Glover v. United States

• Decision Date: 18 July 1906
• Docket Number: 2,392.
• Parties: GLOVER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F. 426

GLOVER v. UNITED STATES.

No. 2,392.

United States Court of Appeals, Eighth Circuit.

July 18, 1906

De Roos Bailey and Thomas H. Owen, for plaintiff in error.

William M. Mellette, U.S. Atty., and E. L. Kistler, Asst. U.S. Atty.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

The plaintiff in error, John Glover (for convenience hereinafter designated the defendant), was indicted at the December term 1904, in the United States Court for the Western District of the Indian Territory for the crime of robbery. He was tried convicted, and sentenced to pay a fine of $50 and to imprisonment in the United States Penitentiary at Ft Leavenworth for a term of six years. This judgment was affirmed by the Court of Appeals of the territory, to reverse which the defendant sued out writ of error from this court. The robbery in question was alleged to have been committed upon one Frank Neeley on the 27th day of May, 1904. The property taken from him was a pistol of the value of $15.

No unprejudiced, intelligent mind can read the evidence and proceedings in this record without receiving a deep impression that this defendant was convicted, the evidence and the law to the contrary notwithstanding. This spirit of unfairness towards him throughout the trial is apparent. He was designated by the prosecuting attorney in a question as a 'State nigger.' And in many instances he and the witnesses of his race were treated as if they had no rights in law which a court of justice was bound to respect. There was but one witness on behalf of the prosecution, Frank Neeley, the person claimed to have been robbed. His testimony in substance was, that about 8 or 9 o'clock in the morning of May 27, 1904, he was arrested on the highway by a party of five men, and under the fear of a Winchester rifle in the hands of the defendant he was forced to give up his pistol, valued by him at about $10. It appears from his testimony that he had no acquaintance with the defendant, and left it extremely doubtful whether or not he had ever seen him previous to the alleged assault. Despite his evasiveness and equivocation, the cross-examination developed beyond any reasonable ground for cavil that when this defendant and one Jamison, with others, were brought before the commissioner charged with this felony, on preliminary hearing, Neeley identified said Jamison as his assailant, and testified that he did not recognize the defendant as one of the party. On his testimony Jamison was bound over and committed to jail, and while thus held for the action of the grand jury he died. On this state of the proofs the prosecution rested. Had the defendant's counsel moved, as he should have done, for a directed verdict of not guilty, the trial court would have been justified in granting the request. The safeguarding of the liberty of an accused person is not wholly left in the keeping of the jury of 12. A jealous regard for that humane spirit of the law that attends every human being brought before the judgment seat for trial on a criminal charge, declaring that he must be presumed to be guiltless, and that before his liberty can be interrupted his guilt must be established beyond a reasonable doubt, demands of the presiding judge in the first instance a determination of the question as to whether or not on such self-contradicting and self-stultifying statements as made by the witness, Neeley, without a single corroborating fact or circumstance, the case should pass beyond the control of his enlightened judgment and conscience. Mr. Justice Brewer, in Patton b. Texas & Pac. Railway Company, 179 U.S. 660, 21 Sup.Ct. 275, 45 L.Ed. 361, speaking of a proceeding in a civil action, said:

'It is undoubtedly true that cases are not to be lightly taken from the jury: that jurors are the recognized triers of questions of fact. * * * Hence it is that seldom an appellate court reverses the action of a trial court in declining to give a peremptory instruction for a verdict one way or the other. At the same time, the judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, and when in his deliberate opinion there is no excuse for a verdict save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment.'

If this rule of judicial responsibility obtains in a mere civil action, how much more potential should it be where the issue of life or liberty is involved. The cause of the defendant was certainly not prejudiced by the large amount of evidence in his behalf, which was mainly directed to the establishment of an alibi. Aside from the testimony of the defendant, which, viewed from the standpoint of his meager intelligence and evident lack of capacity for invention, accounting with marked particularization for his whereabouts away from the scene of the robbery, four witnesses testified positively to his presence at the time at a place far removed from that of the robbery. A fifth witness testified to seeing a posse of men corresponding in number to that claimed by Neeley as present at the assault, near to and going in the direction of the place about the time fixed by Neeley, and that the defendant was not one of them. A sixth witness, a woman in nowise related to the defendant, testified to seeing the overt act, and that the defendant, well known to her, was not there. It may be conceded that in all matters of detail the testimony of some of these witnesses was not entirely harmonious. But having a sensible, reasonable regard to their different view points, the degree of inattention to some one incident and the degree of attention given by others thereto, there was no such marked divergence as ought to create in any impartial mind a reasonable suspicion of a conspiracy among these witnesses to establish the alibi. It is the judgment of intelligent and observant critics that one of the strong proofs of the absence of manufactured evidence among a class bearing testimony to a common, central fact, is the existence of some discrepancies in their statements as to minor details.

A striking illustration of the character of the discrepancies relied upon by the prosecution is found in the incident of leaving the house of the defendant's mother-in-law for the schoolhouse to attend a neighborhood gathering; the departure and trip being claimed by the defendant to have been concurrent in time with the alleged robbery. One witness, for instance, testified that the defendant, with others, rode in a wagon; while he and another stated that he walked. That such a wagon did so go is not controverted. How easy was it for a witness who saw the wagon leaving with a number of people in it at the time the defendant started to have received the impression that he was also in the wagon, there being nothing especially to direct the attention to the particular fact. Again, one witness, on cross-examination, testified as to what kind and variety of things the party had for breakfast before starting on the trip; while another testified to a different menu. As it does not appear that any of them were epicures, the quality and quantity of the eatables on the particular occasion, which was not a feast, naturally enough would not have been definitely carried for a long period of time in their memory. So in respect of exactly how many people and who they were at this house the day before. Likewise was as to where they were and what they did on some other specified day of the same month, in disregard of the absolute reasonableness why a day like the closing scene of a school term, when the neighbors with their baskets of delectable viands assembled and made it a festal event, would be fixed in their minds. On such trivialities, of claimed divergencies in testimony, was the evidence of six witnesses in favor of the defendant discredited, while on the testimony of one witness, a self-confessed prejurer, was the defendant convicted and sentenced to serve six years in a penitentiary. To further illustrate the spirit of dealing with the defendant's witnesses, when the witness Solomon was on the stand, who had testified very positively as to the place where he saw the defendant on or about the time of the alleged robbery, and whose testimony, if unimpeached, was of the highest value to the defendant, the court, as if to break the force of his testimony, took the witness in hand and catechised him as follows:

'Solomon, the court asks you whether you are absolutely sure and certain that this defendant was there at the school celebration on the 27th; if you are mistaken you can correct your statement yet, but if you are absolutely certain say so; but think a moment and see whether or not you are mistaken about it. If you are mistaken correct your statement; if you are not, why just say it out. Perhaps you might be mistaken; the court doesn't know; but the court wants to have you remember everything properly and truthfully, and if there is any doubt in your mind, make your correction; if there is any doubt in your mind that this defendant was not there; men sometimes are mistaken; just think about it and deliberate about it, and correct your statement if you are mistaken.'

This bears on its dace its own comment.

As further illustrating the irregular method of procedure to the prejudice of the defendant, the prosecuting attorney inquired of...