14 Minn. 105 | Minn. | 1869
Lead Opinion
By the Court.
The defendant having been convicted in the District Court of Olmsted County of
The wife of the deceased having been called as a witness ' for the State testified, that three men came to the house after dark, and having called her husband out, knocked him down and shot at him; that he fell inside the door and tried to shut it, but they would not let him. The prosecution then asked the witness the question, “Did any of the shot hit the door? ” To'which she answered: • “The shot went through the door. ” The prosecution then asked the following question: “Did you see any signs of blood?” to which an affirmative answer was given. The defendant objected to each of these questions as leading, and excepted to the ruling of the Court admitting the answers. It is'a matter of discretion with the Court to permit leading questions to be put by a party to his own witness. 1 Greenleaf Ev., Sec. 435; Moody vs. Rowell, 17 Rick., 499; Budlong vs. Van Nostrand, 24 Barb., 25; 2 Phillips Ev., (4th Ed.) 891-2, and note; York vs. Pease, 2 Gray, 282 ; State vs. Lull, 37 Maine, 240; Barton vs. Kane, 17 Wis., 37. And though this is perhaps a legal discretion which may be reviewed, this Court will not interfere except in a clear case of abuse or prejudice. Passmore vs. Brighton, 34 Maine, 240; Steen vs. Aylesworth, 19 Conn., 244. Abuse of discretion, or prejudice to the defendant, cannot be pretended in this case. The witness was examined through an interpreter, and, as the testimony shows, was not very intelligent, or quick of apprehension. For this reason it was not improper for the Court to permit the questions to be framed so as to call her attention directly to the subject of inquiry.
The State asked the witness this question: “ State what • he said upon the subject of dying? ” To which the defendant made the same objection as before, and the Court overruled the objection and the defendant excepted. The witness answered: “1 don’t know as he said anything about his dying. ”
The State asked the witness this question : “ What was his condition at the time?” The defendant objected that the witness was incompetent and the question immaterial. The Court overruled the objection and the defendant excepted. The witness answered: “I was called therein the evening of October 30th,. by J ohn Frazier. I got there about two o’clock at night.. I found Ableitner on the bed.
I examined the wound. He was groaning terribly and apparently suffering great pain. His abdomen was very much swollen. His attendants were administering injections, once in fifteen minutes, to produce evacuation. of the bowels. There was no doctor there. The medicine was given by prescription of Dr. Wright. The wound was in the region
The State asked the witness this question : “ What did lie say about it ? ” to which the defendant objected, that no foundation was laid, and it was irrelevant. The Court overruled the objection, and the defendant excepted, and the witness answered: “ He said he had been shot, and he wanted- to make a disposition of his property in case he should die from his wound. That was all he said on the subject. I thought best to take his affidavit, so that it could be used in case he died. Staley’s examination was the same day in the afternoon. Ableitner was present in bed at the time. John Coole acted as Staley’s attorney, and cross-examined Ableitner. ”
Though part of this evidence at least seems to be immaterial, manifestly none of it was prejudicial to the defendant. From the answers to the first two questions, no infer ■ ence could be drawn as to his guilt or innocence, and the answers to the third and fourth, only tended to establish a fact otherwise proven by indubitable and uncontradicted evidence. If incompetent — which we admit only for the . purpose of this argument — -it was merely immaterial, and not ground for a new trial.
The defendant made a confession, oral and written, to the admission of which in evidence he objected on the ground that it was not voluntary. The rule seems well settled, that if any advantage is held out, or harm threatened, of'a temporal or worldly nature, by a .person in authority, the confession induced thereby must be excluded. Reg. vs. Baldey 12 E. L. & Eq. 590; State vs. Grant, 22 Maine, 171; Com. vs. Moony, 1 Gray, 461-3. Page, the officer who made the arrest, and by whom the inducements are alleged to have been held out, is within the rule, a person in authority. If
We are not called upon to determine whether tbe burden is on tbe State to show affirmatively that tbe confession was voluntary, or to negative any inducement to make it, for tbe Attórney G-eneral seems to have conceded that; and the evidence on the affirmative and negative of this preliminary question was all offered before its determination by tbe Court. Tbe Court having received tbe confession, must have determined, as a matter of fact, that it was voluntary, and tbe question presented to us is, did it clearly err in this determination ? Page was called as a witness and testified: “ I told him if he was going to say any thing be must say the truth. * * I think we all told him everything depended on Edwards being caught, as we believed him the most guilty; ” and denied that beyond what is expressed or implied by these words, there was any inducement offered. Several witnesses were called to contradict him, who testified that he had admitted that he had held out other inducements, and the defendant, called and examined on his own behalf as a witness on this preliminary question, testi- • fied: “ I saw Page during the day (of the arrest). He spoke to me-about confessing during the day; first time
Afterward the Attorney for the State offered the written confession made a few days later : to the admission of which the defendant objected on the ground that it, was not voluntary. If the oral confession was admissible, it follows that the one reduced to writing was also, there having been- no iutermediate threat of harm, or promise of favor, or act done calculated to induce the defendant to make an untrue confession, and it appears that Hill, the Justice of the Peace beiore whom the confession was made, and by whom it was reduced to writing, cautioned him “if he had any statement to make, it might and probably would be used against him on his trial; that he was under no obligation to make one,
The witness, Page, having testified that he held out no inducements to the accused to confess, the counsel for the defendant called witnesses to discredit him, by showing that he had admitted in a conversation with the accused in their presence, the making of statements inconsistent with his evidence on that point.
His attention having been first called to the alleged inconsistent statements, these witnesses were asked whether they had not heard him make them, and answered in the affirmative. They were then asked to repeat the conversation. The Attorney General objected that this was not competent, and the Court sustained the objection. These witnesses having been called for the sole purpose of impeaching Page, it was only allowable to contradict him as to matters or statements to which his attention had been particularly called, and this having been done, any further conversation was not evidence, and was properly excluded. But admitting that the answer was erroneously excluded, the bill of exceptions does not show that the ruling prejudiced the appellant, and the error therefore is not ground for reversal. ' To justify a reversal of judgment, the record must show affirmatively material error. When a question is asked which is objected to, and the objection sustained, in taking an exception it should be made-to appear what it
When the evidence was being presented to the Court on the preliminary question whether the confession was voluntary, the defense offered to show by one Poole,’ who was called as a witness, for the purpose, of impeaching Page, 4< That during the day at Neilsville (when and where the defendant was arrested) the defendant for several hours was in the sole custody of Webb, out of sight and hearing of Page, and that this witness discovered and arrested Staley, and that Page did notto which the counsel for the State objected as immaterial and incompetent, and the Court sustained the objection, and the defendant excepted. Even if it is admitted that it was allowable on the trial of this preliminary question, to offer impeaching evidence, — which seems to' admit of great doubt — we are of the opinion that the Court properly refused to hear the evidence offered. A witness can only be contradicted on facts material to the issue; and the matter on which Poole was called to contradict Page was wholly irrelevant to the. issue which the Court was then trying.
During the progress of the argument the defendant’s counsel claimed that the pistol had not been offered and introduced in evidence; whereupon the prosecution insisted that it had, and had been examined by the jury. The Court decided that although it had been examined with the bullet by the jury, and had been treated on the trial as though actually in evidence, yet it had not been formally introduced. On application of the prosecution the same was then received in evidence, arid the Court at the time informed the de
In the argument of the Attorney General,-it appears by the case, that “ He called attention to the fact that the defendant had availed himself of his privilege to be a witness in his own behalf, and had testified upon one branch of the case, and when questioned by the prosecution in regard to his connection with the murder of Ableitner, he had refused to answer the question, and also called attention to the fact and commented upon it, that the defendant was a competent witness for himself upon the merits, and had refused to be a witness upon the main issue in this trial, whereupon the defendant asked that it be entered upon record in the case, and an exception be entered thereto on the part of the defendant,’’ and the Attorney-General consenting, it was so ordered. It is argued by the defendant that this was prohibited by statute, Chap. 70, Laws 1868, and therefore is a ground for a new trial.
~We think the law of 1868 does not forbid the resort to any argument or evidence to impeach the witness. The party is not to be be prejudiced by his silence, 'but if he becomes a witness, his veracity or credibility may be attacked by any legitimate argument, whether it refers to what he has said, or refused, or neglected to say. In other words, while the legislature recognized the fundamental law, that no person should be compelled, in any criminal case to be a witness against himself, it does not forbid or lessen the
The charge given by the Court on its own motion, is admitted to be unexceptionable, except in the concluding sentence or sentences. To it the defendant excepted, as appears by the case, in' the words, “ to all of which the defendant excepted.” An exception can only be taken to some particular point of law ; a mere general exception to a general charge amounts to nothing. Lansing vs. Wiswall, 5 Denio, 218-19 ; Jones vs. Osgood, 2 Selden, 233 ; Caldwell vs. Murphy, 11 N. Y., 416 ; Oldfield vs. N. Y. & Harlem R.R. Co., 14 N. Y. 312-313. The exception in this case is of the most general kind, and the correctness of the principal part of the charge is unquestioned; hence the case stands as if no exception had been taken, and the defendant is presumed to have waived any error that may have been committed. It is with regret that we apply this well settled rule of practice in a capital case, but it is essential to the administration of justice. It is possible that we might feel it our duty to grant a motion for a new trial, if 'it appeared that there had been errors committed prejudicial to the defendant, even without objection from his counsel; but for technical error, not excepted to, and to which the attention of the Court was not particularly directed, the rule is clearly otherwise, both in this Court, and in the District Court. But we arc satisfied that even if there was the error in the
The exception to the ruling of the Court, refusing to give the third, fourth and fifth instructions, ashed bv the defendant, was insufficient. But, passing by this objection, we think that each, as well as the sixth instruction, was properly refused.' They are in these words : . '
“ 3d. Unless the jury are satisfied from the evidence beyond -a reasonable doubt, that the confessions offered were made voluntarily, without fear or promise.or hope or favor, they must exclude the confessions from their minds; and if the question of fear or favor operating upon the.mind of the defendant is left uncertain, the. jury ought to reject the confessions, and this rule applies as well to direct as to implied confessions.
4th. Confessions should be received, if received at all, with great circumspection and caution; any promise of favor, or threat made to defendant, or if the circumstances surrounding the defendant were calculated to produce fear, or so that defendant was not entirely free from fear at the time of the alleged confession, then the jury should reject the confession and not consider it.
5th. If the jury are not satisfied beyond a reasonable doubt, or if it is uncertain whether the confessions at St. Charles were the result of previous promises of favor, or inspired by present fear or hope of favor from the surrounding circumstances, then the jury ought to reject the confessions.
6th. If the jury find from the evidence that the confessions made prior to the alleged confessions at St. Charles, were made under promises of favor or advice by the officer having him in charge, and that the alleged confessions at St. Charles were made in_ the presence of the same officer,
It is proper for a jury to consider the circumstances under which a confession is made, with a view of determining what weight should be given to it; but it is not their province to reject a confession. Nor is it the law, that if a party making a confession, is not entirely free from fear, or wholly uninfluenced by present fear, or hope of favor, that the Court should reject his confession. Confessions are ordinarily made with a hope of favor, or under circumstances calculated to produce fear. It is, perhaps, the general rule, that a person who fully and freely confesses his guilt- — -especially where this may assist in the detection and conviction of others — hopes for favor o.n that account. And as confessions are usually made by persons under arrest on a criminal charge, they ar.e certainly made under circumstances calculated to produce fear. If voluntary, they are receivable, whatever may be the motives of the party in making them, and they are not considered involuntary, because made under the circumstances supposed. See People vs. McMahan, 15 N. Y, 384 ; People vs. Wertz, 37 N. Y. 303. The sixth instruction asked was properly refused. The confession was made under advice of the officer, to the defendant, “ if he said anything, to say the truth,” and it was not for the jury to “ reject ” the confession, even if they found the facts as supposed. If it ajopeared to them
Tbe modification of tbe seventh instruction, asked by tbe defendant is not insisted on as error, and clearly it was not.
Tbe defendaiit asked tbe Court to instruct tbe jury as follows : “ Tbe absence of all evidence of motive, is a strong presumption of innocence,” which instruction tbe Court refused, as asked, but gave tbe same, with this modification : “ The absence of all evidence 'of motive, is a strong presumption of innocence, when the fact of tbe commission of tbe offense is- doubtful. to which refusal and charge tbe defendant excepted; Whether tbe modification was right of wrong, it ^unnecessary to inquire, for it would have been proper to have unqualifiedly refused tbe charge requested. Tbe evidence that shows that tbe defendant participated in tbe homicide, shows tbe motive for committing tbe crime. There is no absence of evidence of motive, but,'on tbe contrary, tbe most satisfactory evidence thereof, and tbé charge requested was a mere abstract proposition, inapplicable to tbe facts of this case. Its denial would, for these reasons, have been proper, and its modification, if erroneous, was not prejudicial to tbe defendant.
Tbe defendant further asked tbe Court to charge tbe jury as follows : “ Tbe burden of proof is on tbe State, to prove tbe guilt of this defendant beyond a reasonable doubt, by tbe best evidence ; and in order' to justify a verdict of guilty, the facts proved must be absolutely incompatible with tbe innocence of tbe defendant, and incapable of ex
. It is argued that the motion for a new trial should have been granted, because the evidence is insufficient to justify the verdict — that there is no evidence of premeditated design. A most conclusive refutation of this position is found in the confession of the defendant. He said; -after stating that they had agreed to hurt nobody, “■‘We (Edwards, "Whitman and defendant,) then started for Frederick Ableit-ner’s house. * * When we got to the corner, near Ab-leitner’s house, we sat clown and talked over the matter. "Whitman said Ableitner had $2,000 in gold, and said that we would take-that or five dollars, or two dollars, or whatever amount we may find. ~We agreed that Edwards was to call Ableitner out and knock him down. "Whitman was to hold him, and I was to stand at the door, and Edwards was 'to go in and get the money. Whitman and I were to watch, and give the alarm if any one was seen to approach. Before we left the corner where we had sat, Whitman said that ‘dead men tell no tales,’ Edwards said that is so, ‘ dead men tell no tales.’ I said that is so. We then started down toward the house. * * Edwards cut each
We are of opinion that the order appealed from be affirmed.
In this case the defendant testified, and. his testimony was addressed both to the court and jury: to the Court iipon the question of the admissibility of his confessions, and to the jury upon the question of weight to be given to the same. To such a state.of facts, I think the prohibition (found in Section 1, Ch. 70, 110, Laws 1868) in regard to allusions ■ to, and comments upon a defendant’s neglect do testify does.not apply. Upon this ground, rather than upon, that taken by the Chief Justice, I prefer to rest my assent to the conclusion arrived at in the foregoing opinion in regard to the Attorney General’s allusion to, and comments upon the defendant’s neglect and refusal to testify in the case.
Concurrence Opinion
I concur in the views expressed by Justice Berry as to the construction of Section 1, Oh. Y0 of the Lems of 1868, and its application to this case.