People v. Thiede

CourtSupreme Court of Utah
Citation39 P. 837,11 Utah 241
Decision Date16 March 1895
Docket Number567
PartiesTHE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. CHARLES THIEDE, APPELLANT. [1]

APPEAL From the District Court of the Third Judicial District. Hon George W. Bartch, Judge.

Charles Thiede was convicted of murder in the first degree. From the judgment entered and from an order overruling the motion for a new trial and in arrest of judgment, he appeals.

The opinion states the facts except the record shows the following: At 12:30 A. M. defendant was asleep in his saloon and was awakened with difficulty by Trusk and Johnson, and at that time he had no blood stains on his white shirt or vest and none on his hands. These two persons remained in the saloon until almost 1 o'clock A. M. At about 2 o'clock A. M. the physician arrived. The physician testified that when he arrived the deceased had been dead probably two hours.

Affirmed.

Messrs Cherry & Cherry, for appellant.

Appellant contends that he was not tried by "due process of law." The statutes of Utah, 2 Comp. Laws 1888, § 4883, provides in substance that the evidence taken at the preliminary hearing be filed with the clerk of the court, and if taken in shorthand that it be transcribed and filed as aforesaid, and the original notes filed, etc., § 4883 subdiv. 5 Comp. Laws Utah, 1888, neither of which was done in this case. The defendant and his counsel had a right to examine and copy said evidence. It remained in the hands of the officers of the law, and yet the defendant was deprived of its benefit. The statute in this respect seems to be mandatory. Was the defendant put upon his trial by due process of law? Due process of law is the law of the land. We claim that this was a substantial right of which the defendant was deprived, and he thereby did not have a fair and impartial trial. Bishop Crim. Pro. § 145; State v. Daherty, 60 Me. 509; State v. Beswick, 13 R I. 211; Westervelt v. Gregg, 12 N.Y. 202; 18 Howard, 276; 96 U.S. 101.

The district attorney did not furnish the defense with a list of the witnesses' names; those who gave the most damaging testimony were withheld and sprung as the trial progressed. To say the least, this was an unfair advantage, and tends to corroborate the claim of defendant that he did not have a fair and impartial trial. Logan v. U.S. 144 U.S. 303. Favour, one of the jurors, on his voir dire admitted that he had read newspaper accounts of the murder and had had conversations with other persons, and that opinions were expressed. He admits that it would require an effort on his part to be a fair and impartial juror. The court erred in overruling defendant's challenge to this juror for cause. An unbiased and impartial jury is the crowning glory of the law; it is the safety of the imperiled citizen when arraigned before a tribunal, and when the issue is life or death how important that the accused should have the protection of this shield. Should there be any doubt as to the juror's fitness, the benefit should be given to the defendant. Morton v. State, 1 Kan. 438; State v. Cleary, 40 Kan. 287. That the juror on further examination by the court or counsel for the people states that he believes he could fairly and impartially try the case, and would be governed by the evidence, and disregard his opinion, does not make him a qualified juror under the sixth article of the federal constitution, which guarantees a "speedy and public trial before an impartial jury * * *." A juror who has an opinion "very strong," and which would require evidence to remove, is not the fair and impartial juror the law contemplates. State v. Murphy, 37 P. 420 (Wash.); Holt v. People, 38 Mich. 739; State v. Miller, 29 Kas. 43; State v. Beatty, 25 P. 899; Young v. Johnson, 25 N. E. 363; Coughlin v. People, 33 N. E R. 1 (Ill.); Miller v. State, 45 N.W. R. 451 (Neb.); Owens v. State, 49 N.W. R. 226 (Neb.); Rose v. State, 2 Wash.St. 310; People v. Brown, 72 Cal. 390. A person who is so prejudiced against the business of a saloon keeper or brewer that he believes that he could not give the same credit to his evidence as a witness as to persons in other vocations, is not an impartial juror. People v. Larbuia, 28 N.Y.S. 579; People v. Mahoney, 26 N.Y.S. 257.

The court erred in admitting evidence that during the four years preceding the homicide, the deceased was seen at night weeping and hiding on the road; that she was heard to scream; that she visited her neighbors weeping and that her face and body were bruised and discolored, without connecting any of these things with the defendant or showing that he was even cognizant of them. The prosecution did not presume to attempt to connect the defendant with their commission. People v. Hancock, 7 Utah, 170; State v. Ching Ling, 18 P. 844 (Oregon); Territory v. Amijo, 37 P. 1113 (N. M.); McBride v. People, 37 P. 953 (Colo.); Philips v. State, 22 Tex. App. 139; State v. Weaver, 11 N.W. R. 675 (Iowa). The defendant on trial for his life was denied the protection which the law of evidence affords to the humblest suitor in a civil action. Witnesses were led into exaggeration and allowed to repeat again and again circumstances which inflamed the jury against the defendant. An examination of the record shows that defendant did not have a fair and impartial trial. The law of evidence was suspended and the defendant forced to submit to the exigencies which the extremity of the prosecution's case demanded. Had the fundamental and long established principles of evidence been followed, the jury may have rendered a different verdict. Soderholm and wife testified to acts of cruelty by defendant towards deceased. When defendant sought upon cross examination to affect the credibility of these witnesses, he was denied the right. The defendant had a right to go into the history of the lives of these people in order to show that they were not worthy of belief. Thompson on Trials, §§ 450-460; Real v. People, 42 N.Y. 270-281; Greenleaf on Ev. (14 ed.), §§ 455-6-9; People v. Worthington, 38 P. 689. Lillie Birch was permitted to testify to seeing the deceased on the night before the homicide, and that she was crying, etc., thereby leaving the impression on the jury that there was domestic trouble, but when defendant attempted to explain this occurrence by showing by this same witness that on the evening of the homicide their relations were friendly and cordial, he was at once stopped. This was error.

The charge relating to the crime of murder in the second degree and of manslaughter was inappropriate in this case, as there was not a word of evidence tending to show the commission of either of these offenses. "If the instructions are not based upon the facts which the evidence tends to prove, and also have a tendency to mislead, the judgment will be reversed because they were given, although they were correct, as abstract propositions." Amer. & Eng. Enc. of Law, vol. 11, p. 248, and cases cited; Garden v. Richmond, 83 Mo. 436. "Where a case is close in its facts, or where there is a conflict in the evidence on a vital point in the case, the rights of the parties cannot be preserved unless the jury are accurately instructed." Steinmeyer v. People, 95 Ill. 383. "When an instruction is palpably wrong, it cannot be aided by the general charge." Rice v. Olin, 79 Pa. St. 391; Horn v. People, 1 Kan. 47; People v. Howard, 14 Kan. 174. An instruction which is misleading and erroneous is presumed to have misled the jury to the injury of the defendant. People v. Berlin, 36 P. 199 (Utah); People v. Hancock, 7 Utah, 180, and cases cited; Steinmeyer v. People, supra; People v. Gonzales, 71 Cal. 569; Thompson on Trials, § 2326; also see dissenting opinion of Justice Smith in People v. Berlin, 35 P. 499 (Utah). The court concedes in the instructions that this is a case in which the prosecution rely on circumstantial evidence to secure a conviction; and in the charge to the jury, they are informed that this class of evidence "is of the same force and effect as any other;" then the court adds in effect, "provided it satisfies you that the defendant is guilty." The jury are then informed that they "need not be satisfied beyond a reasonable doubt of each link in a chain of circumstances relied on to establish the guilt of the defendant." The latter instruction had been condemned and disapproved by a great weight of authority and is rarely given in any modern court. In Graves v. People, 32 P. 63 (Col.), precisely the same instruction was given, as was in the case at bar; and in that case it was held that the giving of said instruction was reversible error. This being a well-considered opinion, we invite careful consideration of the same, and the cases therein cited. On the same question we refer to Thompson on Trials, § 2514; also Clair v. People, 10 P. 799; Leonard v. Territory, 7 P. 872; Am. & Eng. Enc. of Law, vol. 9, p. 734, and the large number of cases cited by the author; Kollock v. State (Wis.), 60 N.W. R. 817.

On the question of reasonable doubt, the charge to the jury is inadequate, very brief and erroneous; besides it is told to the jury in a negative form. They are informed what is not a reasonable doubt. Judge Sanderson in People v Lachanias, 32 Cal. 433 says: "When the testimony on a murder trial is entirely circumstantial, the defendant is entitled to a full and clear instruction as to what the law means by a reasonable doubt. * * *" The court further charged that the jury "should entertain such doubts only as arise from the evidence, and as you are able to find in the evidence a reason for." This we claim is neither law nor reason. A doubt more often arises from a want of evidence than from the evidence. Cowan v. State, 35 N.W. R. 405 (Neb.); Carr v. State, 37 N.W. R. 630 (Neb.); Morgan v....

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