People v. Lee

2 Utah 441

• Court: Utah Supreme Court
• Decided: June 15, 1880
• Status: Published

Opinion

EmeRSON, *J.,

delivered the opinion of the court:

The defendant, with others, was indicted at the September term, 1874, of the Second District Court, for murder in the first degree, alleged to have been committed on the 16th September, 1857, at Mountain Meadow Yalley in this Territory. The crime charged constitutes what is known and has passed into history as the “ Mountain Meadow massacre.”

The defendant Lee was the only defendant tried for the offense. His first trial was at the July term, 1875, when the jury disagreed and the case was continued. He was again placed on trial at the September term, 1876, found guilty of murder in the first degree and sentenced to be shot. Thereupon he appealed to this court.

The first error relied upon relates to the formation of the grand jury which found the indictment.

It appears that the judge had ordered the names of twenty-three men to be drawn from the box containing the names selected for that year, from which to form a grand jury for the then approaching term, it being the term at which this indictment was found. The appellant insists that this was irregular.

The jury, as finally impaneled, consisted of fifteen, the number required by the Territorial statute. 0. L. 1080.

The law of Congress, under which juries both grand and petit are selected in this Territory, provides that such a number of names shall be drawn, from which the juries, both grand and petit shall be formed, “ as may have previously been directed by said judge.” 0. L. 55. This first drawing is previous to the term of the court for which they are drawn to serve. The law referred to further provides that, if during the term additional names are required for the formation of a jury, resort shall be had to another drawing from the general list, and if it should happen, as it will, may, and most always does, that the attendance of those last drawn cannot be obtained in a reasonable time, other names may be drawn in the same manner until the requisite number is obtained.

This occasions frequent, annoying and occasionally protracted delays in the business of the court. Take this very case for an example. In the first instance the judge ordered the names of twenty-three men to be drawn, and the record shows that a jury of fifteen was not obtained from this number, and resort was had to subsequent drawings under this law. Thus the time of the court and its officers was taken up for three full days before the requisite number of qualified persons was obtained. The number to be drawn in the first instance was left wholly discretionary with the judge. That portion of the Territorial law which provided that eighteen men only should be summoned, out of which a grand jury of fifteen shall be formed, was repealed or disaffirmed by the provisions of the Congressional act referred to. The action of the court excepted to was clearly the exercise of a discretionary power, in which there was no error. In this connection, the appellant assigns as error the action of the court in excusing certain of the persons first drawn, and the drawing and summoning of others to complete the panel. A complete answer to this objection is found in the fact that the record shows that three persons were excused for the reason that they were disqualified to sit as grand jurors, and their places, or sufficient of them to complete the panel, were filled in the manner provided by law.

The indictment upon which the appellant was arraigned was found by a grand jury of fifteen qualified persons, duly drawn, summoned and impaneled in strict accordance with the law relating to grand juries.

The next point relied upon by the appellant, and which is claimed as error, is that tbe record shows that the indictment was not lawfully presented by and filed in the presence of the grand jury.

The only provision in the statute upon this subject is, that when an indictment is found, the foreman shall “ indorse thereon the words, to-wit, ‘a true bill,’ and officially sign his name to said indorsement, and also note, or cause to be noted, on the bill of indictment, the name or names of the witnesses upon whose evidence it was found,” C. L. § 1076, and it shall then “ be presented to the court, who may correct mistakes that do not prejudice the trial.” C. L. § 2248.

The indictment in this case bears the following indorsement: “Filed, September 24, 1874; James K. "Wilkins,clerk.” The record of that date contains the following recitals: “ Bills of indictment presented. On this day the grand jury appeared at the bar of the court in charge of the United States Marshal, and presented their bills of indictment against,” aside from certain blanks partially filled with figures, probably denoting file numbers, and the words “ for the crime of,” and following them the names of the defendant and others charged with him for the crime of murder.

It is the custom in our courts not to record the names of those against whom bills of indictment are found, until the parties charged are under arrest. This is a wise and judicious practice. The records of the court are public, and as such are subject at all times to the inspection of all those who may desire to inspect them. It is not unfrequent that the first step taken in the prosecution for a criminal offense, is that instituted before the grand jury. All the proceedings in the court must be public, and if the clerk should be required or allowed to record in full the names of those against whom indictments are found at the time the grand jury presents them in court, one of the objects in imposing secrecy upon the grand jury would be thwarted and rendered of no practical importance. Persons guilty of crime, and not under arrest, either through the knowledge thus obtained by themselves, or through the agency of friends and those interested in their behalf, would be informed that proceedings were in train against them, and enable them by flight or concealment to elude the officers of justice, and often to escape punishment entirely.

It appears that the district attorney, at the next or July term, following the one at which the indictment was presented, moved that the record of the former term be amended nuno pro tuno, as is stated, so’ as to make the facts of the presentment more fully appear of record. The motion was granted. This is assigned as an additional ground of error. From what is disclosed in the record, there can be no doubt but what the indictment was presented by the grand jury in open court, and the amendment was unnecessary. If, however, the court thought that there had been some omission on the part of their clerk, in failing to record some of the details of the presentment, he had an undoubted right to order the minutes corrected so as to be in full and complete accordance with the facts.

The statute prescribes no form of indorsement, or record . of the finding, to be made by the clerk. It simply provides that the indictment shall “ be presented to the court.” Even if it should be admitted that it was a matter of jurisdictional consequence that an indictment should in fact be presented by the foreman of the grand jury and in their presence, that the indictment was so presented will be presumed if the record ■ shows nothing to the contrary. The court being one of general criminal jurisdiction, all intendments are in favor of regularity of the proceedings.

So far from the record in this case showing anything to the contrary, in our opinion, it does show, without the amendment, that the indictment was presented in court and in the presence of the grand jury.

The fifth assignment has just been disposed of in the case of The People v. Idaho Bill.

The sixth assignment raises the question of the sufficiency of the evidence to justify the verdict. The appellant places his objection upon two grounds:

Fwst — “ Because there was not sufficient evidence introduced on the trial of the defendant, aside from the evidence of confessed accomplices, to justify a conviction.”

The point of this objection, if there is any point in it, is that a defendant in a criminal case ought not to be convicted if any of the material facts which warrant a conviction rests upon the testimony of accomplices. In other words, the prosecution, he insists, must make out a case sufficient to justify a conviction independent of the testimony of accomplices. If this proposition were true there would be no occasion to use this class of witnesses at all.

It has long been a settled rule of evidence, that a witness in a criminal prosecution was not incompetent on the ground that he had been an accomplice with the prisoner on trial, in the particular crime which was the subject of the indictment, and it follows almost as a necessary consequence, that if their testimony is believed by the jury, the prisoner may be legally convicted upon it, as it is their peculiar province to determine upon the degree of credit to be attached to any competent evidence submitted to their consideration. There is nothing in this ground for the objection.

The second ground of the objection is, “that the evidence of the accomplices was not corroborated by any sufficient legal evidence.”

All the evidence taken .on the trial of the case has been brought by the bill of exceptions, and we have reviewed the sickening details of a most inhuman butchery, which it recites, to see if there existed any foundation for the objection urged. The result of this investigation is, that the testimony of those who were present and took part in it, not from any choice of their own, but upon compulsion of one sort or another, is corroborated in many of its material particulars by other and sufficient legal testimony. Even should it be held necessary that a witness of this class should be corroborated in some material fact, it is clearly unnecessary that be should be con-hrmed in every circumstance which he details in evidence. There was a sufficient corroboration of the witnesses, said to be accomplices in this case, to satisfy the most stringent holding upon this subject.

This brings us to the consideration of the seventh assignment of error, and which arises out of a large number of exceptions to the judge’s charge to the jury.

¥e deem it unnecessary to take up each exception and review it, for the reason that they are all aimed at one point, and the question presented by them is, to what extent in criminal cases can the court review facts in his charge to the jury-

The only statute in this Territory upon the subject is: “The court shall instruct the jury on the law and equity in the case, and give them such other instruction as may be necessary.” (C. L. § 2242.) This quotation is from the act regulating the mode of procedure in criminal cases, and while it may be difficult to determine just what is meant by this language, one thing is evident, and that is, it does not abridge or curtail the right of the court to express his opinion as to the weight of evidence, as it existed at the common law.

The doctrine is laid down by ParsoN, G. J., in the Commonwealth v. Child, (10 Pick. 252.) The language used in the opinion is peculiarly applicable to this case, and we quote from it.

“ But it will be objected, that the judge may have said many things tending to make the jury incline to one side or the other’: This would seem to raise the question, whether a judge may reason upon the facts, and if he intimates to the jury his own opinion of the evidence, whether this shall be cause for setting aside the verdict? We know of no rule requiring the judge to conceal his opinion. He is to comment upon the evidence. Is he to do it by merely stating that one witness says this thing and another says that? Has he not power to say, this evidence is weak and that evidence is strong? For myself, where tbe evidence on one side is nearly balanced by counter evidence, I endeavor to leave it to the jury to decide which scale preponderates; but if the evidence on one side is strong, compared with that on the other side, I think it my duty to make the jury, comprehend that it is so. It is said the tendency of the judge’s remarks was to affect the jury unfavorably to the defendant’s side of the case. The next step will be, to move for a new trial on account of the expression of countenance of the judge. These things, if evils, are unavoidable. Confidence must be reposed in the integrity of the judge. If an unjust partiality is shown, the remedy must be in one of the modes pointed out in the Constitution. Though an undue influence may be exerted upon the jury by the manner of a judge, yet the. law presumes intelligence in the jury; and if they perceive any improper attempt of the kind, they will be more likely to find a verdict against the opinion of the judge, than in accordance with it. Undoubtedly the manner of instructing the jury sometimes has an undue effect upon their verdict, but it results from the imperfection of the system. If the evidence in such case does not sustain the verdict, a new trial will be granted — there is no other remedy.”

The decisions announcing a contrary doctrine, and to which counsel for the appellant has referred in support of his exceptions, are from States where the court was hampered and bound by some constitutional inhibition or statutory regulation. Most of them are from California, and there the courts are prohibited, by section 17, article VI. of the constitution, ■ from charging juries with respect to matters of fact, but may state the testimony and declare the law. Even there the courts have decided that the constitutional inhibition above referred to “ was intended to change the rule so as to leave the weight of evidence entirely to the jury, but judges may still, as formerly, state what facts are in evidence and what are not; or, in other words, they may state the evidence fro and con., in view of which the existence of certain facts is affirmed or denied, which includes the right to state to the jury that there is no evidence as to particular facts or issues when such is the case.” People v. King, 27 Cal. 513.

Here the testimony was all upon one side, that of the prosecution. . We have been unable to discover any contradictions among the witnesses themselves. We think the testimony warranted the judge in saying that it was “overwhelming.” He had correctly laid down the law as to the offense, and the measure of proof they should require before convicting the defendant. No exception was taken to anything contained in this portion of the charge. Throughout the whole charge he seems to have taken great caution, by repeated declarations, to impress upon the minds of the jury that they were the sole judges of the facts and of the degree of creditability to be given to the witnesses; that they were not bound by anything he might say as to the facts. The jury cannot have failed to have understood this perfectly. To aid them in arriving at a correct determination, the court gave them, in his own language it is true, and as it is always done, and not in the language of the several witnesses, a summary of the facts as established by the prosecution. The language used in doing this was warranted by the uncontradicted evidence for the people.

The exceptions which counsel for the defendant have urged the most strongly upon our attention are the tenth and eleventh, as numbered in his brief.

In support of the tenth he insists that “ the unsupported statements.and testimony of accomplices was not in any way competent to convict the defendant.”

Just what counsel means is not clear. We are in doubt whether he means that no conviction can properly and legally be had in any case upon the uncorroborated testimony of accomplices, or whether he means that in this particular case it was not competent to convict the defendant, using the word “ competent ” in the sense of “ sufficient.” In either view of the case there is no ground for the objection. In a former part of this opinion we have stated wliat is unquestionably the rule as to the competency of this class of witnesses. The grounds of the objection, whatever might be said of them as abstract propositions of law, have no foundation in fact as applied to this ease. There was not a single witness of the class referred to, whose testimony was not corroborated in some material point by evidence free from all suspicion. The language quoted in the'tenth exception does not warrant the conclusion drawn by counsel as the ground of the objection, and especially as in this connection, once speaking of this class of witnesses, the court instructed the jury that, “ being corroborated in any material point by other evidence, their testimony is entirely sufficient to warrant a verdict in accordance therewith.”

The eleventh exception grows out of the use of the following words in the instruction: “ W ere such parties unworthy of belief the law would not allow them to be put upon the witness-stand.”

It will not only greatly facilitate our understanding of just what was meant by the use of this language, but will clearly demonstrate the impropriety and fallacy of severing a single phrase or sentence from its immediate connection in a charge given to a jury, and predicating an exception upon it, to review that portion of the charge in which the language was used, and is as follows: “The defense has introduced no witness or evidence to refute the testimony for the prosecution, but risks the whole case upon the hope to shake your confidence in the witnesses for the prosecution. Were these witnesses unworthy of belief? The most that could be said is that the testimony of a portion of the witnesses, (those who were participants in the massacre,) should be taken with great caution if uncorroborated in any material point by other evidence. Were such parties unworthy of belief the law would not allow them to be put upon the witness-stand. The admission of accomplices is fully justified by the necessity of the case, and there was not and could not have been any objection to tbeir introduction. "Who else could tell what took place upon that bloody field but those who were present, willing or unwilling? After their introduction you are to weigh their testimony and sift the truth therefrom. Accomplices are not to be disbelieved simply because they are accomplices, but you are to weigh their testimony in connection with other evidence, and being corroborated in any material point by other evidence, their testimony is entirely sufficient to warrant a verdict in accordance therewith.”

It will be noticed that a number of the exceptions relied upon, are to be found in this portion of the charge; but, if considered in the connection in which they are given, as above quoted, it is clearly apparent that there is no ground for the the points made.

So far as the words which form the subject of the tenth exception are concerned, it seems impossible that the jury could have understood that the court was speaking of anything but the competency of the class of witnesses named, and had no reference to the creditability of the particular witnesses in this case, or to the sufficiency of the testimony offered by them. From the repeated declarations in the charge they cannot have failed to understand that the court left them the sole judges of the creditability of the witnesses and the sufficiency of the evidence. The right of the defendant to have the jury pass upon the facts in the case was carefully guarded and fully conceded.

Upon the whole record we see no error, and in our opinion the defendant was fairly and impartially tried, and was upon competent and sufficient legal evidence convicted of-the crime for which he stood charged.

The judgment of the court below is affirmed.

Sohaeffee, C. J., and BoreMAN, J., concurred.