State v. Peltier

• Decision Date: 31 December 1910
• Citation: State v. Peltier, 21 N.D. 188, 129 N.W. 451 (N.D. 1910)
• Court: North Dakota Supreme Court

129 N.W. 451

21 N.D. 188

THE STATE OF NORTH DAKOTA v. JOE PELTIER

Supreme Court of North Dakota

December 31, 1910

Appeal from a judgment of the District Court of Bottineau county Goss, J.

Joe Peltier was convicted of murder and he appeals.

Reversed and new trial granted.

Judgment set aside, and a new trial awarded to the defendant.

T. R Mockler, for appellant.

It was error to take from the jury the question whether prisoner was guilty of manslaughter.Brickwood & S. Instructions to Juries, § 4620;Lynn v. People,170 Ill. 527, 48 N.E. 964;Panton v. People, 114 Ill. 505, 2 N.E. 411, 5 Am. Crim. Rep. 425.

Court cannot assume that a murder has been committed.N.D. Code, § 9985;State v. Barry,11 N.D. 428, 92 N.W. 809;Territory v. O'Hare,1 N.D. 30, 44 N.W. 1003;State v. Dorland,103 Iowa 168, 72 N.W. 492;Russ v. The War Eagle,9 Iowa 374;Roach v. Parcell,61 Iowa 98, 15 N.W. 866;State v. Hartzell,58 Iowa 520, 12 N.W. 557.

Andrew Miller, Attorney General, Alfred Zuger, and C. L. Young, Assistants, for respondent.

Failure to instruct as to lesser grades is not error, where there is no proof of such minor offenses.State v. Talbott,73 Mo. 347;1 Blashfield, Instructions to Juries, § 190.

Cautionary instructions against effect of sex, sympathy, age, public opinion, race prejudice, are proper.

Bingham v. Bernard, 36 Minn. 114, 30 N.W. 404;McTyier v. State,91 Ga. 254, 18 S.E. 140;Lunsford v. Walker,93 Ala. 36, 8 So. 386;Coyle v. Com.100 Pa. 573, 45 Am. Rep. 397;Brantley v. State,87 Ga. 149, 13 S.E. 257;Smith v. State,4 Neb. 277;11 Enc. Pl. & Pr.p. 371;State v. Talbott, 73 Mo. 347.

OPINION

SPALDING, J.

On July 22d, 1908, the defendant, Joe Peltier, was, by a jury, found guilty of the crime of murder in the first degree, and his punishment fixed by the verdict, as death.The information charged that the offense was committed in Bottineau county on the 21st day of June, 1908, by killing one F. W. Seidel.

A word of explanation of the delay in the presentation of this case is pertinent.The appellant was represented in the district court by counsel, who was shortly after the trial elected state's attorney of Bottineau county, and upon such election withdrew from the case.Difficulty was experienced by reason of the lack of means of the appellant in securing other counsel, but after he was incarcerated in the penitentiary, persons interested in his case secured the services of another attorney, who served a notice of appeal on the 28th day of June, 1909, but, before accomplishing anything in the way of perfecting the appeal, this attorney left the state permanently.Other counsel was then secured, who attempted to procure the settlement of a statement of the case, but failed, and as a result the appeal is before us on nothing but the judgment roll.

The judgment roll in this case was not transmitted to the clerk of this court until October 4, 1909, and it then contained no copy of the charge to the jury.The clerk of this court was informed by the clerk of the district court of Bottineau county, that he could not certify to the charge to the jury, as it was not in his office, and that after calling up all the attorneys of record in the case and the judge and reporter, he was unable to locate it.On the 31st day of October, 1910, it was still unlocated, and the clerk of that court wrote the clerk of this court that he held the receipt of the judge who presided at the trial, for the original charge, dated July 31, 1908, and that the judge said he would make another search and see if it could be found among his papers.December 2, 1910, a duly certified copy of the charge was received by the clerk of this court, which varies materially from what were supposed to be copies, but uncertified, used by the counsel for the respective parties in the preparation of their abstracts and briefs.It will thus be seen that this case has been presented in this court at the earliest possible date after the completion of the record.All the assignments of error before us relate to the charge to the jury.

When the evidence is not before the appellate court, it can only examine the instructions without regard to the evidence, and it will not reverse a case unless an instruction complained of is abstractly erroneous, or wrong under any view of the case.Instructions are presumed to be correct under the circumstances, and as applied to the evidence, if the record leaves any room for presumptions.Campbell v. Peterman,56 Ind. 428;South & North Ala. R. Co. v. Brown,53 Ala. 651;1 Blashfield, Instructions to Juries, § 375;Haggarty v. Strong,10 S.D. 585, 74 N.W. 1037.

The legislature has seen fit to limit the functions of the court and those of the jury in criminal actions.They are distinct and separate.In charging the jury, the court must only instruct as to the law of the case(Rev. Codes 1905, § 9985), and the jury are the exclusive judges of all questions of fact (Rev. Codes 1905, § 10026), and the judge, in instructing the jury, must not invade the province of that arm of the court by expressing an opinion upon the facts, or giving intimations as to the guilt of the defendant, neither must he directly or indirectly weigh the evidence or any part of it.This interpretation of the sections cited was announced in Territory v. O'Hare,1 N.D. 30, 44 N.W. 1003, and it was adhered to in State v. Barry,11 N.D. 428, 92 N.W. 809, in a most carefully prepared and elaborate opinion, wherein numerous authorities were cited, and the distinction between the law on this subject in this state and the common law, and that of certain other states, was shown.Further discussion of this question is unnecessary in this opinion.

Error is assigned as to several paragraphs in the charge, as violating these provisions of the Code.While the language of these paragraphs is somewhat obscure and involved, and we have collectively and individually spent much time in considering them in attempting to determine their meaning, and while we are satisfied that they approach dangerously near the line of infringement, yet we do not feel justified in holding that they cross it and constitute reversible error.We do not set them out, for lack of time to fully discuss them, and because it would serve no useful purpose to do so, and we do not wish to lend our sanction to them and thereby invite their use by other courts in other trials.We pass them with these observations.

The defendant was convicted of murder in the first degree, and the penalty imposed by the verdict and judgment of the court was death.The legislative assembly has, by way of compromise with the opponents of the death penalty, or for other reasons, provided by § 8804,Rev. Codes 1905, that "the jury before whom any person prosecuted for murder is tried shall, if they find such person guilty thereof, fix and determine by their verdict the punishment to be inflicted within limits prescribed by law, as, for example: If they find such person guilty of murder in the first degree they must designate, in their verdict, whether he shall be punished by death or imprisonment in the penitentiary for life; or if they find such person guilty of murder in the second degree, they must designate in their verdict the term of his imprisonment in the penitentiary, not less than ten and not exceeding thirty years."By this provision it was left to the jury in case of conviction of murder in the first degree, to fix the penalty, and it was left to the jury to do this by the exercise of its own discretion.The legislature has not required any reasons to be given for the penalty imposed, and does not empower the trial judge to indicate in any manner to the jury the penalty which it should fix, other than that the court shall inform the jury of the two methods of punishment, and that it is left to it to determine which shall be inflicted.When the court advises the jury as to grounds or reasons for inflicting the death penalty, or life imprisonment, he invades the province of the jury, and particularly so when he only instructs them as to the reasons for inflicting the extreme penalty; and such error is fatal.

A brief review of the authorities on this question is sufficient.In 1897the Congress of the United States enacted a law providing that in all cases in which the accused is found guilty of the crime of murder under § 5339 of the Revised Statutes,U.S. Comp. Stat. 1901, p. 3627, the jury may qualify their verdict by adding thereto, "without capital punishment," and that whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment at hard labor for life.(29 Stat. at L. 487, chap. 29, U.S. Comp. Stat. 1901, p. 3620.)It will be seen that this provision is identical in effect with § 8804, supra.Three persons were convicted of murder in the first degree, in the District of Columbia, and each was sentenced to death.Their cases went to the Supreme Court of the United States on error assigned as to the instructions of the trial court on this statute, and are reported as Winston v. United States,172 U.S. 303, 43 L.Ed. 456, 19 S.Ct. 212.The instructions complained of advised the jury as to reasons which would be proper to move the jury to append the qualifications referred to, to its verdict.The instructions differed somewhat in each of the three cases, but the principle involved in each case was the same, namely, that of giving the jury reasons for imposing the death penalty or qualifying their verdict by the words, "without capital punishment."Mr. Justice Gray wrote the opinion, in which all three cases were reversed for this error.He uses this clear and emphatic language.

"The difficulty of laying down exact and...