State v. Millain , 3 Nev. 409 ( 1867 )

The Judge's charge in this case is very lengthy and generally very clear and correct, evincing a thorough understanding of the law of the case; but I find two instructions which do not show the same caution which the balance of the charge exhibits. These instructions are, in my opinion, fatally erroneous, and entitle the defendant to a new trial.

The first of them reads as follows: "The distinction between murder of the first and second degree is quite nice. I will briefly state such distinction; although from the testimony I apprehend you may conclude that the defendant is either guilty of murder of the first degree, or innocent."

In my judgment this portion of the charge is a clear violation of Sec. 12, Art. VI, of the Constitution of this State, which declares that "Judges shall not charge jurors in respect to matters of fact, but may state the evidence and declare the law."

The primary object of this section, doubtless, is to secure to the individual more perfectly and completely those advantages which are supposed to exist in the right of trial by jury; to leave to their uninfluenced judgment the finding of the facts. It has always been the theory that the jury are the arbiters of the facts, whilst the Judge is the expounder of the law. Ad questionem facti non respondent judices; so ad questionemjuris non respondent juratores, says Lord Coke: "It is the province of the jury to decide the facts and of the Court to decide the law," is an expression which is found stereotyped through the books. It seems to me this expression either means that the jury are the exclusive judges of the fact, or it means nothing at all; for if the Judge and jury together are to be the judges of the fact, then the duties of the Judge are not properly defined by the expression that it is his province to declare the law, for if he has any voice in the decision of the facts, he not only decides the law, but also the facts.

The theory certainly is and always has been that the jury are the exclusive judges of the facts. When the Judge, therefore, gives his opinion as to what is or is not sufficiently proven, he steps beyond the limits which the law prescribes for him and invades the province of the jury. This, it seems to me, is not only the correct theory upon which the right of trial by jury rests, but is the only practice which will give the litigants the full benefit of the cool and deliberate judgment of the jury, who are sworn to decide the issues according to the evidence. The Judge is not sworn to do so, yet it is well known that his opinion as to the weight of the testimony has a powerful and often a controlling weight with the jury. His position, character, and learning give to his opinion great weight and influence, whilst in the mere weighing of evidence or judging of the credibility of witnesses, he may be no better qualified than any individual member of the jury. If therefore the Judge be allowed to give his opinion upon the conclusions of fact to be drawn from the evidence, it is clear the trial by jury would often be a mere mockery. It would be but the ridiculous practice of selecting twelve men to announce the opinion of one. Upon this subject Graham Waterman, in their valuable work on New Trials, make some very just and sensible remarks, and fully express my views upon it.

"The Court and jury," says the author, "have separate and totally distinct offices to perform. Each should confine itself rigidly to its own sphere. It should never be forgotten that the former is to decide the law and the latter the facts. The idea that the jury cannot agree upon a verdict unless the Judge imparts to them his notion of what it should be is not only erroneous, but often leads to great abuse. If the weight of testimony be clearly on one side, any such suggestion from the Judge is unnecessary. If the evidence be conflicting, it is manifestly improper for the Judge to throw his opinion into either scale. If the issue were to be tried by Judge and jury, and not by the jury alone, it would not only be proper but the duty of the Court to make its impression of the evidence both known and felt. As however our Courts are at present organized, the exercise of such an influence is plainly an usurpation and an injury to the party against whom it is employed. The law of a case can be stated and the evidence reviewed and commented upon so as to assist the jury in their deliberations, without improperly influencing or directing them. Further than this Courts are not called upon to go, nor was it ever contemplated that they should." I am fully aware that the decisions of the Courts generally do not support this view of the respective duty of the Judge and the jury. In criminal trials in England the Judges have usually exercised a controlling influence upon the verdict of the jury, and in that way they seldom failed to convict a prisoner who had the misfortune of being obnoxious to the Crown.

Sir William Blackstone, whilst admitting that the English Judges have passed beyond the limits prescribed by the British Constitution, apologises for it as a necessity resulting from the incapacity of jurors to determine the nice and intricate questions which were sometimes submitted to them. He says: "All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusation, and sometimes to dispose of the lives of their fellow subjects by serving upon juries. In this situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite, especially when the law and fact, as it often happens, are intimately blended together. And the general incapacity even of our best jurors to do this with tolerable propriety has greatly debased their authority, and has unavoidably thrown more power into the hands of the Judges to direct, control, and even to reverse their verdicts than perhaps the Constitution intended." (1 Black. Com. 8.)

In our own Courts there is a diversity of opinion as to how far the Judge may go in giving his opinion upon the facts, some of the Courts holding, as in Massachusetts, "that strictly speaking no opinion of the Court on a question of fact is open to exception," whilst other Courts hold that the Judge should give no opinion respecting the conclusion to be drawn from contested facts. Judge Mills, speaking for the Kentucky Court of Appeals inBowman v. Bartlett, 3 A.K. Marshall, declares this rule in the following language:

"The next instruction asked and refused by the Court was, that the defendants had shown no privity and connection between the patents of Innes and their possession. This was a question requiring the opinion of the Court with regard to some of the facts in the cause, and ought not to have been given if there was any evidence conducing to establish the facts. The Court is the proper judge of what evidence conduces to establish a fact; but when such evidence is given the Court ought not to express an opinion on its sufficiency, but leave its weight with the jury, except in those cases where the evidence is admitted with all its force, as is sometimes done by a demurrer to evidence, and proceedings of a like nature."

It is observable that the authorities have established no clear and definite line between the province of the Judge and that of the jury in this respect. But in my judgment that section of the Constitution which is quoted above establishes that line, restores the practice to a closer conformity with the theory, and gives to litigants the right of having the facts in their case decided by a jury uninfluenced by the opinion of the Judge. This section clearly prohibits the Judges from giving their opinion upon any contested fact in the case, or saying to the jury what may or may not be sufficiently proven. Thus the jury, who theoretically have always been considered the judges of the fact, are practically made so. They who are sworn to decide the issues between the parties according to the evidence are thus left entirely free to determine the fact as their judgment may dictate, uninfluenced by any consideration but the evidence in the case. If there be any reason why the jury should not be influenced by the opinion of the Judge upon matters of fact, given as a direct charge, surely the same reason exists against such influence, though exercised by a mere insinuation or intimation of opinion; for, as I have already said, a mere intimation of opinion by the Judge often makes as much impression upon the jury as a positive direction to find in a certain way. If the object of the Constitution be to remove the jury beyond the influence of the Judge in the decision of matters of fact, (and I think such to be the object) the manner in which that influence may be exerted is certainly a matter of no consequence, whether it be by a direct and positive instruction as to what may be established by the evidence, or by the simple intimation of an opinion. It seems to me, therefore, that the spirit of the Constitution as peremptorily prohibits the intimation of an opinion by the Judge as to what may or may not be sufficiently proven, as a direct charge to that effect.

But the Judge below in this case gave it as his opinion to the jury that the testimony established one of two facts: either that defendant was guilty of murder in the first degree or that he was innocent. Thus his opinion is given to the jury that the evidence did not justify a conviction of murder in the second degree. That may have been a fact. The Judge may have drawn the correct conclusion from the evidence, but he was not to decide whether the evidence established murder in the first or murder in the second degree. That is made a question of fact to be decided by the jury; Section 17, Laws of 1861, p. 59, declaring that "the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be for murder of the first or second degree."

Here, then, the Judge below charged the jury as to a matter of fact; gave it as his opinion that if the defendant committed the homicide it was a wilful, deliberate, and premeditated killing — that is, murder in the first degree. Where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration or attempt to perpetrate arson, rape, robbery, or burglary, (in all these cases it being expressly made under the first degree) the degree of the offense depends entirely upon the question whether the killing was wilful, deliberate, and premeditated. In other words, whether the killing was the result of a deliberate intent to take life.

The degree of the crime is a question which is not only to be stated in the verdict, but which must, like any other fact, be established by the evidence. Therefore, to justify a conviction of murder in the first degree, it must be shown that there was an intent to kill — to show such a state of facts or circumstances as will negative a killing without the deliberate intent or purpose to kill, but which at common law would be murder. At common law, any killing which results from any unlawful act, the probable consequence of which is death, is deemed murder, although the killing was not previously intended, as the cases put by Blackstone of "an unnatural son who exposed his sick father to the air against his will, by reason whereof he died; of the harlot who laid her child under leaves in an orchard, where a kite struck it and killed it; of the parish officers who shifted a child from parish to parish till it died for want of care and sustenance."

And so if a man throw a heavy body from the roof of a building into a crowded street, by means of which a person is killed, it is murder, though there was no intent to kill.

But in none of these cases would the homicide be murder in the first degree under our statute, because of the absence of the deliberate intent to kill. To warrant a conviction, therefore, of murder in the first degree (where it is not committed in the perpetration or attempt to perpetrate robbery, etc.) the evidence must be such as to negative any presumption of a killing without a deliberate intent to do so; or rather a deliberate intent or purpose to kill must be proven by the prosecution. (Wharton's Criminal Law, 1083.)

The statute declares that only willful, deliberate and premeditated killing, or that which is perpetrated by means of poison, lying in wait or torture, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery or burglary, shall be murder in the first degree; that all other kinds of murder shall be deemed murder in the second degree. To convict of murder in the first degree it is therefore as necessary for the prosecution to show in a case of this kind that the killing was willful, deliberate and premeditated, as it is to establish any other fact. And it must not only be proven, but it must be established beyond a reasonable doubt. If there be a reasonable doubt whether such deliberate intent to kill existed, the prisoner should have the advantage of the doubt and the jury should find him guilty of the lower grade of the crime. This reasonable doubt is as available to reduce the degree of the offense as to acquit entirely. (1 Wharton's American Criminal Law, 710; Id. 944.)

It may be said that the killing being shown, the law would presume it to be murder. Such is the presumption, but it is not presumed to be murder in the first degree. The mere homicide, independent of the manner of the killing, would doubtless only raise the presumption of murder in the second degree. As murder may be committed in innumerable ways, without the deliberate and premeditated intent to kill, the mere fact of the killing should not raise the presumption that such deliberate intent to kill existed. It has been held in Virginia and Ohio, that where the homicide is proven the presumption is that it is murder in the second degree. That if the prosecutor would make it murder in the first degree, he must establish the characteristics of that crime, and if the prisoner would reduce it to manslaughter the burden of proof is on him. (1 Wharton Criminal Law, 1111.) The deliberate and premeditated attempt to kill, which the statute makes a necessary ingredient of this crime, can it seems to me only be ascertained in one of two ways — either by the express declarations of the prisoner, or from the manner of the killing and the circumstances connected with it. Where the killing is not proven by an eye witness, and the manner of killing is gathered only from the wound or wounds upon the body, it is clear that it would in a majority of cases be very difficult to show, beyond a reasonable doubt, that the homicide was committed with a deliberate intent to kill. If it appeared that the mortal wound was inflicted with an instrument likely to produce death and upon a vital part of the body, that would perhaps be sufficient to warrant a conviction of murder in the first degree; but it would not by any means be conclusive, because it might have been inflicted in self defense, or upon a sudden quarrel, or in the reckless attempt to inflict some bodily harm, in all of which cases the crime would only be murder in the second degree.

Take the case at bar, what evidence is there that the killing was willful, deliberate and premeditated? Simply the manner in which the life of the deceased was taken, the presumption being that death produced by choking or strangling must have been the result of a deliberate intent to kill; such would be a natural presumption, and one sufficient, perhaps to justify a conviction of murder in the first degree. Killing produced by such means might have satisfied the jury beyond a reasonable doubt of the premeditated intent to kill, but surely such fact would not conclusively establish it. Is it not possible that a quarrel may have occurred between the defendant and the deceased, and that in the heat of such a quarrel death might have been the result? Had such been the case it would not necessarily be murder in the first degree. Or suppose there had been no quarrel, but the defendant went to the house of the deceased with the intent and purpose of inflicting bodily punishment upon her, and in doing so choked her beyond his purpose. In such case the crime would not be murder in the first degree, because it would not be the result of a deliberate intent to kill. True, the proof in such case might be overwhelming and convincing that such was the intent. Admitting it to be so, yet as it is a fact to be determined by the jury, and of the existence of which they are to be satisfied beyond a reasonable doubt, and upon which it is possible they may have such doubt, the Judge transcends his power when he tells them that such fact is established by the evidence, as was virtually done in this case. To give it as his opinion to the jury that the defendant was either guilty of murder in the first degree or innocent, was simply saying that the evidence established the homicide to have been a willful, deliberate and premeditated killing, which was a fact incumbent upon the prosecution to establish, and which could only be determined by weighing all the testimony in the case. Had the Judge below told the jury that the evidence fully showed that the defendant committed the crime, it would hardly be claimed that it would not be a violation of the Constitution. That it would not be "charging as to matters of fact," and yet the deliberate intent to kill, is a fact as necessary to be proven by the prosecution as the proof that the defendant occasioned the death of deceased. How was the fact that a conviction of murder in the second degree was not justified by the evidence to be ascertained? Only by assuming that the deliberate and premeditated intent to kill was proven beyond a reasonable doubt. The jury might possibly have had some doubts upon that question. They may have been well satisfied that the defendant took the life of the deceased, and being satisfied of that, the law justified them in the presumption that the homicide was murder; but they may not have been satisfied beyond a reasonable doubt that the killing was the result of a deliberate and premeditated intent or design to take life, and if they were not they should have found him guilty of the higher degree. Thus the Judge not only charged the jury as to a matter of fact, but assumed and gave it as his opinion that such fact was proven beyond a reasonable doubt, whilst the jury might have drawn a different conclusion from the evidence.

Had the homicide in this case been committed by means of poison, or in the perpetration or attempt to perpetrate arson, rape, robbery or burglary, possibly it would not be deemed error in the Court to say to the jury that they could only find defendant guilty of murder in the first degree or acquaint him, because the law absolutely makes all homicide committed in that manner murder in the first degree; and when the prosecution establishes the fact that it was committed in any of these ways, the burden of reducing the crime devolves upon defendant if such thing were possible. If for example it was shown by the prosecution that the killing was committed by means of poison, and there was no attempt to show a killing by any other means, the Court might say that there was no evidence to reduce the crime to murder in the second degree, without, perhaps, violating the constitutional provisions. At least, it has been held in California upon a Constitution similar to ours, that when the killing is proven, and there is no attempt upon the part of the prisoner to reduce the offense to manslaughter, it is not error for the Court to instruct the jury that they are not to consider the question of manslaughter. That would, however, be a very different case from this. In that case the Court simply tells the jury that the defendant has introduced no evidence to reduce an act, which in contemplation of law is murder, to manslaughter, the burden of proving which is always thrown upon the defendant after the homicide is established by the prosecution. Under its right to state the evidence, the Court might perhaps say that there was no evidence to establish a certain fact, if such were indeed the case. I do not, however, say that even that might not possibly be considered error. But in this case, the Court tells the jury that a fact, which it was the duty of the prosecution to establish beyond a reasonable doubt, was so established. That is giving an opinion upon the weight and sufficiency of evidence, not a statement that there is no evidence to establish a fact. It is not charged in the indictment, nor is it claimed by counsel, that the murder in this case was committed by means of poison or in the perpetration of, or attempt to perpetrate arson, rape, or robbery; and as there is no proof that it was so committed, the degree rested solely upon the question whether it was proven beyond a reasonable doubt that the homicide was the result of a deliberate and premeditated intent to kill. Whether it was or not, the jury were the exclusive judges, and therefore the Court erred in giving the instruction set out above.

The other instruction, which in my opinion is open to the same objections, reads as follows:

"The testimony in this case tends to show the property of the deceased, or some portion of the same, in the possession of the defendant at a time subsequent to the alleged murder, and at quite a recent date." * * *

This instruction assumes that the property found in the possession of the defendant was the property of the deceased. That was a question upon the establishment of which alone the defendant could have been convicted. It will be observed that the Court does not say that the evidence tended to show that the property found in the possession of the defendant belonged to the deceased; but assuming that the property did belong to the deceased, the Court says the evidence tends to show simply one fact — i.e., that it was in the defendant's possession subsequent to the murder. Whether the property found in possession of the defendant belonged to the deceased, was a question of fact to be ascertained by the jury. However, as the first instruction discussed is in my opinion sufficient to reverse the judgment in this case, I do not deem it necessary to give this any further consideration.

As the swift and certain administration of criminal justice is the surest preventive of crime, and the strongest guarantee of public order, any circumstance which has a tendency to delay or defeat it is greatly to be regretted. But however deeply we may deplore any such circumstance, it is the first and paramount duty of the citizen to respect, and of the Court to vindicate, the law. It should not be forgotten that even to the most abandoned and reckless felon, charged with the most heinous and most revolting crime, the law guarantees rights which no man has a right to take from him; which no Court can conscientiously disregard. Though the proof of his crime be overwhelming and conclusive — though there be nothing to mitigate his crime, no circumstance to plead for mercy, no legal technicality to obstruct the keen point of the sword of justice — yet it is only upon a presentment or indictment of a Grand Jury that he can be called upon to answer for his crime; he can only be found guilty by the verdict of an impartial jury, and executed or punished only upon a regular judgment of a Court having complete jurisdiction; in other words, the criminal has a right to claim that justice shall only be meted out to him in exact accordance with the strict and inflexible rules of law. It is his right to have the law governing his case clearly and correctly expounded to the jury; notwithstanding the proof of his guilt may be perfectly conclusive, yet any material error in so stating the law entitles him to a new trial. That may not be a good rule, butita lex scripta est.

The law, in its humanity, presumes every man innocent until his guilt is established according to the rules adopted for that purpose. Until his guilt is so established, therefore, the strong arm of the law shields and protects him as it does the most pure and upright citizen in the community.

In my judgment a new trial should be awarded.

RESPONSIBLE TO PETITION FOR REHEARING.