Stokes v. People

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 propérly 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 the 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 were 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 Oonstitution, 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 faeto 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 threats 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 testimony1; it must be borne in mind that evidence had been given/ making it a question for the jury whether the case was on'e 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 apprehend a'design to murder or inflict upon him some great bodily injury. Evidence of threats made by the deceased, which had been cammunicated . 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 probability. 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 view to impair the credibility of her testimony, she was asked by the proseen

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 had 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.

Hear the conclusion the judge charged the jury as follo ws: “ 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 prisoner 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 care*' ful examination of the entire portion of the charge excepted to will show that the latter was the idea intended to be conveyed, and that the jury must have so understood it. From the opinions delivered it' was so understood by the justices of the Supreme Oourt 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

Section 3 of title 2 of the statute declares in what c'ases 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 j such conviction it was necessary for the prosecution to prove J all the facts bringing the case of the prisoner within it.'

fj 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 H. Y., 393 ; Fitzqerrold 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 If. Y., 405 ; Clcvrke v. Putoher, 9 Cow., 674 ; People v. Wiley, 3 Hill, 194 .) W,e 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. Hut how does this cure the error of the instruction that the law implied all the necessary additional facts from the proof 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 east the burden of proof upon the prisoner to show that it was not murder but manslaughter, or justifiable homicide. Ho such burden of proof was, by that, cast upon the prisoner. {Iamb v. C. and A. P. P. and Tr. Co., 46 H. 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 were 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.

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 rote 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 rests 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 mwrder, 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 heme 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 mil 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 cometo 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.

Chubch, 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.