Graves v. United States

• Decision Date: 06 November 1893
• Docket Number: No. 838,838
• Citation: 37 L.Ed. 1021,14 S.Ct. 40,150 U.S. 118
• Parties: GRAVES v. UNITED STATES
• Court: U.S. Supreme Court

150 U.S. 118

14 S.Ct. 40

37 L.Ed. 1021

GRAVES

v UNITED STATES.

No. 838.

November 6, 1893.

Statement by Mr. Justice BROWN:

This was a writ of error upon the conviction of the plaintiff in error for the murder of an unknown man in the Indian Territory on the 13th day of February, 1889.

The evidence on the part of the prosecution tended to show that, several days before the murder, two men stopped together at Vian, and obtained a contract to make rails for one Waters, and lived in a house about one mile from Waters' residence.They came from Winslow, in the state of Arkansas, in an old vehicle drawn by two horses, and were on their way to Oklahoma, staying at Vian for a few days for the purpose of earning provisions for themselves and horses.One of these men was accompanied by his wife and two small children.After remaining for several days, they left the neighborhood, and were next seen camping near the scene of the murder, on the evening of February 13th.Their personalities were remembered, although their names were forgotten, except that a boy remembered the name of one of them to have been John Graves.The morning after they were seen together in camp, one of the men was seen putting the horses to the vehicle, in which were the woman and a child, but the witness saw but one man and one child.About the 1st of May following, the remains of a dead man were found near the place where the witness claimed to have seen the people camped.The body was decayed, but was identified mainly by peculiarities of the teeth and clothing.He was the man who had claimed to own the horses and wagon.The witnesses for the prosecution recognized the defendant, Graves, as the other man, though to most of them his name had been unknown.Defendant's wife was admitted to have been in town at the time of the trial, but did not appear in the court room.She was seen by one of the witnesses of the prosecution outside of the court room, and was believed by the witness to have been the woman who had been with the party.

The defense was an alibi, and was supported by several witnesses, who swore that in the months of January, February, and March of that year defendant was in Washington county, Ark., a distance of 100 miles or more from the place where the remains of the dead man were found.Upon conviction of murder, defendant sued out this writ of error, making 15 assignments of error.

Mr. Justice Brewer, dissenting.

A. H. Garland, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

The first assignment of error is to the action of the court in permitting 'the district attorney, in his closing argument to the jury, over the objections of the defendant, to comment upon the absence of the defendant's wife from the presence of the court, and to state, among other things, to the jury, that the defendant's wife ought to have been sitting by the side of her husband during the trial, so that witnesses for the government could see her, and identify her as the woman who was said to have been with the defendant in the Indian country before the unknown man's remains or bones were found; and other like arguments, statements, and declarations.'While we do not wish to be understood as holding that comments by the district attorney upon the facts not in evidence, or statements made, having no connection with the case, or exaggerated expressions, such as counsel, in the heat of trial, are prone to indulge in, will necessarily vitiate a verdict, if not objected to, yet when the attention of the court is called to them specially, it is its duty to interfere, and put a stop to them, and objection is made, if they are likely to be prejudicial to the accused.Wilson v. U. S., 149 U. S. 60, 13 Sup. Ct. Rep. 765;Hall v. U. S., 150 U. S. ——, 14 Sup. Ct. Rep. 22.

Had the wife been a competent witness, the comments upon her absence would have been less objectionable.It was said by Chief Justice Shaw in the case of Com. v. Webster, 5 Cush. 295, 316: 'But when pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he can offer evidence of all the facts and circumstances, as they existed, and show, if such was the truth, that the suspicious circum- stances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would tend to support, the charge.'The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.1 Starkie, Ev. 54;People v. Hovey, 92 N. Y. 554, 559;Mercer v. State, 17 Tex. App. 452, 467;Gordon v. People, 33 N. Y. 508.

But this presumption does not apply to every fact in the case which it may be in the power of the defendant to prove.He is not bound to anticipate every fact which the government may wish to show in the course of the trial, and produce evidence of that fact.In this case the wife was not a competent witness, either in behalf of or against her husband.If he had brought her into court, neither he nor the government could have put her upon the stand; and he was under no obligation to produce her for the purpose assigned by the district attorney,—that the witnesses for the government could see her, and identify her as the woman who was said to have been with the defendant in the Indian country before the unknown man's remains or bones were found.Permission to make this comment was equivalent to saying to the jury that it was a circumstance against the accused that he had failed to produce his wife for identification, when, knowing that she could not be a witness, he was under no obligation to do so.The jury would be likely to draw the inference that she was prevented from testifying for her husband because her evidence might be damaging.It was, in fact, as if the court had charged the jury that it was a circumstance against him that he had failed to produce his wife in court.

The view we have taken of this assignment of errors renders it unnecessary to consider the others.

The judgment must be reversed, and the case remanded, with instructions to set aside the verdict and grant a new trial.

Mr. Justice BREWER, dissenting.

I dissent from the opinion and judgment of the court in this case.I think that the absence of the defendant's wife from the court room was, under the circumstances, a legitimate subject of comment in argument.The theory of the prosecution was that one of the two men who came to Vian was murdered by the other; that the body found was that of the murdered man; that the defendant was the murderer.The testimony was abundant that these men were accompanied in their trip by the wife and two small children of one of them.Defendant attempted to prove an alibi, and to show that at the times named, and when these two men were in the territory, he was in Washington county, Ark.,—more than a hundred miles away,—and that his wife was with him there.Witnesses for the prosecution who saw the two men and the woman at Vian, and who identified this defendant as one of those men, would unquestionably be strengthened in their testimony, if, upon seeing the woman, they were also able to identify her.There might be some mark, some peculiarity of feature, in the wife,—something, perhaps, for the time being forgotten,—which would make the witnesses absolutely sure that she was the woman who was present in the territory.And, conversely, there might be some peculiarity in the features of that woman which, not found in the defendant's wife, would have led the witnesses to hesitate as to their identification of him.One way or the other, a sight of her by the witnesses for the prosecution might be a significant factor in determining his identity.There was evidence before the jury that she was in Ft. Smith during the trial, and yet she was not in the court room, by the side of her husband, or where she could be seen by all the witnesses.It is true, several reasons for her absence might be suggested: She might have been in such a condition of health as to render it unsafe for her to come to the court room.She might have been alienated from him, and indifferent as to his conviction or acquittal.But, nevertheless, it was a suggestive fact, and an obvious fact, and therefore a legitimate subject of comment by counsel.I do not understand that a jury, in their deliberations, are...