People v. Kessler

• Decision Date: 09 March 1896
• Docket Number: 656
• Citation: 44 P. 97,13 Utah 69
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. DANIEL KESSLER, APPELLANT

44 P. 97

13 Utah 69

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. DANIEL KESSLER, APPELLANT

No. 656

Supreme Court of Utah

March 9, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. George W. Bartch, Judge.

The appellant was indicted for murder in the first degree by the grand jury of the Third judicial district of the Territory of Utah, on the first day of December, 1894. He was tried under said indictment; and on the 19th day of said month the jury found him guilty of murder in the second degree, with recommendations to mercy. Appellant's motion for a new trial was denied, and on the 2d day of May, 1895, the court rendered judgment against said appellant and sentenced him to imprisonment at hard labor for fourteen years.

Appeal from an order denying the motion for a new trial, and from the judgment Reversed.

In addition to the statement of facts contained in the opinion the deceased was allowed to testify at the time of his conversation with Captain Donovan, soon after the shooting as follows: "I was dazed; that is the reason I jumped through the window. The doctor ran out through the kitchen door. An old lady followed him out, and I think it was Mrs Binkley. She screamed and I recognized her voice. I am acquainted with Dr. Kessler. I met him twice at Mrs. Binkley's house and once at the Salvation Army barracks."

Reversed and remanded.

H. B. Edler, for the appellant.

The twelfth error complained of is that the court erred in charging the jury as follows:

"The defendant in this case claims that at the time when the fatal shot was fired, he was at a different place, and that he could not have committed the crime. This is what is known in law as an alibi; and as to that I charge you, that if the prosecution made out such a case by its proof as would sustain a verdict of guilty, then the burden is upon the defendant to prove this defense by a preponderance of the evidence."

The defendant is not compelled to show his absence by a preponderance of the evidence; this would be, in effect, compelling him to establish his innocence. It eliminates the idea of a reasonable doubt, and throws the burden of proof upon the defendant.

The commission of a criminal offense implies, of course, the presence of the defendant at the necessary time and place. Proof of an alibi is, therefore, as much of a traverse of a crime charged as any other defense, and proof tending to establish it, though not clear, may nevertheless, with other facts, raise doubt enough to produce an acquittal.

In one place the court charges the jury that if they had a reasonable doubt of defendant's guilt they must acquit. Let us see in what position these two instructions left the defendant. The one on reasonable doubt required the jury to acquit him if they had a reasonable doubt from all the evidence; but the one on alibi--his only defense-- required them to acquit on that only, if they found that defense to be true. Could two instructions be more inconsistent and irreconcilable?

For a thorough analysis on this point the attention of the court is directed particularly to the case of State v. Taylor, 24 S.W. 449. Prince v. State, 14 So. 409; Johnson v. State (1886), 21 Tex. app. 368, 17 S.W. 252; State v. Toler, 16 Ohio St. 538; Pollard v. State, 53 Miss. 537; Miller v. People, 39 Ill. 457; Watson v. Com., 95 Pa. St. 408; Chapple v. St., 7 Cold. 92; State v. Harden, 46 Iowa 623; State v. James, 78 N.C. 504; People v. Fong Ah Sing, 64 Cal. 253, 28 P. 233; Murphy et al. v. State, 12 So. 453; Cyres v. State, 17 S.W. 253.

United States Attorney, for respondent. No brief on file.

ZANE, C. J. MINER, J., and HILES, District Judge, concur.

OPINION

ZANE, C. J.:

It appears from the record in this case that a jury found the defendant guilty of murder in the second degree; that the court entered a judgment of conviction, sentencing him to imprisonment in the penitentiary at hard labor for the term of 14 years, and denied his motion for a new trial; and that he has appealed from that order and judgment to this court. It also appears that Frederick Niebergall, the deceased, was a soldier in the service of the United States; that on the night of the 22d of November, 1894, when in the house of Mrs. Binkley in Salt Lake City, he was shot in the abdomen, at about 15 minutes before 11 o'clock, from which he died on the 27th day of the same month. The evidence as to whether the defendant was at the house at the time is conflicting. The neighbors heard scuffling in the house, three shots fired, and Niebergall jumped through the window into the back yard, hallooing that he was shot, and calling for help. After he had lain where he fell 20 or 30 minutes, he was carried into the house, and laid on a bed. While there, Capt. Donovan, a police officer, came into the room, and asked him who shot him, to which he replied that he was not a "squealer." But when Donovan insisted upon the information, he said that a man known as "Doc" shot him; that "Doc" was with Mrs. Binkley; that he was an old man, with a gray head, and about six feet high. It appears, from the evidence, that the defendant was called "Doc," and that he answered the description given. This conversation occurred between forty-five minutes and one hour and a quarter after the attack upon Niebergall had ceased, and he had jumped through the window,--after the transaction had closed. A witness was permitted to testify to this conversation against the objection of the defendant. The ruling of the court permitting it to go to the jury was excepted to, and assigned as error.

These statements of the deceased were not competent as dying declarations, and were not offered as such. They were offered and admitted as part of the res gestae. This assignment of error presents the first question for our consideration and decision. If the homicide of Niebergall was murder, the act of shooting him, with the intent from which it proceeded, made it so. From the act alone the law would infer malice and murder. But other acts during the struggle and before and after the shooting, with the accompanying language, might explain the act of killing, or show that it was a mere accident, or that it was in self-defense, or that it proceeded from passion, without malice, and was therefore manslaughter, or that the intent was formed in such haste, and amid such confusion, and was so indistinct, as to be murder in the second degree, or was so deliberate and distinct as to make it murder in the first degree. Hence, all the physical acts of the parties engaged in the conflict, and all the expressions, verbal or otherwise, attending them, and all the motives, whether of malice, of passion, of fear, or desire, or otherwise indicated, constituted the res gestae. The res gestae, when viewed altogether, constituted a whole, though it may have been composed of many acts, expressions, and motives. A physical object may be composed of many parts, all of them together constituting a machine or other object. So the struggle or conflict may be composed of many parts, but altogether they constitute a unit, and that unit is the res gestae. Niebergall had received the fatal wound, and had jumped out of the window, hallooing that he was shot, and calling for help, and his assailant had fled, and the struggle and strife had ended 45 minutes before the conversation between Donovan and Niebergall commenced. The attack had ceased, Niebergall had escaped out of the window, and the defendant had fled out of sight and hearing. The scuffling, the shooting, the jumping out of the window, and the hallooing of Niebergall that he was shot, and calling for help,--all the acts of violence and efforts to escape, and the language that accompanied such acts,-- ceased when Niebergall fell exhausted in the yard. When the deceased was first asked by Donovan who shot him, he said that he was not a "squealer"; and when admonished that he ought to tell, he said that "Doc" shot him, and he then said that "Doc" was with Mrs. Binkley, and he then described "Doc." These were not the spontaneous expressions of the impulses and motives of the shooting, or its surroundings; the cry for help, and that he was shot, was. The first statement, that he was not a "squealer," certainly did not emanate from the impulses of the struggle; and, after the policeman admonished him, upon reflection, he changed his mind, and made the statements from memory, and not from the impulses and motives of the conflict, more than 45 minutes before. The conversation was purely upon reflection, from his memory, at the time it occurred. He then recalled whom he saw and what occurred, and gave the name by which the man was known who shot him, and a description of him. This certainly did not proceed from the impulses and motives in operation at the time he was shot. These statements were not contemporaneous with, and were not so connected with, the conflict, as to authorize them to be received as a part of the res gestae. The rule is stated in the first volume of Greenleaf on Evidence as follows (section 10): "It is to be observed that, where declarations offered in evidence are merely narrative of a past occurrence, they cannot be received as proof of the existence of such occurrence. They must be concomitant with the principal act, and so connected with it, as to be regarded as the mere result and consequence of the coexisting motives, in order to form a proper criterion for directing the judgment which is to be formed upon the whole conduct. On this ground, it has been holden that letters written during absence from home are admissible as original evidence, explanatory of the motives of departure and absence, the departure and absence being regarded as one...