4 Dakota 455 | Supreme Court Of The Territory Of Dakota | 1887
The defendant, Charles A. Wood, was indicted for murder. The indictment was in the usual form, and charged a feloneous killing. Prom the evidence it appears that on the night of October 16, 1885, the deceased, George Pleury,
What may be considered substantially the undisputed facts disclosed by the evidence, and briefly stated, are as follows:
The defendant, at the time of the homicide, was a private of the cavalry guard, L troop, Seventh United States cavalry, and Stationed at Fort Buford, Dakota. He enlisted at Baltimore, Md., in May, 1883, and had been stationed at Fort Buford since the summer of 1883. He had never before been arrested nor apprehended for any crime, and had never been the subject of discipline by court-martial or otherwise, under or by virtue of any of the rules and regulations of the military service of the United States. The deceased, George Fleury, was a halfbreed Indian; and had lived upon the Fort Buford military reservation all the time that defendant had been there, and was acting in the capacity of post interpreter. Mrs. Fleury was a German half-breed, 22 years old, born at Fort Union, and was married to deceased in the summer of 1885, a few months previous to the homicide. That deceased and defendant had been acquaintances, and had lived upon quite intimate terms, all of the time since the summer of 1883; and the relations between the defendant and Mrs. Fleury had been friendly all of the time since their acquaintance, a year and a half prior to the homicide.
On the evening preceding the shooting, the deceased, George Fleury, Mrs. Fleury, defendant Wood, and one Mrs. Clyde, went together from Fleury’s house to a dance somewhere in the immediate vicinity, remaining at the dance until 2 or 3 o’clock the next morning. Both the deceased and the defendant had been drinking freely during the night. After the dance, the defendant, the deceased, Mrs. Fleury, and Mrs. Clyde, returned to Fleury’s house, and Mrs. Clyde passed directly on to her own home. There is some conflict in the evidence whether Mr. Fleury or Mrs. Fleury went to her home with her, but the evidence is undisputed that, whichever did go, they had re
The shooting was done in the bedroom. The furniture of this room at the time was a bed, wash stand, table, sewing-machine; and on the bed or table was a revolver owned and kept by deceased, and, standing in one corner of the bedroom, was a Winchester rifle, also owned and kept by deceased. At or immediately preceding the shooting the deceased, Mrs. Fleury, and the defendant, were alone together in the bedroom. Just before any shots were fired, Mrs. Fleury ran from the room, and, after the shots were fired, the defendant likewise made his escape. Fleury is supposed to have died almost instantly; certainly he was dead when he was first examined, a few moments later. •
It will thus be observed that the only living witness to what happened on that occasion between the defendant and the deceased was the defendant himself and Mrs. Fleury.
The direct evidence relied upon by counsel for defendant to establish his theory of self-defense is that of the. defendant himself, and is substantially as follows, as to what occurred in the bedroom: “After I arrived at the house, Mrs. Clyde and Mrs. Fleury went down to Mrs. Clyde’s, and George Fleury and myself went into the house, and the quarrel took place there. Question. State what you mean by a quarrel; state all. that happened. Answer. When I went in he said to me that I was a nice kind of a fellow to let that man dance with his wife in the way he did; and I asked him why; and he said I was bad as he was. Charles Foster I think is his name. I .told him I did not think there was anything wrong between his wife and Foster. Q. Was Mrs. Fleury there then? A. No, sir. He said there
And upon cross-examination Wood testified as follows: ‘ ‘Question. When you got into the kitchen, which way did you go? Answer. Went into the bedroom. He went in first, and sat down by the table. Q. Where did you go? A. I stood along side of him. Q. What did you do there, if anything? A. I moved from there to the bed on the left hand side of him. He wanted me to take a drink of whisky, but I did not do it. Q. Mrs. Fleury was not in the room? No, sir. Q. How long did you stay in that position? A. Until Mrs. Fleury came in. Q. How long afterwards did she come in? A. About twenty-five or thirty minutes. Q. And during all that time you and Fleury sat there talking friendly and drinking? A. We were not talking friendly. Q. What were you talking about? A. About the dance. Q. Where were you sitting? A. I moved. Q. Were you sitting in a chair? A. I do not remember. Q. Where was he? A. He then sat by the table. Q. Was he sitting in a chair? A. He was. Q. You do not know where you were sitting? A. I do not know whether I was sitting or standing. Q. Was Fleury in this position when she came in? A. Yes, sir. Q. Where did she go? A. She came in and sat down on this end of the bed, and commenced taking off her shoes and stockings. Q. What happened then? A. He started to quarreling with his wife as soon as she came in. Q. What did she say? A. She said we were a nice kind of a people to go to a dance, and tell about this business that happened; and he said she was nothing but a prostitute. Q. What did you say to him? A. I just asked him to prove it, and he said it did not need any proof. He said, ‘You son of a bitch, I’ll blow your head off.’ Q. Was he sitting at the table? A. He was. Q. What was he doing?
As corroborating this branch of the defendant’s testimony, Dr. Johnson, assistant surgeon of the United States army, 'and a witness for the prosecution, testified as follows: “I was notified about three o’clock in the morning on the seventeenth of
Sergeant Bryant, also a witness for the government, who was the officer in charge of the guard who took possession of the building immediately after the shooting, testified as follows: “Question. You also entered the bedroom? A. Yes, sir. Q. Did the other members of the guard follow you into the bedroom? A. Yes, sir. Q. What was then done by you? A. I went over to see if the man was dead. It was rather dark in the corner, and I took the lamp off the table. Q. Was the light burning? A. Yes, sir. I went over near the body, and found the rifle lying near the washstand. It lay right close to him. I saw that the man was dead, so did not disturb him. Q. Did you remain in the room all the time, till the doctor came? A. Yes, sir. Q. Was the body disturbed in any manner? A. No, sir. Q. Did you do any
George Rostrander, one of the guards accompanying Sergeant Bryant, after describing the location of the body, testified as follows: ‘‘Question. What else did you observe in the room A. I saw a gun lying at his left side. Q State how it was sitting? A. With the butt towards him, and the barrel along the floor. Q. Towards what portion of his body? A. Lying on his lefthand side. Q. Was it a rifle? A. Yes, sir. Q. It laid close to the left side, you state. A. I should think about a foot. Q. Did you notice anything else there, — a cartridge belt, or anything of that kind? A. The sergeant took the gun up, and placed it at the other side of the room. I assisted the doctor to lay the body out in the center of the room, and then saw the belt underneath him. It was nearly full of cartridges. There were two out of the belt,- — one almost under him, and another a little to the left of him. They had not been exploded. ”
James Hogan, the other guard who accompanied Sergeant Bryant, testified as follows: “Question. Did you observe the gun? A. Yes, sir. Q. State where it was? A. When I went into the room he was lying in a sitting position, his hand was across his breast, and his belt was on, but unbuckled. His Winchester rifle lay with the breach open, and two cartridges on the floor, — loaded cartridges.”
The only other material evidence presented by the record, and contradictory of that above set forth, was that of Mrs. Fleury, and is in substance as follows: “Question. State who
The above is substantially all the evidence in the case as what occurred in the bedroom on the occasion of the homicide. I have quoted it fully because of its importance in determining the question of justification, and because of its importance in determining, to my mind, the only question error in the case. The only two living witnesses have thus detailed what was said and done at that time. Practically, upon their testimony, the jury were required to determine the important question whether Wood was guilty of murder, or whether his act was justifiable; and, in the performance of their sworn duty in judging of the weight of evidence, and the credibility of witnesses, they accepted the story of the woman, returned a verdict of guilty, and Wood was sentenced to execution.
We may assume (but from a very careful examination of the record I must confess it a very violent assumption) that there was on the face of the record sufficient evidence to warrant the trial court in submitting the question of murder to the jury; but with that submission it -was of the utmost importance that the jury should be furnished with all the light legally possible concerning the character of the witness they were thus asked to believe.; and, to my mind, the cases to be found in the books are rare where such an important question was presented and in like manner determined, and attended with such fearful consequences, where, upon the trial, the door was closed which separated the past moral character of the single witness for the prosecution (who was present at the time the offense was
In People v. Manning, 48 Cal. 337, the court says: It is the peculiar providence of the jury to weight the evidence and decide upon the credibility of witnesses.” With the well-nigh universal system of jury trials in the several states of the
It did appear from the evidence (perhaps by accident) that the witness in this case, Mrs. Fleury, was an Indian halfbreed, born at one of the government forts of this country. Further than that the jury must have been governed entirely by impressions, good or bad, conceived from her temporary appearance before them as a witness. What the opportunities are for persons of this class, at a military post, on a government reservation, to develop the finer instincts, and all the better elements of the moral character, of men and women, I am not advised. It might, however, be safely presumed that the frontier and military posts of the country are not pre-eminently the places best fitted for the development of those traits of character which constitute true man and womanhood. At all events I may safely say that the kind offices of our government which have been bestowed upon the half-breeds of the country for the education and development of their higher moral characters, has not become so marked and distinctively characteristic as to warrant (in my opinion) the courts of this territory in taking judicial cognizance of it as an established fact; thereby closing to trial jurors in criminal cases the avenues to inf or
I am aware that the evidence which was rejected in this case was of that class which would expose the witness to disgrace, and thereby lessen the value of her testimony. That was the purpose of the offer, and it was a legitimate purpose, and I think well established by authority in England and .especially in this country. What good reason can be given why the testimony of one witness who has reached perhaps the highest point of development in his mental, social and moral nature, and who has all his life striven to make the very highest use of every faculty with which the Almighty has endowed him, and who has all his life striven zealously to keep, and truly observe, every known law, human and divine, — why, I ask, should jurors, sworn to an honest performance of a particular duty, be required to accept the testimony of such a witness as only equivalent to another whose birth may have been, in point of time, uncertain; parentage doubtful; childhood ob scure; associations primitive; manhood dwarfed; with mental development untouched, and moral character benumbed? If the villain who has, through his associations with outlaws, acquired such a degree of smartness that he can, upon the witness stand in a court of justice, appear pert and cunning, and have the courts of the land draw the veil between himself as an outlaw and guerilla upon society, then indeed are courts of justice a misnomer, and little protection will lie in those tribunals for either property or life. Such is not the law of the land, as established by either precedent or reason.
The language of the, learned Hunt, J., in Shepard v. Parker, 36 N. Y. 517, is not only pertinent as applied to the case at bar, but it also glitters with reason, and, if the true principle there enunciated was oftener applied in courts of justice they would become less frequently courts of injustice. With reference to this class of evidence sought on cross-examination of a witness the learned judge says: “The evidence was competent for the purpose of impeaching the witness. . It
That the accepting or rejecting of this class of evidence in whole or in part, is largely discretionary with the trial court, may be admitted. That, unless the rejection of this evidence was an abuse of judicial discretion, no error was committed in the case, may also be admitted. The immediate circumstances attending the shooting appear above in the evidence. The defendant and Mrs. Fleury are the only living witnesses of that scene in the bedroom. The defendant, “a stranger in a strange land, ” is on trial for his life. His direct and positive testimony as to what occurred instantly preceding the shooting was as follows: “He (George Fleury) said: ‘You son of a bitch, I’ll blow your head off. ’ He was sitting on the bed, and jumped to the corner, and grabbed the Winchester rifle. He pointed it at me. I immediately jumped for the door. Struck the sewing machine. My eye fell on the revolver, with the handle out of the basket. I grabbed it and fired. ” Mrs. Fleury’s testimony of the same scene is as follows: “He (George Fleury) said to quit quarreling about the dance, and got up, and walked over by the washstand. I told Wood to go to bed and he would feel better. He said he would make me suffer for it, and he pulled out a revolver. I told my husband, ‘Look out for yourself, George, ’ and I ran out. I heard two shots fired when I ran out of the kitchen door. My husband had his back to me, and I told him to look out. I saw Wood at the time he pulled the revolver out of his pocket — his right hand pants pocket. I ran out. I heard the shots fired as I ran
A moment’s inspection of the above testimony of the defendant, if believed by the jury, would be well nigh conclusive that the only way to account for the defendant’s continued existence is that he saved his own life by necessarily taking that of Fleury. Especially would this seem to be so when we consider the other'evidence in the case, that by the side or Fleury’s dead body lay the cartridge belt, full of loaded shells, with two shells withdrawn, and as the witness Hogan, who was one of the first upon the scene after the shooting, testified: ‘‘His Winchester rifle lay by his side with the breech open, and two loaded cartridges w ithdrawn from the belt, and on- the floor. ” Upon the other hand, the jury may well be said to have been warranted in returning the verdict of guilty of murder, if, instead of believing such evidence, they believed the testimony of Mrs. Fleury that the defendant drew the revolver from his own pocket, with a threat, and fired two or three shots instantly, and in quick succession, thereby slaying her husband without the least provocation on his part. It is, indeed, difficult to imagine a case where the credibility of witnesses should cause trial jurors greater solicitude.
No principle is more firmly established than that previous good character of a person charged with crime is competent evidence to be considered by the jury in passing upon the question of guilt or innocence. But it is strenuously insisted that a man’s life may be judiciously sacrificed upon the testimony of witnesses whose own private character (vile and sinful though it may be) is too sacred for inspection, by those whose duty it is to give to it such, and only such, weight as it is entitled to receive in the courts of the land. The evidence offered was rejected by the trial court when, to my mind, the importance of the evidence, the importance of the case, the magnitude of the offense charged, with the possible corresponding penalty, all demanded that it should have been admitted.
While it may well be said that the authorities in this country are not in entire harmony upon the question as to how far
In speaking of the admissibility of this class of evidence, Peckham, J., in LaBeau v. People, 34 N Y. 233, uses this language: “I wish to say that in my opinion, as a general rule evidence on cross examination, tending to impeach the credibility of a witness, should be rejected with very great caution; its exclusion can rarely be proper. ”
In Newcomb v. Griswold, 24 N. Y. 298, Allan, J. says: “In the latitude of cross-examination, and to enable the jury to understand the character of the witnesses they are called upon to believe, collateral evidence is allowed from the witness himself tending to discredit and disgrace the witness-under, examination. ”
The same question was again before the court of appeals in the state of New York in Real v. People, 42 N. Y. 270; and seemingly that trial courts might no longer have excuse for closing the door against. this class of evidence, Grover, J., presents an elaborate discussion of the question, and in his usual vigorous manner. And it would seem reasonable to suppose the question was, for the present at least, settled in that state that, while the subject was still left with the trial court as a discretionary question, yet that discretion should generally be used in the direction and expansion, rather than contraction, of the avenues leading to this subject of past moral character. The court in that case says: “It is well settled that, for the purpose of impairing the credit of a witness, by evidence introduced by the opposite party, such evidence must go to his general character. * * * It is held, for the purpose of discrediting his testimony, the witness may be asked, upon cross-examination, as to specific acts. This shows that upon a cross-examination of a witness, with a view of testing his credibility, inquiries are proper as to facts not competent to be proved in any other way. * * * In such examination the presumption
The same question was before the supreme court of Michigan, (Wilbur v. Flood, 16 Mich. 40,) and Campbell, J., in speaking for that tribunal, says: “It has always been found necessary to allow witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seem to justify it, in allowing a full inquiry into the history of witnesses, and into many other things tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of a person they are called upon to believe, and such a knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It cannot be doubted that a previous criminal experience will depreciate the credit of a witness to a greater or less extent, in the judgment of all persons, and there must be some means of reaching this history. The rules of law do
Again, in Foster v. People, 18 Mich. 265, the same learned jurist had occasion to again refer to this class of evidence, and said: “The quality of such testimony can never be regarded as entirely separated from the character which is indicated by their crimes; and, if the position they occupy indicates moral turpitude; there is a necessity for more thorough cross-examinetion, and nothing ought to be shut out which can sensibly aid in explaining their credibility, unless there is some fixed rule of law that excludes it. ”
In 1 Greenl. Ev: (14th Ed.) the learned author, while recognizing the fact that the courts are not in perfect harmony upon the subject, uses the following very pertinent language in announcing a proposition of elementary law: “There is certainly great force in the argument that, where a man’s liberty or his life depends upon the testimony of another, it is of infinite importance that those who are to decide upon the testimony should know, to the greatest extent, how far the witness is to be trusted. They cannot look into his breast to see what
Applying these rules to the facts as presented in the case at bar, we are of the opinion the evidence offered was competent, and its exclusion was error, for which the judgment must be reversed, and a new trial ordered.