Carr v. State

• Decision Date: 05 April 1888
• Citation: 37 N.W. 630,23 Neb. 749
• Parties: ED. CARR, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

37 N.W. 630

23 Neb. 749

ED. CARR, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 5, 1888

ERROR to the district court for Boone county. Tried below before TIFFANY, J.

REVERSED AND REMANDED.

James S. Armstrong and W. M. Robertson, for defendant in error.

Instructions asked for on question of intoxication should have been given. Smith v. State, 4 Neb. 288. State v Westfall, 49 Iowa 328. Premeditation and deliberation not shown. Milton v. State, 6 Neb. 137. Schlencker v. State, 9 Id., 241. Craft v State, 3 Kan. 450. Threats. People v. Bezy, 67 Cal. 223. Clarke v. State, 78 Ala. 474. Reasonable doubt. Cowan v. State, 22 Neb. 519. Argument. Borden v. Briscoe, 36 Mich. 255.

William Leese, Attorney General, for the State.

OPINION

REESE, CH. J.

Plaintiff in error was indicted at the May, 1887, term of the district court of Boone county, for the murder of Warren Long, on the 5th day of April of the same year. On the 21st of June he was placed upon trial, and on the 25th day of the same month the jury returned a verdict by which he was found guilty of murder in the first degree. On the 12th of July a motion for a new trial was overruled, and sentence of death was pronounced against him.

A number of assignments of error are made in the motion for a new trial and petition in error, but they need not all be noticed, as, upon the case being called in this court, the attorney general declined to file a brief, stating that the judgment would have to be reversed on account of an erroneous instruction having been given to the jury by the trial court. It is presumed that many of the questions presented by this record will not arise upon a subsequent trial, and, in addition to the instruction referred to, we will notice a part only of the questions presented by the brief of the plaintiff in error.

The instruction referred to is as follows:

"4. You are instructed that, by a reasonable doubt is meant such a doubt as naturally arises in the mind of a juror, from a consideration of the testimony, as would cause him to pause and hesitate before acting in the most important affairs of life. It is a doubt having a reason for its basis derived from the testimony, and a doubt for the having of which the juror can give a reason derived from the testimony. To be convinced beyond a reasonable doubt, is to have the judgment, the reason, and the understanding satisfied of the truth of the facts, so that an ordinarily reasonable and cautious man would unhesitatingly act by the proof in the most vital and important affairs of human life. And unless in this case your judgment and reason and understanding is so convinced, by the testimony, of every fact necessary to constitute any of the degrees of the crime as defined in these instructions, you must acquit the defendant."

While not couched in exactly the same language, this instruction is, in substance, the same as the third instruction given to the jury and referred to in Cowan v. State, 22 Neb. 519, 35 N.W. 405.

The clause contained in the instruction in that case which induced this court to reverse the judgment was, "It is a doubt for having which the jury can give a reason based upon the testimony." In the case at bar the language is, "It is a doubt having a reason for its basis, derived from the testimony, and a doubt for the having of which the jury can give a reason derived from the testimony."

We have again examined the question, and are satisfied with the holding in Cowan v. State. It is true that the instruction is not entirely without support, and may be found substantially in Sackett on Instructions to Juries, at page 482, but upon an examination of the authorities cited by the author, we do not think they support the text. We have not at hand the edition of Greenleaf's work on evidence referred to, but upon examination of the 14th edition we are satisfied Sec. 29, note 2, of that edition, is the one referred to by the author. In the text, Greenleaf says: "But in criminal trials the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. It is, therefore, a rule of criminal law that the guilt of the accused must be fully proved. Neither a mere preponderance of evidence nor any weight of preponderant evidence is sufficient for the purpose, unless it generate a full belief of the fact, to the exclusion of all reasonable doubt." The note consists, in part, of an extract from the very able charge of Chief Justice Shaw, given to the jury on the trial of the case of Commonwealth v. Webster--reported in 5th Cushing, 320; 52d Am. Decisions, 711--as well as a number of extracts from decisions in other cases. The quotation from the instructions is as follows: "Then what is a reasonable doubt? It 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 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 person 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 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 a 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."

While the rule stated by Chief Justice Shaw was applied to a case depending upon circumstantial evidence, yet in the main we think it is applicable to all cases where the issue of the guilt or innocence of the accused is presented. The reasonable doubt 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." All presumptions of law, independent of evidence, are in favor of innocence. Every person is presumed to be innocent until he is proved guilty. The burden of proof is upon the prosecution, not only to remove this presumption, but to satisfy the minds and consciences of the jurors beyond all reasonable doubt of the guilt of the accused, upon the whole case. They must feel satisfied to a moral certainty of his guilt, or they must acquit, at least of the degree wherein this want of certainty exists.

An instruction, substantially like the one given in the case at bar, was given by Judge Speer in the United States v. Jones, 31 F. 718, and in the United States v. Jackson, 29 F. 503, but we do not believe they correctly state the law.

In People v. Steubenvoll, 62 Mich. 329, 28 N.W. 883, the supreme court of Michigan seems to concede that the language of an instruction similar to the one under consideration was not strictly accurate, but held that it produced no practical consequence in the case.

In Brown v. The State, 105 Ind. 385, 5 N.E. 900, the supreme court of Indiana refused to approve an instruction that the doubt of the defendant's guilt must arise out of the evidence, and be such as to cause a prudent man to hesitate before acting, etc. The court says: "It is not the law that, in order to justify an acquittal, the doubt must arise out of the evidence, and be such as to cause a prudent man to hesitate. The doubt may arise from the want of evidence. In order to justify a conviction, the evidence must be such as to produce in the minds of prudent men such certainty that they would act upon the conviction produced without hesitation in their own most important affairs."

We have examined many of the definitions of "a reasonable doubt," and we are persuaded that none of them are better or more exact than that of Chief Justice Shaw, in the case of Commonwealth v. Webster. We are therefore content to leave the definition substantially as there found.

In examining the other instructions given to the jury, our attention is directed to instruction number five. It is as follows:

"5. You are instructed that, under our statute, to constitute murder in the first degree, the jury must be satisfied beyond a reasonable doubt, from the evidence, that the defendant without any justifiable cause or excuse, killed the deceased in manner and form as charged in the indictment; and they must also be satisfied beyond a reasonable doubt, from the evidence, that he killed the deceased purposely and of deliberate and premeditated malice. And you are instructed that, by premeditation and deliberation, is meant to think of, to revolve in the mind beforehand, to contrive, to design previously, to weigh in the mind, to consider and examine the reasons for and against, to consider maturely, to reflect upon. The defendant, in order to be guilty of this degree of crime, must have first formed the purpose in his mind ...