State v. Cohn

9 Nev. 179

• Court: Nevada Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

By the Court,

Whitman, C. J.:

The indictment in this case was for arson in the. second degree, under the following section of the crimes and punishment act, “Sec. 57. Every person who shall wilfully and maliciously burn, or cause to be burned, any dwelling house or building owned by himself, or the property of another, in the day time * * * ‘ shall be deemed guilty of arson in the second degree.”

Appellant claims,-that although indicted under section 57, he was tried under section 58, as follows, “Sec. 58. Every person who shall wilfully burn, or cause to be burned, any building, or any goods, wares, merchandise, or other chattel, which shall be at the time insured against loss or damage by fire, with intent to injure or defraud such insurer, whether the same be the property of such person, or any other, shall upon conviction be adjudged guilty of arson in the second degree, and punished accordingly.”

It is attempted to sustain this proposition by showing that the prosecution was allowed to prove that there was an overlarge insurance upon the goods of appellant destroyed by fire ; but it does not follow that the evidence was introduced to prove any crime under the section last quoted : it was entirely competent, and under the indictment tended merely, to show a possible or probable motive on appellant’s part, to do an act otherwise inexplicable. The evidence in the case, which was purely circumstantial, tended to prove that a fire more fierce and sudden than natural cause would ordinarily produce, attended by a volume of very black smoke and a pronounced smell of coal oil, broke out at a very early hour in the morning in a room of appellant’s store, where he alone was sleeping ; and that the fire destroyed his premises and goods and the house of the party mentioned in the indictment. There was proof tending to show acts and language of appellant before and after the fire under the circumstances suspicious ; and then came the evidence objected to, which constituted a material and proper link in the chain. There was the fire at a certain place, under certain surroundings, with appellant present at its inception.1 Now, it is not a natural thing for a man to fire his own premises : presumptively appellant was innocent. What then is the logical and natural course of human thought at such juncture? Is it not to inquire what motive, if any, existed which could have influenced a sane person to do such an act ? Such was the course pursued by the prosecution ; the motive was sought; and by it claimed to be found in the fact of an undue insurance ; not only a perfectly proper proceeding, but indeed the only one open.

In this view the following instructions offered by appellant, the refusing of which is assigned as error, are seen to be improper ; as they would prevent the jury from considering motive as a link in the chain of testimony. These are the instructions:—

“1st. That the evidence of crime arising from imputation of motive alone is inconclusive, and ought not to be considered by the jury as sufficient to authorize them in convicting the defendant, unless they, the jury, are satisfied by other evidence that the fire was intentionally created by some one with the purpose of causing the burning of some part of Hamilton and that the fire was set by Alexander Cohn, and no other person. ”

“2d. That when afire occurs which destroys property, it cannot be inferred by the jury that the same originated in the criminal design of the party who may have had an interested motive in producing such fire; but the criminal or malicious agency, as contradistinguished from accident, must be proved beyond a reasonable doubt, by facts independent of the motive of a particular person.”

Of course, motive does not of itself prove guilt; nor on the other hand, is the prosecution bound to conclusive proof of the guilty act in a particular person, or in any person, before motive can be considered. In the manner and form in -which the evidence of motive was under the testimony and charge of the court presented to the jury, it was proper for them to weigh it as a unit, contributing to make up the sum total of proof; and they need not, as appellant claims, have been legally satisfied of his guilt aliunde, before they could consider his motive.

Morris Oohn, partner and brother of appellant, was allowed to testify to the amount and place of insurance upon their property, without production of the policies; this is said not to be the best evidence. Certainly not the best evidence of insurance; but that was not the ultimate fact sought. True, as suggested in argument, the policies might have been invalid and in fact no insurance, but that is immaterial; the fact to be proven was the belief of appellant that he was insured; and though that belief might have been entirely misplaced, still as the basis for a motive to fire his property, it continued real and true to him.

The appellant offered himself as a witness in his own behalf under the statute of this State, which provides that— “ In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness ; the credit to be given to his testimony being left solely to the jury under the instructions of the court. Nothing herein contained shall be construed as compelling any such person to testify ; and in all cases wherein the defendant to a criminal action declines to testify, the court shall specially instruct the jury that no inference of guilt is to be drawn against hini for that cause.” Comp. Laws, Secs. 2305-6. He was examined and cross-examined, and after his case had been rested the prosecution was allowed to recall and question him against his objection both to the recall and the cross-examination. This is urged as unconstitutional procedure, in that it was compelling him to be a witness against himself. The objection goes generally to the entire cross-examination, and specially to the recall. As to the latter point, if he was a witness in the ordinary sense his recall was entirely within the discretion of the court; not that by or under such a recall, the prosecution did or could make the appellant its own witness, for this would indeed be to compel him to be a witness against himself; but on such recall, not in itself improper, any question might properly be put, which was legitimate cross-examination ; and in such cases if defendants occupy place as ordinary witnesses, courts would allow much latitude therein. That one offering himself as appellant did, as a witness in his own behalf, is to be held and treated as an ordinary witness, has been frequently decided under similar statutes; and although a very highly esteemed judge and text writer (Cooley) leans the other way, the weight of reason and authority is in favor of the affirmative position. Connors v. The People, 50 N. Y. 240; Brandon v. The People, 42 N. Y. 265; Com. v. Mullen, 97 Mass. 545; Com. v. Bonner, 97 Mass. 587; Com. v. Morgan, 107 Mass. 199; People v. Reinhart, 39 Cal. 449. To the same effect is the recent case of State v. Ober, N. H. Aug. 14, 1873, as yet unreported, but to be found in the Chicago Legal News, of the twenty-third of the same month.

The jury in this case was selected under certain special provisions of the statute regulating such matters, which appellant claims to be unconstitutional, as depriving him of a trial by a common law jury. This is the objectionable law: “The judges of the several district courts may, by an order entered upon the minutes of their courts, prescribe bounds in their several counties, and all persons residing without such bounds may be exempted from serving on juries in the manner hereinafter prescribed.” Stats. 1873, 128. That manner is by making proof of residence and payment of twenty-five dollars. Did the establishment of bounds, as seems to be claimed by appellant, finally shut out a portion of the county'and definitely fix the non-liability of citizens therefrom to jury duty, there might possibly be more weight to his argument; but it is useless to consider a non-existent condition. The result of establishing bounds is only to exempt jurors beyond them, upon payment by such exemptee of twenty-five dollars. To what extent the system or rather non-system of exemption may be carried is difficult to say; it is coeval with jury trial at common law, and has of necessity many times, and of whim or caprice many other times, been materially altered. 5 Bac. Ab. 356-8. That the exemption in question is pernicious may be admitted. It tends to impose undue jury duty upon poor men in one direction; and in another, to foster and encourage that most baneful parasite upon the body politic — the professional juryman. These might have been arguments against its passage; may be for its repeal, but do not tend to impeach its constitutionality. “To preserve the trial by jury inviolate cannot mean that we must pursue the exact course taken in England to collect jurors. If it does, what time is to be selected; for they have been constantly altering the qualifications, the exemptions and the mode of summoning jurors ?” Colt v. Eves, 12 Conn. 243; Beers v. Beers, 4 Conn. 535.

The point made against the legality of the grand jury is fully and fairly answered by the district court thus: “The grounds, upon which the motion to quash the indictment was based, were the mistake in excusing Smith from the panel of the grand jury and afterwards recalling him — and the participation of -Smith and Jackson in the finding of the indictment against the defendant. * * * The mistake in excusing Smith was an inadvertence which was corrected before any order excusing him was actually made. He was told he would be excused; before the order was entered he was told he would not be excused. The court undoubtedly had the right to correct the mistake then and there, and the defendant (appellant) was in no wise prejudiced. * * The challenge to Smith and Jackson was not traversed by the district attorney at the time it was made, simply because (it is to be presumed) he intended to use them as witnesses and was willing to waive the privilege of having them serve as jurors. When afterwards, owing to his misunderstanding' of the order of the court, one of the challenged jurors had been improperly present for a few moments in the jury-room during the examination of a witness against Cohn, the district attorney was permitted to traverse the challenge in order, if there were no grounds for it, to obviate the necessity of drawing a grand jury. There were no grounds for the challenge. The defendant (appellant) had the opportunity of specifying them, if any existed, and failed to do so. He had lost no right nor opportunity by reason of the original failure of the district attorney to traverse the challenge; and it was entirely within the discretion of the court, to allow the district attorney to oppose the challenge after he had originally waived the right to do so, unless the defendant (appellant) would have been thereby prejudiced. * * The fact that this defendant (appellant) was indicted for burning Jackson’s house does not constitute Jackson a prosecutor against him. A prosecutor is one who. instigates the prosecution by making the affidavit upon which a defendant is arrested. Jackson had made no such affidavit; and besides at the time of the challenge no charge had been made against the defendant (appellant) for burning Jackson’s house.” Opinion of District Court, transcript, pp. 115 and 116.

There was evidence tending to sustain the charge of the indictment: that it was entirely circumstantial does not impair its weight if it was sufficient to satisfy the jury beyond any reasonable doubt of appellant’s guilt. That it was, appears from the verdict. With the jury abides the right of decision upon the facts; and there rests the responsibility, to be disturbed by the district court only when convinced of error on their part. In this case the district court was not so convinced, and refused to grant a new trial. Such act was justified by the law and the evidence.

The order and judgment are affirmed.