Cornish v. Territory

• Citation: 3 Wyo. 95,3 P. 793
• Parties: CORNISH v. TERRITORY
• Decision Date: 02 February 1884
• Court: United States State Supreme Court of Wyoming

3 P. 793

3 Wyo. 95

CORNISH v. TERRITORY

Supreme Court of Wyoming

February 2, 1884

Error to district court, Laramie county.

Charles F. Cornish was convicted of murder in the second degree, and brings error. Affirmed.

Judgment affirmed.

J. A Riner, for plaintiff in error.

J. C Baird, for the Territory.

PARKS J.

OPINION

PARKS, J.

On the twenty-fourth day of November, 1882, the plaintiff in error was indicted for murder in the first degree, the indictment charging him with the murder of one Elmira L. Curliss, in Laramie county, on the eighth day of October, 1882, by choking, suffocating, and strangling her with his hands. On the plea of "not guilty" the plaintiff in error was put on trial in the district court of the First judicial district of said territory, on the fifteenth day of January, 1883, and on the nineteenth day of the same month the jury returned a verdict of "guilty of murder in the second degree." On the twenty-ninth day of January, 1883, the plaintiff in error and defendant below filed his motion for a new trial in said district court. The argument of said motion took place in the said district court on the ninth day of February, 1883, and on the sixteenth day of February the said court overruled the motion for a new trial, to which overruling of said motion the defendant below, by counsel, excepted. The court then sentenced the said Charles F. Cornish to life imprisonment in the territorial penitentiary at Joliet, state of Illinois, but suspended execution of sentence until the next term of said court. On April 16th the defendant below presented his bill of exceptions, and the bill was allowed on May 23, 1883.

The first error assigned is as follows:

"That the court on the trial of this cause erred in overruling the objection of the defendant to the question asked of the witness F. L. Ledeboer, as to whether that hand of the defendant could have produced those wounds, (referring to the wounds said to have been found upon the neck and throat of Elmira L. Curliss, deceased.)"

We see no objection to this question except its immateriality. As the jury must have known without proof that the hand in question, if clasped on the throat of a delicate woman, could produce wounds and death, the answer could have very little effect in any way. Any jury of ordinary intelligence knows that a blow on the head with an ax, a shot through the heart with a pistol, or a strong hand grasping the throat of a feeble woman, can cause serious wounds and sudden death; and, in the examination and determination of cases submitted to them, it is their right and duty to consider such facts, whether they are proved on the trial or not. Proving facts of this character, which are known to all the world and constitute part of the general intelligence of mankind, is unnecessary, but is not error.

The second error assigned is the overruling of the motion of defendant to strike out the entire testimony of the witness Hamilton Cornell. We think the course pursued by the court in disposing of this motion a proper one. The testimony of Cornell, though tending to prove what the prosecution was trying to establish, was neither strong nor satisfactory, and, without other evidence, should have been excluded from the jury. The court held its decision upon the motion dependent upon whether other evidence of the same character was introduced, and, after such testimony was introduced, let the testimony of Cornell go with it to the jury. In this there was no error. It often happens that the testimony of any one of several witnesses introduced to prove an issue is of itself weak, and that the testimony of all of them taken together is strong. Cornell's evidence strengthened the evidence of the other witnesses, and was strengthened by theirs. Its exclusion would have been error.

The third error assigned raises the question whether the court could properly allow the existence and contents of a letter written by the prisoner in Dakota territory to a British consul in Canada to be proved by a witness who had read the letter in Dakota, and knew Cornish's handwriting, said letter never having been under the control of the witness, nor of the prosecution, nor within the jurisdiction of the court, and there being no evidence that the prosecution had made any effort to procure the letter. The court admitted the evidence rightfully, as we think, both upon reason and authority. The prosecution was not bound to use any but legal means to procure evidence of any kind. There were no legal measures available to procure this letter. It was beyond the power of the prosecution and of the court. No other evidence was attainable. The handwriting of Cornish and the contents of the letter were clearly proved, and the evidence was competent.

Errors numbered 4, 5, and 6 relate to the instructions given and refused by the court, and may all be considered together. The only instructions that we need particularly notice are the two numbered eight, (8,) one asked for by defendant and refused by the court and the other given by the court, and being a modification of that asked for by the defendant. The words "must be absolutely incompatible with the innocence of the accused" insisted upon by the defendant and not given by the court, have been correctly defined to "imply that the proof of defendant's guilt must be established beyond the possibility of a doubt." In commenting upon instructions of this character the New York court of appeals, in volume 80, p. 646, say:

"When a case depends upon circumstantial evidence--and in most other cases a jury could not find that it was not possible for some one besides the prisoner to have committed the offense--a jury is never required to find that it was not possible for another to have committed the crime before they can convict a prisoner on trial, or, in other words, to find that it is impossible for the prisoner to be innocent. Such a degree of certainty is rarely attainable in the administration of justice. It is sufficient that all the material circumstances point to guilt, and that they are inexplicable upon the theory of innocence. The guilt must be established beyond a reasonable, not beyond a possible, doubt." Poole v. People, 80 N.Y. 645.

This is the law, and disposes of the objection raised upon instructions numbered eight, (8.)

Of instruction No. 2 of the prosecution we need only say that it seems to have been drawn with great care, and that it is not erroneous.

As to the refusal of the court to give defendant's instruction number three, (3,) it is sufficient to say that the written charge of the court on page 5 contains substantially the same instruction, and that it is more full and more favorable to the prisoner than the refused instruction. The charge was evidently prepared with deliberation and care. It contains the law of the case, and nothing more was really necessary. Still the court, though at the expense of some repetition, gave most of the instructions asked for by the defendant, either in a modified or unmodified form, and in its discretion it had a right to do so.

We do not find any of the errors complained of in the fourth, fifth, and sixth assignments.

The seventh error assigned is:

"That the verdict of the jury returned and filed in said cause on the nineteenth day of January, A. D. 1883, is not responsive to the issues in said cause, and is so imperfect, uncertain, ambiguous, and defective, and there is such duplicity in the same, that the court can render no valid judgment thereon."

The verdict of the jury was:

"We, the jury in the above-entitled case, do find the defendant guilty of murder in the second degree."

It is not necessary to discuss the questions raised in the argument of this alleged error. It is sufficient to say that the law and the practice of the courts is settled upon all those questions, and that the verdict in this case is good.

The eighth error is that the verdict is not sustained by sufficient evidence. In their briefs and arguments upon this assignment of error the opposing counsel differ as to the law of the case. The prosecuting attorney contends that a new trial should not be granted if there is any evidence to sustain the verdict; that matters that are within the province of the jury are not reviewable; and to sustain his position refers us to many authorities, and among them to several decisions in New Mexico. The leading case in that territory has not been cited. It is Territory v. Webb, 2 N.M. 147. The opinion of the court is by Judge BRISTOL. It is evidently well considered, and presents the law as claimed by the prosecution more fully and clearly than any authority to which we have been referred. A part of the argument is as follows:

"When the evidence is contradictory, and the verdict is against the weight of evidence, though a new trial may be granted by the court trying the cause, in their discretion, the decision denying the same is not examinable by an appellate court. State v. Cruise, 16 Mo. 391; Herber v. State, 7 Tex 69."

"If there had been no part of the evidence which, if true, would sustain the verdict, then an error of law would have been apparent from the record, upon which we could reverse the judgment. Under the rules governing the judicial administration of the criminal laws of this territory, this court can only review and determine errors of law appearing upon the face of the record. Cathcart v. Com., 37 Pa. 108. It is quite beyond the scope of its duties to determine the credibility of witnesses testifying in a lower court, the weight of their testimony aside from the evidence or the reconciliation of conflicting testimony. It would indeed be establishing a precedent vicious in its nature and bad on...