Stokes v. . People of the State of N.Y.Stokes v. . People of the State of N.Y.
The defendants, upon notice to do so, refused to produce them. The defendants knowing the truth and omitting to speak, every inference warranted by the evidence should be indulged against them. There was some evidence of a joint contract by the defendants, and the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.
It is within the power of the legislature to make such changes in the law respecting the mode of procuring and impanneling a jury as it may deem expedient, limited only by the constitutional obligation to preserve the right of trial by an impartial jury.
The act “in relation to challenges of jurors in criminal cases” (chap. 475, Laws of 1872), which provides in substance that an opinion or impression as to the circumstances or as to the guilt or innocence of the prisoner shall not be a sufficient ground of challenge for principal cause, provided the juror declares on oath that he can render an impartial verdict, and provided the court be satisfied that he does not entertain such a present opinion as would influence his verdict, does not infringe upon the right to an impartial jury, and is constitutional.
The rules of evidence in or the details of a criminal trial may be changed as to prior as well as to subsequent offences, and the provisions of the statute above mentioned are applicable upon the trial of an offence charged to have been perpetrated prior to its passage.
Where, upon trial of an indictment for murder, evidence had been given making it a question for the jury whether the act was pеrpetrated by the prisoner in defending himself against an attempt on the part of the deceased to murder or to inflict some great bodily harm upon him,—Held, that evidence of violent threats made by the deceased against the prisoner a short time before the occurrence was proper, although such threats were not communicated to the prisoner.
A material witness for the prisoner was asked, upon cross-examination, whether she had taken things not belonging to her when she left a place where she had been at service. The prosecution was permitted to give evidence showing that her answers were untrue. Held, error; that it being a collateral matter the prosecution was bound by the answers.
The minutes of a grand jury, tending to show that an indictment upon the
The court charged the jury, in substance, that the legal implication, from the fact of the killing, in the absence of proof of the circumstances of its perpetration, was that the act was murder, and cast upon the prisoner the burden of showing thаt it was not. Held, error; that under the statute classifying homicide mere proof that one has been deprived of life by the act of another fails utterly to show the class to which the homicide belongs.
The rule that an error committed upon a trial may be overlooked when the party complaining was not prejudiced thereby is only applicable in cases where the error could by no possibility have produced injury.
(Argued May 10, 1873; decided June 10, 1873.)
ERROR to the General Term of the Supreme Court in the first judicial department to review judgment, affirming a judgment of the Court of Oyer and Terminer in and for the county of New York, entered upon a verdict convicting plaintiff in error of the crime of murder in the first degree.
The plaintiff in error was indicted by the grand jury of the Oyer and Terminer, in and for the county of New York, on the 12th day of January, 1872, for the murder of James Fisk, Jr., on the 6th day of January, 1872, at the Grand Central Hotel, in the city of New York.
In February, 1872, the plaintiff in error interposed seven special pleas to the indictment, setting forth:
First. That there was a grand jury of the General Sessions in existence at the time of the finding of the bill by the grand jury of the Oyer and Terminer; that the former was the only legal grand jury in existence.
Second. The grand jury of the Oyer and Terminer was not legally impanneled, inasmuch as Judge INGRAHAM, who presided therein at the time they were sworn and returned the indictment, and at the time it was filed, was also one of the judges of the General Term.
Third. That by an order of the General Term, made November, 1869, Judge D. P. INGRAHAM was appointed to hold a Court of Oyer and Terminer for December, 1871; that subsequently, in April, 1870, he was appointed by the Governor one of the permanent judges of thе General Term.
Fourth. Is to the same substantial effect as the third plea.
Fifth. That at the time this bill of indictment was found by the Oyer and Terminer, the only regular grand jury in session was that of the General Sessions.
Sixth. The coroner was bound to return the indictment to the next court of criminal record, which would have been the February term of either General Sessions or Oyer and Terminer, beginning on the second Monday of February, 1872.
Seventh. That the grand jury was illegally and irregularly organized.
To six of these said pleas the district attorney demurred and the court sustained his demurrer, and to the seventh he joined issue. The issue thus joined came on to be tried in May, 1872, at a Court of Oyer and Terminer held in the city of New York. The court, after hearing the evidence, refused to allow the jury to pass upon the facts, but directed them, against the protest and exception of plaintiff in error, to find a verdict for thе people. In May, 1872, the plaintiff in error was again brought into the Court of Oyer and Terminer and directed to plead to the indictment. He, through his counsel, interposed an additional special plea, setting forth the facts proven upon the trial of the issue raised by the seventh plea. The court overruled the same and directed the prisoner to plead to the indictment, which he declining to do, the court directed a plea of not guilty to be recorded by the clerk.
In June, 1872, the defendant was placed on trial under the said indictment; the jury disagreed and were discharged by the court. On the 15th day of December, 1872, the defendant was again placed on trial and the jury returned a verdict of guilty of murder in the first degree.
The facts appearing upon the trial, so far as pertinent to thе questions discussed, appear sufficiently in the opinions.
Lyman Tremain, John R. Dos Passos and Cephas Brainerd for the plaintiff in error. It was error for the court to charge the jury that the fact of the killing being conceded, the burden of proof that it was not murder was upon the prisoner. (People v. Wilson, 4 Park. Cr., 619; People v. McCann, 16 N. Y., 66; Hone v. Hawkins, 3 Gray, 463; People v. Robinson, 2 Park. Cr., 235; Trial Prof. Webster, 72 N. A. Rev., 178; Comm. v. York, Hurd‘s Ldg. Cas.; Cooley Const. Lim., 9 Metc., 109; 2d ed., 325, note; 1 Hale P. C., 425; 4 Blk. Com., 198; 3 Coke‘s Ins., 47; 1 Hawk C., 31, § 3; Foster, 256; 1 East P. C., 215; 1 Browne Appx., 22; Penn v. McFall, Addis., 257; Penn v. Lewis, 1 id., 282, 283; 4 Black., 21, Sharswood‘s note, 26; Comm. v. O‘Hara, cited in Whart. Dig., 148; 1 Russ. on Crime, 482, note; Com. v. Gross, 1 Ash., 281; Com. v. Crane, 1 Virg. Case, 10; Respublica v. Bob., 4 Dal., 145; State v. Turner, Wright, 20; Coffee v. State, 3 Yerg., 283; Dale v. State, 10 id., 551; Dains v. State, 2 Hump., 439; Bratton v. State, 10 id., 103; Darry v. People, 2 Park., 606; 10 N. Y., 136; Fitzgerald v. People, 37 id., 413; 1 Russ. on Crime, 571; People v. Sullivan, 1 Park., 347; People v. Clark, 3 Seld., 385; People v. Sullivan, id., 396; People v. Austin, 1 Park., 154; People v. Johnson, id., 291; Dury v. People, 10 N. Y., 136; Maher v. People, 10 Mich., 217, 218; People v. Perry, 8 Abb. [N. S.], 34; 1 Colby Crim. L., 593; Whitford v. Comm., 6 Rand., 725; Hill‘s Case, 2 Gratt., 594; Kelly v. Comm., 1 Grant‘s Case, 492; Stark on Ev., 377; 3 Greenl. on Ev., § 29 ; People v. Divine, 1 Edmunds’ Select Cas., 594; Wynhamer v. People, 13 N. Y.; People v. Enoch, 13 Wend., 159, 421, 424; Comm. v. Webster, 5 Cush., 305; 3 Monthly L. Mag. [N. S.], 1, 13; 2 West. L. J., 487; U. S. Monthly L. Mag., 497; U. S. v. Mungs, 7 [Boston] Monthly L. R. [U. S.], 435, 439; Comm. v. Gardner, 11 Gray, 438; 4 Penn. L. J., 156, 157; Whart. on Hom., 460, 461; Whart. Cr. L., § 1084; Fouts v. State, 8 Ohio St. [N. S.], 98; Whart. Am. Cr. L., 6th ed., § 925, note; Dale v. State, 10 Yerg., 351; Anthony v. State, 1 Meigs, 265; People v. Wiley, 3 Hill, 195-212, et seq.) This error affords abundant ground for a new trial. (Wilson v. Rastall, 4 T. R., 753; 3 G. & W. on N. T., 774, 800, and cases cited, 775, 768; Benham v. Cary, 11 Wend., 83; Hastings v. Bangor House Proprs., 18 Me., 436; Troxdale v. State, 9 Hump., 411; James v. Langdon, 7 B. Mon., 193; Chrisman v. Gregory, 4 id., 474; Lamb v. C. and A. R. R. and T. Co., 46 N. Y., 271.) It was error to admit the minutes of the grand jury in evidence, that the day before the homicide they had indicted the prisoner for the crime of blackmailing deceased. (Myers v. Malcolm, 6 Hill, 296, and note; Cunliff v. Mayor, 2 Barb., 104; Whart. Am. Cr. L., § 824; 1 Greenl., § 461; Real v. People, 42 N. Y., 281; Warrell v. Parmelee, 1 N. Y., 519; Baird v. Gillett, 47 id., 186; Wilson v. Wilson, 4 Keyes, 413; 12 Wend., 41; 7 id., 193; 21 Barb., 189.) It was error to exclude evidence of threats made by deceased that he would kill the prisoner. (Keener v. State, 18 Ga., 194; Pritchett v. State, 22 Ala., 39; Monroe v. State, 5 Ga., 85; Campbell v. People, 16 Ill., 17; Cor. v. Com., 15 B. Mon., 539; Jewett v. Banning, 21 N. Y., 27; 1 Greenl. Ev., 102 ; 1 Phil. Ev., 181; Williams v. People, 54 Ill.) The court erred in excluding evidence of the prisoner that he had been under apprehension of violence from deceased. (People v. Rector, 19 Wend., 591; 1 Arch. Waterman‘s Notes, 794; Seeberth Case, 2 Whart, § 1027, notе x, p. 806; Cro. Car., 538; Loque v. Com., 2 Wright, 268; Hawkeswait‘s Case, 1 Hale, 240.) The court erred in admitting secondary evidence. (Newcomb v. Griswold, 24 N. Y., 298; Wright v. Maseras, 56 Barb., 521.) When a witness testifies to a fact and evidence is introduced to impeach his credibility, he may be corroborated by evidence of what he testified or stated on former occasions. (Henderson v. Jones, 10 Serg. & Rawle, 322; Cooke v. Curtis, 6 Har. & J., 86; Coffin v. Anderson, 4 Blackf., 395; Beauchamp v. State, 6 id., 300; State v. George, 8 Ire., 324; Dorsett v. Miller, 3 Sneed., 73.) The prosecution was bound by the evidence of Jennie Turner on her cross-examination, and could not contradict her. (1 Greenl., § 449, and cases cited; Lawrence v. Barker, 5 Wend., 301-305; Lawrence v. Baker, 16 Pick., 157; Com. v. Buzzell, 4 Den., 502.) The act of May 3, 1872, regulating the qualifications of jurors is unconstitutional. (
Benjamin K. Phelps, district attorney, and William Fullerton for the defendants in error. There being nothing dis-
SICKELS—VOL. VIII. 22
GROVER, J. Having carefully examined the six pleas in abatement, interposed by the plaintiff in error to the indictment, to which the district attorney demurred, upon which judgment was given sustaining the demurrers, and arrived at the conclusion that there was nothing contained in any of these pleas entitling him to judgment quashing the indictment or to any other relief, we shall not examine whether these proceedings are before this court properly for review upon the certiorari issued and the return made thereto. The same
Whether the questions thus attempted to be raised are reviewable by this court, and, if so, what practice should be adopted in bringing them before thе court, are immaterial in the present case.
The plaintiff in error clearly had no right to interpose these pleas a second time, or others of a similar character, and was properly required by the court to plead to the indictment, and, upon his standing mute, the proper course was taken by the court in ordering the plea of not guilty to be entered for him, and proceeding to the trial of the issue thus joined.
The only questions necessary to examine are those of law, arising upon the exceptions taken by the counsel for the accused upon the trial of this issue, and, perhaps, those upon the errors in fact assigned upon the writ of error upon the judgment. Those arising upon the exceptions taken upon the trial will first be considered.
Exceptions wеre taken to the decisions of the court upon the challenge by the prisoner of several jurors for principal cause. It was not claimed by the counsel of the accused that any error was committed, if chapter 475, volume 1, page 1,133 of Laws of 1872 is constitutional. It will be proper first to determine this question, as in case that act be held constitutional and valid, it will be unnecessary to determine whether any error was committed, had the law remained as it was at the time of the passage of the act. The position of the counsel for the accused is, that the right of trial by jury is secured to persons accused of felony by the Constitution, and that this secures the further right of trial by an impartial jury. We shall assume the correctness of the latter position. Any act of the legislature
The counsel for the accused further insists that the offence charged having been perpetrated, if at all, prior to the passage of the act, it is not to be applied in the trial of this case, if held constitutional, but only to cases arising thereafter. This position cannot be sustained. While no ex post facto law is valid, this has no application to the rules of evidence or the
The counsel for the accused offered to prove that the deceased, a short time before the occurrence, had made violent thrеats against him, such as that he “would beggar him first and then kill him;” “I go prepared for him all the time; so sure as my name is Jim Fisk I will kill him;” “I would kill him as soon as I would a ferocious dog.” This was objected to by the prosecution and rejected by the court, to which the counsel for the accused excepted. In determining the competency of this testimony, it must be borne in mind that evidence had been given making it a question for the jury whether the case was one of excusable homicide upon the ground that the act was perpetrated by the accused in defending himself against an attempt by the deceased to murder or inflict some great bodily injury upon him, and the further question whether it was not perpetrated in resisting an attack made upon him by the deceased from which he had reasonable ground to apprеhend a design to murder or inflict upon him some great bodily injury. Evidence of threats made by the deceased, which had been communicated to the accused, was received by the court. Proof of the latter facts was competent, as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bodily harm from the acts and motions of the deceased, when, in the absence of such threats, such acts and motions would cause no such belief. But why admissible upon this ground? For the reason that threats made would show an attempt to execute them probable when an opportunity occurred, and the more ready belief of the accused would be justified to the precise extent of this probаbility. But an attempt to execute threats is equally probable, when not communicated to the party threatened as when they are so; and when, as in this case, the question is whether the attempt was in fact made, we can see no reason for excluding them in the former that would not be equally cogent for the exclusion of the latter, the latter
Jennie Turner was introduced as a witness by, and gave material testimony for the accused. With a viеw to impair the credibility of her testimony, she was asked by the prosecu-
We think the minutes of the grand jury, showing that an indictment had been ordered by that body against the accused upon the complaint of Fisk for blackmailing, were improperly received. There was no proof tending to show that the prisoner had any knowledge of any such action by the grand jury. The evidence had, therefore, no tendency to show a motive of the prisoner for the killing of the deceased. The prisoner had testified that he knew Fisk had been trying to get him indicted for, as he understood, a conspiracy with another to blackmail him, but that, as he understood, he had failed to procure one. The prosecution could not give evidence tending to show that the prisoner hаd been guilty of any other crime than the one for which he was upon trial. The only effect of the minutes that I can see was to satisfy the jury that there was evidence of his having committed some other crime of such cogency as to induce the grand jury to indict him therefor. The prosecution had no right to give such evidence. Had the prisoner known of the action of the grand jury, it would have been competent to show a motive for killing the deceased, and, being proper for any purpose, there would have been no error in receiving it.
Numerous other exceptions were taken by the counsel for the prisoner upon the trial to the rulings of the court upon the admissibility of evidence. We have examined these, and arrive at the conclusion that none of them require disсussion.
Near the conclusion the judge charged the jury as follows: “The fact of the killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of killing under the circumstances, in the absence of explanation that it was manslaughter in the third degree or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying motive from the circumstances of the case, the prosecutor‘s case is fully and entirely made out, and therefore you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it was justifiable under the circumstances of the case.” To this portion of the charge the counsel for the рrisoner excepted. We have examined this portion of the charge to determine whether the idea intended to be conveyed to the jury, and which they would derive therefrom, was that the law implied that the act of killing was murder when perpetrated under the circumstances of the present case, or whether such was the legal implication from the proof of killing, in the absence of proof of the circumstances of its perpetration, by which the case of the prosecution was fully and entirely made out, unless the prisoner had satisfied them that it was not murder which the law would imply from the fact of the killing. We think a careful examination of the entire portion of the charge excepted to will show that the latter was the idea intended to be conveyed, and thаt the jury must have so understood it. From the opinions delivered it was so understood by the justices of the Supreme Court at General Term. This view is confirmed by the fact that the circumstances attending the killing in the present case were controverted questions, to be determined by the jury from evidence more or less conflicting; as claimed by the prosecution, such as would fully
SICKELS—VOL. VIII. 23
Section 3 of title 2 of the statute declares in what cases the homicide, when perpetrated by an individual, shall be justifiable. Section 2 of title 1, as amended by the act of 1862, provides that such killing, unless it be manslaughter, excusable or justifiable homicide, shall be murder in the first degree in the following cases: First. When perpetrated from a premeditated design to effect the death of the person killed or of any human being. It was under this provision that the prosecution sought to convict the prisoner. To justify such conviction it was necessary for the prosecution to prove all the facts bringing the case of the prisoner within it.
It was error to instruct the jury that the law implied all these facts from the proof of the killing. The correctness of this has rarely been questioned since the enactment of the statute. Hence there has been but little said by the courts upon the question, but what has been said sustains it. (People v. Clark, 7 N. Y., 393; Fitzgerrold v. People, 37 id., 418; People v. White, 24 Wend., 520; Wilson v. People, 4 Parker, 619.) The General Term was correct in the conclusion that this part of the charge was erroneous, and in the further conclusion that to obviate the error it was for the people to show that the prisoner was not prejudiced by such error. (Greene v. White, 37 N. Y., 405; Clarke v. Dutcher, 9 Cow., 674; People v. Wiley, 3 Hill, 194.) We have examined the entire charge to determine whether it does so show. We find that the judge correctly charged the jury as to the facts necessary to constitute the crime of murder in the first degree, and further, that he correctly instructed them that the people must prove all these facts to authorize the jury to render a verdict convicting him of that crime. But how does this cure the error of the instruction that the law implied all the necessary additional facts from the рroof of the killing? It was in effect instructing the jury that although the people must prove all these facts, yet they had done so by proving the killing, and by that the case of the prosecution was fully and entirely made out, and that this proof made it the duty of the prisoner to satisfy them that it was not murder which the law would imply from that proof, thus in effect instructing the jury that the proof of the killing cast the burden of proof upon the prisoner to show that it was not murder but manslaughter, or justifiable homicide. No such burden of proof was, by that, cast upon the prisoner. (Lamb v. C. and A. R. R. and Tr. Co., 46 N. Y., 271.) The further instruction to the jury, to the effect that the
It is unnecessary to pass upon any of the questions arising upon the offer of the plaintiff in error to assign error in fact upon the judgment. As to these we will simply remark that we think they werе properly disposed of upon the motion for a new trial.
But for errors in rejecting competent evidence offered by the prisoner and in receiving incompetent evidence against him, and in the part of the charge excepted to, the judgment must be reversed and a new trial ordered.
RAPALLO, J. I am satisfied that the conviction in this case cannot be sustained without the violation of settled principles of law, and it necessarily follows that I must vote for a reversal. While concurring in the reasons assigned by my learned associate for coming to the same conclusion, I will briefly state the considerations which to me seem controlling, independently of the numerous other points which have been discussed.
It is a cardinal rule in criminal prosecutions that the burden of proof rеsts upon the prosecutor; and that if upon the whole evidence, including that of the defence as well as of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit
The charge in this case was in my judgment calculated to convey to the jury that erroneous rule for their guidance. They were virtually instructed that, the killing being conceded, they should convict of the crime of murder, unless the proofs adduced by the prisoner satisfied them that the circumstances under which the killing took place were such as to justify his act, or reduce the grade of his offence. Though upon the whole evidence they might be in doubt as to what the circumstances really were, the killing being conceded, this charge indicated that it was their duty to convict.
The language of the charge to which exception was taken is as follows: “The fact of killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of the killing under the circumstances, in the absence of explanation that it was manslaughter in the third degree or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying malice from the circumstances of the case, the prosecution‘s case is fully and entirely made out; and therefore you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it was justifiable under the circumstances of the case.”
Argument seems unnecessary to demonstrate the error of
In all these cases it will be found that the court has been exceedingly careful so to limit this rule as to render it applicable only where by no possibility could the error have produced injury, and even this was an innovation upon ancient rules, under which it was a matter of course to reverse when error appeared, without inquiring into its materiality.
That so vital an error as one which should or might mislead the jury on the question as to the party on whom the burden of proof rested, could come within the category of those which could not possibly prejudice the determination of the case, is utterly inadmissible. Nothing short of an unequivocal retraction of that portion of the charge could have removed from the minds of the jury the impression which it was calculated to produce. It was the concluding portion of the charge, and afforded the jury a simple rule for their guidance in their
It seems to have struck the mind of the learned judge at the time, that the rule thus laid down by him encroached somewhat upon the principle that the prisoner was entitled to the benefit of a reasonable doubt, and he immediately followed by stating that, ordinarily, juries should give the prisoner the benefit of any doubt that may exist in the case, and that he did not know that even this was an exception to that rule, and he proceeded to instruct them generally upon the subject of reasonable doubts.
It is impossible that we should know whether these instructions effectually eradicated from the minds of the jury the erroneous impression calculated to be produced by the previous portion of the charge, and we cannot, therefore, pronounce, as a conclusion of law, that it had no influence upon the verdict. Whether under a proper charge the jury would have come to the same result it is not within our province to decide. The determination of the facts rests wholly with the jury. It is for the court to instruct them as to the law, and these instructions they are bound to follow. If materially erroneous it is the imperative duty of the appellate tribunal to grant a new trial.
All concur.
CHURCH, Ch. J., and ALLEN, J., expressing no opinion as to the constitutionality of the act, chapter 475, Laws of 1872.
Judgment reversed, and new trial ordered.