People v. Hancock

• Decision Date: 04 February 1891
• Citation: 25 P. 1093,7 Utah 170
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. GEORGE W. HANCOCK, APPELLANT

25 P. 1093

7 Utah 170

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. GEORGE W. HANCOCK, APPELLANT

Supreme Court of Utah

February 4, 1891

APPEAL from an order refusing a new trial and from a judgment of conviction of the district court of the first district.

The evidence was exceedingly voluminous and conflicting. The fact of Hancock's doing the killing was testified to by an eye-witness, who was strongly contradicted by other eye-witnesses. The charge of the court is as follows. After defining murder in the two degrees, manslaughter, voluntary and involuntary, the court said:

"In all criminal prosecutions, and especially one of the grave charge that is made here, I instruct you that the presumption of innocence is to be borne in mind by you all the time from the beginning to the end of the case. A man charged with crime is presumed by the law to be innocent, and that you are not to forget, in determining this case, from the beginning to the end. The burden of not showing that he is innocent is not shifted at all; the burden is all the time upon the prosecution to show that he is guilty and guilty beyond a reasonable doubt. In the benevolence of our law this element is always an important one to be considered by the jury, and they are to remember it all the time. The burden of showing guilt or innocence is never shifted to the defendant, and in order to find the defendant guilty you must believe, beyond a reasonable doubt, from the evidence that he is guilty of the crime as charged." Then followed a charge as to reasonable doubt and as to one aiding and abetting a crime. Then the court said: "The killing of Mrs. Jones is to be considered by you only in one respect. If you believe from the evidence, beyond a reasonable doubt, that the defendant killed Mrs. Jones, that is not to be considered by you in determining the question as to his guilt or innocence in regard to the killing of Henry Jones; but if you believe beyond a reasonable doubt, that in the pursuit of Henry Jones the defendant went to the house where Mrs. Jones was, and in order to make her tell him where her son was and to aid him to make her give him information that would aid him in the pursuit of Jones, and on her refusal, he took her life, you are to consider that question as determining his motive in pursuing Jones and as affecting his purpose to take the life of Jones." Then followed a charge as to the justification for killing Jones, arising from the accusation of horse-stealing, and a charge upon the jury being the sole judges of the facts, etc., then the charge upon good character quoted in the opinion, then a charge upon a killing under arrest, then the charge as to length of time quoted in the opinion. Then followed other parts of the charge not necessary to be noticed, except the additional charge upon good character quoted in the opinion. In regard to the lapse of time the defendant requested the following: "If the jury find that at the time of the alleged killing, nearly thirty-two years ago, there were present a large number of witnesses by whose testimony the truth of the facts relative to the killing could have been established, and who were known to the prosecuting officers, or could have been known by slight inquiry, and that defendant has been openly living in this county all the time, and the officers representing the people knew of the charge and neglected to bring defendant to trial for thirty-two years, you would be justified in believing that the testimony of the absent and deceased eye-witnesses would have been favorable to the innocence of the defendant." This was refused.

Verdict set aside and new trial granted.

Mr Arthur Brown and Mr. W. H. King, for the appellant.

Mr. David Evans, Assistant U. S. Attorney, for the respondent.

MINER, J. ANDERSON, J., concurred. ZANE, C. J., concurring in the result.

OPINION

MINER, J.:

The indictment in this case charges this defendant and two others with the murder of Henry Jones on the 24th day of April, 1858. It was found by the grand jury on the 8th day of March, 1890, or thirty-two years after the alleged crime had been committed. Defendant Hancock was tried separately. The record shows that on April 24th, 1858, the deceased, Henry Jones, was living with his mother, Hannah Jones, his brother, John Jones, and little sister, now Ellen H. Brown, in a small dug-out at Payson; that at this time Ellen was a child about five years of age. It appeared from Ellen's testimony, given at the trial, that about nine or ten o' clock, in the evening of April 24, 1858, she was awakened by a disturbance outside of the dug-out, caused by the firing of guns. She remembers seeing her two brothers, Henry, the deceased, and John, get up, hurriedly dress themselves, take their guns and go out on the roof through a chimney hole. Soon after this five or six men came into the cabin and wanted her mother to tell them something, but what they wanted her to tell she could not remember, it was so long ago. She does remember, however, that her mother was begging and pleading for the lives of her boys, and that one of the men shot and killed her mother. There being no light in the room she was unable to distinguish who were present. She was a stranger there at this time and did not know the defendant Hancock. Several weeks afterwards she saw Charles Hancock, the defendant's brother, on the street and recognized him as the man that killed her mother, and on July 4th, 1858, she saw the defendant and recognized him as one of the men who were present when her mother was killed, and she was frightened at seeing him and went and told her father. It also appears that on this occasion defendant Hancock was a constable, that this was a time of Indian wars, and guards were constantly kept out to guard against surprises from the Indians, and that Hancock and others of these guards had discovered a scheme on the part of Jones and his brother to steal horses that night and escape from the settlement to meet the United States army, then not far distant, and that Jones was in fear of injury at the hands of the people at this time, which fear induced him to leave the country at this time with stolen horses; that in order to frustrate this scheme, which had been discovered, watchmen had been placed at the corral where the horses were kept, and at Jones' house to prevent his escape, as well as to guard against surprises from the Indians; that after Jones had escaped from the dug-out he went from place to place in that vicinity to escape pursuit, and was very much frightened, and that he was shot in the arm while eluding pursuit or in attacking an antagonist, which was alleged to be the defendant. Jones continued his efforts to escape, and early in the morning arrived at a place called Salem or Pond Town, some three or four miles from his mother's house; that the posse, including the defendant Hancock and many others, were in hot pursuit and caught the deceased at this latter place, disarmed him, and took him prisoner. Hancock seemed to be in command. A guard was placed on each side of the deceased. Hancock was a little to the rear and others about and around them. In this position they started with the deceased to return to Payson. This was supposed to be three or four hours after the killing of Mrs. Jones. Thus guarded, the prisoner started towards Payson. What followed is a matter of speculation, as the witnesses all disagree. It appears, however, from the testimony of one Wilson (a witness for the prosecution whose testimony was discredited and impeached in many ways), that Hancock directed the posse in charge of Jones to take him to Payson. All were armed except the deceased.

While walking along in the direction of Payson and talking about stealing horses, Jones remarked that he didn't want to go with them, that they had killed his brother and he was not going with them. About this time Jones looked up and saw some other people coming towards them and remarked: "There comes some more of the d d casses after me." He then stopped and threw up his hands, at which time the prosecution claims that Hancock remarked to his companions: "Now slap it to him, boys." A gun cracked, and then another, and Jones fell mortally wounded, and soon afterwards died where he was shot. There was a large party present at this killing, most of whom have since died. The next day Jones' body was taken by some one other than the defendant and placed with that of his mother, without washing or changing the clothes. The supports to the roof of the dug-out were taken down and the roof lowered to cover the remains, and they were both left thus entombed. It also appears from evidence, objected to by defendant's counsel, that a long time prior to this killing Jones had been castrated by parties then unknown. The defendant is not proved to have had any complicity in that act. Prior to and after the killing Hancock had been a person of good moral character. Different and contradictory accounts of the killing of Mrs. Jones and her son, and of the time when the killing took place, appear from the testimony. But enough does appear to show that the killing of Mrs. Jones was a different transaction from the killing of Henry Jones, and whether Hancock was present at her death or not is left in dispute and uncertain. On the trial the defendant was convicted.

Defendant's counsel assign twelve errors as grounds for a reversal of the verdict and judgment of conviction. Among them are the following: "(3) The court erred in allowing Henry Gardner, against the objection of counsel for the defendant to testify that Henry Jones had been castrated and had no...