14 Del. 542 | Delaware Court of Oyer and Terminer | 1892
Lead Opinion
Suppose a witness is called to the stand here and "swears to a certain state of facts; could you contradict that witness by proving that that witness had made declarations to the contrary, unless the attention of the witness were called to it ?
I call your attention to this because this is a. very important matter. In this case the dying declarations under the law are presumed to be under the sanctity of an oath—it is equivalent to that. If you can admit statements prior to those without an opportunity of the party’s attention being called to them,, it seems to me that it makes a direct innovation of our practice.
I want to get the exact bearings of the question —I am not expressing an opinion.
Dying declarations are admitted in homicide cases, because the-parties are apprehensive of impending death, and there is the prospect of almost immediate dissolution, on the ground that as they are about to enter the presence of their Maker, it is supposed that they will not dare to deceive any more than when they invoke the-attention of their Creator to the oath when made, so that the fact of their coming dissolution is considered to be quite as binding as the taking of an oath in its obligation upon them. The objection made always is that the accused is deprived of the opportunity of calling the attention ot the person who supposed himself to be about to die to certain facts, which, if brought to his attention, he might modify his statement or make none at all; that there is no opportunity to test his judgment, the strength of his recollection or his bias.
But the law says that it insures justice in the greater number of cases and that it is necessary to let it in, although it does deprive-the defendant of testing the memory of the witness and his truthfulness by cross-examination. Then it is as though it says, “ Very well, if you are deprived of that opportunity of ascertaining if that witness was wrong and of bringing any witness to contradict him, when we let in the dying declarations, without an oath,—you ought-to have the right to put in testimony of previous declarations, without laying the ground.” In other words, the party on one hand - says, “ If you let in the dying declarations, I ought to have the-right to contradict them (aside from the rule that I am bound to-
Now the question is, where there is a loss of cross-examination on the side of the defence and also by the State, in that you have not laid the ground, whether the favor of the law should not be on the side of liberty and life, and should let in the previous statements that are contradictory of the statements made by the person who supposed she was dying. Therefore, as dying declarations are admitted on the ground of necessity, ought not proof of contradictory or inconsistent statements by the deceased to be also admitted on the same ground ?
In order to get on with the trial of this case, let us dispose of the question now before us. Although it is fair to say (that counsel and the jury may know) that the Court have some doubt on this question, yet the inclination of the mind of the majority of the Court is that the testimony may be contradicted in the mode proposed, and that therefore the question is admissible.
Thereupon the testimony offered was admitted in evidence.
Dissenting Opinion
dissented.
John Manning having been produced and sworn on the part of the State, the Attorney General interrogated him as follows :
“ Did you ever have any conversation with him about an operation that he performed on any one to produce a mis-carriage ?”
Mr. Robinson: I object to the question. You can never bring the reputation of a prisoner into a case of this kind, unless he brings it in himself.
The Attorney General contended that he should be allowed to show that the witness had a conversation with the defendant about the latter’s performing this kind of an operation upon some one else,
Mr. .Robinson, in reply, cited American and English Encyclopedia of Law, Vol. 1, page 31, and argued that this evidence must be brought home to Mrs. Evans before it can be admissible.
We are of the unanimous opinion that this testimony is not admissible. This subject came up in that professional thief case (The State v. Carter et al., Houston’s Criminal Reports, 406). There such testimony was held to be inadmissible, unless the prisoner’s character was put in. We therefore rule it out.
This man is indicted for one offense; I don’t care what his past character is, whether a murderer or not. The matters in evidence here must be germane to the issue. You propose to prove past character or his reputation. That has nothing to do with the guilt or innocence of the person. As I view this matter, the question here is, Is this man guilty under the Act of Assembly of the.commission of this offence with which he is charged ?
He has not himself put his character in issue nor has testimony been adduced on thé other side to show anything by which we could infer that his intention is to put his character in issue, and therefore I do not think this evidence is admissible.
charging the jury:
Gentlemen of the Jury ■ I will preface the charge of the Court to you by saying that we realize the great service which you are rendering to this community in being here, as you have been, for the past three days, with several of the members of your body suffering from great illness; and we therefore congratulate you that you have reached, as we hope, very near the conclusion of your arduous and valuable labors. The case which you are called upon to try in this instance is no ordinary one; in fact, it is a most serious case, in its own circumstances, as well as in its importance to
Gentlemen, you will remember that you are sworn to try this case and to render a verdict according to the evidence, and that this means, not what you may have heard outside this jury box, not what may be the sentiments of the communities from which you come, respectively, but it means the legal evidence that this Court has decided is admissible in this case from the mouths of the witnesses (and from them only) who have been before you, and that you must exclude all other considerations, all other impressions, and be governed entirely by the evidence which has been submitted to you from that witness stand with the consent of the Court after opportunity has been afforded counsel to object to any that was unadmissible.
John K. Lodge, the prisoner at the bar, stands charged in this indictment with murder of the second degree for the felonious killing of Martha I. Evans in the month of July, 1891, at Indian River Hundred within this County.
As the prisoner stands charged with murder of the second degree, it becomes necessary for the jury to be sufficiently informed as to the distinctions between murder and the inferior grades of homicide (or man-slaying and also woman-slaying), and particularly as to the definition and nature of murder of the second degree.
Homicide in self-defence is another form, of excusable homicide. It is not pretended that Lodge committed this act in self-defence, therefore it is unnecessary for me to say anything further in regard to what is homicide in self-defence, because the facts in this case will not warrant you in finding that it was either justifiable or excusable homicide.
The question then is: Was it felonious homicide ? Now felonious homicide at common law is of two kinds; viz: manslaughter and murder, the difference betweeti which consists principally in this,—that in murder there is the ingredient of malice, whilst in manslaughter there is none; for manslaughter, when voluntary, arises from sudden heat of the passions, but murder from the wick
Having defined what involuntary manslaughter is, we come to
Implied malice (which is alleged under this indictment), or constructive malice, is an inference or conclusion of law from the facts found by the jury; and among these the actual intention of the prisoner becomes an important and material fact; for though he may not have intended to take away life or to do any personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act from which the law raises the presumption of malice. It is the difference between express and implied, or constructive, malice aforethought which distinguishes murder of the first from murder of the second degree,—except, however, that under our general statute murder of the first degree may be committed where the malicious killing is done in perpetrating or attempting to perpetrate any crime punishable with death, as rape or arson is in this State, although from such a felonious act malice is merely implied or presumed by law. Therefore murder of the second degree is held to be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a deliberately formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without justification or excuse and without any provocation, or without provocation suflScient to reduce the homicide to the grade of manslaughter, or was done in perpetrating or attempting to perpetrate a felony (not capitally punishable) or any unlawful act of violence from which the law raises the presumption of malice.
In the present instance the prisoner is indicted, not for murder of the first degree, but of the second degree only. The charge of murder of the second degree in this indictment is founded upon the allegation that the killing was done by the prisoner while he was engaged in committing or attempting to commit an act—namely to procure a miscarriage—which is declared to be a felony by Chapter 226 of Volume 17 of the Laws of Delaware. Section
It becomes necessary for you to determine first whether the prisoner has violated said statutory provision as charged, and second whether in so doing he caused the death of Mrs. Evans in the manner as alleged in this indictment.
Inasmuch as every accused person is presumed to be innocent until he is proven guilty, the burden is upon the prosecution to prove by competent and satisfactory evidence every essential ingredient of the crime charged in this indictment and that the prisoner is guilty thereof beyond a reasonable doubt. Therefore, before you can find the prisoner guilty in manner and form as he stands indicted, the following essential inquiries must be affirmatively determined beyond a reasonable doubt:
First. Did the prisoner Lodge use an instrument in the manner described in the indictment; Second, Did he so use it with the intent to procure the miscarriage of Mrs. Evans, he supposing her to be then and there pregnant, and when the same was not necessary to preserve her life; Third, Did she die on or about July 30, 1891, and was her death caused by a miscarriage or other in-' juries to her thereby produced by Lodge; and Fourth, if so, is he guilty of murder of the second degree ?
That Mrs. Evans actually died on July 30, 1891, is proven by both her physicians, and other witnesses who have appeared before you. That her death was caused by blood-poisoning, resulting from a miscarriage or other injuries caused by an operation performed upon her for that purpose by some one, is also testified
The prosecution charges that the prisoner Lodge is that person, while the prisoner denies it and contends that the miscarriage and injuries which resulted in her death were caused by Mrs. Evans-herself by the use of medicines or a knitting needle or other means for the purpose of procuring her own miscarriage.
The two prominent questions in this case, then, are:
First, Is the prisoner the person who caused said miscarriage1 and injuries by his use of an instrument, as alleged in the indictment ? And, Second, Did he use said instrument with the intent to procure the miscarriage of Mrs. Evans contrary to the provisions of the statute of 1883, heretofore referred to ? In order to prove-to your satisfaction that the prisoner at the bar is the person who caused said miscarriage and injuries, and thereby produced her, death, the State has offered witnesses to prove facts and circumstances from which you may infer and conclude that he is such person, as well-as the dying declarations of Mrs. Evans herself, stating what Fannie
Now, gentlemen, it is from these circumstances, and such others as you may recall, that the prosecution asks you to infer and conclude that the prisoner both performed said operation with an instrument—as alleged in the indictment—and also did it with intent to procure the miscarriage of Mrs. Evans in violation of the .statute, and that thereby he caused the death of Mrs. Evans and is therefore guilty,—not only of the felony, as provided in the statute, —but also of murder of the second degree under the law of this
If you shall be satisfied beyond a reasonable doubt that it was so warranted, then it will be your duty to find the prisoner guilty in manner and form as he stands indicated—that is, of murder of the second degree.
But in case you should not find him guilty in manner and form as he stands indicted, you may find guilty of manslaughter, if you find that the evidence under the instructions as to the law which we have given you shall warrant you in finding such a verdict but if you find that he is guilty of neither murder of the second degree nor manslaughter, you cannot find him, under this indictment, guilty of any other offence, but you must find him not guilty, and render a verdict accordingly of not guilty. But, as we have already informed you, if you find that the said statute against procuring miscarriages was clearly violated by the prisoner, and that in violating it, as alleged in, the indictment, he caused Mrs. Evans7' death, then he cannot be found guilty of manslaughter in this instance, but must be found guilty of murder of the second degree by your verdict. =
This, gentlemen of the jury, so far as we comprehend the case, comprises all that is necessary for us to say to you. We therefore leave this case in your hands to render such verdict as, according to your oaths, you shall find warranted by the evidence.
Verdict: “Guilty.77