State of Minnesota v. Bilansky

• Decision Date: 01 January 1859
• Citation: 3 Minn. 169
• Parties: STATE OF MINNESOTA vs. ANNE BILANSKY.
• Court: Minnesota Supreme Court

Page 169

3 Minn. 169

(3 Minn. R. p. 246.)

STATE OF MINNESOTAvs.

ANNE BILANSKY.

Supreme Court of Minnesota.

Reported to supreme court by the judge of the district court, Ramsey County.

For the State these points were made: —

1. Criminating and degrading questions, the direct object of which is to degrade the witness, cannot be put, or if so, their allowance is in the discretion of the court, citing, 2 Hawkins P. C. 604, § 101; Peake Ev. 129; Rex v. Lewis, 4 Esp. 225; Rex v. Pitcher, 1 Car. & Payne, 84; Stout v. Rassel, 2 Yeates, 334; Macbride v. Macbride, 4 Esp. 242; Rex v. Slaney, 5 Car. & Payne, 213.

2. No effect can be given to that part of sec. 14, ch. 109, Revised Statutes, which provides that petit treason shall be prosecuted and punished as murder in the second degree; for no such offense as petit treason existed in this country when that section was passed. 1 Russell Crimes, 514, and note; Wharton Cr. Law, 73; 1 Hale P. C. 378, and note.

The section is inconsistent, because it abolishes the distinction between murder and petit treason, and then makes a distinction in favor of the more aggravated offense.

Points and authorities for the prisoner: —

1. The verdict is against evidence, because it appears that the crime committed was "murder" in the second degree, or petit treason. Rev. Stat. 523, § 14; Whart. Law Dict. 78. The distinction between murder and petit treason has always been marked; and although the latter has been technically regarded as the graver offense, benefit of clergy has been allowed in such cases, although murder is among the offenses which were not clergyable. Statutory enactments gave to females the benefit of clergy, i. e., what was tantamount to exemption of the person from the extreme penalty. We have no statute abolishing petit treason or benefit of clergy, unless the one referred to so does. If it is nugatory, then the indictment and conviction should have been for petit treason, in which event the extreme penalty could not have been inflicted. 1 Chit. Cr. Law, 544-563; Whart. Law Dict. 788. The obvious intention of the statute was to abolish the distinction which existed between murder and petit treason, to mitigate the grade of the latter, and to extend the humane exemptions of the common law to offenses of the grade committed by females.

2. The court erred in sustaining objections to questions tending to degrade or criminate the witness Kirkpatrick. The principle deducible from the books is, that it is the privilege of the witness, and not of the party. 2 Phil. Ev. 418-28; People v. Rector, 19 Wend. 582; Phil Ev. C. & H. notes, Part 2, 740, 746, 749, 753; 1 Greenl. Ev. § 460. The rule is the same, whether the testimony may subject to punishment, and the only distinction is, that when the evidence is collateral and only tends to degrade, the authorities are contradictory as to the compulsory power of the court to compel the answer, it being clear that when the evidence would subject to punishment, the court will not compel. 1 Greenl. Ev. § 451, and above cited.

3. The court erred in sustaining objections to the testimony tending to show the relations between the witness and Walker, and in excluding testimony offered. Phil. Ev. C. & H. notes, Part 2, 752, 757-8; 1 Greenl. Ev. § 457, &c. Newton v. Harris, 6 N. Y. 345, and cases; Starks v. People, 5 Denio, 106, and cases cited.

I. V. D. Heard, Prosecuting Attorney.

Brisbin & Bigelow, for prisoner.

FLANDRAU, J.

It is quite remarkable that a court in this country at this day should be called upon to investigate and decide questions of the benefit of clergy and petit treason; yet the peculiar provisions of our statute render it necessary. These subjects have so long been looked upon by lawyers and courts as practically obsolete, that we enter upon an examination of them more in the spirit of curious research than of useful application. Yet, as the case in which they arise is one of capital moment, the prisoner is entitled to any benefit that the statute may allow her when construed, as such statutes must be, in favorem vitæ. She was indicted for murder, and the evidence discloses that the murdered party was her husband. The statutes of this state, Rev. Stat. 523, § 14, provide as follows: "Sec. 14. The plea of benefit of clergy, and the distinction between murder and petit treason, are abolished, and the last named offense shall be prosecuted and punished as murder in the second degree." This was passed in 1851, and I will proceed to ascertain what was the law on these subjects at that time, to aid in determining how far the act is operative.

"The privilegium clericale, or the benefit of clergy, had its origin in the pious regard paid by Christian princes to the church in its infant state, and the ill use which the popish ecclesiastics soon made of that pious regard." 4 Black. Com. 364. At first it was confined in its operation to those persons who were actually in the service of the church, and had taken orders; but it was gradually extended until it comprehended all persons who could read, that being, in those days of ignorance and superstition, a mark of great learning, and the person enjoying this accomplishment was called a clerk, or clericus. The probable reason of this exemption being accorded to learned persons, was their supposed beneficial influence upon the progress of the realm in civilization and religion, as much as any sanctity with which the persons of the clergy were invested. As might well have been expected, the privilege was soon perverted to the worst purposes, and the arrogance of the privileged class soon led them to claim what had its origin in a favor extended by the crown, to be theirs by a right of the highest nature, indefeasible, and jure divino. This privilege was curtailed in England by legislation from time to time. By 4 Henry 7, ch. 13, a distinction was made between laymen and clerks that were really in orders, subjecting the former to a light punishment, and restricting the enjoyment of the clerical privilege to one offense. This distinction was abolished by the statutes of 28 Henry 8, ch. 1, and 32 Henry 8, ch. 3, and restored again by 1 Edward 6, ch. 12, which extended the privilege to lords of parliament and peers of the realm who could not read, and included, in their behalf, some crimes not clergyable at common law. It subsequently, during the reigns of Elizabeth, James 1st, and William and Mary, underwent various mutations affecting the punishment that might be inflicted upon laymen, women, and peers, who claimed its benefits. And in the reign of Queen Anne, by statute 5 Anne, ch. 6, the qualification of learning was done away with altogether, and it was "granted to all those who were entitled to ask it, without requiring them to read, by way of conditional merit," 4 Black. Com. 370; and the same statute allowed the judge, in his discretion, to commit the prisoner to the house of correction or public workhouse, for a period not exceeding two years. During the reigns of the first three Georges, several changes were made in the punishment that might be inflicted upon laymen after the privilege had been claimed, such as "transportation to America," branding, labor, fine, &c. And, in the reign of George the Fourth, the absurd provision was abolished entirely. 7 and 8 Geo. 4, ch. 28. See 1 Jacob Law Dict. 474, et seq.; Burrill Law Dict. part 1, 143; 4 Black. Com. 364, ch. 28. So it seems that as the science of jurisprudence advanced, and it came to be understood that the possession of knowledge, instead of being a reason for exculpating a criminal, tended rather to aggravate the offense, this privilege of clergy was diminished from being a full acquittal of the offender to a mitigation merely of the punishment, and by this means, what was originally an instrument of fraud upon society, was rendered a salutary check in administering the otherwise too rigorous criminal code of England; and when the punishment of crimes was made to correspond with, and depend more upon, the degree of their enormity, it was abrogated entirely.

While on this subject, it is curious to know how this plea was made and allowed; and I will refer to one case, as an example. After the verdict was rendered of guilty, the prisoner was asked by the court if he had anything to say why judgment should not pass against him. The prisoner then prayed his clergy; this was generally performed upon his bended knees. He was then tested by an ordinary, who handed him a psalm to read, and he read the first verse. The judge then put the question to the ordinary, "legit vel non?" who answered, "legit." The prisoner was then taken without the bar of the court and branded in the hand. 1 Salk. 61. The psalm usually given to the prisoner to read was the 51st, on account of the peculiar appropriateness of the first verse. This psalm is called in the vulgate the Miserere, hence termed the psalm of mercy. Burrill Law Dict. part 1, 143.

This plea has never had any practical operation in the United States, and had it, in the absence of any statutory provision, been claimed as a common law right in any state, it would have been denied. The crime of petit treason at the common law was involved in some uncertainty, and comprehended numerous cases, 1 Hale, 376; but by the 25th Edward 3, ch. 2, they were reduced to three heads. 1. Where a servant killed his master. 2. Where a wife killed her husband. 3. Where an ecclesiastical person, secular or regular, killed his superior, to whom he owed faith and obedience. 1 Russell Crimes, 513, note z; 4 Black. Com. 203. This crime differed from murder only in the fact that it included the violation of that private allegiance which exists in the relations above enumerated, and which was looked upon as aggravating the degree of the offense, by making it treasonable in its nature. As the crime of murder was punished capitally, the distinction between it and petit treason, rendering the...