FROM MERRIMACK CIRCUIT COURT.
The testimony of Fowler, Mahair, the Towles, the Watsons, and Mercy, was, I think, properly admitted. It all tended to show that the prisoner, about the time of the murder, was frequenting that neighborhood with a view to the commission of the crime of rape upon the person of some one of the young females whom he knew to have occasion to pass over that road. The obscene and filthy language he is described as using, in connection with his inquiries about one of the young ladies, tends to show what thoughts were in his mind, and what he was meditating. The testimony of the Watsons and Mercy tends to show, not merely an attempt or design to commit the crime on the person of Miss Watson, but also to show generally, in connection with the other testimony, that he was prowling about that place for the purpose of lying in wait for any person whom he might sacrifice to his base and cruel designs. It furnishes an illustration of the doctrine which I shall attempt to illustrate and maintain. The attempt to commit one offence may be put in evidence when attended with circumstances which give it a logical connection with the fact in issue, and not otherwise.
The admission of the testimony of Julienne Rousse gives rise to by far the most important question in the case. That testimony tended to prove that the prisoner, about four years and a half before the trial, at a place beyond the jurisdiction of the United States, committed the crime of rape upon a person other than the deceased; and the question is, whether that bald, naked fact, being put in evidence, had any tendency to prove any matter in issue between the State and the defendant.
These questions in regard to the relevancy of particular items of
testimony always depend upon the peculiar circumstances of the case, and must be solved by the application of sound judgment and common sense. It very often happens, as practical men in the profession well know, that facts which in one state of the evidence and one aspect of the case are entirely irrelevant, suddenly, by a slight change in the conditions, become of great importance. Hence the necessity, which so often happens in attempting to take written testimony, of introducing into a deposition so many facts which at first sight seem entirely irrelevant, but which may become admissible and important; hence, too, one reason why in criminal causes it is so important that the witnesses should testify in open court, and in the presence of the respondent, in order that all their knowledge should be available to meet all the exigencies of the trial.
It is for this reason that so many reported cases in the law of evidence are valuable, not so much in establishing principles of law, as for the illustration of those principles.
There is a great mass of cases so similar in their circumstances, and which have occurred so often, that they may be taken as evidence of the application of the common-sense and cultivated reason of a great many individuals, and so come to have the force and authority of established law.
I think we may assume, in the outset, that it is not the quality of an action, as good or bad, as unlawful or lawful, as criminal or otherwise, which is to determine its relevancy. I take it to be generally true, that any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue. It may be, that in some cases the danger resulting from such indirect bearing might be so great in comparison with its importance in regard to matters on which its bearing was legitimate, that it ought not to be admitted. But I think the general rule is, that no testimony which has a legitimate bearing upon any point in issue can be excluded.
I say legitimate bearing advisedly, because, as already suggested, although undoubtedly the relevancy of testimony is originally a matter of logic and common-sense, still there are many instances in which the evidence of particular facts as bearing upon particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and, therefore, the best evidence of what may be properly called common-sense, and thus to acquire the authority of law. It is for this reason that the subject of the relevancy of testimony has become, to so great an extent, matter of precedent and authority, and that we may with entire propriety speak of its legal relevancy.
It is proper, however, in the outset, to notice what appears to me to be a fallacy in the very commencement of the able argument for the
State. It says, — "Under an unexceptionable charge, and upon other testimony than that of Julienne Rousse, the jury have answered the first question [i. e., Did the defendant kill the deceased?] in the affirmative." If it could be known certainly that the jury did not give any weight to the testimony excepted to in determining whether the prisoner did the act; if it could be certainly known that the evidence of Julienne Rousse did not create in the minds of the jury a prejudice against the prisoner on all the points of his case, — the remark might be well founded. But that is just what we do not and cannot know, although what we do know of the constitution and temper of juries creates in us a very strong belief of the contrary.
In this case I understand it to be conceded by the government that the evidence is not relevant for the purpose of showing who killed the deceased, but that it is claimed to be relevant for the purpose of showing the particular act that he was engaged in doing when he committed the murder. For the purpose of showing the offence to be murder in the first degree, it is claimed to be relevant as tending to show that he committed the murder while in the act of committing rape; but as the intent is the mysterious solvent which opens the way for the admission of the testimony, it would not be relevant for the purpose of showing that he had first committed a rape, and then did the murder afterward.
Proceeding, then, to consider what has been settled in this matter, I think we may state the law in the following propositions:
1. It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character.
2. It is not permitted to show the defendant's bad character by showing particular acts.
3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged.
4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.
It is a maxim of our law, that every man is presumed to be innocent until he is proved to be guilty. It is characteristic of the humanity of all the English speaking peoples, that you cannot blacken the character of a party who is on trial for an alleged crime. Prisoners ordinarily come before the court and the jury under manifest disadvantages. The very fact that a man is charged with a crime is sufficient to create in many minds a belief that he is guilty. It is quite inconsistent with that fairness of trial to which every man is entitled, that the jury should be prejudiced against him by any evidence except what relates to the issue; above all should it not be permitted to blacken his character, to show that he is worthless, to lighten the sense of responsibility which rests upon the jury, by showing that he is not worthy of painstaking
and care, and, in short, that the trial is what the chemists and anatomists call experimentum in corpore vili.
Of course, if the respondent sees fit to put his character in issue by offering evidence tending to show that it is good, it is then permitted to the prosecution to rebut this testimony by showing that it is bad; but I think the weight of authority is to the effect that this must be done by evidence, not of particular facts, but of reputation.
The law in regard to proof of intent, is, I apprehend, in no particular different from the law in regard to the proof of other facts, unless it may be in the general principle that a person is ordinarily presumed to intend the natural consequences of his actions. But always the evidence will be subject to the condition that it legally and logically tends to prove the facts in issue, whether it be the intent or any other fact.
The foregoing positions are illustrated, and I think established, by the following citations:
"Where a defendant has voluntarily put his character in issue, and evidence for the prosecution has been introduced, it has been said the examination may be extended to particular facts, — though this has lately been denied by courts of high respectability; and certainly it is very oppressive to a defendant, as well as irrelevant to the real issue, to admit in rebuttal a series of independent facts, forming such a constituent offence." 1 Wharton's Am. Crim. Law, and cases cited, sec. 637.
"While, however, bad character cannot be put in issue by the prosecution, it is permitted to introduce evidence of prior misconduct, where it is relevant either to prior malice towards an individual, or guilty knowledge." Wharton, sec. 639, and cases cited.
"But in other criminal cases the prosecutor cannot enter into the defendant's character, unless the defendant enable him to do so by calling witnesses in support of it, — and even then the prosecutor cannot examine into particular facts, the general character of the defendant not being put in issue, but coming in collaterally." Buller's Nisi Prius 296.
"But it is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character." Com. v. Webster, 5 Cush. 325.
It will be seen that these authorities support not only the first proposition above stated, but also the others.
I also cite the following authorities in support of the other propositions, which it seems to me, need no further support.
"It is here, however, that the fundamental distinction begins, for while particular acts may be proved to show malice or scienter, it is inadmissible to prove, either in this or any other way, that the defendant had a tendency to the crime charged. Thus, in England, it has been held that on the trial of a person charged with an unnatural crime, it was not permitted to prove that the defendant had admitted that he had a tendency to such practices; and so, on an indictment against an overseer on a plantation for the murder of a slave, evidence as to the prisoner's general habits as to punishing other slaves is not admissible
for the prosecution." 1 Wharton's Am. Crim. Law, sec. 640, and cases cited.
"So, proof of a distinct murder, committed by the defendant at a different time, or of some other felony or transaction committed upon or against a different person and at a different time, in which the defendant participated, cannot be admitted until proof has been given establishing or tending to establish the offence with which he is charged, and showing some connection between the different transactions, — or such facts or circumstances as will warrant a presumption that the latter grew out of, and was to some extent induced by, some circumstances connected with the former; in which case such circumstances connected with the former as are calculated to show the quo animo or motive by which the prisoner was actuated or influenced in regard to the subsequent transaction are competent and legitimate testimony." 1 Wharton's Am. Crim. Law, sec. 647, and cases cited.
In Regina v. Oddy, 4 Eng. L. E. 572, it was held that "On an indictment for feloniously receiving goods knowing them to have been stolen, it is not competent for the prosecutor, in proof of guilty knowledge of the prisoner, to give in evidence that the prisoner, at a time previous to the receipt of the prosecutor's goods, had in his possession other goods of the same sort as those mentioned in the indictment but belonging to a different owner, and that those goods had been stolen from such owner.
"Lord CAMPBELL, C. J. I am of opinion that the evidence objected to was as admissible under the two first counts as it was under the third, for it was evidence which went to show that the prisoner was a very bad man, and a likely person to commit such offences as those charged in the indictment. But the law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the perpetrator of the first. The evidence which was received in the case does not tend to show that the prisoner knew that these particular goods were stolen at the time that he received them. The rule which has prevailed in the case of indictments for uttering forged bank-notes, of allowing evidence to be given of the uttering other forged notes to different persons, has gone great lengths, and I should be unwilling to see that rule applied generally in the administration of the criminal law. We are all of opinion that the evidence admitted in this case with regard to the scienter was improperly admitted, as it afforded no ground for any legitimate inference in respect of it. The conviction, therefore, must be quashed." Regina v. Oddy, 4 Eng. L. Eq. 574.
In Schaffner v. Commonwealth, 72 Pa. St. (13 Am. Rep.), the prisoner was indicted for the murder of his wife by poison. There was evidence of his criminal intimacy with the wife of S., on whose life was an insurance, the proceeds of which, on his death, the defendant had tried to procure. Held, that evidence that S. died with the same symptoms as the defendant's wife, and had been attended by the defendant, was inadmissible.
AGNEW, J., in his opinion, said, — "It is a general rule, that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt, on the ground that, having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offence is not proof, in itself, of the commission of another crime; yet it cannot be said to be without influence on the mind, for certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged. It therefore predisposes the mind of the juror to believe the prisoner guilty. To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or, it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evidence it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt." Shaffner v. Commonwealth, 13 Am. R. 651.
"It is, therefore, not competent for the prosecutor to give evidence of facts tending to prove another distinct offence for the purpose of raising an inference that the prisoner has committed the crime in question; nor is it competent to show that he has a tendency to commit the offence with which he is charged. Thus, on a prosecution for an infamous offence, an admission by the prisoner that he had committed such an offence at another time was held to have been properly rejected. Rex v. Cole, cited in 1 Phillipps on Ev. 499 (8th ed.)." State v. Renton, 15 N.H. 174.
The case of People v. Corbin, 56 N.Y. 363, well illustrates the practical application of this doctrine. The indictment was for forging the endorsement of one Van Amburgh on a promissory note. The defence was, that the prisoner was authorized to sign Van Amburgh's name. The prisoner had had such authority, but the prosecution attempted to show that the authority had been revoked. The question of the prisoner's guilt or innocence depended upon the inquiry whether the prisoner honestly believed that he was authorized to make the endorsement, or whether he knew that the authority had been revoked, and
signed Van Amburgh's name with criminal intent. To establish such intent, evidence was offered tending to show his acknowledgment that he had made a similar unauthorized use of the name of his father-in-law on other notes. The county judge charged the jury as follows: "While the proof that he has been guilty of other forgeries is not evidence upon which you are to convict him of this forgery, yet the proof of other forgeries in connection with this, so far as they are in the case, you have the right to consider, in determining what his intentions were at the time this paper was made and uttered. So far, you may consider all that character of evidence in the case, in determining the intent at the time this paper was made and uttered." The judge also, in his charge, said, — "The fact that the defendant is guilty of other forgeries is no evidence to prove that he committed this forgery. So far as his admissions to Ganoung concede the commission of forgeries against Ganoung, they may be considered by you in determining what was his intent at the time this note was made and uttered."
The verdict was set aside, and a new trial granted.
RAPALLO, J., in delivering the judgment of the court, said, — "The cases in which offences other than those charged in the indictment may be proved, for the purpose of showing guilty knowledge or intent, are very few; and this, we think, is not one of them. The fact that the prisoner made an unauthorized use of the name of Ganoung, if established, shows that he was morally capable of committing the same offence against Van Amburgh, but does not legitimately tend to show that he did so, or that he knew and understood that Van Amburgh's authority had been withdrawn, or that the signature in question had been made with criminal intent." People v. Corbin, 15 Am. R. 429.
The cases which have been cited by counsel for the government afford full illustration of the principles laid down in what has been said before.
It is proper, however, to remark what seems to me to be a fallacious use of the word intent. Ordinarily, intent is, I think, an inference of law from acts proved. The maxim is, that every man must be taken to intend the natural consequences of his acts; and if he knowingly and voluntarily does an act which is in violation of law, he is held to have intended to violate the law. This I think would be true, whether he did or did not know that the act was unlawful. Thus, if a man should knowingly and voluntarily utter a forged bank-note, or a counterfeit coin, he would be held guilty whether he did or did not know that the act was unlawful.
The cases cited by counsel for the government admit of being classified into several distinct groups.
In the first place is the class of cases in which other offences are shown for the purpose of proving guilty knowledge. To this class belong those cases in which, in the trial of indictments for uttering forged bank-notes, or counterfeit coin, the proof of other offences of the same kind is admitted. It might well happen that a person might have in
his possession a single counterfeit bill or coin without knowing it to be such; but he would be much less likely to do so twice, and every repetition of such an act would increase the probability that he knew that the bills or coins were counterfeit. If he did know it, the guilty intent would be an implication of law, and not an inference of fact. To this class belongs the case of Reg. v. Roebuck, cited in the brief.
Another class of cases consists of those in which it becomes necessary to show that the act for which the prisoner was indicted was not accidental, — e. g., where the prisoner had shot the same person twice within a short time, or where the same person had fired a rick of grain twice, or where several deaths by poison had taken place in the same family, or where children of the same mother had mysteriously died. In such cases it might well happen that a man should shoot another accidentally, but that he should do it twice within a short time would be very unlikely. So, it might easily happen that a man using a gun might fire a rick of barley once by accident, but that he should do it several times in succession would be very improbable.
So, a person might die of accidental poisoning, but that several persons should so die in the same family at different times would be very unlikely.
So, that a child should be suffocated in bed by its mother might happen once, but several similar deaths in the same family could not reasonably be accounted for as accidents.
So, in the case of embezzlement effected by means of false entries, a single false entry might be accidentally made; but the probability of accident would diminish at least as fast as the instances increased. To this class of cases belong Rex v. Voke, Reg. v. Geering, Reg. v. Cotton, Reg. v. Roder, Rex v. Mogg, Reg. v. Dossett, Reg. v. Bailey, Reg. v. Proud, Reg. v. Richardson, cited in the brief for the prosecution.
There is another class of cases in which proof of the commission of one crime tends to show a motive for the commission of the crime with which the prisoner is charged.
"A. was indicted for the murder of H. It was opined that A., having malice against P., had hired H. to murder him, and that H. did so; but that H. being detected, A. had murdered H. to prevent a discovery of his (A.'s) guilt respecting the murder of P. Evidence was given of expressions of malice used by A. towards P., and it was held that the prosecutor might also give evidence to show that H. was in fact the person by whom P. had been murdered." Rex v. Clewes, 6 Car. P. 221; Littledale, Har. D. 1, 1942.
"On trial of the petitioner for the murder of his wife, in the absence of direct evidence, proof of an adulterous intercourse between the prisoner and another woman is admissible, to repel the presumption of innocence arising from the conjugal relation." State v. Watkins, 9 Conn. 47; 2 U.S. D. 288.
So, in Com. v. Ferrigan, the adulterous intercourse of the defendant with the wife of the deceased tends to show a motive for the murder.
In cases of indictments for obtaining goods under false pretences, it very often happens that the respondent has been in some kind of business of which buying and selling goods on credit makes a part; and in such case the difficulty is, to draw the line between the points where legitimate business ceases and fraud begins. In such cases a single purchase of goods on credit might happen in the ordinary course of business; but if a party should make several purchases of goods at a time when he was in failing circumstances, that fact would have some tendency to show that he knew that he was in failing circumstances, and that he did not intend to pay for them, or expect that he should be able to do it. Of course the effect of such testimony would depend upon the number and amount of such purchases, the after-disposition of the goods purchased, and all the other circumstances. To this class belong the cases of Com. v. Eastman, Bradley v. Obear, and Hovey v. Grant.
Another class of cases consists of those in which the evidence tends to show a general plan or conspiracy, one act of which was that which is in issue. To this class belong Mason v. The State, and perhaps Com. v. Turner Shearer.
If the indictment were for being a common seller of spirituous liquor, the charge could be proved in hardly any other way than by showing many specific acts; and conversely, if a man were proved to be a professional counterfeiter, that would be evidence tending to show his guilty intent. Of this description are Rex v. Balls and Com. v. Edgerly.
In the case of sexual crimes, as fornication and adultery, where the object is to prove that the respondent has committed the crime with a particular individual, evidence tending to show previous acts of indecent familiarity would have a tendency to prove the breaking down and removal of the safeguards of self-respect and modesty, and the gradual advance, step by step, to the crime. Proof of the actual commission of the same crime would still more strongly tend to show the removal of those safeguards, and still more to make probable the commission of the crime on trial. To this class belong Com. v. Horton, Com. v. Thrasher, State v. Wallace, State v. Marvin, Com. v. Merriam, and Com. v. Lahey.
It should also be remarked that this being a matter of judgment, it is quite likely that courts would not always agree, and that some courts might see a logical connection where others could not. But however extreme the case may be, I think it will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other.
In the case under consideration, I cannot see any such logical connection, between the commission of the rape upon Julienne Rousse and the murder of Josephine Langmaid, as the law requires. I am unable to see any connection by which from the first crime can be inferred
that the respondent was attempting the commission of a rape when he committed the murder, if he did it, other than such inference as I understand the law expressly to exclude. Proof of the first crime would show that the respondent was a very bad man — would perhaps show a tendency or disposition to commit that particular crime; but it would go no further, and in fact would amount to little more than an attack upon the respondent's character, which is inadmissible unless he puts it in issue, and an attack upon his character by showing particular acts, which is also inadmissible.
There is another consideration which makes necessary the extremist caution in the admission of this kind of testimony, and that is, the hardship which would be imposed upon the respondent by raising such collateral issues, and the great complication which might be introduced into the trial. I do not by any means intend to assert that this consideration is conclusive. I do not see how, if the collateral fact has a legal tendency, on the principles I have stated, to prove the fact in issue, it can be excluded.
It seems to me clear, that if the evidence of the rape of Julienne Rousse were admissible, it would be equally admissible to prove the commission of any other similar offence, and that the government would not be confined to direct evidence of the fact.
We learn from the newspapers of the day that there is a vehement suspicion that the same person who murdered Josephine Langmaid murdered Miss Ball at St. Albans, and it would be equally admissible to try that case and show that fact as the other. The necessity of proving that fact, partly or wholly by an elaborate combination of circumstantial evidence, would not, that I can see, make it any the less admissible. It would certainly be an extreme hardship on the prisoner to compel him to enter upon such an investigation. I mention this case to illustrate the necessity of extreme caution not to admit such testimony unless there can be seen some distinct logical connection, such as the law requires, between the fact proposed to be proved and the fact in issue.
In the case of State v. O'Brien, 119 Mass. 342, the law in regard to the admissibility of evidence as to character is very fully and satisfactorily discussed. The distinction, that the term character concerns what the man is, and the term reputation concerns what is said of him, is kept plainly in view; and it is clearly shown that the only legitimate mode of proving character is by showing reputation.
Now, I think a careful examination of that part of the charge which relates to this evidence will show that it really, in substance, amounted to instructing the jury that they were to find the character of the prisoner from the fact proved by Rousse, and infer from such character that he would be likely to be actuated by passion and lust. It was really instructing the jury that they might find, from a particular act proved, the prisoner's character as a man possessed by unlawful and lustful passion, and infer from that that he was actuated by such passion in his conduct to the deceased. The matter really reduces itself
to attacking the prisoner's character by the proofs of particular acts, which the authorities clearly show to be inadmissible.
This portion of the charge, though not expressly excepted to, is mentioned as showing the particular view with which the evidence excepted to was admitted.