State v. Senn

| S.C. | Mar 29, 1890

Concurrence Opinion

Mr. Justice McIver.

I concur in the conclusions reached by the Chief Justice. The rule, as I understand it, in regard to expert testimony, is, to use the language of Mr. Justice McGowan in State v. Coleman (20 S. C., at page 452), that the opinion of the expert “should be given in the abstract, rather than in the concrete, upon the facts proved, and not the general merits of the case, though they may give an opinion upon a similar case hypothetically stated.” So that here, while it was competent for Dr. Pool to give an opinion as to what agency was capable of producing such marks as he found upon the person of the deceased, it was not competent for him to go on and express an opinion that such marks were in fact produced by a particular agency — the human hand. That was a question for the jury, and not the witness, to decide. There was testimony tending to show that the marks found on the body might have been produced by disease,- or by the use of a rope, or by the hand, and it was for the jury to determine from the testimony, whether they were in fact caused by one or the other agencies; and it seems to me that it was error to permit the witness to express his opinion on that point.

Then as to the admissibility of the declarations, as they are termed, made by the deceased when under examination before a trial justice, I think they were clearly inadmissible. As I understand it, sometime before the alleged homicide was committed the deceased was examined as a witness in a prosecution commenced by her against old Mrs. Senn, her mother-in law, for assault, and in the course of her testimony in that case she stated that her husband, David N. Senn, had made certain diabolical threats against her, and this statement the trial justice was permitted to testify to in this case, upon the ground that •the statement having been made in the presence of David N. Senn (for he was present at the trial before the trial justice), and not denied by him, amounted to an admission on his part that he had made such threats. It will be observed that the deceased did not, directly addressing herself to her husband, charge him with making these murderous threats, but her statement was made while on t.he stand as a witness in a case against another person; though it is somewhat difficult to understand what threats made by her husband against her had to do with .a prosecution against old Mrs. Senn for an assault upon the witness.

While it may be true, as a general proposition, that where a person is charged with an offence and remains silent under the accusation, his silence is regarded as an implied confession of the truth of the charge, because the presumption is that an innocent person would not remain silent under a false accusation made ■against him; yet this proposition is not universally true, and it depends largely upon the circumstances under which the accusation is made, as is shown by the case of State v. Edwards, 13 S. C., 30. In that case several persons were charged with burglary and larceny, and. one of them, Rodgers, after his arrest, made a full confession of his guilt, “and said in the presence and hearing of the other defendants that they were present aiding and participating in the larceny. To this statement of Rodgers there was no dissent'by any of the other defendants, one of them remarking to the prosecutor: ‘We know you have got us, and we want you to be as light as you can.’ The others heard this remark, but said nothing.” The Circuit Judge having charged the jury that if a person hears a criminal charge made against him and says nothing, it is an admission of the charge, and the court will accept it as his confession, this court, upon appeal, held such instruction erroneous. Willard, O. J., in delivering the opinion of the court, using this language: “To give the silence of parties such legal effect is equivalent to holding that every person accused of crime by any person, regardless of time, place, or circumstances, is bound to deny such accusation and affirm his innocence. It is clear that the law imposes no such obligation on a party accused.” As is said in 1 Greenl. Evid., sec. 197, after speaking of other qualifications of the rule respecting the effect of silence : “The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated.” And in a note to that section it is said : “To affect a party w'ith the statements of others, on the ground of his implied admission of their truth by silent acquiescence, it is not enough that they were made in his presence ; for, if they were given in evidence in a judicial proceeding, he is not at liberty to interpose when and how he pleases, though a party ; and, therefore, is not concluded,” citing several cases.

Now, in this case the charges made against David N. Senn were made under such circumstances as not only did not call for, but did not permit, any reply from him. He had no right to interpose a denial, or otherwise interfere with the examination of a witness in a case to which he was not a party, and his failure to do so should not be allowed to affect him in any way. True, it is said that David N. Senn was offered an opportunity to testify in the case and declined to avail himself of the offer, possibly for the reason that he knew nothing about the case, or possibly for the reason that he did not wish to testify in a controversy between his wife and his mother. But suppose he had gone upon the stand as a witness in that case, the rules of law would not have permitted him to contradict the charges made by his wife against him, as such charges were wholly immaterial to the issue then being tried. It seems to me, therefore, that there was error in permitting the trial justice to testify to declarations made by the deceased, in the course of her testimony in another case, tending to show that the prisoner entertained murderous feelings against her.

Again. I am not prepared to assent to the proposition that the testimony given by the two prisoners before the jury of inquest could be given in evidence in this case against them; and certainly not that it could be proved by parol, when it appeared that such testimony had been taken down in writing and was then in court. • It is essential to the admissibility of the admissions or confessions of a party charged with crime that they Should be free and voluntary. Now, when a person, though not at the time charged, or even suspected, of the crime, is summoned before a coroner’s inquest and compelled to testify (for the law does compel persons so summoned to testify), I do not see how such testimony can be regarded as such a free and voluntary statement as would justify receiving it in evidence, when the person so testifying is afterwards charged with the crime. It is true, that when examined as a witness he may decline to make any statement tending to criminate himself, but the moment he does so he at once excites suspicion of his guilt; or he may not know at the time what effect his testimony may afterwards have. It seems to me, therefore, that the only way to preserve in its integrity the well settled rule that a person cannot be required to furnish testimony against himself, is to hold that, if examined before a coroner’s jury or a committing magistrate, the testimony which he is then required to give cannot be used against him in a prosecution subsequently brought against him. As there is no decisive authority in this State upon this point, so far as I am informed, and as the authorities elsewhere are conflicting, we are at liberty to adopt such rule as we think most in conformity with settled principles, and as it seems to me that the rule above indicated is of that character, I think it should be adopted.

It seems to me, also, that the fact that persons other than members of the jury were permitted to mingle with the jurors while they were deliberating on their verdict, requires that this verdict should be set aside. While I subscribe fully to the doctrine that the court will not listen to affidavits tending to impeach the verdict of a jury by showdng what passed between the jurors while deliberating on their verdict, or the motives or reasons which may have induced some or all the jurors to reach the conclusion evidenced by the verdict as announced ; yet it seems to me that where it is made to appear that the jury, after retiring to their room, have been exposed to outside influences, the court should, without inquiring whether such influences have been exerted, set aside the verdict. The privacy of the jury room has always been regarded as sacred, and the law contemplates that all proper precautions should, as far as practicable, be taken to preserve the jury even from the chance of being operated upon by outside influences, and where it appears, as it does in this case, that the jury have been exposed to outside influences, I think it is sufficient ground to set aside the verdict.

The fact relied upon as an excuse or explanation of the presence of the constables with the jurors while they were deliberating on their verdict — that the jury had left their own room and had taken possession of the court room, was itself a violation of the well settled practice. It does not appear that any permission was obtained from the judge to leave their own room and úse the court room for their deliberations. No doubt, if application to that effect, based upon sufficient reasons, had been made to the judge for such permission, it would have been granted; but in granting it there can be no doubt that the judge would have required proper precautions to be used to preserve the jury from exposure to outside influences. The fact that the jury, without authority, left their own room and took possession of the court room, certainly did not justify or excuse the presence of the constables with the jury while they were engaged in deliberating on their verdict.

The majority of the court having reached the conclusion that there was error of law in the trial below, the judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.

Mr. Chiee Justice Simpson concurred in this opinion.

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Dissenting Opinion

Mr. Justice McGowan,

dissenting [omitting his statement, which has already been given]. The charge in this case was singularly atrocious, being nothing less than the foul, treacherous murder of the wife by her husband in conspiracy with his paramour. The evidence was entirely circumstantial; but the Circuit Judge before whom it was offered, after listening to “earnest and eloquent argument” from defendant’s counsel, refused to grant a motion for a new trial, upon the ground of the insufficiency of evidence; and, therefore, this court has no right whatever to consider that subject. Our only province is to determine whether, in the rulings as to the admission of testimony or the conduct of the jury, there was such error of law, or irregularity, as should avoid the verdict.

In respect to the last exception (9), it cannot be necessary to do more than repeat what this court said in the case of State v. Coleman (20 S. C., 455), that “we know of no law or practice which would permit us to hold a Circuit Judge in error for instructing the jury that the phrase ‘reasonable doubt,’ used in the books, means a ‘serious, well-founded, substantial doubt.’ ” Substitute the word “strong” for that of “serious,” and the cases are identical. (The State of Nevada has actually passed an act undertaking to define the phrase “reasonable doubt.”)

Exception 8 is answered by the judge himself, “that he had no remembrance of speaking of D. N. Senn and Helena Boland as husband and wife, but if so, it was a mere slip of the tongue, obvious to all, incapable of misleading any one, and not objected to at the time, when it might have been corrected.”

Exception 6 alleges error in allowing Dr. Pool to be recalled before the evidence was closed, to supplement his testimony, by adding that he thought that Senn. in the conversation before referred to, told him that he had given his wife laudanum. This was objected to, upon the ground that Senn had not denied the statement, and therefore it was not in reply. We cannot say .that the necessary discretion given to the trial judge was abused. (See Cantey v. Whittaker, 17 S. C., 527.)

Exception 3 charges that it was error to admit the testimony of Peterson; that as trial justice he had, at the instance of the deceased, issued a peace warrant against her husband, the defendant, Senn. The simple fact that such a warrant issued — not the details or merits of it — surely tended to show the relation which existed between Senn and his wife, and therefore was “germane” to the issue, and receivable in evidence.

Exception 2 alleges error in admitting testimony that the deceased, in her life-time, had, in the presence of her husband (Senn), charged him with having made the threatening declarations to her (before stated), and that Senn was present and did not deny the charge. We are not able to distinguish this from the ordinary ease, where a declaration is made in the presence of another, who does not deny it. “Although neither the evidence nor declaration of a wife is admissible against the husband on a criminal charge, yet observations made by her to him upon the subject of the offence, to which he gives no answer, or an evasive reply, are receivable in evidence as an implied admission on his part.” Rose. Crim. Evid., *54.

Exception 1 complains of error in allowing Dr. J. T. Pool, a physician, to express his opinion as to what the streaks and bruises on the neck of the deceased “were made by.” The doctor did not undex-talt'e to say that the bruises were made by the defendants, or either of them; but after giving a full description of cei’tain bruises which he saw, he said that he was of opinion that they were made by some external force, but what that force was he could not say; he was inclined, however, to think it was-a hand. This testimony may not have been entitled to much weight, but we cannot say that it was inadmissible. “Opinions of medical men are constantly admitted as to the cause of disease or death, or the consequences of wounds,” &c. 1 Greenl. Evid., § 440.

Exceptions 4 and 5 complain of error in admitting the testimony of J. N. Bass as to the statements of defendants under oath at the inquest before him as coroner. The statements referred to were made.by the defendants at the first inquest, August 25, and they (defendants) were not arrested, on the charge of being principals in the murder, until a week after — on September 3rd. It seems to us that this is a novel question. To be admitted in evidence, confessions, or declarations in the nature of confessions, must be voluntary, and therefore when made under the charge of crime, they are not, as a rule, regarded voluntary. But it has never been doubted that .declarations made by one not a party, but in a prosecution against another, are deemed voluntary, and as such may be subsequently used against him. See 1 Greenl. JEvid., § 225. As in the late case of State v. Jones (29 S. C., 201), where the only question was whether, in the matter of contradicting a witness, his written statement before the coroner was admissible against him, and it was rightly ruled that it was admissible for that purpose,

This being the law, the inquiry was soon made as to what should be the rule when the statement was made by one not a party at the time, but made so afterwards. The test being whether the statement was voluntary at the time it was made, the difference would seem to be small, between a case where the charge was against another, and where there was no charge at all. The earlier cases, however, seem to have taken the other view, and to have held that the subsequent charge and arrest operated retrospectively, and made the prior statement involuntary and therefore inadmissible. Mr. Greenleaf, whose excellent book on evidence was written in 1844, confessed that at that time such was-the tendency, glthough, as he stated, “it might seem to bo at variance with the general principle in regard to the testimony given in another case.” See section 226 and note. He stated the authorities for that view.

But the later cases seem to have considered the matter differently, and to have corrected the “variance” pointed out by Mr. Greenleaf; and have, as we think in accordance with principle and all the analogies, settled the law' otherwise. See Rose. Grim. Evid. (7th edit.), and *79, where it is said: “The prisoner’s deposition on oath, in reference to another inquiry, is clearly admissible. 3 Russ. Crim., 411, 4th ed. It was, however, formerly doubted whether, if a person who had given evidence before a coroner, were afterwards made the subject of a criminal charge arising out of the same facts, his deposition could be given in evidence against him (citing the early cases); but in several later cases they have been admitted. R. v. Owen, 9 C. & P., 238 (38 E. C. L. R., 99); R. v. Colmar, 9 Cox C. C., 506, and others. In R. v. Biggadike (Lincoln winter assizes, 1868), Byles, J., admitted in evidence a statement upon oath, made by the prisoner voluntarily, and before she was in custody, not signed by her, but taken down by the coroner at the time. The coroner was called. His lordship said the authorities were in favor of the admissibility of the evidence, and he himself had no doubt on the subject. The prisoner, who was charged with wilful murder by poisoning, was sentenced to death and hanged,” &c. We cannot say that the testimony was inadmissible.

Exception 7 renews, as grounds of error, all the points urged upon the motion for a new trial. We are not sure that we understand precisely what is meant by (e) that there is now no law under which the defendants could have a trial or be convicted. As to (d), alleging “a variance” between the allegations of the indictment and the evidence in the case, in this, that the name of the person with whose death the defendants are charged is alleged to be M. Ozella Senn, the evidence being that her name was Melissa Ozella Senn. There is no copy of the indictment in the Brief, so that it cannot be certainly known how the name is therein stated. Besides, after trial and verdict, it is too late to make the objection. Courts will take judicial notice of the customary abbreviations of Christian names. Stephen v. State, 11 Ga., 225" court="Ga." date_filed="1852-02-15" href="https://app.midpage.ai/document/stephen-v-state-5551698?utm_source=webapp" opinion_id="5551698">11 Ga., 225.

Point (a) complains that two constables were present with the jury during a portion of the time the case was under advisement. We observe that one of the affidavits of a juror states that he found one of the constables of the court “sitting at the stove in the court room in the midst of the jury — in the court room in which the jury were deliberating.” This makes it plain how the constable happened to be in the room. It is obvious that the constables did not go into the jury room proper, but the jury, being up all night, returned into the court room, where they could warm by the stove, and where they found the constables on duty. This was really no fault of the constables, and it was in truth merely a casual presence, without any intrusion or evil intent. As was said by this court in State v. Nance, 25 S. C., 172 : “Great care should be taken, especially in State cases, to guard the jury against all irregular and improper influences; but there may be objections more fanciful than real.” The court cannot lend a ready ear to disclosures coming from the jury room. There is not the slightest allegation that the constables exercised or attempted to exercise any influence upon the jurors. A wise discretion must be exercised, and, in doing so, we cannot regard the accidental presence of the constables in the court room, as an irregularity of so serious a character as to set aside the verdict. See State v. Nance, supra; McCarty v. MeCarty, 4 Rich., 598; and State v. Tindall, 10 Rich., 212.

But points (b) and (i) make an objection of a different character as to. “the verdict,” which, it is said, taken in connection with the evidence, is contradictory, and other affidavits of jurors are introduced to assail it. If the verdict were inconsistent, we do not very well see how that could be error of law. The affida vits undertake to state the manner in which the verdict wras reached, and especially that the recommendation to mercy was to induce a commutation of the death penalty. It is very clear that it can have no such effect. The court is bound to take the verdict as it was rendered, and refuse to listen to any affidavits of jurors tending to impeach it. There are reasons of public policy why jurors should not be heard to impeach their verdict, whether by showing their mistakes or their misconduct. Neither can they be properly permitted to declare, with a view to affect their verdiet an intent different from that actually expressed by their verdict as rendered in open court. See Smith v. Culbertson, 9 Rich., 111; State v. Tindall, 10 Rich., 213; 3 Graham & Waterman on New Trials, p. 1428, and cases cited. In the case of Culbertson, Judge Wardlaw, in pronouncing the unanimous decision of the old Court of Appeal, said: “The mischiefs, the delays, the arts, the scandal, likely to ensue, come naturally to our thoughts, when we imagine encouragement given to the pursuit of jurors by disappointed suitors, for the purpose of obtaining affidavits to invalidate verdicts regularly rendered. * *' Whether -they have been misled by sophistry or mistake, or have adopted the determination of a majority or of a chance, they have upon their oaths unanimously rendered a verdict in solemn form, and high considerations of justice and policy place that verdict beyond their future influence.”

We think the defendants have had a fair trial, defended with the greatest earnestness and zeal by able and eloquent counsel. The duty devolved upon the court is a painful one; but finding no errors which would justify us in setting aside the verdict, it only remains for us, with becoming regret, but with firmness, to discharge that duty.

Upon this dissenting opinion was endorsed by

Mit. Chief Justice Simpson.

I think a new trial should be had in this case, because Dr. Pool was allowed to say that he was inclined to believe that the marks on the throat of the deceased were made with a “hand;” this, it seems to me, was the expression of an opinion beyond the limit of a medical expert in such a case as this. And also because of the admission of declarations of Mrs. Senn made before the trial justice, charging her husband with having made certain bitter expressions against her, to which he made no reply. As I understand it, Mrs. Senn was being examined by the trial justice in a case before him, when she made these declarations, and though Senn, her husband, was present, yet under the circumstances he was not called, nor could he have properly interposed a denial. For these reasons I am unable to concur in this opinion. Rose. Or. Evid., *p. 56, and the notes.

Judgment reversed.

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Lead Opinion

The opinion of the court was delivered by