Opinion op the Court : The facts are as follows:
At the March, 1880, term of the district court of the first judicial district sitting in and for the county of San Miguel, John J. Webb, the defendant below and appellant here, was indicted by the grand jury for the murder in the first degree of Michael E. Killiher. To this indictment, the defendant appeared and pleaded not guilty.
The case was brought to trial at this same term, and upon the conclusion of which the jui-y found the following verdict:
“We, the jury, upon our oaths do say that we find the defendant guilty of murder in the first degree, in manner and form as charged in the indictment.”
Thereupon, at the same term, the defendant interposed a motion for a new trial, which was regularly brought to a hearing and overruled by the court. The court then pronounced sentence and judgment against the defendant, as follows:
“ It is therefore considered and adjudged by the court that the said defendant, John J. Webb, be taken hence to, and closely confined in the common jail of the county of San Miguel, until the ninth day of April, in the year one thous- and eight hundred and eighty; that on said day, between sunrise and sunset, he be taken from said jail to some spot in said county, to be selected by said sheriff, and then and there be by the said sheriff hanged by the neck until he be dead.”
From this sentence and judgment the case is here by appeal.
The record of the proceedings does not disclose the fact that any exceptions were taken in behalf of the defendant during the trial, though at every step during the progress of the proceedings subsequent to the filing of, the indictment, the defendant was aided by counsel.
All the evidence adduced on the trial was settled by bill of exceptions and is before us as part, of the record.
Several grounds of error are assigned by the appellant’s counsel, on which they claim the judgment ought to be reversed. These grounds we have reviewed in the order in which they occur. The first assignment of error is, that the verdict and judgment is contrary to law and void, because the jury found the defendant guilty of murder in the first degree but failed to assess the punishment.
This question we have already passed upon at the present term, in the cases of the Territory v. Young, ante, page 93, and the Territory v. Romine, ante, page 114, in which we decided that this was not error under our statute. The opinions of the court delivered in those cases, so far as this question is concerned, we adopt and affirm in this.
The second assignment of error is that the verdict of the jury was contrary to the law and evidence.
As -to the legality of the verdict, we have already decided. It cannot be said that the verdict was contrary to the evidence because there was positive evidence, which if true, fully' justified the verdict. The testimony of the witnesses was conflicting, and the most that could be claimed on behalf of the appelhant is that the verdict was contrary to the preponderance of the evidence.
The prisoner had thé benefit of a motion for a new trial. This was addressed to the sound discretion of the court below. The chief justice of this court, who presided as judge in that court, heard all the testimony as it was uttered by the witnesses. He, as well as the jury, had the opportunity to notice the manner, and to some extent the character, of each witness on the stand. They heard the inflections of his voice, saw the varying expressions of his features, observed the language of his gestures, took in the general style and make up of each witness, and observed, perhaps, a number of- other like things and incidents which though comparatively insignificant in themselves, yet, sometimes cast a flood of light upon the question of credibility. All this is an utter blank to the other members of this court, and renders them much less competent to weigh this conflicting evidence should they attempt to do so.
There is nothing in the record that casts the slightest suspicion on the integrity of the jury; and the fact that they found the defendant guilty of murder in the first degree, and that the court below refused a new trial, leaves us to infer that in the minds of judge and jury trying the cause there was no reasonable doubt of the prisoner’s guilt.
We might, were it necessary or proper, in addition to positive evidence, review and critically analyze the circumstances attending the killing of the deceased, and point out, when brought to the test of human experience, how several incidents then occurring would naturally suggest bad faith on the part of the prisoner, and indicate, with some degree of force, a premeditated design to kill before he approached or uttered a word to the deceased.
To sustain the proposition that a conviction will be set aside when contrary to the weight of evidence, the appellant’s counsel have cited as authority, Wharton’s Grim. Pl. and Pr., 8th ed., 551, sec. 813, where that author, under the head of New Trials, which are always within the sound discretion of the court, lays down this principle and applies it more especially to that class of cases where any of the material allegations of the indictment remain unproved, but in the conclusion of that section the same author says: “ If; however, there be conflicting evidence and the question be one of doubt, it seems the verdict will generally be permitted to stand; and this though the court may differ from the jury as to the preponderance of the evidence.” In support of this latter proposition, that author cites above thirty adjudications.
If this be the rule on a motion for a new trial which is addressed to the discretion of the court trying the cause where the evidence is conflicting, with how much more strictness ought the- rule to be adhered to by an appellate tribunal, to which like this court an appeal from an order overruling a motion for a new trial does not lie. No such appeal is ever allowable except under express provisions of statutes.
Where the evidence is contradictory and the verdict is against the weight of evidence, though a new trial may be granted by the court trying the cause in their discretion, the decision denying the same is not examinable by an appellate court: State v. Cruise, 16, Mo. 391; Herbon v. State, 7 Tex., 69.
If there had been no part of the evidence which if true would sustain the verdict, then an error of law would have been apparent from the record upon which we could reverse the judgment.
Under the rules governing the judicial administration of the criminal laws of this territory, this court can only review and determine errors of law appearing upon the face of the record : Cathcart v. Commonwealth, 37 Penn., 108. It is ■quite beyond the scope of its duties to determine the credibility of witnesses testifying in a lower court, the weight of their testimony aside from the law of evidence, or the reconciliation of conflicting testimony.
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Opinion op the Court : The facts are as follows:
At the March, 1880, term of the district court of the first judicial district sitting in and for the county of San Miguel, John J. Webb, the defendant below and appellant here, was indicted by the grand jury for the murder in the first degree of Michael E. Killiher. To this indictment, the defendant appeared and pleaded not guilty.
The case was brought to trial at this same term, and upon the conclusion of which the jui-y found the following verdict:
“We, the jury, upon our oaths do say that we find the defendant guilty of murder in the first degree, in manner and form as charged in the indictment.”
Thereupon, at the same term, the defendant interposed a motion for a new trial, which was regularly brought to a hearing and overruled by the court. The court then pronounced sentence and judgment against the defendant, as follows:
“ It is therefore considered and adjudged by the court that the said defendant, John J. Webb, be taken hence to, and closely confined in the common jail of the county of San Miguel, until the ninth day of April, in the year one thous- and eight hundred and eighty; that on said day, between sunrise and sunset, he be taken from said jail to some spot in said county, to be selected by said sheriff, and then and there be by the said sheriff hanged by the neck until he be dead.”
From this sentence and judgment the case is here by appeal.
The record of the proceedings does not disclose the fact that any exceptions were taken in behalf of the defendant during the trial, though at every step during the progress of the proceedings subsequent to the filing of, the indictment, the defendant was aided by counsel.
All the evidence adduced on the trial was settled by bill of exceptions and is before us as part, of the record.
Several grounds of error are assigned by the appellant’s counsel, on which they claim the judgment ought to be reversed. These grounds we have reviewed in the order in which they occur. The first assignment of error is, that the verdict and judgment is contrary to law and void, because the jury found the defendant guilty of murder in the first degree but failed to assess the punishment.
This question we have already passed upon at the present term, in the cases of the Territory v. Young, ante, page 93, and the Territory v. Romine, ante, page 114, in which we decided that this was not error under our statute. The opinions of the court delivered in those cases, so far as this question is concerned, we adopt and affirm in this.
The second assignment of error is that the verdict of the jury was contrary to the law and evidence.
As -to the legality of the verdict, we have already decided. It cannot be said that the verdict was contrary to the evidence because there was positive evidence, which if true, fully' justified the verdict. The testimony of the witnesses was conflicting, and the most that could be claimed on behalf of the appelhant is that the verdict was contrary to the preponderance of the evidence.
The prisoner had thé benefit of a motion for a new trial. This was addressed to the sound discretion of the court below. The chief justice of this court, who presided as judge in that court, heard all the testimony as it was uttered by the witnesses. He, as well as the jury, had the opportunity to notice the manner, and to some extent the character, of each witness on the stand. They heard the inflections of his voice, saw the varying expressions of his features, observed the language of his gestures, took in the general style and make up of each witness, and observed, perhaps, a number of- other like things and incidents which though comparatively insignificant in themselves, yet, sometimes cast a flood of light upon the question of credibility. All this is an utter blank to the other members of this court, and renders them much less competent to weigh this conflicting evidence should they attempt to do so.
There is nothing in the record that casts the slightest suspicion on the integrity of the jury; and the fact that they found the defendant guilty of murder in the first degree, and that the court below refused a new trial, leaves us to infer that in the minds of judge and jury trying the cause there was no reasonable doubt of the prisoner’s guilt.
We might, were it necessary or proper, in addition to positive evidence, review and critically analyze the circumstances attending the killing of the deceased, and point out, when brought to the test of human experience, how several incidents then occurring would naturally suggest bad faith on the part of the prisoner, and indicate, with some degree of force, a premeditated design to kill before he approached or uttered a word to the deceased.
To sustain the proposition that a conviction will be set aside when contrary to the weight of evidence, the appellant’s counsel have cited as authority, Wharton’s Grim. Pl. and Pr., 8th ed., 551, sec. 813, where that author, under the head of New Trials, which are always within the sound discretion of the court, lays down this principle and applies it more especially to that class of cases where any of the material allegations of the indictment remain unproved, but in the conclusion of that section the same author says: “ If; however, there be conflicting evidence and the question be one of doubt, it seems the verdict will generally be permitted to stand; and this though the court may differ from the jury as to the preponderance of the evidence.” In support of this latter proposition, that author cites above thirty adjudications.
If this be the rule on a motion for a new trial which is addressed to the discretion of the court trying the cause where the evidence is conflicting, with how much more strictness ought the- rule to be adhered to by an appellate tribunal, to which like this court an appeal from an order overruling a motion for a new trial does not lie. No such appeal is ever allowable except under express provisions of statutes.
Where the evidence is contradictory and the verdict is against the weight of evidence, though a new trial may be granted by the court trying the cause in their discretion, the decision denying the same is not examinable by an appellate court: State v. Cruise, 16, Mo. 391; Herbon v. State, 7 Tex., 69.
If there had been no part of the evidence which if true would sustain the verdict, then an error of law would have been apparent from the record upon which we could reverse the judgment.
Under the rules governing the judicial administration of the criminal laws of this territory, this court can only review and determine errors of law appearing upon the face of the record : Cathcart v. Commonwealth, 37 Penn., 108. It is ■quite beyond the scope of its duties to determine the credibility of witnesses testifying in a lower court, the weight of their testimony aside from the law of evidence, or the reconciliation of conflicting testimony.
It would, indeed, be establishing a precedent vicious in its nature and bad on principle if this court, sitting as an appellate tribunal to determine errors in law, should thus invade the province of the jury and attempt to determine these questions of fact from conflicting testimony.
If the affirmance of the judgment below should necessarily follow the overruling of this objection to the verdict now under consideration, such affirmance would not necessarily determine the fate of the prisoner.
The law has humanely reposed in the judgment and conscience of the governor the discretionary power to grant a full pardon or mitigate the punishment.
In determining the question of executive clemency, the governor may properly consider matters that are beyond the province of this court; and we think the ends of justice will be much better subserved by leaving the responsibility here, than that we should deviate from the course which the policy of the law has marked out for- us to pursue.
¥e hold, therefore, that the objection that the verdict is contrary to the evidence, ought not to be sustained in this case.
Cases, however, might arise wherein, though there might be some evidence to sustain every material allegation of the indictment, yet at the same time the evidence might be so very slight, as to justify an appellate court in reversing a judgment rendered thereon.
The third assignment of error is that before final judgment was pronounced, the prisoner was not asked if he had anything to say why sentence should not be pronounced against him. As authority in support of this proposition we are referred to said ed. of Wharton’s Crime Pl. and Pr. 604, sec. 906. where the rule at common law is shown to be that in capital felonies this was not only required, but that it should appear of record. But that author in the same section observes that “ in several of the states the rule is that the absence of such an averment will require the remittal by a court of error of the record to the trial court for a new sentence.” In other states the failure of the record in this respect has been held not to be ground for a refusal, though it is .agreed on all sides that “ the form is proper to be used.”
“ But this address is not to be viewed as an invitation to the defendant to bring forward additional motions in arrest of judgment, or for a new trial. Those motions have, according to the usual practice, been already made and disposed of. .
“The object'of the address is to give the defendant the opportunity to personally lay before the court statements which, by the strict rules of law, could not have been admitted when urged by his counsel in the' due course of legal procedure; but which, when thus informally offered from man to man, may be used to extenuate guilt and to mitigate punishment.”
It seems by this that the rule has not been uniformly adopted as common law among the various states of the Union. From the authorities cited, the courts of about as many states, holding one way as the other, and that the only benefit that can accrue to the defendant under any circumstances is to extenuate his guilt, or to mitigate his punishment.
This rule was adopted and subsequently became a part of the criminal code when the accused could not be a witness, to tell the court and jury anything in mitigation of punishment, or in extenuation of his guilt, and at a time also wrhen such extenuation and the grade of punishment rested largely in the power of the court.
In cases of capital homicide under our statute, if the accused is found guilty of murder in the first degree, the only opportunity he would have to make any impression on the court in extenuation of his guilt, and therefore in mitigation of the punishment, would be on a motion for a new trial.' But, if after this question has been disposed of, and the prisoner’s guilt has been fixed and determined at murder in the first degree, then there can be no extenuation of guilt, or mitigation of the punishment by the court. "While in the lower grades of homicide where the jury assesses the punishment, and determines the grade of the offense, the power of the court over such extenuation and mitigation is gone and the prisoner’s address to the court utterly useless.
But the fact that under the law the prisoner was a competent witness, and on the trial in this case actually gave his testimony in his own behalf, would seem to supersede any occasion for his personal address to the court in extenuation of his guilt or in mitigation of his punishment.
Under our peculiar statute as to homicide and the law of Congress applicable to the territories, rendering the defendant in criminal prosecutions a competent witness in his own behalf, we may as well concur with the courts of those states that hold that the non-observance of this rule as implied by, the silence of the record is not ground for reversal.
On principle it would seem that the observance of the rule ought to be presumed unless the record, by some statement, shows to- the contrary. Upon the ground that in a court of general jurisdiction, after acquiring jurisdiction, all the details of a trial are presumed to be regular and sufficient to sustain judgment until the contrary be shown.
In the case of Cathcart v. The Commonwealth, supra, defendant was under indictment for murder in the first degree. The record did not show affirmatively, that the prisoner had any counsel during the trial. This was one of the assignments of error. On this point the supreme court of Pennsylvania held, that they could not presume that the prisoner was denied counsel because the record did not show that he had counsel, notwithstanding the constitution of that state secured that right to every one indicted for crime, and that it was not ground for reversal.
It would be immeasurably more important to a prisoner on trial for' a capital felony to be aided by counsel than that, after he had testified in his own behalf and had been heard on a motion for a new trial, he should be asked if he had anything further to say why sentence should not be pronounced.
If the silence of the record in regard to counsel is not ground for reversal, it would seem on principle that such silence in regard to the matter now being considered should not be ground for reversal. Notwithstanding this ruling, we would not advise that a custom so honored by time and high authority should be disregarded under any circumstances.
The fourth assignment of error is that the court below allowed the prosecuting counsel, in his address to the jury, to charge the defendant with other offenses than the one on trial.
As to this objection, it is sufficient to say that upon examination of the record we do not find the fact to be as assumed by this assignment of error.
There are several other assignments of error based upon ex fa/rte affidavits used on the motion for a new trial, and on certain facts assumed to be true, but which relate to issues of fact for the jury. These all relate' to matters which are not properly before us for review.
We discover no error in the record.
The judgment is affirmed.