State v. Bilansky

3 Minn. 246

• Court: Supreme Court of Minnesota
• Decided: July 15, 1859
• Status: Published

Opinion

By the Count

— Planpratj, J".

It is quite remarkable that a 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 grise 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, infavorem vitce.

She was indicted for murder, and the evidence discloses that the murdered party was her husband. The statutes of this State, B. S.,page 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 offence 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 prvoilegivmb 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 to 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 T, Ch. 13, a distinction was made between laymen and clerks that wore really in orders, subjecting the former to light punishment, and restricting the enjoyment of the clerical privilege to one offence. This distinction was abolished by the statutes of 28 Henry 8, Chap. 1, and 32 Henry 8, Chap 3, and restored again by 1 Bclward 6, Chap. 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 Oh. 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. Oom. 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 Jacob's Law Dic. Vol.1, page 474 et seq; Burrill's Law Dic., part 1, p. 143; 4 Black. Com. p. 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 offence, 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 Avas made and allowed, and I will refer to one case as an example. After the verdict was rendered of guilty, the prisoner Avas 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, lie 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 ml non," who answered “legit." The piisoner was then taken without the bar of the Court and branded in the hand. 1 Salle. 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 mígate the Miserere, hence termed the Psalm of mercy. Burrill's Law Dic. part 1, p. 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, Oh. 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 on Crimes, p. 513, note e; 4 Blade. Oom. 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 offence, by making it treasonable in its nature. As the crime of murder was punished capitally, the distinction between it and petit treason, rendering the latter the more heinous offence could only be made in the manner of the punishment which was inflicted. The killing of a human being when accompanied by aggravating circumstances, such as the violation of the natural or civil relations existing between the murderer and his victim, was by the Roman law punished more severely than simple murder. Por instance, the crime of parrieide or the murder of one’s parents or children was punished by scourging the parricide,^and then sewing him up in a leathern sack with a live dog, a cock, a viper and an ape, and casting him into the sea. 4 Blaele. Oom. 202. “And the .Persians entertained the same idea, according to Heroditus, when they adjudged all persons when they killed their reputed parents to be bastards.” II. The punishment of petit treason in England in a man was to be drawn and hanged, and in a woman to be drawn and burnt. 4 Blade. Oom. 204. Such distinctions in crimes are not recognized in this country, and were not at the time the Statutes of 1851 were enacted. The Organic act of the Territory of Minnesota, by section twelve kept in force in the Territory the laws of the Territory of Wisconsin, which were in force “ at the date of the admission of the State of Wisconsin,” which occurred on the 29th day of May, 1848. See U. S. Stats, at large, Vol. 9, page 233. By the laws of the Territory then in force, no such distinctions existed, and all wilfull killing was murder and punished by hanging. Statutes of Wis. Ter. of 1839, p. 347, Seo. 1., p. 379, Sec. 9, p. 383, Sec. 13.

There was therefore nothing for the Statute of 1851 of Minnesota to operate upon; it abolished nothing for there was nothing to abolish, and the same paragraph by which it attempts to destroy this distinction between murder and petit treason, establishes a distinction in favor of the higher crime. Murder in the first degree is defined to be “ The 'killing of a human being without authority of law, when perpetrated with a premeditated design to effect the death of a person killed, or any human being.” JR. S. paye 492, Section 1 and 2. This is general and covers all cases of such killing, and the grade or degree is characterized by the premeditated designio effect death unlawfully. The Statute divides homicides into various degrees of murder and manslaughter, but makes no distinction in favor of or against any class or sex of persons who shall offend against its provisions. It was strongly contended on the part ot the prisoner that this section of the Statutes found on page 523 of the Revised Statutes, and which we have been discussing was intended to abolish capital punishment in cases of female offenders, and was passed in the Christian and philanthropic spirit of the age. The argument meets with several insuperable obstacles in the outset, which would prevent our conceding its force, however desirous we might be to lend our aid in mitigating: the punishment in cases of female offenders. In the first place the legislature could not have had this object in view because the crime of petit treason was not confined to women, but comprehended various offences committed by men, and it is unreasonable to suppose that while they were providing that the man who killed a stranger should suffer the extreme penalty, one who killed his master, thereby enhancing the degree of his guilt by violating his allegiance, should be punished simply by imprisonment. If the mitigation of the punishment of women had been the purpose and intent of the statute, the Legislature would have so stated, and excluded its operation from the case of those men whose offences would have been petit treason under the English law.

But there is a further reason why this statute cannot have the force given it which is contended for by the prisoner. The Revised Statutes contain a provision that when “ the provisions of different chapters conflict with or contravene each other, the provisions of each chapter shall prevail as to all matters and questions growing out of the subject matter of such chapter.” R. S., page 579, See. 12. The chapter on murder, which defines the crime carefully, fully brings the case of the prisoner within its provisions, and the chapter which contains a provision by which a distinction is sought to be made in her favor is devoted to “general provisions concerning crimes and punishments,” and treats of a multitude of different subjects; where a provision in such a chapter conflicts with one in a chapter devoted to a particular subject the latter must prevail under the rule of construction above cited. "We are clearly of the opinion that no force can be given to the provision contained in the'Revised Statutes on the subject of petit treason for the reasons above given, and think the Court was right in holding that the crime was murder in the first degree.

The most important poifit in this examination arises on the ruling of the Judge upon the questions propounded by the counsel for the prisoner to the witness Kirkpatrick, on her cross-examination.

The provision of the Remised Statutes, on page 481, See. 72, which declares that a witness shall not be. required to answer questions “ which will have a tendency to accuse himself of any crime or misdemeanor, or expose him to any penalty ox-forfeiture,” is bxxt a declax-ation of the law of evidence as it previously existed, and neither enlarges or restricts the privileges of witnesses.

Fornication and adultery are made crimes by our statutes, JR. S.,pp. 518 and 519, and it may well be questioned whether the interrogations which were put to the witness did not tend to show an illicit intercourse between Walker and herself. They did not, it is true, go directly to that point, but affirmative answers to them would form important links in a chain of evidence to establish such an offence. It is objected that the privilege of declining to answer, is one solely appertaining to the witness, and not to the Court. This is true, yet it is the duty of the Court to inform the witness of the existence of this privilege, and after it has been claimed by the witness in an examination with sufficient clearness to indicate his design to avail himself of it, the Court has, from its general control over the conduct of the cause, the right to refuse to allow similar questions to he put to the witness, and if they are put without the interference of the Court, and objected to by the opposite counsel, the Court by the same power may rule them out, and is not obliged to go through the form of submitting the question to the witness in each case for his decision. It would be a useless consumption of time, and all such matters pertaining simply to the order of the trial, should, and do, lie in the sound discretion of’the presiding Judge. The witness is not debarred from answering if he desires to change his mind, and can indicate his wish to the Court.

But suppose these questions had not a tendency to criminate, but only to degrade or disgrace the witness. Mr. Greenleaf, in his work on Evidence, Section 454 of Vol. 1, says: “ On this point there has been a great diversity of opinion, and the law still remains not perfectly settled by authorities; ” and in the course of his discussion of the question, cites numerous authorities, which from the very nature of the subject, and the various phases which it must assume-in the thousand different eases where it is practically presented, leave it still in an unsettled condition, and preclude the possibility of any general rule ever obtaining which shall govern all cases. It is one of those questions which, to be decided correctly, must involve tlie exercise of a large discretion by tbe Court in each particular case. It may be influenced very materially by the conduct of tbe witness on. tbe stand, or tbe particular relation be may sustain to tbe parties or subject matter of tbe action, and-these things can only be properly determined by tbe Judge wbo tries tbe cause.

An important distinction is made between questions of this nature, where tbe testimony sought to be elicited is relevant and material to tbe issue, and where it is collateral and asked only to cast discredit upon tbe witness, Mr. Greenleaf says, Vol. 1, Bee. : “In tbe former case there seems great absurdity in excluding tbe testimony of a witness merely because it will tend to degrade himself when others have a direct interest in that testimony, and it is essential to tbe establishment of their rights of property, of liberty, or even life, or to tbe course of public justice.” In section J55 of tbe same volume tbe rule that where tbe question is collateral and irrelevant it should be excluded, is laid down, but tbe latter part of tbe same section very materially qualifies tbe doctrine, and shows that it may do injustice to exclude such questions although they may be purely collateral. He says, “There is certainly great force in tbe argument that where a. man’s liberty or bis life depend upon tbe testimony of another, it is of infinite importance that those wbo are to decide upon that testimony should know to tbe greatest extent bow far the witness is to be trusted. They cannot look into bis breast to see what passes there, but must form their opinion upon tbe collateral indications of bis good faith and sincerity. Whatever therefore, may materially assist them in this inquiry, is most essential to tbe investigation of truth, and it cannot but be material for the jury to understand tbe character of tbe witness whom they are called upon to believe, and to know whether, although be lias not been convicted of any crime, be has not in some measure rendered himself less credible by bis disgraceful conduct.”

There is still a further subdivision of tbe question of testimony intended to disgrace a witness. Wliere the testimony will not direotly and certainly show his infamy, tut only tend to that end, there it seems he may be compelled to answer. 1 Qreenleaf’s Ev., Sec. 456 ; 4 Wemd. 232, 252, 254.

From a careful examination of the authorities that-have been cited, and such others as I have had access to, I am quite clear that no absolute rule can be collected from them which will govern the admission or rejection of testimony of this character, and that the power over it^ must rest in the sound discretion of the Court, the exercise of which will not be disturbed except in cases of its clear abuse. This case does not disclose any abuse of the Court’s discretion in excluding the testimony.

The Counsel for the prisoner on the argument in this Court, contended that a portion of the testimony sought to be elicited on the cross-examination of the witness Kirkpatrick, was designed to show a prejudice existing in the mind of the witness against the prisoner, and was admissible in that view. From the testimony alone, as offered, such a result was not apparent, and no offer was made on the trial to prove the facts which it would have been necessary to establish to give this force to the evidence, it being therefore prima, facie irrelevant to the issue, the Court did not err in excluding it. A question can scarcely be conceived, which aided by a supposititious theory, cannot be made to have some material bearing upon a case, and all that would be necessary to obtain a new trial, would be to propound an irrelevant question, have it ruled out, and on a review, attach to it a theory which if proven would have made the testimony important. We would not be understood as intending to reflect at all upon the motives of the learned Counsel for the prisoner in offering this view of the case, but make the illustration only argumentatively. Hut if we should adopt the theory of the prisoner’s Counsel, it would not show a di/rect and actual bias or prejudice in the witness against the prisoner, but only a reason why such bias or prejudice might exist, and from which it might be inferred. This is rather remote. To prove such a feeling of hostility in the mind of the witness, facts which directly tend to establish it should be resorted to, such as threats, quarrels, and the like circumstances, and not such as when proven would leave the ill feeling inferential. It may be that the witness and the prisoner both sharing the affections of the same man, as the counsel contended he meant to prove, would be a strong case from which to infer an unfriendly feeling between them, but it is no stronger than the case upon which Judge Crawford ruled out testimony on the trial of Daniel E. Sickles for murder. It was there offered to show, to prove the insanity of the prisoner, that a communication was made to him by a party that his wife had been having illicit intercourse with the deceased. The Court thought it too remote to become a proper link in' the chain of facts to establish insanity; it certainly wordd produce a great shock upon the mind of the husband, and might unsettle his reason, but such conditions of the mind must be established by evidence of acts such as usually characterize them and flow from them. See De Witt's Special Report of the Case of Daniel E. Sickles, page 49 to 51.

The prosecuting attorney desired this Court to pass sentence upon the prisoner in case of an affirmance of the order denying a new trial. The R. S., page 564, Sec. 222, provide that the Supreme Court shall “ consider and decide the questions of law, and shall render judgment, and award such sentence, or make such order thereon as the law and justice shall require.” It is not reqrured peremptorily that we should pronounce sentence, and very properly so, because in many cases where the sentence is to be graduated by the enormity or aggravation of the offence, we would be wholly at a loss to determine to what extent justice reqirired it should be inflicted, as only questions of law ai-e brought before us. In this case the sentence can be but one penalty, yet as we are wholly unacquainted with the facts of the case, and the condition physically or morally of the prisoner, we prefer remanding the case to the District Court for sentence.

The order is affirmed, and the case remanded to the District Court of Ramsey county for such proceedings as to that Court may seem proper.