72 P. 664 | Idaho | 1903
This is an appeal from the district court of Shoshone county. On the twelfth day of March, 1902, the grand jury of that county returned an indictment against the defendant charging Mm with the murder of one Eugene ¡Klein.
To the sufficiency of this indictment a demurrer was interposed by counsel for defendant: 1. That the facts stated in said indictment do not constitute a public, offense; 2. That the said indictment does not conform to sections 7677, 7678 and 7679 of the Eevised Statutes of 1887, in that it does not appear from the said indictment with what intent this defendant made the assault therein charged.
Demurrer was submitted to the court on the fourteenth day of March, 1902, and on the same day overruled and denied, to which ruling of the court the defendant duly excepted and now assigns the riding of the court as error.
After a trial in the district court of said Shoshone county, on the nineteenth day of April, 1902, a verdict was returned by the jury as follows:
“We, the jury in the above-entitled cause, find the defendant guilty of murder of the first degree as charged in the indictment. BEENAED SMITH,
“Foreman.”
Appellant assigns twelve errors, and we will take them up in the order presented by his brief. The first one is: “The court erred in overruling and denying appellant’s demurrer to the indictment and his motion in arrest of judgment.”
Counsel for appellant ably and earnestly urges that the indictment is insufficient to support a verdict of murder in the first degree. He says: “It does not charge that the appellant committed the assault with the deliberate and premeditated intention of killing the deceased, nor does it appear that the wounding was willful, deliberate, premeditated and of his malice aforethought.” In support of this contention he calls our attention to 10 Ency. of Pl. & Pr. 124; State v. Metcalf, 17 Mont. 417, 43 Pac. 182; Holt v. Territory, 4 Okla. 76, 43 Pac. 1083; State v. Brown, 21 Kan. 38; People v. O’Callaghan, 2 Idaho, 156, 9 Pac. 414; Leonard v. Territory, 2 Wash. Ter. 381, 7 Pac. 872; Kain v. State, 8 Ohio St. 307; State v. Thompson, 26 Ark. 325; State v. Blan, 69 Mo. 317.
We have carefully examined these authorities and we find some of them uphold the contention of appellant, while others do not. In the case of State of Idaho v. Ellington, decided by this court, and reported in 43 Pac., at page 60, we find the indictment in almost the identical language of the one before us.
In the Ellington ease the defendant was found guilty of murder in the first degree and the death penalty pronounced. Mr. Justice Huston, speaking for the court, among other things said: “We are clearly of the opinion that under the provisions of section 7687, Eevised Statutes of Idaho, which is as follows:
Counsel for defendant have urged their objections with exceptional zeal and ability, but we are mindful that our legislature has repeatedly reminded us that in the administration of the criminal law, justice is not to be defeated through technicalities. Section 8236, Bevised Statutes, is as follows: “Neither departure from the form or mode prescribed by this code in respect to any pleading or proceeding nor any error or mistake therein renders it invalid unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.” And again, sections 7685 and 7686 are as follows:
“Section 7685. Words used in a statute to define offense need not be strictly pursued in the indictment, but other words conveying the same meaning may be used.
“Section 7686. The indictment is insufficient if it can be understood therefrom:
“1. That it is entitled in a court having authority to receive it though the name of the court be not stated; 2. That it was found by the grand jury of the county in which the court was held; 3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with a statement that his true name to the jury is unknown; 4. That the offense was committed at some place within the jurisdiction of the court, except when the act though done without the local jurisdiction of the county is triable therein; 5. That the offense was committed at some time prior to the time of finding the indictment; 6. That the act or omission charged in the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; 7. That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court
Again, in People v. Ah Choy, 1 Idaho, 317, the territorial supreme court said: “The definition given of murder in the statute is ‘The unlawful killing of a human being with malice aforethought, either expressed or implied.’ This definition includes both degrees of murder, and it is sufficient if the indictment charges the offense in the language of the statute defining it.”
Even in the absence of the two opinions of this court above referred to, it does not occur to us that there could be any serious question of the sufficiency of the indictment under consideration based upon the provisions of our statute.
The defendant was informed by the indictment of the time— before returning the indictment — of the alleged homicide, that it was committed in Shoshone county, state of Idaho, that the weapon used was a rifle loaded with gunpowder and leaden bullet, the name of the deceased and that he immediately died, that the act of killing on his part was done unlawfully, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought.
It is true the indictment does not charge in so many words that the killing was intentionally or purposely done as urged by counsel, but we do not think either essential under the provisions of our statute.
The second assignment is based upon the refusal of the court to permit a witness for the prosecution on cross-examination to answer the following question: “State whether at any time within three or four weeks prior to'this occurrence you and the defendant were negotiating by which you were to trade a revolver for this rifle.”
The witness had previously testified that between two and four weeks prior to the homicide he had a conversation with the defendant, and that defendant told him he had a rifle and wanted to trade it for a revolver he had.
Counsel for defendant in attempting to explain wherein the question and answer were material made the following statement to the court: “Suppose that there was a trade on between
We think the learned judge was in error in not permitting the witness to answer this question. Whilst it may have been remote and apparently immaterial, yet it might have aided the jury, to some extent, at least, in ascertaining his purpose in having the rifle on that occasion. In cases of the magnitude ,and importance of the one under consideration, the jury should have the benefit of everything that will shed the least ray of light on the transaction. We do not wish to be understood as attaching special importance to this evidence had it been permitted to go to the jury. We only say that counsel brought himself sufficiently within the rules of evidence to allow it to go to the jury and let them deal with it in connection with all other facts and circumstances connected with the case.
The third assignment is as follows: The court erred in remarking in the presence of the jury while Bruce Shuff, a witness for appellant, was giving his testimony as follows: “Court: Well, I don’t know what to think of it. I never in my life' heard of this line of testimony. Now, because a man should fall down, that is absolutely not the act of an insane man that I ever heard of.”
The court evidently did not mean to comment on the evidence of the witness, and the statement was certainly made in an unguarded moment. Jurors, as a rule, listen with a great deal of respect and attention to-what the court says, and for that reason the trial judge should always be extremely careful in any remarks from the bench that can be construed into a comment or an opinion of the evidence of witnesses. We believe this rule is universal.
The fourth assignment is as follows: The court erred in refusing to permit the appellant to ask the witness John Dodson the following question: “I will ask you, taking into consideration your acquaintance with him and all of the opportunities you have had, what is your opinion as to whether he was a sane or insane man on the ninth day of November, 1901?”
We are of the opinion that the witness should have been permitted to answer this question. It had been shown that an acquaintance covering a period of six yeaTS just previous to the homicide had existed between witness and appellant. They had worked together a portion of the time and for a period— we are not informed how long — witness had seen appellant going to- and from his work almost daily. Enough had been shown to give the appellant the benefit of the evidence. (State v. Hurst, 4 Idaho, 345, 39 Pac. 554; State v. Larkins, 5 Idaho, 200, 47 Pac. 945.)
The fifth assignment of error is as follows: The court erred in permitting the witnesses E. B. Hopkin, J. S. Einlay and E. M. Brann, W. J. Brann, Stewart Puller and Freeman SEowe, called in rebuttal on the part of the state, to give sworn opinions as to the sanity of the appellant. Counsel for appellant urges that not one of these witnesses qualified himself to give an opinion upon the subject by showing such an acquaintance'with the appellant and the necessary opportunities for so far observing him as to enable him to form an opinion that would or could be of any value.
The witness Hopkins testified: “Live in Black Bear, Idaho, and am a shift boss in the Standard mine. I know the defendant; I have known him personally since June, 1899. I traveled with him on the train from Missouri here, and have been with him more or less during his residence here. He never worked on the level I was shift boss on; he worked in the shaft some, but whether he was ever on shift when I was I don’t remember. I have been with him quite a good deal.”
■ J. S. Finlay testified he was shift boss at the Standard mine; “knew the defendant; he worked on my shift in the mine
E. M. Brann testified he had known the defendant from September before the homicide and up to the eleventh day of November — the day of the homicide. Witness was a timberman in the Standard mine, and the appellant helped him about two weeks.
W. J. Brann testified he is foreman of the Standard mine. Has known the appellant two years and possibly more; had visited appellant at his work in the mine; “he worked under me a month prior to the 1st of November, 1901; he worked in .the shaft sometime before that in the forepart of the season.”
Stewart Fuller testified he had known appellant two and one-half years, during which time appellant worked for him about two months in his house.
Freeman S. Eowe testified he came from Missouri with appellant and had known him about three years; had met him several times since and knew him up to November 11, 1901.
It is true as urged by counsel for appellant that none of the witnesses had had a very long or intimate acquaintance with appellant, as was the case in State v. Hurst, supra. It must be borne in mind, however, that the plea of insanity is always brought into the case by defendant, and the prosecution is placed at a disadvantage to procure evidence to rebut the plea. The law wisely provides that nonexpert witnesses may give their opinions as to the sanity or insanity of the accused. They are required to state the facts upon which they base their opinions, and from these facts, perhaps more than the opinion of the witnesses, the jurors form their conclusions. We find no error in this ruling of the court.
The sixth assignment is that the court erred in giving the jury instruction- 6 requested by the state. Appellant only objects to and assigns as error the second paragraph of the instruction. The entire instruction is as follows: “In this case it is not claimed by the prosecution that the homicide charge was committed in the perpetration or attempt to perpetrate any other felony, but it is claimed that it is murder in the first
. The instructions in the case before us are full and complete and in no wise contradictory, unless it can be said that the omission of the word “malice” in the latter clause of the one under consideration (the word “malicious” being used in the first paragraph) is an omission that might in some way prejudice the rights of the appellant. We are not prepared to say this, but are of the opinion that all instructions attempting to define murder in the first degree should clearly and distinctly set out all the elements required to constitute that crime.
The seventh assignment is as follows: The court erred in giving the jury instruction 6 requested by the state. That instruction reads as follows, to wit: “From these definitions the jury will see that any unlawful killing of a human being, with malice aforethought, is murder; but if nothing further characterizes the offense it is murder of the second degree. To constitute the higher offense, there must be superadded to the general definition above given willfulness, deliberation and premeditation. By willfulness is meant that it was of purpose, with' the intent, that, by the given act, the life of the party should be taken. It must be deliberate and premeditated. By this it is not meant that the killing must have been conceived or intended for any particular length of time. It is sufficient if it was done with reflection and conceived beforehand. And in this view, as I have said before, the deliberate purpose to kill and the killing may follow each other as rapidly as successive im
To this instruction the appellant objects and alleges as error this paragraph: “The deliberate purpose to kill and the killing may follow each other as rapidly as successive impulses of the mind.” We are of the opinion that this instruction, taken as a whole, clearly and correctly states the law.
The eighth assignment is based upon the seventh instruction given by the state, to wit: To establish a defense on the ground of insanity it must be clearly proved by the defendant by a preponderance of evidence given upon the trial.
In support of his contention counsel for appellant cites Davis v. United States, 160 U. S. 469, 16 Sup. Ct. Rep. 353, 40 L. ed, 499. This is a very able and exhaustive opinion by Mr. Justice Harlan. We have read it with much interest and care. It reviews some of the English eases as well as many of our own country. Justice Harlan cites with approval the instruction given by Justice Cox of the supreme court of the District of Columbia in the Guiteau Case, 10 Fed. 161-163, as follows:
Continuing, Justice Harlan says: “It seems to us that undue stress is placed in some of the cases upon the fact that in prosecutions for murder the defense of insanity is frequently resorted to and is sustained by the evidence of ingenious experts whose theories are difficult to be met and overcome. Then it is said crimes of the most atrocious character often go unpunished and the public safety is thereby endangered, but the possibility of ■such results must always attend any system devised to ascertain and punish crime, and ought not to induce the courts to depart from principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice. No man should be deprived of his life under the forms of law unless the jurors who try him are able upon their consciences to say that the evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.”
Counsel also cites Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. Rep. 394, 39 L. ed. 481; Commonwealth v. Pomeroy, 117 Mass. 143.
Mr. Bouvier, volume 1, page 269, under the head of ‘ffiurden of proof,” dealing with the question of insanity in criminal cases, says: “In criminal cases on the twofold ground that a prosecutor must prove every fact necessary to substantiate his charge against the prisoner and that the law will presume innocence in the absence of convincing evidence to the contrary,
The burden of proof is throughout on the government to make out the whole ease, and when the p)-ima facie ease is established, the burden of proof is not thereby shifted upon the defendant, and he is not bound to restore himself to that presumption of innocence in which he was at the commencement of the trial; citing a large number of cases.
Again, on page 809 the author says: “The effect of the plea of insanity has sometimes been controlled by the instructions of the court in regard to the burden of proof and the requisite amount. In most of the American states the better established doctrine now is that, whenever in the course of a trial evidence is produced showing that the defendant was of unsound mind, the burden of proof immediately rests upon the prosecution to show the contrary; the onus is first on the prisoner to show that the insanity exists, which being done, it immediately shifts upon the prosecution, and it is for it to show that insanity does not exist, or if it does, that it is not such as would prevent him from knowing and doing right.”
, -Mr. Underhill in his late and very excellent work on Criminal Evidence, in discussing the question before us, at section 157, says: “The cases are inharmonious upon the question on whqrq does the burden of proof rest when insanity is in issue in a criminal trial. The prisoner’s sanity is an essential and requisite ingredient in any crime with which he may be charged, for, if his mental soundness is not shown, there certainly cannot be a criminal intent present to render the act with which he is.connected a crime. It is the- general rule that the state has the, burden of proving all the necessary ingredients of a crime, including the criminal intention, and this rule logically .easts-,the burden of proving the sanity of an accused person upon the prosecution in the first instance. We must distinguish dearly between., the burden of proof — that is, the obligation imr
In support of this text the author -cites the following cases: State v. Genz, 57 N. J. L. 459, 31 Atl. 1039; People v. Nino, 149 N. Y. 317, 43 N. E. 853; State v. Larkins (1897), 5 Idaho, 300, 47 Pac. 945; State v. Scott (1897), 41 La. Ann. 253, 21 South. 271, 36 L. R. A. 721; King v. State (1897), 74 Miss. 576, 21 South. 235; State v. Redemeier, 71 Mo. 173, 176, 36 Am. Rep. 462; Graves v. State, 45 N. J. L. 347, 360, 46 Am. Rep. 778; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; Ford v. State, 71 Ala. 385; State v. Felter, 32 Iowa, 49, 54; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; People v. McElvaine, 125 N. Y. 596, 26 N. E. 929; State v. Coleman, 20 S. C. 441, 454; Polk v. State, 19 Ind. 170, 81 Am. Dec. 382; Loeffner v. State, 10 Ohio St. 598, 616; Green v. State, 88 Tenn. 614, 14 S. W. 430; Smith v. State, 19 Tex. App. 95, 111; Graham v. Commonwealth, 16 B. Mon. (Ky.) 587; People v. Myers, 20 Cal. 518; People v. Bawden, 90 Cal. 195, 199, 27 Pac. 204; Commonwealth v. Gerade, 145 Pa. St. 289, 296, 27 Am. St. Rep. 689, 22 Atl. 464; Commonwealth v. Rogers, 7 Met. (Mass.) 500, 41 Am. Dec. 458; Dove v. State, 3 Heisk. 348, 373; Hopps v. People, 31 Ill. 385, 83 Am. Dec. 331; Langdon v. People, 133 Ill. 382, 403, 24 N. E. 874. See, also, 7 Crim. Law Mag. 431.
In view of the numerous authorities cited and the careful investigation we have given this question, we are not prepared to say that if no other error existed in this ease that we would feel justified in awarding a new trial. The defendant on his own motion brings the question of insanity into the case, and' it devolves upon him to create a reasonable doubt in the minds of the jurors as to his responsibility at the time of the homicide. ,If he fails to do .this the prosecution may rest on the legal assumption that all men are sane and responsible for their acts. .If, on the other hand, he does succeed in creating- a reasonable doubt in the minds of the jurors as to his sanity at-the time of the commission of the homicide, he is entitled to the benefit of such doubt at the .hands of the jurors, and the;;
The ninth error assigned attacks instruction 8 given by the court. It is as follows: “In entering upon an investigation of this. offense, however, the jury should remember that the defendant has admitted the killing but sets up insanity. Therefore, the burden of proving this defense to the satisfaction of the jury is upon the defendant, because the law presumes that every man is sane and possesses a sufficient degree of reason to be responsible for his crime until the contrary is proved to the satisfaction of the jury, and that to establish a defense upon the ground of insanity it must be clearly proved that at the time of the commission of the act the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing wrong in 'respect to the very act with which he is charged.”
Counsel for appellant in his brief says: “The same argument applies to this instruction as that made under error No. 8, to which reference is made.” The views expressed by us in passing upon the eighth assignment will apply to this assignment.
The tenth assignment attacks the ninth instruction given by the court. The instruction reads: “The defense of insanity is a defense which may be and sometimes is resorted to in cases in which the proof of the overt act is so full and complete that any other means of avoiding conviction and escaping punishment seems hopeless. While, therefore, this is a defense to be weighed fairly, fully and justly, and when satisfactorily established must recommend itself to the sense of humanity and justice of the jury, you are to examine it with care, lest an ingenious counterfeit of this mental infirmity shall furnish immunity to guilt.”
In all other matters except that of insanity the defendant is entitled to every reasonable doubt. It is a well-settled principle that trial courts should be guarded from any expressions in the .presence or hearing of the jury that can in any way be construed into an expression of their views on any evidence that may be ¡before the jury. (Aszman v. State, 123 Ind. 347, 24 N. E.
An inspection of the above authorities will disclose that it was error to give this instruction. The last paragraph of the instruction was misleading, also, and should not have been given.
The eleventh assignment is based upon the alleged error in giving instruction No. 13. It reads: “The jury are instructed as a proposition of law that statements made by counsel for the defendant in their presence and in the conduct of the trial as to the commission, by the defendant, of the offense alleged in the indictment are statements in so far as they are admissions against the defendant to be considered by the jury in regard to the question as to whether or not the defendant is responsible, in this case, for the commission of the offense alleged against him in the indictment.”
We know of no authority to support this instruction, nor do we think any can be found. It is a fundamental rule, as we understand it, that the rights of a defendant cannot be prejudiced by any statement made by his counsel or any admissions he may attempt to make. Indeed, the law is so careful of the rights of a party charged with crime, that even admissions made by himself to an officer cannot be used against him unless it be satisfactorily shown that such statements or admissions were made entirely voluntarily and without any hope of reward or promises of immunity from the officer. (Nels v. State, 2 Tex. 280; Williams v. State (Tex. Cr. App.), 44 S. W. 1103; Clayton v. State, 4 Tex. App. 515.)
The twelfth error assigned is: “The verdict was contrary to the law and the evidence.”
We have disposed of all the alleged errors of law occurring on the trial, and as the case must go back to the lower court for further hearing, we are not called upon to pass upon the sufficiency of the evidence to support the verdict.
The judgment is reversed and the cause remanded for further proceedings in harmony with the views expressed in this opinion.
