State v. Jackson

9 Mont. 508

• Court: Montana Supreme Court
• Decided: April 15, 1890
• Status: Published

Opinion

De Witt, J.

The grounds set forth in the above statement are those presented on the argument on appeal, and we will consider them in their order.

1. It is true that the fate of the defendant depended, on the trial, upon the testimony of one witness, Mrs. Laveille. “The direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact except perjury and treason.” (§ 616, p. 223, Comp. Laws.)

We have diligently, in view of the gravity of the offense and the character of the penalty, examined the 400 printed pages of evidence. Untiring efforts were made by defendant’s counsel to impeach, discredit, and contradict the testimony of this one witness. Counsel cite numerous instances of what they claim to be inconsistencies and contradictions. Her testimony is given us in full, by question and answer, as is proper in a capital case where the verdict depends absolutely upon the truth or falsity of the testimony of one person. In her testimony contradictions may be found by selecting isolated fragments and comparing them with like fragments in other portions of the record. Inconsistencies can be constructed by partially viewing segregated statements. Such can be done with the lengthy testimony of the most learned experts and scientific specialists. The witness here was an unlearned woman, speaking in a foreign language, through an interpreter, making her statements contemporaneous with the tragedy from the maze of overwhelming grief and under terrible excitement. It is impossible, in this opinion, to recite, or even epitomize, the mass of testimony, which occupied in the hearing six days. We can only say that a faithful and painstaking scrutiny of the record reveals the fact, beyond cavil or controversy, that Mrs. Laveille’s testimony fully meets the rule of substantial truth with circumstantial variety. We are amply satisfied that her testimony, if true, sustains the verdict. The .jury have said it was true. 'They not only heard her, but saw her, and the manner in which she testified. The court below, in hearing the motion for a new trial, found in the record no substantial attack upon the truth of her testimony. We find nothing upon which we can disturb the decision of that court that the verdict was supported by the evidence.

2. The defendant offered and read in evidence a portion of the testimony given by Mrs. Laveille at the preliminary examination, which had been reduced to writing, read to the witness, and by her subscribed. We are of opinion that it was not error in the court allowing the State to read to the jury the whole of that testimony. The rule is: “ When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole, on the same subject, may be inquired into by the other. When a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” (§ 626, p. 224, Comp. Laws.)

3. As to the point that Nolan, county attorney, could not be or act as notary public, counsel refer to article viii., section 19, Constitution, which provides that the qualifications of one to be county attorney “shall be the same as are required by a judge of the District Court, except that he must be over twenty-one years of age, but need not be twenty-five years of age;” and section 35: “No district judge shall hold any other public office while he remains in the office to which he has been elected or appointed.”

It is perfectly clear that the first section cited simply prescribes the requirements for eligibility to election as county attorney as to age, residence, attainments, etc. The second section is a prohibition against a district judge holding another office — a prohibition not including the county attorney. If among the qualifications of one to hold the office of county attorney had been one “that he shall not hold any other office,” there might be some force in counsel’s contention. Section 31, same article, provides: “No judge of any District Court shall act or practice as an attorney or counselor at law in any court in this State during his continuance in office.” This is another prohibition directed against the district judge. As well might counsel insist that this applies to the qualifications of the county attorney. A constitutional regulation as to the conduct of the district judge is not part of the description of the qualifications for office of county attorney. This view of counsel as to the constitution of the State is wholly without merit.

Upon this point counsel also cite section 1, article iv., Constitution: “The powers of the government of this State are divided into three distinct departments — the legislative, executive, and judicial; and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

Counsel’s view of this section must be that Nolan, as county attorney, and Nolan, as notary public, was acting in the exercise of the powers of two of the different departments of the government at once. It is not entirely clear how counsel classes the two positions of Nolan in two different departments. The county attorney is provided for in article viii. on judicial departments. If counsel takes the position that the county attorney •is of tbe judicial department, then does he mean that as notary public be belongs to the executive or legislative department? The statement of the proposition answers itself.

4. The court properly denied the motion of the defendant to strike out the affidavit proposed to be used by the county attorney on the motion for a new trial. The State had no notice of such motion. Defendant declined to give any, and insisted that the hearing of the motion for new trial should proceed forthwith. The State was° entitled to some intimation that the defendant objected to the formalities in the taking.of this affidavit prior to the moment of the hearing of the motion for the new trial. (Murray v. Larabie, 8 Mont. 213.)

5. We are of opinion that the court properly excluded the interrogation to Mrs. Laveille whether she said that she would suicide if Jackson were not convicted. It is apparent from the context of the examination at that point, and it is now insisted by defendant’s counsel, that the question was asked for the purpose of showing prejudice by the witness against the defendant. It is not at all apparent that such statement, if it were made, and such sentiment, if it existed, would indicate any prejudice. The witness had already just frankly admitted the existence of ill-feeling towards defendant. We consider the matter offered wholly immaterial, and its exclusion no injury to defendant.

6. “A new trial shall be granted when the jury receive any ■evidence, papers, or documents not authorized by the court.” (§ 354, Crim. Prac. Act.)

Defendant’s counsel construes the word “papers,” above, to mean “newspapers”; and from that premise he argues that if a •juryman receives a newspaper containing comments upon the trial, the verdict ipso facto must be set aside. If the word “papers” means “newspapers,” counsel need not qualify the word by adding, “eo'ntaining comments on the trial.” If he reads the statute liberally, or by supplying the word “newspaper” for “paper” therein, then the reception of a newspaper ■would, in itself, vitiate the verdict. We are of opinion that the word “papers” in the statute does not mean “newspapers,” or, perhaps, even include them. The statute is not a prohibition ■against tbe jury receiving evidence, papers, or documents. . Cases are tried upon evidence, papers, and documents (using tbe word “papers” in the sense of written instruments or documents). But tbe jury shall receive only such evidence, papers, and documents as are authorized by the court. Cases are not tried upon newspaper comments or arguments. Such cannot become evidence under any circumstances. It would be an idle thing for the statute to say that no newspaper argument shall be received by the jury except those authorized by the court. Such newspaper lubrications could never be authorized by tbe court. Cases are presented to juries in another manner, by evidence and oral argument in open court. Counsel would construe the statute to make it prohibit the jury from hearing or reading, ex parte, private newspaper argument of a case. Of course, they shall not hear such, or determine cases in that manner. To do so is such an infraction of constitutional and established rights of jury trial that we cannot believe that the legislature went so far from the subject as to intend to prohibit, in this section, that which is otherwise so amply inhibited by the whole system of criminal procedure.

The intent of this section is clear to us. The word “ papers ” occurs in context, between the words “ evidence ” and “ documents.” It refers to something, as written instruments, for instance, which might be competent testimony if scrutinized by the court, and found by the court to be competent, under the Tules of evidence, and then authorized by the court to be introduced. If it gets to the jury without such authorization, it falls Avithin the purview of the section being considered. Papers, documents, and written instruments are all, under some circumstances, evidence. Newspaper comments are never such. If the statute had used simply the word “evidence,” it would have been sufficient. The addition of the words “ papers” and “ documents” simply makes it more explicit in the way of definition. The intent of the statute is simply to provide that evidence, whether oral, written, printed, or contained in papers or documents, shall not go to the jury without passing the scrutiny of the court as to its competency, etc., and undergoing the criticism Of the argument of counsel.

We do not justify the reception by the jury of newspaper comments. We only hold that this offense by a jury does not fall within the inhibitions of this section (subd. 1, § 354, Crim. Prac. Act), but is governed by another division of the section noticed infra.

We have gone into this discussion in order to lay the foundation for our view, that the simple reception by a juror of a newspaper does not ipso facto vitiate the verdict, but that such reception must be considered as any other misconduct of a jury, and be treated by the rules governing cases of misconduct. The section of the law applicable is section 354, subdivision 2, Criminal Practice Act. “A new trial shall be granted when the jury has been separated without leave of the court, or have been guilty of any misconduct, tending to prevent a fair and due consideration of the case.”

There is a conflict in the decisions of courts as to the rules applicable to determining the question of setting aside a verdict for alleged misconduct of the jury in a criminal case. An extreme view is, that misconduct tending to show injury to defendant being shown, prejudice will be absolutely presumed, and a new trial granted, and the jurors will not be heard to deny the alleged facts of misconduct. This doctrine has not been adopted in this court. (Territory v. Hart, 7 Mont. 489; Territory v. Clayton, 8 Mont. 1.) The position towards which this court tends in those cases, and which we now apppove, is that if misconduct be shown, tending to injure defendant, prejudice to the defendant is presumed, but not absolutely. The State may remove that presumption, and the burden is upon it to do so, and in so doing, it may use the testimony of the jurors to show facts which prove that prejudice or injury did not or could not occur. For example, if a juror is temporarily separated from his fellows, by illness or. the exigencies of nature, he may show that during such separation he saw or talked to no one, and that no influences were brought to bear upon him of any character. This court, however, has never held, and does not now hold, that if the contact of the juror with outside, prejudicial influences be clearly demonstrated and uncontroverted, the juror may purge himself by testifying that such influences did not affect his judgment in forming his verdict. This principle is well reviewed by Mr. Justice Gray in Woodward v. Leavitt, 107 Mass. 453.

In the case before us it is clearly shown that only one juror read the objectionable newspapers. For the purposes of this decision we will not consider his affidavit that he was not influenced thereby. The difficulty is soluble on other grounds. The reason for holding that the reading by jurymen of newspaper accounts and comments adverse and prejudicial to defendant vitiates a verdict, is that they are ex parte arguments and presentations of the case, made out of court, not under oath, made irresponsibly, not answerably by defendant by evidence or argument, and not subject to the rules of court as to admission of evidence and the proper argument of counsel.

The efforts of learned and zealous counsel for the State, in open court, are far more dangerous to a defendant than the diatribe of any newspaper; but they are made under the eye of a vigilant court, under the established rules of procedure, and with the ever-present opportunity of the defendant to put a telling shot under the armor of the State wherever a joint is left loose.’

In the case at bar the newspaper was read by the jurymen ’the second or third day of a six days'’ trial, before the State had closed its evidence, and before the defendant had opened his defense. The attention of the court was called to the matter, and the judge immediately animadverted upon it in the presence of the jury. The jury had opportunity to be fully advised by the court, and to learn that the newspapers, and all their comments, should be excluded from their consideration. They were thereafter so excluded, and, indeed, at no time did the jurymen ever discuss them. After this admonition by the court, they heard evidence for four days, including the whole of the defense, as well as the arguments of defendant’s counsel, who had full opportunity to score the newspapers.

A juror examined upon his voir dire may have read the most violent and prejudicial newspaper attacks upon the defendant, and have formed an opinion of the guilt of defendant, and still he is a competent juror if he “state on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, and the court is satisfied that he is impartial and will render such verdict.” (§ 287, Crim. Prac. Act.) The day has passed when blank ignorance and stupidity in a juryman were his best qualifications for service. There is more intelligence on the modern jury; and intelligent persons, the statute contemplates, are able to read contemporary history, and still preserve their mental balance.

On the trial of a case, highly improper and incompetent testimony may accidentally fall from the lips of a sworn witness on the stand. This occurs in nearly every trial. Such evidence is stricken out by the court, and the jury instructed to disregard it. The court herein had equal opportunity to correct any possible evil influence of the newspapers.

If these newspapers had gotten to the jury after they retired for deliberation; if the court never had known of the fact, and never had opportunity to admonish the jury; if it had been too late for the jury to hear the defendant’s evidence and the arguments of his counsel, the possibility of injury and prejudice would be more apparent.

The ultimate inquiry for the court is, whether prejudice or injury has occurred; whether the same be by an absolute presumption, or by a view of facts presented by competent testimony. Cases must rest, to some extent, upon their own particular facts. Under all of the facts of the case at bar we cannot hold that prejudice or injury must be absolutely presumed, and we cannot hold that they in any manner appear.

7. The last point contended for by appellant scarcely calls for notice.. Three days after the jury had been discharged, and had abandoned their room, a room, for all that appears, open to every one, and, in any event, open to the janitor and one of defendant’s counsel and another person, a newspaper was found in that room, unmutilated, of date March 15th. This has not the slightest tendency to prove that a juryman ever saw it.

There has been a warm contention in this case over the conduct of newspapers in commenting upon the trial during its progress. The Helena Journal, published March 13th, has the following head lines: “Evidence Given that is likely to Hang Jackson. Mrs. Laveille’s Convincing Story. Looks Bad for Jackson.” The. article says, among other things: “Jackson sat through the process of weaving the rope that shall stretch his neck with apparent unconcern and smiling indifference; ” “ Cumulative evidence that Jackson should be hanged; ” “ The halter draws/’ etc. This paper also contains the following, in reference to one of defendant’s counsel: “ His chances for hanging have been materially augmented by the addition of a certain Casey to the lawyers for the defense. Casey has no seat at the table for counsel, but crowds himself up against their chairs, and confers with the amateur short-hand writers, occasionally interfering with the • work of Messrs. Davies aud Russel.”

We cannot leave this decision without a further word. Newspapers occupy a magnificent place in modern civilization. In England, the press has been called “the fourth estate of the realm.” With all their faults, even with their occasional venality, and their vice of the adulteration of intelligence for ulterior purposes, newspapers are one of the bulwarks of liberty. The freedom accorded them in the discussion of all matters sends vice blushing into seclusion, makes the rogue in high places tremble for his security, and the public robber hesitate in his depredations. Journalism calls to its service the best intellectual effort of the earth.

But let it remember that the citizen is innocent until a jury of his countrymen pronounce him guilty. However humble his station, and however crime-stained he appear, he is a citizen and an innocent man until he is found to be otherwise by the machinery of the law which the people have set up to determine that fact. He is not to be tried by hue and cry, or by newspaper harangue. The wisdom of centuries has provided a method of trial which the people of this land have sanctioned by solemn constitution. Let that method prevail.

The lapses of the newspapers in this case were doubtless through inadvertence. But they might have occurred at a time when they would have worked an injury to a fellow-citizen on trial for his life, and in the eye of the law, as yet innocent as if he were in the highest of earth’s stations. It is hoped that hereafter, when criminal cases are on trial, the machinery of the courts will be left undisturbed to work out the equal and exact justice which their creation and existence contemplate.

The judgment of the District Court, and the order denying a motion for a new trial, are affirmed; and it is directed that the judgment be carried into effect as entered in the court below.

Blake, C. J., and Harwood, J., concur.