20 N.W. 289

Supreme Court of Nebraska.

MARION

v.

STATE.

Filed August 8, 1884.

Error from Gage county.

Attorneys and Law Firms

*290 Colby, Hazlett & Bates, for plaintiff.

The Attorney General, for defendant.

Opinion

REESE, J.

On the twentieth day of April, 1883, the plaintiff in error was indicted by the grand jury of Gage county for the murder of John Cameron on the fifteenth day of May, 1872. The trial on the indictment resulted in a verdict of guilty of murder in the first degree, and the sentence of death was pronounced upon the plaintiff in error by the court. From this sentence and judgment he prosecutes a writ of error to this court.

At the very threshold of this case we encounter a fatal error in the proceedings, and one which appears to have escaped the attention of all the counsel engaged in the trial of the cause, but which must not be overlooked by this court. “No act which a court can be called on to perform is more grave and solemn than to render a capital judgment. To perform such a duty a judge is reconciled only by the consideration that it is not he who does it, but the law, of which he is simply the minister. But if the law invests him in the particular case with no such power, he may well deliberate, and must refuse to exercise it.” U. S. v. Yellow Sun, 1 Dill. 273. At the time of the alleged commission of the crime the law of Nebraska upon the subject of murder was quite different from what it is now and was at the time of the indictment and trial of plaintiff in error, and by that law he must be tried. By section 18 of the Criminal Code, which was in force at the time of the alleged killing, murder is declared to be “the unlawful killing of a human being with malice aforethought, either express or implied.” By that law there are no “degrees” of murder; the killing, if felonious, being either murder or manslaughter. By the law under which the plaintiff in error was tried, murder is divided into two degrees--murder in the first degree and murder in the second degree. By section 3 of the Criminal Code of 1873, murder in the first degree is in substance (as applicable to cases of this kind) the killing of another purposely, and of deliberate and premeditated malice; and murder in the second degree may be said to consist in killing another purposely and maliciously, but without deliberation and premeditation. Manslaughter may, for the purposes of this case, be treated as the same under both Codes, although somewhat different.

In accordance with the requirements of the law under which the defendant was tried, the court gave to the jury this instruction: “(12) If you find the defendant guilty of the murder charged, then it will be your duty to also return in your verdict whether he is guilty of murder in the first degree,--that is, purposely, and of deliberate and premeditated malice; or whether he is guilty of murder in the second degree--that is, purposely and maliciously, but without deliberation and premeditation; or whether he is guilty of manslaughter--that is, that he unlawfully killed the deceased without malice.” *291 This, as we have seen, was an incorrect definition of the crime. But it was not only an incorrect definition of the crime of murder, but it withheld from the jury the duty of fixing the punishment or penalty to be inflicted upon the plaintiff in error.

By section 1 of an act approved February, 15, 1869, which was amendatory of section 20 of the Criminal Code, page 595 of the Revised Statutes, it was provided that the punishment of any person or persons convicted of the crime of murder shall be death or imprisonment in the penitentiary for life, and the jury trying the case shall fix the penalty.

In this case the plaintiff in error was deprived of a right guarantied to him, not only by the constitution and laws of this state, but by the constitution of the United States. It is one of the fundamental principles of this government that no person shall be punished for an act which was not criminal at the time the act was committed, nor for an act which is made criminal in any other or greater degree, or the punishment of which is materially changed after the commission of the act. And so carefully have the rights of the citizen been guarded in this respect, it has been incorporated in the organic law of the nation, and by section 10 of article 1 of the constitution of the United States the states are prohibited from passing any ex post facto law. It cannot be doubted but that the law relating to the crime of murder, which became the law of this state on the first day of September, 1873, was, so far as it related to acts done before it took effect, ex post facto, and unless some provision was made for cases of this kind no punishment could be inflicted for such acts.

In Calder v. Bull, 3 Dall. 386, the supreme court of the United States have decided that the plain and obvious meaning and intention of this prohibition in the constitution is that the legislatures of the several states shall not pass laws after a fact done by a citizen or subject, which shall have relation to such fact; and in writing the opinion of the court in that case, CHASE, J., says: “I will state what laws I consider ex post facto laws within the words and the intent of the prohibition: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender. All these and similar laws are manifestly unjust and oppressive.”

This construction of the constitutional provision under consideration has been accepted and followed by the courts ever since the decision was made, and is now the settled law of the land; and hence it would seem that little need be said by way of applying the principles there laid down to this case. It is very evident that the law under which the plaintiff in error was tried “inflicts a greater punishment than the law annexed to the crime when committed.” By that law the punishment was either death or imprisonment. By the latter enactment it is death. By that law the party charged had the right to have the jury pass upon the question as to whether he should live or die. By the latter act, if found guilty, he is deprived of his life, and the jury by whom he is tried have nothing to say upon the subject of what his punishment shall be. This right being, at the time of the alleged act, his, he cannot be deprived of it by a law subsequently passed.

In Kring v. State, 16 Cent. Law J. 308, the supreme court of the United States have recently held that (quoting from the syllabus) “any law is an ex post facto law, within the meaning of the constitution, passed after the commission of a crime charged against a defendant, which, in relation to that offense or its consequences, alters the situation of the party to his disadvantage; *292 and no one can be criminally punished in this country except according to the law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.” In that case, at the time of the commission of the murder for which Kring was indicted, the supreme court of Missouri had declared the law to be that when a conviction was had of murder in the second degree, on an indictment charging murder in the first degree, if the conviction was set aside the defendant could not again be tried for murder in the first degree. After the commission of the crime the constitution of the state was so amended as to abrogate this rule, and allow a defendant to be again put upon his trial for the highest crime charged in the indictment. After the change in the constitution, Kring, having been put on his trial for murder, made an agreement with the prosecuting attorney by which he was to plead guilty of murder in the second degree and receive a sentence of 10 years’ imprisonment in the penitentiary of the state. He entered his plea of guilty of murder in the second degree, but the court refused to be bound by the agreement of the prosecuting attorney and sentenced Kring to the penitentiary for a term of 25 years. The case was taken to the supreme court of the state, and the sentence was set aside and a new trial granted. When again brought to trial he insisted on his agreement with the prosecutor, but the court still refused to be bound by it. He refused to withdraw his plea of guilty, but the court set it aside and entered a plea of not guilty. A trial was had, and he was found guilty of murder in the first degree and sentenced to be hung. He appealed to the supreme court of the state, and the judgment of the lower court was affirmed, when he appealed to the supreme court of the United States, where the judgment was set aside, that court holding that, as at the time of the commission of the offense a judgment of guilty of murder in the second degree was a final acquittal of the crime of murder in the first degree, so it must continue to be, so far as that crime was concerned. In the opinion of the court, MILLER, J., says: “We are of opinion that any law passed after the commission of an offense which, in the language of WASHINGTON, J., in U. S. v. Hall, in relation to that offense, or its consequences, alters the situation of the party to his disadvantage, is an ex post facto law; and, in the language of DENIO, J., in Hartung v. People, no one can be criminally punished in this country except according to a law prescribed for his government by the sovereign authority before the implied offense was committed, and which existed as a law at the time. * * * Tested by these criteria, the provision of the constitution of the state of Missouri, which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree, on conviction of murder in the second degree, is, as to his case, an ex post facto law, within the meaning of the constitution of the United States; and for the error of the supreme court of Missouri in holding otherwise, its judgment is reversed and the case is remanded to it, with directions to reverse the judgment of the criminal court of St. Louis, and for such further proceedings as are not inconsistent with this opinion.”

We have quoted from the above case at considerable length for the double purpose of drawing therefrom, as well as might be, the local principles there stated, and to show that any other doctrine applied by the courts of the states will be reviewed by that court, and their judgments promptly reversed; so that were this court inclined to hold otherwise, such a judgment would not be permitted to stand. It is not deemed necessary to discuss this subject further in this opinion, as it seems to us to be so well settled by the adjudications of all the courts of this country that the simple statement of the proposition is sufficient. It is evident that it was an oversight of the court and counsel involved in the trial. We cite a portion of the cases to be found in the books where the foregoing views are sustained: State v. McDonald, 20 Minn. (Gil.) 119; Same v. Johnson, 12 Minn. (Gil.) 378; Same v. Gut, 13 *293 Minn. (Gil.) 315; Same v. Ryan, Id. (Gil.) 343; Same v. Herzog, 25 Minn. 490; Com. v. McDonough, 13 Allen, 581; Hartung v. People, 22 N. Y. 95; Shepherd v. People, 25 N. Y. 406; Green v. Shumway, 39 N. Y. 418; In re Petty, 22 Kan. 477; State v. Sneed, 25 Tex. Supp. 66; Miles v. State, 40 Ala. 39. See, also, 1 Bish. Crim. Law, 129, (108;) 2 Story, Const. 213.

Notwithstanding the fact that this case must be reversed for the foregoing reasons, it does not follow that the plaintiff in error cannot be tried for the crime alleged against him. Ample provision is made by the criminal law which took effect September 1, 1873, for the trial of persons charged with the commission of crimes which were made punishable by the law thereby repealed. Section 255 of the repealing act (see page 706, Comp. St.) is as follows: “No offense committed, and no fine, forfeiture, or penalty incurred, under existing laws previous to the taking effect of this Code, shall be affected by the repeal herein of any such existing laws, but the punishment of said offenses, the recovery of such fines and forfeitures, shall take place as if said laws repealed had remained in force: provided, that the manner of procedure for the enforcement or imposition of all such punishments, and the collection of all such fines and forfeitures, shall be in accordance, or as nearly in accordance, with the provisions of this Code as the nature of the case will admit; and in any case whatsoever, should the procedure provided for in this Code be wholly inadequate, the procedure provided for in the laws repealed by this Code may be followed so far as necessary to prevent a failure of justice.” By this section all difficulty is removed, and it only remains to put the plaintiff in error upon trial for the crime with which he is charged, in the manner provided by the law as it existed at the time of the alleged commission of the offense.

As another trial will have to be had, it is deemed expedient to notice briefly some of the alleged errors presented by the plaintiff in error in his brief, as some of the questions here presented will, in all probability, have to be met in the trial court.

The first question presented for decision by the defendant in error is that “the evidence shows that the alleged crime, for which defendant was convicted, was committed, if at all, upon a tract of land set apart for the sole and exclusive use of the Otoe and Missouri tribe of Indians, under the laws of congress and treaties between the said Indian tribes and the United States, and the district court of Gage county had no jurisdiction over the said offense.” This territory known as the Otoe reservation, being within the boundaries of this state, is subject to its laws, and it is not deemed necessary here to discuss, at any great length, the legal propositions presented by the plaintiff in error, as it has been heretofore settled, not only by this court, but the courts of various states, as well as the federal courts. See Painter v. Ives, 4 Neb. 122; Clay v. State, 4 Kan. 58; McCracken v. Todd, 1 Kan. 148; U. S. v. Yellow Sun, supra; U. S. v. Ward, 1 Woolw. 17; Same v. Stahl, Id. 192. We think the district court had jurisdiction, and that plaintiff in error was properly put upon his trial in Gage county.

The plaintiff in error requested the court to give a number of instructions to the jury, some of which were refused, and to the refusal of the court to give those, he excepted, and now assigns the refusal as error.

The eleventh instruction, which reads as follows, was refused: “(11) The court instructs the jury that it is an invariable rule of law that to warrant a conviction for a criminal offense, upon circumstantial evidence alone, such a state of facts and circumstances must be shown as that they are all consistent with the guilt of the party charged, and such that they cannot, upon any reasonable theory, be true and the party charged be innocent.” The instruction states the law correctly, and should have been given had not the jury been already fully instructed upon this point. When a jury has once been instructed upon a point of law nothing can be gained by repeating the instruction. *294 One instruction, full and clear, upon a given point, is sufficient. Olive v. State, 11 Neb. 30; S. C. 7 N. W. REP. 444; Kopplekom v. Huffman, 12 Neb. 100; S. C. 10 N. W. REP. 577.

The court also refused to give instruction No. 13, asked by plaintiff in error, which was that “the confessions and admissions of the prisoner, out of court, are a doubtful species of evidence, and should be acted upon by the jury with great caution.” As an abstract proposition of law this instruction is correct, but we fail to find anything in this case to which it may apply, and our attention has not been called to any evidence of confessions or admissions. Instructions should be applicable to the case made. Williams v. State, 6 Neb. 340.

The same may be said of the fourteenth instruction asked by the plaintiff in error, and refused by the court.

The next instruction which it is thought necessary to notice is the fifth instruction asked by the state, and given by the court, which is as follows: “The court further instructs the jury that the rule requiring the jury to be satisfied of the defendant’s guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt; it is sufficient if, taking the testimony all together, the jury are satisfied beyond a reasonable doubt that the state has proved each material fact charged, and that the defendant is guilty.” The objection to this instruction is based upon that part which informs the jury that the law does not require that they should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt. This instruction is copied from Sackett on Instructions to Juries, and is sustained by some authorities of respectability; but yet it seems to us that a jury might be misled thereby. What is meant by the word “link” as used therein? If the jury were given to understand that it referred only to evidentiary facts which might add force or weight to other facts from which the inference of guilt could be drawn, then the instruction might be said to be correct. But if, by the use of the word, is meant such criminative facts which of themselves form the chain of evidence from which the inference of guilt is to be drawn, then the instruction does not state the law correctly. No chain can be stronger than its weakest link. If the link is gone it is no longer a chain. If the word “link” here refers to those circumstances which are essential to the conclusion, it is not a correct statement of the law. While, in view of other instructions which were given and which more definitely stated the law, a new trial might not be given in this case, yet we cannot recommend this instruction as worded, and think it should not be thus given.

There are over 500 objections to evidence presented by the motion for a new trial and petition in error, many of which seem to have been made more from habit and out of abundant caution than from anything contained in the questions to which the objections were made. With the exceptions of those hereafter particularly noticed, we will dismiss them all by saying that, while our attention has not been particularly called to any, we have examined them all, and fail to detect any error.

But our attention is particularly called to question No. 3,116, which was in the cross-examination of the plaintiff in error while on the witness stand. The question is as follows: “I will ask you this, ‘Did you plead guilty to a penitentiary offense down there in Kansas, just before the sheriff brought you up here?’ ” This question was objected to by plaintiff in error, his objection overruled, exception taken, and he was compelled to answer, which he did by answering, “Yes.” In support of the right of the state to ask this question and insist upon an answer, we are cited to section 338 of the Civil Code, which is as follows: “A witness may be interrogated as to his previous *295 conviction for a felony, but no other proof of such conviction is competent except the record thereof.” There is nothing in this case which lays any foundation for such proof whereby it becomes material to the issue. If competent at all, it is for the purpose of discrediting the testimony of the witness, and thereby destroying its weight with the jury. At common law, one who had been convicted of an infamous offense was not a competent witness in any case; but the record of that conviction was the only competent proof thereof. This disqualification has been removed by our statute, and a convict is a competent witness; but it is provided that “facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility.” Civil Code, § 330. If pleading guilty to a charge of felony can be said to be a “conviction,” then the question was proper; but if, in order to be a conviction, there must be a judgment of the court upon the plea, then the question was improper. There is a conflict of opinions and decisions upon this question, and by some text writers and courts of last resort it is maintained that the word “conviction” usually means the judicial ascertainment of guilt, as by the verdict of a jury or a plea of guilty; but we have found no case where the word, as applied to the competency of a witness to testify, has reference to anything short of the final judgment of the court upon a verdict or plea of guilty.

In Com. v. Gorham, 99 Mass. 420, this question, under somewhat similar circumstances, was passed upon by the supreme court of that state. There the defendant was indicted for burning a dwelling-house. On the trial he testified in his own behalf; and, to affect his credibility as a witness, the prosecuting attorney offered in evidence an original indictment for forgery, found against him at a previous term of the same court, and the record of the clerk noted on the back thereof that “the defendant pleads guilty;” after which plea that indictment was put on file, but afterwards brought forward, entered on the docket, and was pending at the time of the trial under the indictment for burning. The evidence was admitted over the objection of the defendant, who was found guilty and alleged exceptions. In the supreme court the attorney general presented an exhaustive argument seeking to show that the term “conviction,” as used with reference to witnesses, did not necessarily imply the judgment of a court upon a verdict or plea of guilty, but that it was used in the sense of the establishment of guilt; and many authorities were cited by him, most of which were upon the word as generally used with reference to the proceedings of courts; but the supreme court held otherwise. In the opinion of the court, written by COBB, J., the following language is used: “We think the obvious purpose of the legislature was to restore the competency of a witness against whom the record of a judgment for crime was produced, but to permit the same evidence to be used as affecting his credibility in all cases requiring the same complete record of the whole case, and that the word ‘conviction’ is here used in the broader and less technical sense, and implies the judgment of the court. It could not have been the purpose of the law-makers to permit evidence of moral guilt, as distinguished from guilt legally established, to be produced against a witness.” The exceptions were sustained. We think the rule adopted in that case was the correct one, and that, in order to render the evidence proper for the purpose sought, there must be a judgment of conviction.

It follows that the question was improper, and the objection should have been sustained.

The judgment of the district court is vacated, the decision on the motion for a new trial is reversed, and the cause is remanded for further proceedings.

Parallel Citations

20 N.W. 289