People v. Hail

The defendant; having been convicted of the crime of manslaughter under an information filed in the superior court of Plumas County, charging him with the crime of murder, alleged to have been committed at Quincy, in said county, on the sixteenth day of August, 1913, prosecutes these appeals from the judgment and the order denying him a new trial.

The assignments of error are numerous and may be stated in orderly sequence as follows: 1. That the evidence does not support the verdict; 2. That the court erred in certain rulings whereby certain evidence was admitted and certain evidence excluded; 3. That the district attorney, during the trial of the cause and in his argument to the jury, was guilty of misconduct seriously prejudicing the substantial rights of the accused; 4. That, in its charge, the court misdirected the jury in matters of law; and, 5. Newly discovered evidence, etc., etc.

In view of the conclusion we have reached that the judgment must be set aside on the ground of substantial prejudice suffered by the defendant by reason of certain remarks by the district attorney in his argument to the jury, it will be unnecessary to notice the other assignments. . A consideration of the point which we conceive demands a reversal of the judgment and the order will, however, necessitate a somewhat extended review of the evidence.

The voluminousness of the evidence adduced at the trial, and which, in its entirety, constitutes a part of the record on these appeals, may at once be apprehended when it is stated that forty-five witnesses were called, gave testimony and most of them subjected to exhaustive cross-examination. It would, therefore, be impossible, in the examination of the evidence, to consider and review in this opinion in full detail the testimony of each of the witnesses. Indeed, since there appears to be, upon the face of the testimony, little or no material conflict therein, with perhaps an exception or two upon certain points, to which it will be our duty to direct attention, it is deemed necessary only to present here an accurate synoptical statement of the facts which logically follow from the evidence, now and then, as in our judgment the necessity of this decision may require, briefly quoting certain testimony.

The defendant, at the time of the homicide, was sixty-two years of age and a journalist by profession, having been, up to the time of the unfortunate affair of which this case is the

The deceased, John H. Boyle, was a lawyer by profession and was, and had been for several years prior and up to the time of his death, engaged in prosecuting the practice thereof at Quincy, the county seat of said county. He was, at the time mentioned, about thirty-five years of age, in stature measured five feet, nine inches and three-quarters and in robust health.

It appears that, approximately a year prior to the date of the homicide, the deceased had made an application to the Masonic lodge of Quincy to become a member thereof, and that, upon considering and voting upon said application, said lodge rejected it and thus denied the deceased the privilege of becoming affiliated therewith. The result of the action of said lodge upon his application was, quite naturally, a sore disappointment to Boyle, and it seems provoked in him an intense feeling of hostility and resentment against all the members of said lodge in general and in particular against the individual, whoever he might be, whose vote upon the application had resulted in its rejection. .According to the undisputed evidence, he, on indiscriminate occasions, bitterly denounced the members of the lodge collectively, referring to them in language scurrilous and opprobrious in the extreme. Pie let it be understood in no uncertain language that he would in some manner avenge the wrong which he conceived had been committed against him by the denial to him of the privilege of entering into membership of the Masonic fraternity, if he could succeed in discovering the identity of the member of the local lodge of that order who had cast the “blackball” against his application. He appears to have started an investigation looking to the disclosure of the identity of the individual who thus had prevented his acceptance into the lodge and kept up a relentless prosecution of it until he had obtained information, sufficient to him, upon which to base the belief that the defendant was the party who had cast the vote fatal to his hope of becoming a member of the lodge. Whether he had any tangible ground upon which to found his belief or suspicion, or whether he had obtained satisfactory evidence that the defendant was the party who cast the “blackball” on his

For some time prior to the day on which the fatal shooting occurred, Hail had at various times been told by different parties that the deceased had reached the conclusion that he (Hail) had east the “blackball” against the former; that the deceased was constantly abusing the defendant in severe and scurrilous terms and that he had made threats against Hail.

We are now brought to the day of the homicide, some of the immediate circumstances of which will be the better understood by the following preliminary explanation: It appears that, during the course of the agitation over the rejection of the petition of the deceased to become a member of the Masonic lodge, an article, anonymously signed, was

Between half-past 7 and 8 o’clock of the evening of August 16, 1913, the defendant and one Edward ITuskinson were holding a conversation near the outer edge of the sidewalk, in front of what is known as the “Capitol Saloon,” located on Main Street, in Quincy, the defendant, it appears, standing on the ground or not quite upon the sidewalk, but near the curbing. They had thus been engaged for a very brief period of time (“probably a minute, maybe two,” so Huskinson thought), when the deceased put in an appearance and approaching the spot where the two men were standing, and with “a little wild, a little glitter in his eye, under subdued excitement,” addressed the defendant, saying: “Mr. Hail, I would like to see you a minute.” Hail, thereupon, and without making a reply to the deceased, im

Hail’s version of the first meeting between the deceased and himself is as follows: That he was on his way to the Masonic hall carrying with him a written invitation from the board of education to the Masonic lodge to conduct the ceremonies of laying the corner-stone of a new high school building in Quincy, the construction of which was then in progress; that he met Huskinson at the point above mentioned and paused to tell him of said invitation and, while so engaged, “Boyle came up and took a position on the sidewalk between Huskinson and myself. With a jerk of the head and a fierce, menacing expression on his face, said: ‘Mr. Hail, I would like to speak to you a minute as soon as you are through with Mr. Huskinson. ’ I made no reply and started to go down the street past the Grand Central Hotel and post-office to the Masonic building. Mr. Boyle followed me, and, as I was about to step up on the sidewalk, he accosted me again and said: ‘Parties tell me that article in the paper meant me.’ I made no reply other than to say: ‘That is up to you, John.’ As quick as I got the words, ‘that is

After the departure of Hail from the scene of the assault above described, Huskinson remained for a while with Boyle and undertook to persuade him to drop the matter and to leave that part of the street. Huskinson’s expostulations were unavailing, and, saying to the deceased, “Well, Johnny, if you aint going, I am—for Heaven’s sakes don’t have any trouble,” he walked into the Capitol saloon.

With the exception of a child just past the age of eight years, Albert Vance by name, who said that he saw Boyle slap Hail a severe blow and the latter with a knife in his hand attempting to stab the former, although the two men, he said, were never close to each other after Boyle struck Hail, the only witnesses to the first altercation between the defendant and the deceased were Huskinson, Boyle, and Hail. There was no-material variance between the testimony of Huskinson and that of Hail relating to the circumstances of the original actual hostile meeting of the parties, and it is hence manifest that the testimony of these witnesses detailing said circumstances stands in the record undisputed. Thus the proposition is obvious that the deceased was the original aggressor or the first to precipitate actual hostilities.

As seen, the defendant left the scene of the first difficulty immediately after Huskinson stepped in and stopped the further progress of the altercation. The testimony shows and, in fact, the defendant declared it to be true on the witness stand, that, forthwith upon the cessation of the first trouble, he started for and went to his office. What he did there and of his movements thereafter up to and including the time of the shooting may best be told in his own language, inasmuch as his is the only testimony disclosed by the record bearing upon certain incidents occurring after the original difficulty and immediately connected with the final chapter of the tragedy. He testified: “I entered the office and went back to the editorial room, turning on the electric light with my hand and handkerchief and examined my head and ear to see if they were bloody. I found no blood. I then reached down into a drawer of my desk and took therefrom a pistol and put it in my right front pants pocket, for the purpose of defending myself against an assault by him should he make it again that evening in accordance with threats previously made. I left my office and resumed my journey to the Masonic lodge. I was going to the Masonic lodge for the specific purpose already referred to—that of delivering the resolution adopted by the board of education to the secretary of the lodge. Near the west line of Mr. Stone’s jewelry store I observed Mrs. B. Schneider coming across the street from the Plumas House. She hailed me she said to have a talk with me. I told her I was in a hurry at that time and could not do so, but that I would be glad to do so on a future occasion. She signified her assent and I resumed my journey to the Masonic lodge. The Masonic lodge, while I think the rule is 7:30, in the summer months, it seldom meets before 8 o’clock, usually about that time. I was hurrying to get there before lodge opened and deliver this document to the secretary. Q. What course did you pursue along the street after talking to Mrs. Barney Schneider? A. I went along the sidewalk on the north side of Main Street. Q. What is your usual course and what had been your accustomed course in going to the Masonic ledge? A. To go down by the way of the National-Bulletin office and Main Street.” (This

No witness, other than the defendant himself, was produced who knew or pretended to know just how the second encounter was started, or who started it. Unless, therefore, there are in the case physical facts which clearly run counter to his story of how and by whom the second and fatal difficulty was begun, the defendant’s testimony upon the following points appears in the record undisputed: 1. That, when the defendant retraced his steps from his office to the point where the original difficulty and the shooting transpired, he was on his way to the Masonic lodge; 2. That, although he thought it might be probable that he would again meet the deceased that night, he did not know, as he was on his way to the lodge,- that Boyle was still at the scene of the first trouble; 3. That, as he approached the point where the first assault was made, and when within a few feet thereof, he saw Boyle in a crouching position behind a tree, with hjs right leg thrown back and his right hand upon his hip pocket; 4. That, upon seeing Boyle in that position, the defendant changed his course on the sidewalk, leaving the center thereof- and moving to the walls of the building, or on the opposite side of the sidewalk from where Boyle was standing, and thus attempted to pass the deceased; 5. That, when the defendant was about two feet west of and from the deceased and in the act of passing him, the latter suddenly sprang out and upon Hail and struck him a severe blow with his hand on the left side of the head, which blow caused the defendant to become dazed; 6. That, in the scuffle, Hail was wounded severely in the left leg above the ankle by a shot discharged from his own weapon.

There is, however, an apparent conflict in the evidence, so far as circumstances are concerned, upon the question whether Boyle was shot by Hail before or after the latter fell back upon the sidewalk.

The theory of the prosecution at the trial was, as is their position here, that Hail, having gone to his office for the express purpose of arming himself, returned to the scene of the original altercation with the hope of again meeting Boyle and with the intention of avenging the assault made by the latter upon him; that the two men met, that Hail drew his revolver and shot Boyle before any act of violence by Boyle,

There is, as already suggested, some testimony, very slight, however, which bears the appearance of supporting that theory. That two shots were discharged and that, after an interval of approximately a second, three more were fired in rapid succession, appears to be well established. Some of the witnesses for the prosecution seem to have been quite positive that all of the five shots were discharged while the two men were yet upon their feet and engaged in a struggle. The witness, Brown, for the people, testified that he heard two shots, turned around to see where they came from and that he saw Boyle “make a grab for a gun.” He said further that, prior to seeing Boyle “grab for the gun,” the latter did not have hold of Hail. Dr. Stewart testified that, just before the shooting, he saw Iiail walking faster than his usual gait from the direction of his office to the point where the shooting occurred; that within a short interval of time thereafter he heard two shots, looked in the direction of the place where the firing took place, and that he saw a struggle going on between two men. ITe said that, immediately prior to the shooting, he saw no altercation or struggle in progress between the parties.

It will be observed that neither Brown nor Stewart says or makes any pretense of knowing what was going on between the two men just before they heard the first two shots—that is, they did not know and did not say whether a struggle between the two men preceded the firing of those shots. It is, however, clear, from the testimony of said witnesses, and, for that matter, from that of all the witnesses introduced by both sides that saw any part of the combat, that the deceased, if wounded by one of the first two shots, did not then receive a mortal wound. Dr. Walsh, the autopical surgeon, testified that he found three distinct wounds in the body of the deceased, two of which were necessarily fatal and from the effect of either of which death would almost instantaneously follow. The first of these wounds described by him, besides producing damage to other parts of the upper body, lacerated and destroyed the subclavian vessels—both the vein and the artery. The doctor explained that “the subclavian artery

Prom the doctor’s testimony these facts necessarily follow: 1. That the death of Boyle, was practically instantaneous with the infliction of the wound which destroyed the- subclavian vessels; 2. That the shot which penetrated the heart was received after life was extinct, for it is an obvious proposition that, if the deceased had still been alive when he received the shot in the heart, there would have been evidence of more or less hemorrhage in that wound; 3. That the struggle between the two men, whether they were upon their feet or down on the sidewalk, must have immediately ceased when Boyle received the wound whose effect was to destroy the subclavian artery and vein.

The next inquiry which may well be made is: Were the defendant and the deceased down on the sidewalk when the mortal wound was inflicted?

There were, it is conceded, but five shots discharged from Hail’s weapon and that of these one entered the leg of Hail, three the body of Boyle and one “went wild,” or, in other words, struck neither Boyle nor Hail. That the bullet which entered Hail’s leg was discharged from the pistol while it was yet in the pocket of his trousers, seems to have been satisfactorily confirmed by the fact that said pocket was shown

The theory following from the foregoing view of the testimony is that two shots were discharged in the pocket of Hail’s pantaloons before he was able to draw the weapon therefrom and that the three shots which entered the body of Boyle were discharged while the two men were in a struggle down on the sidewalk. Moreover, this theory is supported by the testimony of a number of the witnesses for the defense, they having asservated that, after the first two shots were fired, they saw Hail and Boyle fall to the sidewalk, the latter falling on top of the former, and that, after they had thus fallen, three shots were fired in quick succession, with the result that Boyle fell off of Hail and on his back on the sidewalk.

Thus it appears that the physical facts themselves coincide with and support the story of the tragedy as told by the defendant. In other words, the physical facts are not inconsistent with or contradictory to the testimony of Hail, either as-to how and by whom the second trouble was started or as to how the shooting occurred. On the contrary, as stated, they seem to bear out and support his testimony as to how and at what point of time the shots were fired, while, as seen, there is absolutely no testimony contradicting his statement that Boyle started the second trouble in the manner described by him. And he was not impeached.

Under the circumstances as disclosed, no one will dispute the right of Hail, after the first assault, to have armed and thus have prepared himself to defend his person against what he had -reasonable grounds for believing might be another violent and perhaps a more serious assault upon his person at the hands of -his implacable enemy, between whom and himself a mere fistic contest would have been unequal or one-sided and

With the law and the only testimony showing or tending to show how and by whom the trouble between the parties at the second and fatal meeting was started thus stated, the question arises: Did the jury arbitrarily reject the defendant’s testimony, or, examining it under the tests whereby the credit of human testimony must and can only be determined, did they question its verity and so exclude it as a factor or element determinative of the question of guilt or innocence ?

It will be admitted that, with the exception of the fact of the homicide itself and the circumstance that the defendant resumed his way to the Masonic lodge over a course leading past the scene of the first assault, there is absolutely no affirmative testimony in the record tending to establish the crime of murder. And, if the jury rejected the testimony of the defendant, then, manifestly, there was left in the record no testimony disclosing the circumstances of the beginning of the second difficulty and, therefore, obviously, none to show that the homicide was the result of a sudden quarrel or heat of passion, the elements of voluntary manslaughter, of which the defendant was convicted.

Thus we have examined, analyzed, and considered the testimony, not because we feel justified in declaring that the evidence does not, as a matter of law, support the verdict, but to demonstrate that, while the evidence may be said to be technically, and only technically, sufficient to uphold the jury’s conclusion, there appears to exist a doubt of the gravest character of the guilt of the accused of any crime, and thus to illustrate the seriousness of the point, vigorously urged against the validity of the verdict, involving the charge that the district attorney, in his argument to the jury unwarrantably used

Thus we are brought to the consideration of the point just mentioned.

Preliminarily, it is objected by the attorney-general that the point involving the asserted misconduct of the district attorney cannot be reviewed either on an appeal from the judgment or the appeal from the order denying a new trial, except where it is made to appear that by some ruling respecting the alleged misconduct the court has made an error which could be made the ground of a motion for a new trial. As sustaining this position the attorney-general cites the cases of the People v. Amer, 151 Cal. 303 , [ 90 Pac. 698 ], and People v. Amer, 8 Cal. App. 137 , [ 96 Pac. 401 ],

In the first mentioned case it is said: “In view of the fact that the misconduct of the district attorney has so often been held to constitute a sufficient ground for reversal of the judgment, it may be that it has become a settled rule that the question of the misconduct of the district attorney will be considered upon an appeal from the judgment when presented by a proper record and the points saved for review by exception. ’ ’

In the second ease referred to it is said that “there is no authority whatever in the statute for holding that such misconduct of the district attorney, aside from any ruling of the court in reference thereto, can be properly reviewed on appeal from the judgment unless it is a ground for a motion for a new trial.” It is further said in that case that “if any other rule has been established, it must be by virtue of judicial legislation.” In this case, however, the court refused to take any heed of the objection of the attorney for the defendant to the remarks of the district attorney constituting the alleged misconduct of that officer in his address to the jury, and in this we think the court committed an error which could properly be made the basis of a motion for a new trial. We are of the ' opinion, therefore, that the question of the misconduct of the district attorney, exception to such misconduct having been reserved and presented here by a proper record, may be reviewed on the appeal from the judgment. (See People v. Pang Sui Lin, 15 Cal. App. 263 , [ 114 Pac. 582 ].)

In the course of his argument to the jury, the district attorney said: “Men have been acquitted who have committed cold

Counsel for the defendant, immediately upon the utterance of said language, assigned it as error and moved the court to instruct the jury to disregard it. As before stated, the court in effect refused, or, at any rate, omitted to do so, saying: “I don’t understand it; to me it doesn’t mean anything; proceed.”

That the effect of the statement that the jurors, in the event that they acquitted the defendant, would be afraid to go out upon the public streets and meet their fellow-men, was to intimidate or influence them to return a verdict of conviction, regardless of their views as to the effect of the evidence, cannot for a moment be doubted. Whether the language referred to was used in good faith or for the purpose of influencing a verdict, is immaterial. The vice and damaging effect of the utterance upon the rights of the accused remained. In a case where evidence of guilt was overwhelming or conclusive, we might justly say that the language was not prejudicial in its effect upon the legal rights of the defendant, although the use of such language would in such case be none the less reprehensible. But this is, as we have shown, not such a case.

Both the defendant and the deceased were professional men —the one a journalist, actively engaged in following his profession, the other a lawyer, actively prosecuting the practice of his profession. They were, therefore, prominent and conspicuous characters in the county of Plumas and in its civic and social affairs. Both had resided in that county for many years and, we have the right to assume, were respected citizens thereof. In the very nature of things, therefore, the tragedy must have aroused great excitement among the people of said county and have provoked a high state of public feeling. Doubtless, as is invariably so in such cases, where the actors are prominent and well known, the people of the community took sides and were pronounced in their partisanship on the one side or the other. This condition of the public mind we cannot and do not take judicial notice of, but from common experience we know that it will arise and exist on

The language complained of amounts, substantially, to a direct declaration to the jury that, if they did not convict the defendant, they would lose- the respect and confidence of their friends and neighbors. Thus the question of the honesty and the integrity of the jury was injected into the case. In other words, the jurors themselves were put upon trial by the district attorney, and whether they could bravely meet their fellow-citizens and face them with clear consciences was made by that official to depend upon whether they found the defendant guilty.

A public prosecutor represents all the people, of whom every person accused of violating public law is none the less one because he is so accused. He represents the majesty of the law, which stands for the protection of every citizen against the taking of his life, his liberty or his property without its due process—the law which condemns rather than commands the conviction of a person of a public offense upon insufficient evidence or by unfair means. That official should always do his sworn duty, of course, but he should always do it fairly and justly and not permit the great power with which he is clothed to be converted into an instrument of persecution. He should, as indeed any. lawyer should, in his address to a jury, remain strictly within the record and not attempt to evolve any theory or to import into the case any features not fairly and reasonably justified by the proofs.

In this case the district attorney’s address to the jury fairly reeked with violent abuse of the defendant and other declarations not warranted by the evidence or fairly within the bounds of the record or any theory reasonably deducible therefrom. He repeatedly characterized the defendant as a coldblooded murderer and often misstated the law of the case. He

The cases are replete with severe arraignments of prosecuting officers for unfairness in the presentation of cases against persons accused of crime, and there have been very justly recorded many reversals for misconduct no more obnoxious than that complained of in the case at bar. The number of such cases is so large that it would greatly extend the length of this opinion—■ now more extended than had been desired—to attempt to notice all of them. We shall examine a few of them, however.

In the case of the People v. Bowers, 79 Cal. 415 , [ 21 Pac. 752 ], the language used in animadverting upon the conduct of the district attorney for referring in his argument to the jury to matters de hors the record, has peculiar application to the present ease. The court, after an examination of the evidence, said: “We do not feel like saying, under these circumstances, that as a matter of law the jury could not be satisfied beyond a reasonable doubt of the guilt of the defendant, but it is evident that the case was one of great difficulty, and required unusual circumspection, and the utmost coolness and impartiality in its consideration. ... In view of all these circumstances, certain occurrences at the trial have a significance which in a different kind of a case we should hesitate to attribute to them. Unfortunately, the judge allowed himself

In People v. Ah Lean, 92 Cal. 282 , [ 27 Am. St. Rep. 103 , 28 Pac. 286 ], the supreme court, in reversing the judgment upon the ground that the prosecuting attorney in his address to the jury imported into the case matters which were not brought there by proof, said: “It follows that the only safe and just rule to follow in such cases is to make it impossible for a party to obtain any advantage from such misconduct of counsel by promptly granting a new trial to the adverse party.” The court in that case also approvingly quotes the following language, most pertinent and forceful in its application to this case, from the case of Tucker v. Hennilcer, 41 N. H. 319 : “ When counsel are permitted to state facts in argument, and to comment upon them, the usage of courts regulating trials is departed from, the laws of evidence violated, and the full benefit of trial by jury is denied. It may be said, in answer to these views, that the statements of counsel are not evidence, that the court is bound to so instruct the jury, and that they are sworn to render their verdict only according to evidence. All this is true; yet the necessary effect is to bring the statements of counsel to bear upon the verdict with more or less force, according to circumstances; and if they, in the slightest degree, influence the finding, the law is violated, and the purity and impartiality of the trial tarnished and weakened. If not evidence, then manifestly the jury have nothing to do with them. It is unreasonable to believe the jury will entirely disregard them; they may think they have doné so, and still be led involuntarily to shape their verdict under their influence.”

In the case of the People v. Mull, 167 N. Y. 247 , [ 60 N.

Thus we have presented excerpts from a few of the cases upon the proposition under review, not for the reason that it is not clear in principle that reversals should be ordered where public prosecutors resort to the practice of bringing into their cases under the guise of argument or otherwise matters wholly outside the records and which are obviously calculated to influence juries, either consciously or unconsciously, in arriving at verdicts of guilty, contrary to the evidence and the law, but to show how such practice is uniformly condemned in strong language by the higher courts.

Our conclusion is that, with the defendant’s guilt very doubtful under the evidence, the remarks of the district attorney above quoted -were most damaging to the legal rights of the accused, that thereby he was deprived of a fair and impartial trial, and that the result reached by the jury, if permitted to stand under the circumstances, would involve a miscarriage of justice.

The judgment and order are reversed and the cause remanded.