In People v. Cronin, 34 Cal. 191, it was held not to be error for a court, speaking of the credibility of a defendant who was a witness for himself, to tell the jury that "you should consider his relation and situation under which he gives his testimony, the consequences to him from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation."Summary of this case from People v. Murray
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Appeal from the District Court, Seventh Judicial District, Marin County.
The defendant was indicted by the Grand Jury of Marin County of murder. The first count of the indictment was as follows, to wit:
" The said Timothy Cronin is accused by the Grand Jury of the County of Marin, State of California, by this indictment of the crime of murder, committed as follows, to wit: The said Timothy Cronin, on the eighteenth day of July, A. D. eighteen hundred and sixty-six, and prior to the finding of this indictment, at the County of Marin, State of California, in and upon Julia Cronin, unlawfully, feloniously, and of his malice aforethought did make an assault; and the said Timothy Cronin, with some means, instruments and weapons to the jurors unknown, the said Julia Cronin in and upon the body and the left side of the head of the said Julia Cronin, then and there feloniously, willfully, and of his malice aforethought did strike and beat; the said Timothy Cronin giving to said Julia Cronin then and there, and thereby, to wit: with the means, instruments and weapons aforesaid, in and upon the body and left side of the head of the said Julia Cronin, divers mortal bruises, of which said mortal bruises the said Julia Cronin then and there died, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of California."
The defendant demurred to said count on the grounds: First--That it did not contain a statement of the acts constituting the offense which it proposed to set forth, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what was intended. Second--It did not contain the particular circumstances of the offense charged necessary to constitute a complete offense. Third--It did not state the acts constituting the offense therein attempted to be charged.
The demurrer was overruled by the Court, and defendant excepted. The following is a portion of the charge of the Court to the jury, to the giving of which defendant at the time duly excepted, to wit:
" Presumptive evidence is admissible in criminal prosecutions as well as in civil cases; the modes of reasoning and of drawing conclusions from facts are the same. When direct evidence cannot be produced, minds will form their judgments on circumstances and act on the probabilities of the case. As mathematical or absolute certainty is seldom to be obtained in human affairs, reason and public utility require that Judges and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of probabilities on the one side or the other, whether the amount of these probabilities be expressed in words or arguments, or by figures and numbers. The principal difference to be remarked between civil and criminal cases with reference to the modes of proof by direct or circumstantial evidence, is that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment than in the latter case, which affects life and liberty.
" In order to convict, the circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. The circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner's innocence, but perfectly reconcilable with the supposition of the prisoner's guilt.
" If the killing of Julia Cronin by the defendant has been proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.
" In case of admissions shown to have been made by the defendant, you are at liberty to believe a part of such admissions, such as you believe to be true, and to reject other parts of such admissions as you may believe, from such admissions or from other evidence in the cause, to be untrue, and disregard such statements made by the defendant as you deem from the evidence to be unworthy of belief."
The following instructions were given to the jury by the Court at the request of the District Attorney, to the giving of which the defendant at the time duly excepted:
" The term 'reasonable doubt' is a term often used--probably pretty well understood--but not easily defined. It is not mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law, independent of evidence, are in favor of innocence; and every man is presumed to be innocent until he is proved guilty. If, upon such proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal, for it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.
" This we take to be proof beyond reasonable doubt, because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.
" The jury must be satisfied from the evidence of the guilt of the defendant, beyond a reasonable doubt, before they can legally find him guilty of the crime charged against him; but in order to justify the jury in finding the defendant guilty of said crime, it is not necessary that the jury should be satisfied from the evidence of his guilt beyond the possibility of a doubt. All that is necessary in order to justify the jury in finding the defendant guilty, is that they shall be satisfied from the evidence of the defendant's guilt to a moral certainty and beyond a reasonable doubt, although they may not be entirely satisfied from the evidence that the defendant and no other or different person committed the alleged offense; and if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the crime charged against him, they are not legally bound to acquit him because they may not be entirely satisfied that the defendant and no other or different person committed the alleged offense.
" The defendant has offered himself as a witness on his own behalf on this trial, and in considering the weight and effect to be given his evidence, in addition to noticing his manner and the probability of his statements taken in connection with the evidence in the cause, you should consider his relation and situation under which he gives his testimony, the consequences to him relating from the result of this trial, and all the inducements and temptations which would ordinarily influence a person in his situation. You should carefully determine the amount of credibility to which his evidence is entitled; if convincing and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it.
" The counsel for the prisoner has read and recited a number of cases wherein convictions have been sought and had upon strong circumstances of guilt proved against the accused in those cases, and afterwards it has transpired that the accused was innocent, notwithstanding the strong circumstances shown against him. These cases read and recited are extreme cases, and probably do not occur but very seldom in cases decided upon circumstantial evidence. The quotation of such cases is proper in order to make the jury careful in arriving at a proper conclusion from such evidence, but the plain, practical rules of evidence which have been established for ages ought not to be shaken, because of the recital of extreme cases, wherein improper convictions have been had; and if much search be made, it would be found that probably a greater number of cases might be cited wherein improper convictions have been had from direct positive evidence, through inattention or perjury of witnesses. All human testimony is fallible; but jurors in their decisions must take and consider circumstances, and, if sufficient, act upon them, although the main fact is proved by no eye witness.
" Cases have been read to you by counsel wherein Judges have commented upon the testimony of the witnesses, and expressed their opinions upon its sufficiency to convict, stating to the jury that the evidence was almost as strong as positive proof. Under the law in the country where these opinions were given at that time, the Judges had a right to give to the jury their opinions as to the effect of the evidence; while under our law in this State the Judge has no right to express an opinion upon the evidence, but the whole weight and effect of the evidence must be left entirely to the jury, without the opinion of the Court as to what verdict they should render.
" As I conclude, I admonish you to calmly consider the evidence before you. The interest of the community and of the defendant demands your best efforts truly to decide from the evidence. The amount of credence to be given to the different witnesses is entirely with you. You have a right to look at their surroundings, their bearing on the stand, and have a right to reject such parts of the testimony of any of them as is contradicted by other witnesses or other circumstances, showing that they are not reliable."
The defendant was convicted and sentenced for murder in the first degree. A motion for a new trial was made on the grounds, among others, that the Court erred in overruling said demurrer, and in giving said instructions to the jury. The motion was denied, and the defendant appealed from the judgment and from the order denying a new trial.
I. The Court erred in overruling the demurrer to the first count of the indictment. Thiscount is the same as if it had merely said, Timothy Cronin killed Julia Cronin feloniously, etc., but in what manner is not known. It is a mere conclusion; not a fact is stated--no wound of any kind, nor how the deceased was found, or where; not even the condition of her remains; in fact, nothing is stated advising the defendant as to what preparation it was necessary to make in defense. If it was alleged that she was poisoned, he could have had her disinterred, and her stomach analyzed; if a gun shot wound, that he never had weapons about him; if a blow or cut, he could have summoned physicians to show that such a blow or cut would not produce death; if from strangulation, he would have prepared to meet that charge. But not a fact is stated, and the defendant is called upon to defend his life, without knowing what is charged against him.
This indictment cannot be sustained upon logic or reason, and much less by authority. There is but one precedent for it, and that is the celebrated Webster Case, (5 Cush. 295,) which was not tried by any fixed and well settled rules; but all rules of law and precedent were made to bend, yield, and give way, for the purpose of insuring hisconviction. There cannot be a precedent for it, and it cannot be sustained, unless we override well settled principles, and utterly disregard the letter and spirit of our statute. (Hittell's Dig., Art. 1,826, Sec. 239.) " The indictment must be direct and certain as it regards:" (Sub. 2,) " The offense charged," (Sub. 3,) " The particular circumstances of the offense charged, when they are necessary to constitute a complete offense."
To hold, then, that an indictment containing no fact is sufficient, because the Grand Jury could not ascertain the facts, is simply begging the question. If the Grand Jury could ascertain that the defendant committed the deed, it could have set forth the facts upon which such a finding was predicated, without which the indictment stands with simply the fact alleged that defendant committed the murder. The District Attorney could, under our statute, if there was any doubt as to the precise mode in which death was produced, have found as many counts as the exigency of the case required.
II. The Court erred in its charge to the jury, respecting circumstantial evidence, and the consideration to which it is entitled by the jury. There isno evidence in this case but circumstantial, there being no positive proof whatever. What is the proposition, then, submitted to the jury, taking the entire charge? First, " you must acquit if there is a reasonable doubt of the defendant's guilt; but where, as in this case, the evidence is circumstantial, it does not require so complete proof of the defendant's guilt as where the evidence produced is direct. If the evidence in such a case is nearly as conclusive, as to the guilt of the defendant, as if it were direct, you may convict, and you can get rid of a reasonable doubt upon this theory."
Again, the Court erred in the instructions given in respect to " a reasonable doubt." First, the Court assumes that some person has committed the offense charged in the indictment--not only an offense, but the particular offense, and only leaving it to the jury to say whether the defendant is the guilty party; that is, " whether he or some other person did the act." This, we insist, is diverting the minds of the jury from one of the main questions, viz: whether, in fact, the crime of murder, as charged, was committed by any one.
Again, we have neverbefore heard it announced as a proposition of law that a party could be convicted of crime, particularly of murder, if the jury were not entirely satisfied of his guilt. What are a jury to infer from a charge which says: you cannot convict if there is a reasonable doubt; but you need not be entirely satisfied to legally justify you in convicting? We submit that the charge is inconsistent, and well calculated to mislead a jury.
We claim that the Court also erred respecting the weight and consideration proper to be given to defendant's testimony. The laws of California permit a prisoner to be a witness in his own behalf, and every presumption is in favor of his telling the truth. But here the rule is changed; we find the Court making an uncalled for attack upon the witness, and argued, saying to the jury that no man is entitled to credit, or they must be looked upon with suspicion, and his evidence is wholly unsatisfactory and unreliable, if by lying he can save his neck from the halter or his person from incarceration in the State prison.
Whatever opinions men or Judges may entertain upon this subject, they have no right, when acting as Judges, to usurp theprovince of the jury by poisoning their minds with their peculiar notions upon the subject. The Judge intimated to the jury, as strong as language could, that he, the Judge, did not believe a word the defendant had testified. A Judge might as well select any other witness in a case and criticise his testimony, or have expressed in terms his opinion as to the defendant's guilt. Here the Judge makes the assault upon the defendant's evidence, singles it out, and makes it figure as a pointed and prominent part of his charge. (People v. Jones , 32 Cal. 80; Thornton's Executors v. Thornton's Heirs, April Number, 1867, Am. L. Reg. 357.)
III. The Court erred in permitting the prosecution to prove, under the defendant's exceptions, threats made nearly a year prior to the alleged killing.
Elisha Cook, and Alexander Campbell, for Appellant.
J. G. McCullough, Attorney-General, for the People.
JUDGES: Sanderson, J.
By the Court, Sanderson, J., on petition for rehearing:
It is important that what are material and what immaterial averments in an indictment for murder should be finally settled, if not already so; and we are not sorry that counsel have assailed the doctrine announced in King's Case , 27 Cal. 510, and in this, for we are thus afforded a speedy opportunity of repeating that in our judgment the reason assigned by the common law why the manner and means by which the homicide was committed should be stated in the indictment was without any substantial foundation, and that under our system of criminal practice and pleading the rule of the common law in that respect has been wisely abolished. For centuries it aided criminals in escaping the penalty of crime, to the great reproach of the law, without affording any assistance in the administration of justice.
From the start this Court has uniformly held, in respect to indictments generally, that they are sufficient, in matter of averment, if they allege all the acts, or facts which have been used by the Legislature in defining the particular offense charged. It has so held, because such has been considered to be the rule adopted by the letter and spirit of the statute, by which proceedings in criminal cases are regulated. Section two hundred and thirty-five of that statute expressly provides that " All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is determined, shall be those prescribed by this Act." If it is possible for the law-making department of the Government, in the face of the conservatism of the legal profession, which is too often blind, we fear, to abolish old forms and rules and establish new, it would seem to have been done by the Legislature of this State. To this conclusion the profession must come, and it must search in the provisions of the statute for the form of an indictment and for the rules by which its sufficiency is to be determined rather than in the common law, for such is the will of the Legislature. The legislation of this State is undoubtedly an innovation upon the common law, but it is not for that reason to be condemned without a trial. An obstinate adherence to custom is more pernicious than cautious experiment. But if this change be unwise in the estimation of counsel, it must nevertheless be enforced by the Courts. In our estimation it introduced a salutary and much needed reform. The idea that the forms and rules of a hundred years ago cannot be improved, which seems to be entertained by some, must be addressed, if at all, to the Legislature. That body has the power to restore the forms and rules of two centuries ago; this Court neither has the power nor the desire. In the administration of justice, as in all else, a wise progress is better than blind conservatism. Not yet has it attained its highest perfection, it is to be hoped, much less had it done so a hundred years ago. If it had, then are those who go before wiser than those who come after, the human understanding is not progressive, and mankind learn nothing from the teachings of experience--the mother of all wisdom.
Section two hundred and thirty-nine provides that the indictment shall be direct and certain as to the party charged and as to the offense charged; but that the particular circumstances need not be stated unless they are necessary to constitute a complete offense. " Murder is the unlawful killing of a human being, with malice aforethought, either express or implied." The unlawful killing may be effected by any of the various means by which death may be occasioned. (Act concerning crimes and punishments, Sec. 19.) Killing a human being unlawfully, with malice aforethought, is the offense, and must be stated. How and by what means it was done are the particular circumstances, and need not be stated, for no particular mode or means are necessary to constitute the offense. That the statute dispenses with a statement of the mode and means by which death was occasioned, in view of these provisions, would seem to be too clear for controversy.
Counsel have characterized the doctrine announced in King's Case as novel, and dangerous to human life and liberty. Were this true it would not be the fault of this Court, as we have seen. But it is neither novel nor dangerous. A reform made necessary in the judgment of the legislators and Judges of England, after centuries of experience, need not inspire counsel with apprehensions of danger to life and liberty, nor need they be startled by the novelty of a doctrine which was announced more than seventeen years ago by one of the most eminent of American jurists, not under the influence of popular excitement, as suggested by counsel, but, as we believe, under the guidance of that nice discrimination for which he was remarkable and by the aid of which he rarely failed, if ever, to distinguish between chaff and wheat--sophistry and logic. (Webster's Case, 5 Cush. 295.)
The following form is now used in England, and is there regarded as being all that is requisite, in trials for murder, to secure a just and impartial administration of the law:
" Gloustershire, to wit: The jurors of our Lady the Queen, upon their oath, present that A. B., on the 10th day of July, 1866, feloniously, willfully, and of his malice aforethought, did kill and murder C.D." (American Law Review for October, 1867, p. 192.)
With the formal commencement prescribed by our statute, and the venue added, this form, in our judgment, contains all that need be stated in an indictment for murder under our system, and all that should be required under any system. It contains all the ultimate or issuable facts. All other facts are merely probative, and should no more be stated in an indictment than in a complaint in a civil action.
Upon the other points discussed in the petition we find no occasion to add anything to what we have said in our former opinion.