People of Territory of Utah v. Berlin

• Decision Date: 23 March 1894
• Docket Number: 449
• Citation: 36 P. 199,10 Utah 39
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. NELLIE BERLIN, APPELLANT

36 P. 199

10 Utah 39

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. NELLIE BERLIN, APPELLANT

No. 449

Supreme Court of Utah

March 23, 1894

On rehearing. Granted. The former decision of this court reversed, and the cause remanded to the court below for a new trial. For the former opinion of this court, per Zane, C. J. (Smith, J., dissenting), see 9 Utah 383. (35 P. 498.)

Reversed and remanded.

Messrs Lessinger & Beckwith, for the appellant.

Mr. W L. Maginnis, Assistant U. S. Attorney, for respondent.

MERRITT C. J. SMITH, J., concurring. BARTCH, J., dissenting.

OPINION

MERRITT, C. J.:

In this cause, an opinion affirming the judgment of the district court was rendered by the late Chief Justice Zane, concurred in by Mr. Justice Bartch, on January 23d of the present year. On January 29th, a dissenting opinion was filed by Mr. Justice Smith. A petition for a rehearing was filed by the appellant, Berlin, which, by the court, was referred to me, who had succeeded Chief Justice Zane. The cause was originally submitted without oral argument, and the district attorney has asked that the matter be finally disposed of on the petition for rehearing. Owing to the peculiar character of the case, and the fact that conflicting opinions have already been filed, I have carefully examined the question presented by the appeal. The whole controversy arises upon the instructions given to the jury. I am fully convinced that the instructions may have misled the jury. The charge was certainly conflicting, as shown in the opinion of Mr. Justice Smith. The great weight of authority is to the effect that, where the charge is conflicting and is erroneous in a material part, the judgment must be reversed. In addition to the authorities to sustain this in the dissenting opinion of Mr. Justice Smith, I find that no court has gone further than our own. In the case of People v. Hancock, 7 Utah 170, 25 P. 1093, this court, speaking by Justice Miner, says: "Where conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which is erroneous." An examination of that case will show that the conflict there under consideration was in the charge relative to the character of the defendant, and not in relation to the circumstances of the charge against the defendant at all; and yet that case was reversed on account of this conflict. I am of the opinion that a rehearing should be granted, and the decision should be reversed, and the case remanded for a new trial. It is therefore ordered that the former judgment of this court be set aside, and that the judgment of the district court be reversed, and the cause remanded to the court below for a new trial.

SMITH, J. I concur in opinion and order.

DISSENT BY: BARTCH

BARTCH J. (dissenting):

I do not agree with the majority opinion, overruling the former decision of this court, on the petition for a rehearing. It is evident, upon an examination of the case, and of the authorities controlling it, that the record presents no case for reversal. The only material question to be considered is whether an exception to an entire charge is sufficient to present a case for review on appeal. It appears to me that the opinion of Chief Justice Merritt proceeds in disregard to the old and well-established rules under which appellate courts will review the instructions of trial courts. No particular sentence or passage or portion of the charge was excepted to. Nor does the record show that any exception was taken to it on the ground of being misleading or conflicting. Nor was the trial court's attention called to any error or misstatement or omission, or supposed error or misstatement or omission, which the defendant claims to be objectionable. In total disregard of fairness to the trial court, the defendant, as appears from the record, calls attention to objectionable matter in the charge, for the first time, in the appellate court. Nor is it fair to the appellate court that it should search through an entire charge to ascertain some error, real or supposed, to which the attention of the trial court has never been directed. The exception reads as follows: "We except to each and every one of the instructions given by the court to the jury." This is simply a general exception, which should avail the party nothing, unless the whole charge is wrong. I understand the rule to be that, where a portion of the charge of the court is correct, a general exception to the entire charge will present no question for review on appeal, and that an exception, to be of avail in an appellate court, should be strictly confined to the specific matter which is the subject of the complaint, and the judge's attention called thereto, so that an opportunity may be afforded him to make a correction.

In this case no portion of the charge appears to be objectionable, even to the defendant, except that quoted in the dissenting opinion of Mr. Justice Smith. 35 P. 498. In reading the portion therein quoted, however, the word "this" before the words "fraud, deceit, or trickery" should be eliminated, as it changes the meaning of the sentence, and was not a part of the charge as shown by the record; and the words "when established" should be inserted after the word "facts," and before "are sufficient." Whatever of technical criticism may be applicable to the portion thus quoted, it can hardly be successfully contended that the court, in the remaining passages of the charge, did not apply the law fairly and correctly to the case. Some of the propositions stated were absolutely correct, and the one claimed to be erroneous was immediately followed by another, in which the law was correctly stated. Reading all of the passages together, as the jury must have understood them, I do not believe that the jury was misled, and certainly no such error is presented as can be reached by a general exception. In his opinion reversing the former decision of this court, Mr. Chief Justice Merritt says: "The whole controversy arises upon the instructions given to the jury. I am fully convinced that the instructions may have misled the jury." It occurs to me that this is the most that can be said against the charge,--that it "may have misled the jury;" but is it not quite improbable that it produced such an effect when, under the circumstances of this case, we take into consideration the fact that counsel for defendant themselves failed to notice or specify any error at the time of its rendition? If counsel thought there were any conflicting or contradictory passages, or that there was a possibility of the jury being misled, then it was their duty to the defendant to direct the attention of the judge to the objectionable matter, so as to enable him to make the correction. This was a duty, not only to the defendant, but to the people as well, for the people should not be put to the expense of a new trial unless an injustice was done the defendant without fault on her part. To my mind, it seems clear that no one was misled by the charge, that the jury did not believe the testimony of the defendant, but, on the contrary, believed her guilty of the crime charged; and that it never occurred to counsel that the jury was misled until, with the record before them, they were determining upon some ground for a reversal.

This is a case where one alleged objectionable proposition, among several others which state the law correctly, with a single exception running to them all as an entire charge, is held to be a sufficient ground for review in an appellate court. Such is not the recognized rule in courts of last resort. Mr Justice Story in Carver v. Jackson, 4 Pet. 1, states the rule thus: "If, indeed, in the summing up, the court should mistake the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and, by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it, in such a manner as to make it wholly unexceptionable or perfectly distinct." This was quoted approvingly by Chief Justice Marshall in Ex parte Crane, 5 Pet. 190. In Society v. Faulkner, 91 U.S....