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Opinion of the Court, per CHURCH, Ch. J.

of the jury to pass upon the evidence; and in this State the Oyer and Terminer can in no case take away or withhold this right. The case cannot be taken from the jury, after trial commenced, upon a question of fact. (Commonwealth v. Porter, 10 Metcalf, 285; The People v. Judges of Dutchess, 2 Barb., 282; Quimbo Appo v. People, 20 N. Y., 531; Rex v. Mawbey, 6 Term R., 638; Willis v. People, 32 N. Y., 721 ; Thompson v. People, 41 id., 1; People v. Harris, Edmonds’ Select Cases, 453, 461; 2 Bar., 292; 2 Hale's Pleas of the Crown, 313.) Wounds of the genital organs are generally due to the violence of others. (Wharton & Stille Med. Jurisprudence, 866; Guy's Forensic Medicine, 477; Taylor's Med. Jurisprudence, 6th Am. ed., 299.)

D. M. De Witt for the defendant in error. No person can be legally convicted of felonious homicide where, by the evidence, the existence of criminal agency causing death is left problematical. (Wills' Cir. Ev., 200, 206, 207, 230; Whar. Am. Crim. Law, $ 746; Burrill on Cir. Ev., 678, 681, 682, 683, 119, 120; Ruloff v. People, 18 N. Y., 179; 2 Beck's Med. Jurisprudence, 7-11, 16, 28, 107–117; Best on Pres., 201; 3 Greenleaf on Ev., SS 131-135; see, also, 1 Russell on Crimes, 473; 3 Greenleaf Ev., SS 30, 131; Hindmarsh's Case, 2 Leach's Cr. Law, 569; Wharton & Stille Med. Jurisprudence, SS 1027, 1028, 810; Rex v. Yerd, 6 Carr. & P., 176; 2 Russell on Crimes, 122, 123; Plunkett's Case, 3 City Hall Rec., 137; Tyner v. The State, 5 Humphrey's, 383; Carey v. State, 7 id., 499.) The establishment of the corpus delicti is an indispensable preliminary to the introduction of evidence to identify the prisoner as the criminal agent. (Wills' Cir. Ev., 200, 234, 235; Roscoe Crim. Ev., 636; Best on Pres., 201; Burrill on Cir. Ev., 119, 120.)

Church, Ch. J. The prisoner was indicted for the murder of his wife and tried at the Ulster Oyer and Terminer in April, 1871, and convicted of manslaughter in the second degree. Upon writ of error to the Supreme Court the judg

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Opinion of the Court, per CHURCH, Ch. J.

ment was reversed, and the people brought error to this court.

The objection that a writ of error will not lie from the judgment of the Supreme Court reversing a conviction in the Oyer and Terminer and granting a new trial, is not tenable. The act of 1852 expressly authorizes a review by this court in such cases. The decision in the Supreme Court is a judgment within the meaning of the act, and besides it is final, so far as that court is concerned. (Laws of 1852, page 76.)

The deceased came to her death on the 16th of June, 1870, by the loss of blood occasioned by a contused wound in the genital organs, inflicted by an instrument which ruptured some of the veins and one or more arteries located in that portion of the body.

At the close of the evidence on the part of the prosecution, the counsel for the prisoner moved the court to discharge the prisoner on the ground that this was not a case for the jury, the corpus delicti not having been proved, the criminal agency of another than the deceased not having been proved to have been the cause of death. A similar motion was made at the close of the whole evidence, both of which were denied and the case was submitted to the jury. The Supreme Court held this to be an error and reversed the judgment.

In the first place, it is proper to remark that the Court of Oyer and Terminer had no power to grant the precise motion made to take the case from the jury and discharge the prisoner. The verdict of the jury must be pronounced after the trial has been commenced, but this may be done under the advice or direction of the court. The same strictness, in the form of exception, will not be enforced in criminal as in civil cases, but the court will look at the substance with a view to promote justice.

Although the motion was, in form, for an absolute discharge of the prisoner, it may be regarded, in substance, as a request to direct an acquittal; or that the court instruct the jury, as a matter of law, that the prisoner could not be convicted, and the court evidently so understood it by deciding to submit the case upon the merits to the jury. There is no

Opinion of the Court, per Church, Ch. J.

such thing as a nonsuit in a criminal case in the Oyer and Terminer; and it has been a disputed question whether the Court has power to direct an acquittal or whether its power is advisory merely, which might or might not be acquiesced in by the prosecuting attorney or by the jury. (1 Edmonds' Select Cases, 453.) Practically, the result is the same. It is very rare that the prosecuting officer will not accede to the opinion of the court, and still more rare to convict against the advice of the court that it was improper. The court has no power to nolle prosequi an indictment, except on motion of the district attorney; and the necessity of procuring the consent of court is of comparatively recent statutory regulation. (2 R. S., 728.) This restriction applies to district attorneys only; the attorney-general still having power to enter a nolle prosequi upon any indictment without the consent of the courts. Courts of Oyer and Terminer have no power to grant a new trial upon the merits (Quimbo Appo v. The People, 20 N. Y., 531), and hence it is urged that they cannot determine the merits upon the trial, and that the appellate court has, therefore, no power to reverse a judgment upon the merits. The apparent incongruity suggested in these cases may, I think, be solved by observing the proper distinctions as to the nature of the questions presented for decision. Contrary to an opinion formerly prevailing, it has been settled that the juries are not judges of the law as well as the facts in criminal cases, but that they must take the law from the court. All questions of law arising during the trial are to be determined by the court, and it is the duty of the jury to regard and abide by such determination.

And although where a general verdict is rendered it may be impracticable to analyze it so as to ascertain the grounds upon which it was rendered, for the purpose of' a legal remedy, yet this does not detract from the rule or the binding force of the decisions of the court upon questions of law. The jury may find the facts specially and leave the court to apply the law.

I can see no reason, therefore, why the court may not, in a

Opinion of the Court, per CHURCH, Ch. J.

case presenting a question of law only, instruct the jury to acquit the prisoner, or to direct an acquittal, and enforce the direction, nor why it is not the duty of the court to do so. This results from the rule that the jury must take the law as adjudged by the court, and I think it is a necessary result. It follows that a refusal to give such instruction or direction in a proper case is error.

In The Ruloff Case (18 N. Y., 179), this court reversed the judgment and conviction against the prisoner for the error of the court in not directing an acquittal, although the question of power was not raised. The same practice has prevailed to soine extent in other States and in England. (Smith's Case, Leigh & Cave C. C., 607; Reg. v. Bird, 5 Cox Cr. Cas., p. 1; Bishop's Crim. Pro., $ 977.) Regarding the motion in this case as equivalent to a request to direct an acquittal, the question is whether it was a legal error to refuse it. The distinction referred to, and which I regard as important to be observed, is between questions of law and questions of fact. The former the court may, while the latter they may not, decide. If the prosecution leaves some element necessary to constitute the crime entirely unproved, it is a clear case for the interposition of the court. As in the case of treason, when two witnesses are necessary to an overt act and there is but one, or in perjury when two witnesses are required and but one is produced, and in any case when assumi:g all the facts proved to be true they fall short of constituting the crime, the prisoner is entitled to have the instruction of the court in his favor. But in a case where competent evidence has been given tending to prove every element constituting the crime, and the force and effect which ought to be given to it depends upon the credibility of witnesses and upon inferences to be drawn, as to which persons may differ, it is not the province of the court to take the case from the consideration of the jury, although it may be of the opinion that it is not sufficient to convict.

In cases of weak and unsatisfactory evidence the court can always impress a jury with the benign principles of the com

Opinion of the Court, per CHURCH, Ch. J.

mon law established for the protection of the innocent: tbat the prosecution are bound to establish a clear case; that the prisoner is entitled to the benefit of all reasonable doubts; and that it is better that many guilty prisoners should escape than that one innocent person should be punished; and there may be cases so weak upon the facts as to justify the advice of the court that it is unsafe in the particular case to convict. This is the extent to which a court can be justified in going en a case where any view of the facts may be taken warranting a conviction.

Justice is better administered, both in civil and criminal cases, by confining the respective duties of court and jury to each tribunal, and permitting no encroachment by either.

It is, however, strenuously insisted by the learned counsel for the prisoner that this is a case of defective proof, that there was a failure to prove the complete corpus delicti, and that it falls within the principle of the Ruloff Case (supra), and this was sustained by the Supreme Court. I feel constrained to differ from this view of the case. delicti has two components, viz.: Death as the result, and the criminal agency of another as the means, and all that the court decided in the Ruloff Case was, that there must be direct proof of one or the other. The court adopted the rule of Lord HALE, who said: “I would never convict any person of murder or manslaugher, unless the fact was proved to be done, or, at least, the body found dead." The court review numerous authorities to sustain the decision, which is, unquestionably, a just and sound rule. The point of the decision is that, as to one or the other of the component parts of the corpus delicti, there must be direct evidence; that both cannot be established by mere circumstantial evidence; but the court affirms the rule that when one is proved by direct evidence, the other may be by circumstances. In that case the basis of the corpus delicti, that the person alleged to be murdered was not found dead was wanting. The death, as well as the criminal agency, was attempted to be proved by circumstances. Here the body was found dead and fully identified, and it

The corpus

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