relied on by the State as an essential element of that offence under the statute. And I confess it is impossible for me to imagine the shadow of a reason upon which such a claim could be sustained were it put forth. What, then, is the question presented by this exception? Clearly, no other than this: Was evidence that the prisoner committed rape upon Julienne Rousse, in Canada, in 1871, legally admissible to show that he committed or attempted to commit rape upon Josie A. Langmaid, at Pembroke, *299
in 1875? There was no question as to the defendant's physical strength and ability to commit the crime of rape. By no refinement, therefore, can State v. Knapp,
This very question was answered in the same way, as it seems to me, by the learned judge, when he said, — "It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence."
But it is nevertheless argued on behalf of the State (if I have not wholly misapprehended the drift of the argument) that the evidence was admitted because, as matter of fact, its natural tendency was to produce conviction in the mind that the prisoner committed rape upon his victim at the time he took her life. The learned attorney-general says, — "The question of fact here is, whether, on those grounds of natural law, natural reason, and human experience, upon which such a question of fact must be decided, the intent with which the defendant assaulted Julienne Rousse is capable of affording any light on the intent with which he assaulted the deceased. * * * It will be admitted, I suppose, that every intelligent person, untrammelled by technical rules, will concur in the opinion of the circuit court. And the question being one of pure fact unmixed with law, and therefore not subject to technical rules, on what ground will any one dissent from the unanimous judgment of the rest of mankind?" And further, that unanimous judgment "is the spontaneous and irreversible judgment of every grade of intellect that has appeared, or is likely to appear, in this state of existence. It is an involuntary and unavoidable perception of the inherent and self-evident relations of conduct and intention, a mental revelation as natural as memory, and as trustworthy and unanswerable as consciousness." *300
I shall not undertake to deny this. If I know a man has broken into my house and stolen my goods, I am for that reason more ready to believe him guilty of breaking into my neighbor's house and committing the same crime there. We do not trust our property with a notorious thief. We cannot help suspecting a man of evil life and infamous character sooner than one who is known to be free from every taint of dishonesty or crime. We naturally recoil with fear and loathing from a known murderer, and watch his conduct as we would the motions of a beast of prey. When the community is startled by the commission of some great crime, our first search for the perpetrator is naturally directed, not among those who have hitherto lived blameless lives but among those whose conduct has been such as to create the belief that they have the depravity of heart to do the deed. This is human nature — the teaching of human experience.
If it were the law, that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the State would doubtless be hard to answer. If I know a man has once been false, I cannot after that believe in his truth as I did before. If I know he has committed the crime of perjury once, I more readily believe he will commit the same awful crime again, and I cannot accord the same trust and confidence to his statements under oath that I otherwise should. Yet does the law permit the credit of a witness to be impeached by showing individual acts of falsehood? We do not and we can not believe a known liar the same as we believe a known man of truth. Why, then, ought not evidence showing that a witness has lied on any particular occasion to be received, in order that we may weigh the credit of his testimony by rules derived from human nature and experience, such as we naturally and instinctively apply in the other affairs of life?
Suppose the general character of one charged with crime is infamous and degraded to the last degree; that his life has been nothing but a succession of crimes of the most atrocious and revolting sort: does not the knowledge of all this inevitably carry the mind in the direction of a conclusion that he has added the particular crime for which he is being tried to the list of those that have gone before? Why, then, should not the prosecutor be permitted to show facts which tend so naturally to produce a conviction of his guilt? The answer to all these questions is plain and decisive: The law is otherwise. It is the law, that the prisoner shall be presumed innocent until his guilt is proved: it is the law, that his bad character shall not be shown by the State until he has put that matter in issue by attempting to show good character for himself: it is the law, that the credit of a witness shall not be impeached by showing specific instances of falsehood against him: and it is the law, that evidence of the commission of one crime shall not be received to show the commission of another when there is no connection between the two. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, *301 whether it affords too great protection to the criminal or too little to the community, are not questions with which we have to do. It has been thought, that to confront a man on trial for a crime that involves no more than his liberty and property with every act of his former life, and require him to purge himself from the suspicion of guilt which may be raised by the testimony of witnesses to individual instances of alleged wrong-doing, would be not only oppressive and unfair, but arbitrary and inhuman.
The rules of the common law in reference to the detection and punishment of crime, which are the growth of ages, and embody the practical wisdom and experience of many great and learned men, carry upon every page unmistakable evidence that they were devised as well to shield the innocent as to punish the guilty. Throughout they recognize the fact that innocent men may be accused of crime. A highly wrought condition of the public mind, the popular horror and indignation that arise upon the commission of a dreadful crime, are not favorable to the calm and dispassionate application of a just and humane law. They do not always leave the vision clear. But popular clamor, however loud, cannot be permitted to invade this place without imperilling the most sacred rights of the innocent as well as the guilty. The rule which we apply in the trial of a wretch who has ravished and killed an innocent girl, and then, with the incarnate spirit of a fiend, torn and cut and mutilated her body in a way that causes the blood to curdle and the heart to rise in almost uncontrollable rage, is the same rule which we must apply in the trial of the innocent victim of a wicked and audacious conspiracy, or of one who, without fault, has become entangled in a mesh of circumstances which threaten an innocent life.
I think the admission of the testimony of Julienne Rousse was error, because it violated the fundamental principle of law, that evidence 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 the reasons given by the attorney-general in his brief.
SMITH, J. The jury were instructed that the testimony of Julienne Rousse should be considered by them only so far as it might seem to them to bear upon the question whether Josie Langmaid was murdered by the prisoner (if they should find from other evidence that he did murder her) in perpetrating or attempting to perpetrate rape. The question at once arises whether her evidence had any legal tendency to prove the character of the homicide.
It was correctly stated by the presiding judge at the trial to be "a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence." There are seeming exceptions to this rule, as when guilty knowledge is an ingredient of the crime, or the intent with which a particular act is done is material. These exceptions have been very clearly classified by the chief-justice, and I shall not attempt to go *302 over the same ground, except incidentally, in what I may have occasion to say. The exceptions will all be found, I think, to be governed by principles that exclude this case from their operation.
The great objection to admitting such evidence is the injustice that would be done thereby, which is very forcibly stated by ALLEN, J., in Coleman v. People,
It is always competent for the government to introduce evidence of any facts tending directly to show an evil intent, or from which such evil intent may be justly and reasonably inferred; but all proof in relation to transactions not intimately and directly connected with the particular accusation against the defendant, or with the evidence, or in necessary explanation of the evidence introduced in support of the charge contained in the indictment, is irrelevant and inadmissible. Com. v. Tuckerman, 10 Gray 198. In that case the rule is laid down, that such evidence should have a peculiar and intimate if not also an inseparable connection with, and tending to explain and characterize, the act in issue charged against the prisoner, and is only admissible on the question of intent.
So in Com. v. Campbell, 7 Allen 542, it was held that such evidence is inadmissible where the offence charged and that offered to be proved are distinct.
In our own case of State v. Renton,
The charge made by the State is, that this respondent killed the deceased in perpetrating or attempting to perpetrate a rape upon her. As having some tendency to show that he committed or attempted to commit a rape upon Josie Langmaid, the State was permitted to show that four years and more previously he had committed a rape upon Julienne Rousse, in Canada. Had the testimony any such tendency? There was obviously no connection whatever between the two offences or transactions, either in the persons upon whom the crimes were committed, or in the places where or times when committed. The evidence of Julienne Rousse, at most, would only show that the respondent was depraved enough to commit the crime of rape, or that he possessed a lustful desire in his heart which he on that occasion did not hesitate to gratify by violent means.
But how does the fact that the respondent committed a rape more than four years previously, in Canada, upon another person, have *303 any tendency to show the intent with which he killed Josie Langmaid? It is not claimed that he killed her to enable him to commit a rape: the rape preceded the killing, and the killing was done to conceal the rape.
Suppose the respondent had committed only the crime of rape upon Josie Langmaid, and then had spared her life: I think no case can be found that would authorize the State, upon the trial of an indictment against the respondent for the rape, to give in evidence the rape committed upon another person more than four years previously. No case of a more marked and distinct offence, as to time, place, victims, and circumstances, can be found. How, then, does such evidence become any more relevant when the trial is upon an indictment for killing while committing a rape?
Lord MANSFIELD has expressed the rule in these apt words: "When an act, in itself indifferent, becomes criminal if done with a particular intent, then the intent must be proved and found; but when the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and in case of failure thereof, the law implies a criminal intent."
Thus, upon the charge of passing counterfeit money, proof that the respondent knew it was counterfeit is necessary, as showing the intent with which it was passed. Upon the charge of obtaining goods under false pretences, proof of fraudulent intent is necessary. Upon the charge of murder, the killing being proved, the malice is implied in the absence of any explanation by the prisoner of the act. In this case there was no connection whatever between the rape of Julienne Rousse in 1871 in Canada, and the murder of Josie Langmaid in New Hampshire in 1875. There can be no pretence that they are continuous parts of one transaction; that when the rape was committed upon Julienne Rousse, in 1871, the prisoner had any design to commit a rape upon or to murder Josie Langmaid, or any other woman, in 1875. The two acts are so wholly distinct and separate, that when the prisoner formed the design of committing a rape upon Julienne Rousse, and carried that design into effect in 1871, he did not and could not, as a part of that evil design and act, or as a consequence thereof; have then premeditated the murder of Josie Langmaid, or the perpetration of rape upon her.
No point is better settled than that the State cannot give evidence of the bad character of the respondent, unless he shall first put his character in question by introducing evidence in support thereof. As the only effect of the State's introducing evidence of another rape by the respondent is that it tended to show that he possessed a disposition to commit that particular crime, a disposition which would incline him to the perpetration of rape whenever the opportunity might occur, how does such testimony differ from that of evidence as to the prisoner's bad character, before he has elected to put it in question, and that too by introducing proof of an isolated fact?
The whole answer to the position, that the evidence of Julienne Rousse was relevant to the issue tried, is, that it does not show *304 or tend to show that the prisoner perpetrated or attempted to perpetrate a rape upon Josie Langmaid. Proof that he committed a rape in Canada, four years previously, upon Julienne Rousse shows what? Not that he then had any design or intent to perpetrate a rape four years afterwards upon another woman whom he had never seen or heard of, or in a place two hundred miles distant where he never had been; not that he had then formed a design to rape and murder women whenever he might have opportunity; not that he had ever before or since committed that crime, — but that the defendant had a disposition to commit the crime of rape four years previously. No one will pretend that evidence that the prisoner had committed another murder, in Canada, or Texas, or Europe, could be shown on this trial. One cannot be convicted of murder, by showing that he has at some time and somewhere else committed another murder; or of larceny, by showing that he has committed the crime before, and therefore has an evil disposition inclining him towards that particular crime.
The trouble with the position of the state is, that it is not a question of motive or intent. Certainly, committing a rape in Canada in 1871, would not not show any motive for committing a rape in New Hampshire in 1875; nor does it disclose any intent so to do. Evidence tending to prove collateral facts is admissible only when it has a natural tendency to establish the fact in controversy, or to corroborate other direct evidence in the case. Com. v. Merriam, 14 Pick. 518. So, in Com. v. Ferrigan, 44 Pa. St. 386, in a trial for murder, evidence that an adulterous intercourse between the wife of the deceased and the prisoner had existed and continued to near the time of the homicide was received, on the ground that one crime furnished a motive for the other. In People v. Wood, 3 Parker Crim. Cas. 681, which was a trial for murder, proof of other crimes than that alleged, but connected with it by unity of plot and design, and influenced by a single motive, was held admissible.
In State v. Renton,
So, in East Kingston v. Towle,
In State v. Prescott,
In State v. Wentworth,
The testimony of the other witnesses excepted to is free from the objection made to that of Julienne Rousse. They all testified to facts which tended to show that the respondent was forming in his mind a plot to commit the crime of rape upon some one in the vicinity of the place of this homicide. No lustful desire or particular animosity or malice against Josie Langmaid need be shown. She became the victim of his lustful passion, and his evil designs were consummated in the attack which deprived her of life.
But because of the admission of the testimony of Julienne Rousse, there must be
A new trial granted. *306
