Hirschman v. People of State

• Decision Date: 31 March 1882
• Citation: 1881 WL 10714,101 Ill. 568
• Parties: CHARLES H. HIRSCHMANv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

101 Ill. 568

1881 WL 10714 (Ill.)

CHARLES H. HIRSCHMAN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.Rehearing denied March Term, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

Messrs. J. N. & W. F. BARKER, and Mr. ROBERT HERVEY, for the plaintiff in error:

The court erred in excluding the testimony as to the universal habit of the boy in keeping away from home at all times when he knew there was a difficulty between his mother and his step-father. Wharton on Criminal Law, sec. 1327.

As a defence, character for truthfulness may be set up, and Lord DENMAN once permitted the following questions: “What is the character for veracity and honor?” and, “Do you consider him a man likely to commit perjury?” See Wharton on Crim. Ev. 60.

“And the character he is entitled to prove must be such as would make it unlikely that he would be guilty of the particular crime with which he is charged.” 1 Wharton on Crim. Law, sec. 646. See, also, 2 Russell on Crimes, 784, 785, and cases cited; 1 Greenleaf on Evidence, 54.

“It is conceded on all sides that evidence of character, when offered by the defence in criminal cases, is always relevant. Technically, therefore, it is always material.” Wharton on Crim. Ev. 66. See, also, Remsen v. People, 57 Barb. 324; Epps v. State, 19 Ga. 102; Harrington v. State, 19 Ohio, 264.

Hence it is error in a judge to tell the jury, that “in a plain case a good character would not help the prisoner, but in a doubtful case he had a right to have it cast into the scales and weighed in his behalf,” ( State v. Henry, 5 Jones, (N. C.) 65,) the true rule being that in all cases a good character is to be considered of weight. United States v. Whitaker, 6 McLean, 342; Cancemi v. The People, 16 N. Y. 505; Stover v. The People, 56 Id. 319; People v. Ashe, 44 Cal. 288; People v. Bell, 49 Id. 486; People v. Shepard, Id. 629. The court erred in the third instruction, which assumes that the defendant is contradicted, and calls attention to isolated facts, and is erroneous in form and substance, as settled by decisions of this court. It gives undue prominence to an isolated fact, viz: the testimony of the accused, and is defective in its closing sentence, as held by this court in Angelo v. Faul, 85 Ill. 106.

An instruction as to what the presumption of law is upon a disputed fact, is extremely likely to mislead the jury, and should not be given. Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill. 35; Garretson v. Pegg, 64 Id. 111; Cornwell v. Cornwell, 91 Id. 414.

When the court assumes to direct the attention of the jury to the facts, it should refer them to all the facts, so as to present the case fairly for both parties. Evans v. George, 80 Ill. 51; Ogden v. Kirby, 79 Id. 556; Elston Gravel Road Co. v. The People, 96 Id. 584.

Mr. JAMES MCCARTNEY, Attorney General, for the People:

The instruction complained of does not in fact exclude from the consideration of the jury evidence of the defendant's character. It but tells the jury, that if, “from all the evidence in the case, they are satisfied,” etc., how to find. There is nothing objectionable in this.

There is no error in the instruction to disregard the testimony of an impeached witness, except so far as it is corroborated by other credible evidence. See Angelo v. Faul, 85 Ill. 106; Huddle v. Martin, 54 Id. 258; Crabtree v. Hagenbaugh, 25 Id. 233; Yundt v. Hartrunft, 41 Id. 9; Miller et al. v. People, 39 Id. 457.

Mr. LUTHER LAFLIN MILLS, State's Attorney for Cook county, and Mr. HENRY W. THOMPSON, assistant State's Attorney, also for the People. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Michael Boylan was shot and instantly killed by means of a pistol in the hands of his step-son, Charles H. Hirschman, on the evening of August 28, 1880, at Hyde Park, in Cook county. Because of this killing, Hirschman was subsequently convicted, by the circuit court of Cook county, of the crime of manslaughter, and sentenced to the penitentiary for the term of three years, and this writ of error is prosecuted for the purpose of having us review the record of that conviction. The main defence interposed upon the trial was, that the shooting was accidental, although it was also contended that the defendant, under the circumstances, would have been justified in taking the life of the deceased as in his necessary self-defence.

The defendant and a sister, as also several half sisters, children of the deceased, were residing in the family of the deceased, with their mother. The deceased was a teamster, employed, through the day, away from the house, and on the evening in which he was killed he returned home late--near nine o'clock-- and, the evidence shows, in an intoxicated condition. When intoxicated he was ill-tempered, and frequently abusive and violent towards his wife and other members of his family. On this occasion, it appears, in consequence of not receiving a satisfactory answer as to the quality of the supper that awaited him, he became abusive towards his wife, and the defendant and his sister. However, he ate his supper, and then examined the feed of his horses, and cut some green grass for them. Preliminary to this, and in order to sharpen his scythe for cutting the grass, he procured a whetstone. After cutting the grass, he went to the well, which was near the porch, and commenced pumping water for his horses. Quitting this, he advanced towards the house, and was in the act of ascending the steps leading up to the porch, when he received the fatal shot from the pistol in the defendant's hands. It is claimed the defendant had been up-stairs playing cards with a young friend, and knew nothing of the conduct of the deceased until he came down stairs to see his friend depart; that immediately after his friend had departed he went upon the back porch; that the deceased, who was then pumping the water, on seeing him there quit his pumping, and with the stone with which he had whetted his scythe in his hand, advanced rapidly up the steps towards the defendant, uttering an abusive epithet, and aimed a blow at him with the stone, when the defendant, in endeavoring to retreat, fell, and the pistol was accidentally discharged. It is claimed the defendant had had the pistol for some time, and on this evening had been oiling it, and temporarily put it in his pocket to await the departure of his friend before putting it away, and thus it was in his pocket when the deceased rushed upon him.

Upon the trial, one Mrs. Moots testified that she had known the defendant for ten years,--that he was a very good boy--“no fighting, no quarreling,” adding: “People can't tell that Charlie is bad. All the neighbors say that Charlie is good.” And thereupon the counsel for the defendant addressed the court as follows: “We offer to prove by this witness that the defendant, in going to and from his work, had to pass by her house, and that she knew of her own knowledge that it had been the uniform habit of defendant, at all times when he knew that there was at the time difficulty between his mother and the deceased, to refrain from going home, so as to be able to keep out of the difficulties, the defendant at such times expressing the desire to avoid being present at the time of such difficulties.” And the counsel also proposed to prove by the witness that she knew that difficulties between deceased and his wife were of frequent occurrence at the time of defendant passing her house, etc., but the court refused to admit all and every part of such evidence to be given, and defendant excepted. The errors assigned question this ruling, and counsel, in argument, insist it was erroneous.

It will have been observed that the witness was permitted to give evidence of the general character of the defendant in regard to peace and quiet, etc., and this is as far as the authorities go. Roscoe's Crim. Evidence, (5th Am. ed.) 97; 1 Greenleaf on Evidence, sec. 55. Says Wharton, in his work on Crim. Law, vol. 1, latter part of sec. 636, (7th ed.): “The proper question is, not “personal knowledge' by the witness, but the defendant's ‘general reputation.% 7D ” The quotation of this author in sec. 646, from Mettermaier, which counsel have copied into their brief, as shown in the latter part of the section, is not the law here. In 2 Russell on Crimes, 784, (7th Am. ed.) the author, after explaining that in all criminal prosecutions the prisoner is always permitted to call witnesses to speak of his general character, etc., adds: “The inquiry must also be made with reference to the general character of the prisoner, for it is general character alone which can afford any test of general conduct, or raise a presumption that the person who had maintained a fair reputation down to a certain period, would not then begin to act an unworthy part, and, therefore, proof of particular transactions, in which the prisoner may have been concerned, are not admissible.” See, also, McCarty v. The People, 51 Ill. 231; Hopps v. The...