SUPREME COURT OF THE TERRITORY OF WASHINGTON
December, 1857, Decided
ERROR to the Second Judicial District holding terms for
Pierce County.
Court: Judgment affirmed.
Syllabus: The general rule is, that statutes take immediate
effect.
Pending prosecutions fall with the repeal of criminal
statutes.
The act of Congress, August 16, 1856, limiting the times and
places of holding District Courts in this Territory, is not
an act affecting jurisdiction, but simply designating times
and places for the exercise of jurisdiction; and until such
designation of times and places of holding the courts is
made by the judges of the Supreme Court, the laws of the
Territory, on the subject, are controlling.
Does the sixth amendment of the Federal Constitution apply
to cases in territorial courts? Quaere.
The act of the territorial legislature assigning Pierce
County to the Second Judicial District does not divest the
prisoner of any constitutional right, nor does the fact that
the jury came from the body of the district instead of
Pierce County, as such enlargement of venue is but an
enlargement of Pierce County.
An indictment charging murder, as at common law, is
sufficient to sustain a verdict of murder in the first
degree under our statutes.
The peculiar circumstances distinguishing murder in the
first degree, under our statutes, need not be set out in an
indictment.
In case of a statutory offense, unknown to the common law,
an indictment should charge the offense to have been under
the circumstances and with the intent mentioned in the
statute; but even in such case, the exact words of the
statute need not be followed, provided words of equivalent
meaning be employed.
The jury are to determine from the evidence the degree of
the murder.
If the record shows the jury were duly sworn, this shows a
proper oath was administered.
In this case the jury returned a "verdict of guilty as
charged, and that he suffer death." Held, sufficient to
sustain a verdict for murder in the first degree.
If some counts in an indictment are good and some bad, a
verdict is presumed to be based on the good counts.
A new trial should not be granted for newly discovered
evidence, unless it is apparent to the court that the
evidence would alter the verdict.
Courts have power to restrain counsel, so as to keep them
within the proper limits of the law.
It sufficiently appears that the prisoner was present when
the verdict was rendered, and sentence passed.
Judge(s) Opinion by McFADDEN, Associate Justice.
Opinion By: McFADDEN
Opinion by McFADDEN, Associate Justice
The case comes before us on a writ of error to the Second
Judicial District. The prisoner has occupied a position of
influence, as one of a band of Indians, who, in connection
with other tribes, sacrificed the lives of so many of our
citizens, in the war so cruelly waged against our people on
the waters of Puget Sound.
It speaks volumes for our people that, notwithstanding the
spirit of indignation and revenge, so natural to the human
heart, incited by the ruthless massacre of their families,
that at the trial of the accused deliberate impartiality has
been manifested at every stage of the proceedings.
In the discussion of the grave questions presented,
involving the life and personal liberty of the accused, we
are anxious that none other than considerations of public
justice, with due regard for the rights of the accused,
under the law, should influence us in the conclusions to
which we may arrive, whether the accused be guilty or
innocent. It is to be regretted, for the sake of the
accused, as well as the future peace of the Territory, that
a more summary mode of trial, one in accordance with the
practice of the government and in perfect consonance with
the rules of international law, had not been adopted. (2
Annals of Congress, 15th Congress, 2d sess.; vide Appendix,
p. 1938, et seq.; Dispatches of State Department, U. S.)
This case, however, now devolves itself upon this court, and
we are not disposed to shrink from the obligations of duty.
It is assigned for error:--
1. There is no legal indictment in this, to wit: The term
of Court, at which what purports to be an indictment was
found, was unauthorized by law, and therefore is illegal and
void, and the grand jury who found the same had no legal
authority to inquire into the offense charged.
2. The verdict is contrary to the evidence.
3. The court erred in overruling the motion for a new
trial.
4. The court erred in overruling the motion in arrest of
judgment.
5. The jury were not duly elected, tried, and sworn
according to law, to try the issue joined, in this, the oath
required by law was not administered to them.
In considering this case, we shall reverse somewhat the
order of proceedings as presented by the assignment of
errors, and shall examine the first error assigned, in
connection with the second proposition discussed by the
counsel for plaintiff in error, under the fourth error
assigned, to wit: "That the plaintiff in error was entitled
to a trial in the district in which the crime was committed,
which district should have been previously ascertained by
law."
In order to a true elucidation of this case, it becomes
necessary to see by what authority, and under what
legislation the courts of this Territory have been
organized, and the extent of their jurisdiction. It is
provided by the organic law of the Territory, passed by
Congress and approved March 2, 1853, that the judicial power
of the Territory shall be vested in a Supreme Court,
District Courts, and Probate Courts; the Territory is to be
divided into three districts, and a District Court to be
held in each of the districts, by one of the judges of the
Supreme Court, at such times and places as may be prescribed
by law; the District Courts to have and exercise the same
jurisdiction in all cases arising under the Constitution of
the United States and the laws of the Territory, as is
vested in the Circuit and District Courts of the United
States.
Upon the organization of the Territory, the first
legislative assembly, in pursuance of the provisions
contained in the organic law, divided the Territory into
three districts. The only one necessary to be considered,
for the purposes of this case, is the Third District, which
was composed of the counties of Pierce, King, Island,
Jefferson, Clallam, and Whatcom. Section 6 of the act of
1854, page 448, Laws W. T., sess. 1854, provides that two
terms of the District Court shall be held in each county
every year, to wit, for Pierce County commencing on the
first Monday in May and November. By an act passed
subsequently at the same session, the judges were assigned
to their respective districts. Under this state of the law,
courts were held and judicial proceedings were determined by
them up to October, 1856, when the justices of the Supreme
Court were placed in possession of an act of Congress,
approved August 16, 1856, regulating fees, etc., section 5
of which provides, "that the judges of the Supreme Court in
each of the Territories, or a majority of them, shall, when
assembled at their respective seats of government, fix and
appoint the several times and places of holding the several
courts in their respective districts, and limit the duration
of the term thereof; provided, that the said courts shall
not be held at more than three places in any one Territory."
(9 U. S. Stats. at Large, p. 49.) In conformity with the
provisions of said section 5, a majority of the justices of
the Supreme Court of this Territory assembled at Olympia,
the capital of the Territory, on the tenth day of November,
1856, and proceeded to fix the times and places of holding
the courts in the several districts. In the Third District,
in which was the county of Pierce, the two terms were
appointed, the fall term, 1856, to commence on the third
Monday of November, at Steilacoom, in said county of Pierce.
On the assembling of the legislature, the districts were
modified and the county of Pierce was included in the Second
Judicial District.
A term of the District Court for Pierce County was held
subsequent to the passage of the act of Congress, August 16,
1856, and prior to the assembling of the justices of the
Supreme Court at the capital of the Territory, in pursuance
of said act, also prior to the transfer of Pierce County, by
legislative act, to the Second Judicial District. At this
term, which commenced on the third Monday of November, A. D.
1856, the grand jury, inquiring for the body of the county
of Pierce, found a bill of indictment against the prisoner
for murder. At the same term the defendant was arraigned and
tried on said indictment. The jury not being able to agree,
the case was, on the transfer of Pierce County by
legislative act, passed into the Second Judicial District,
and the defendant was put upon trial in the District Court
for said Second District, in which was the county of Pierce,
upon the indictment found against him in said Pierce County.
The jury returned a verdict of guilty, and by the provisions
of our statute, found that the prisoner should suffer death.
Now it is true, as claimed by the counsel for the
prisoner, that a statute ordinarily takes effect immediately
after its passage, unless there be a restraining or
qualifying clause; this is too well settled for controversy.
( Matthews v. Zane, 20 U.S. 164, 7 Wheat. 164, 5 L. Ed. 425;
1 Kent Com. p. 445.) It is equally well settled that if an
offense be created by statute, and pending the prosecution
the act be repealed, the whole case falls. No judgment can
be rendered in any suit for a penalty after the repeal of
the act by which it was imposed; in other words, the repeal
of a penal statute puts an end to all suits founded upon it.
(3 Burr. 1456; 5 Cranch, 281; 3 How. 534; 13 How. 429.)
The effect of legislative acts abolishing courts,
transferring jurisdiction, or repealing laws, under which
proceedings have been commenced, is so well understood by
the profession that but little difficulty can arise. All of
the cases examined refer to legislation which either
transfers jurisdiction, creates it, or supersedes the
enforcement of law by repeal. None of the cases apply to the
principle now under consideration. In this case, the act of
Congress of August 16, 1856, creates no new tribunal; it
neither extends nor diminishes the jurisdiction of the
courts of the Territory in cases of crime, but simply
provides for a consolidation of the places of holding courts
in the several districts into one for each, and provides
that the times and places of such terms shall be such as may
be agreed upon by a majority of the judges of the Supreme
Court when assembled at the seat of government. The
practical effect of the act was to enlarge the area of the
territorial jurisdiction, by reducing into one that which
before was exercised in several counties. No increased
jurisdiction is given by the act over crimes or
misdemeanors, no new offenses have been created, no increase
or diminution of penalty for offenses already defined by
law. It is not the abolition of one judicial tribunal and
the transfer of its jurisdiction to another. That which was
crime before the act of Congress still continues crime. The
offenses of murder, arson, and burglary still continue the
same. The penalties for these and other offenses remain
unchanged, neither diminished nor increased. The
jurisdiction of the District Court for the Second Judicial
District was not enlarged, so as to embrace any class of
offenses previously excluded, nor yet was the jurisdiction
diminished.
Did the case fall within the range of that numerous class
arising from the repeal of the law creating an offense, it
could be easily disposed of, but such is not the fact. It is
claimed by the counsel for the prisoner that the act of
Congress referred to went into effect immediately upon its
passage, and consequently worked a repeal of so much of the
organic act, and also such laws of the Territory as provided
for, and regulated the District Courts of the Territory. We
have seen that it is well settled, as a general principle,
that a statute properly enacted takes effect from the date
of its passage; and it is now too well settled to gainsay
the rule, by reason of the hardships or injustice which may
result from it. Now, if there is nothing in the act of
Congress indicating the time when the statute shall take
effect, it must be considered as in force from the date of
its passage. It is necessary, therefore, to recur to the act
for the purpose of construction. It has been said that where
the intention of the legislature or the law is doubtful and
not clear, the courts ought to give such interpretation as
is most consonant with equity and least inconvenient. (
Kerlin v. Bull, 1 U.S. 175, 1 Dall. 175, 1 L. Ed. 88.) The
best exponents of the legislative mind are the words of the
statute, when they are free from ambiguity, but when they
are not, we must resort to legislation on kindred subjects,
the spirit of the institutions, and the habits of the
community to discover the intent of the legislature. (
Commonw. v. Pa. Ins. Co. 1 Harris, 166.)
According to the arguments of prisoner's counsel, for all
felonies committed within the county, prior to the passage
of said act of Congress, not prosecuted to conviction and
judgment, the perpetrators would go unscathed by the
penalties of the law. Now can it be presumed that Congress
intended by the passage of this act to unkennel every felon
in the Territory undergoing prosecution, except such as were
suffering under the judgments of the courts? We cannot so
believe, and a reference to the act satisfies us that such
was not the intent of Congress. The fifth section of said
act provides, "that judges of the Supreme Court in each of
the Territories, or a majority of them, shall, when
assembled at their respective seats of government, fix and
appoint their several times and places of holding the
several courts, in their respective districts, and limit the
duration thereof; provided, that the said courts shall not
be held at more than three places in any one Territory, and
provided further, that the judge, or judges, holding such
courts, shall adjourn the same without day, at any time
before the expiration of such terms, whenever, in his or
their opinion, the further continuance thereof is not
necessary." This embraces the entire legislation of Congress
on the subject. By the provisions of the section, a duty is
devolved upon the judges of the Supreme Court, without,
however, specifying any particular time within which the
specific duty was to be performed. The performance of this
duty was, we think, a condition precedent, and until the
assembling of the supreme judges, and their determination,
the law was inoperative. Had the judges been authoritatively
informed, prior to the fall terms of the courts in 1856, of
the passage of this act of Congress, it would have been
incumbent on them to have assembled at the seat of
government, and provide for terms of court, in conformity
with the act. The act is limited by its terms to the times
and places of holding courts.
Under the second branch of the proposition, as we are
considering it, the counsel for the prisoner have urged that
there was error in overruling the motion in arrest of
judgment, on the ground that the verdict was against the
law, in this, "that the prisoner was entitled to a trial in
the district in which the crime was committed, which
district should have been previously ascertained by law." In
support of this, the counsel refer to article vi.,
amendments to the Constitution of the United States.
Entertaining the view which we do upon this subject, it
would be unnecessary to say, for the purposes of this case,
whether the clause is operative in the State or territorial
courts. It has been decided in reference to section 5 of the
amendments of the Constitution, "which would appear to stand
in pari materia with the section under consideration," by
the Supreme Court for the State of Vermont, that it applies
only to cases in the United States courts. ( State v. Keyes,
8 Vt. 57; 30 Am. Dec. 450.)
The cases arising under that clause of the section which
provides that no person shall be subject for the same
offense, to be twice put in jeopardy for life or limb, seem
to have been discussed in the State courts, with reference
to a similar clause, contained in several of the State
constitutions. In some of the States the doctrine of Justice
Story, as laid down in 2 Sum. page 43, et seq., has been
accepted and recognized. A doubt, however, is expressed by
Judge Davis, in this case, whether the section is applicable
to the State courts. (2 Sum. p. 102.)
In this case now before us, the indictment was found in
the District Court for the county of Pierce, after the
passage of the act of Congress, limiting the places of
holding the courts to three in the Territory. The
legislature, by act of 1857, defined the judicial districts.
Pierce County was by this act included in the Second
Judicial District. By an act passed January 26, 1857, "it is
provided that so far as the jurisdiction of offenses
cognizable by the District Court and the trial of criminals
are concerned, each judicial district shall constitute one
county." The district was enlarged; in other words, Pierce
County, for the purposes of criminal prosecutions, was
enlarged so as to embrace other counties. There was no
transfer of jurisdiction. The jury came from Pierce County.
The prisoner was not deprived of his right at common law to
have his case tried by a jury of the vicinage. It is the
same as if the other counties forming the judicial district
had been divested of their corporate capacity and merged in
the county of Pierce. It is not the case of an assumption of
jurisdiction, by the courts of one county to try felonies
committed in another. It is not the case of carrying the
person, having committed the crime in one State, into
another for trial, or into a separate and distinct district.
These all operate to the exclusion of the State, district,
or county in which the offense was committed; but in the
case under consideration, there is no such exclusion of the
county of Pierce as would bring the case within the purview
of the sixth section of the amendments to the Constitution,
referred to, or that stringent rule of the common law which
required that a party charged with crime should be tried in
the county in which the offense was committed.
We are therefore of the opinion that the District Court
for Pierce County, in the first instance, and the District
Court for the Second Judicial District, in the second place,
had full and complete jurisdiction in the premises.
Another error, it is alleged, has been suggested by the
record, and has been argued with some degree of emphasis,
viz: That the indictment is not framed in conformity with
the statute law of Washington Territory, in this, that
although the indictment, which contains but a single count,
is a good indictment at common law for murder in the first
degree, yet that it is not good under the statute which
divides the offense which at common law was murder in the
first degree, into two separate and distinct grades--murder
in the first and second degree--and provides two different
punishments, and is as follows: "Every person who shall
purposely and of deliberate and premeditated malice, or in
the perpetration or attempt to perpetrate any rape, arson,
robbery, or burglary, or by administering poison, or causing
the same to be administered, to kill another, every such
person shall be deemed guilty of murder in the first degree,
and upon conviction thereof shall suffer death." (Sec. 12,
p. 78, Laws W. T. 1854.) Section 13 of the same act
provides, that "every person who shall, purposely and
maliciously, but without deliberation and premeditation,
kill another, every such person shall be deemed guilty of
murder in the second degree, and upon conviction thereof,
shall be imprisoned in the penitentiary," etc.
Now, it is claimed in the argument of counsel for
plaintiff in error, that in framing an indictment for murder
under our statute, that the offense should be charged to
have been committed under the specific circumstances named
in the statute, and in the terms used in the statute, so
that it might be determined by the record whether the
offense charged be murder in the first or second degree. If
there be anything in the law constituting different grades
of this offense, which would work such an innovation in the
common-law rule as to require a modification of the
common-law form of the indictment, then this objection would
be valid, and the indictment would be sufficient, under our
statute.
In the case of a statute offense, unknown to the common
law, it is a general rule, that the indictment must charge
the offense to have been committed under the circumstances,
and with the intent mentioned in the statute, which of
course contains the only appropriate definition of the
crime. ( State v. Jones, 10 Tenn. 22, 2 Yer. 22; State v.
O'Bannon, 1 Bail. 144.) But even in that case, it is said to
be unnecessary to pursue the exact words of the statute
creating the offense, if other words are used in the
indictment which are equivalent, or words of a more
extensive signification, and which necessarily include the
words used in the statute, as when advisedly is substituted
for knowingly, or maliciously for wilfully, and the like. (
King v. Fuller, 1 Bos. & P. 180; United States v. Bachelder,
2 Gall. 15, 24 F. Cas. 931.)
It is otherwise in indictments for common-law offenses,
when the law has adopted certain technical expressions to
define the offense, or to indicate the intention with which
it was committed; in which case the crime must be described,
or the intention must be expressed by the technical terms
prescribed, and no other.
It has frequently been decided that in an indictment for
murder, the term "murder of his malice aforethought" is
absolutely necessary in describing the crime of murder.
In the case of the People v. Enoch, 13 Wend. 173; 27 Am.
Dec. 197, a case most elaborately argued by counsel, passed
upon by the Supreme Court, and subsequently by the appellate
court, in the opinion delivered by the chancellor, it is
laid down that "in determining the question whether an
indictment should be drawn as at the common law, or should
appear to be founded upon a statutory provision which is
applicable to the offense, the following rules are to be
observed: If the statute creates an offense, or declares a
common-law offense, when committed under particular
circumstances, not necessarily included in the original
offense, punishable in a different manner from what it would
have been without such circumstances; or where the statute
changes the nature of the common-law offense to one of a
higher degree, as where what was originally a misdemeanor is
made a felony, the indictment should be drawn in reference
to the provisions of the statute creating or charging the
nature of the offense, and should conclude 'against the form
of the statute.' But if the statute is only declaratory of
what was previously an offense at common law, without adding
to or altering the punishment, it need not conclude against
the form of the statute."
"When the legislature abolishes an offense which at the
common law was a felony, or reduces it to the grade of a
misdemeanor only, the case of unlawful killing, by a person
engaged in the act which was before a felony, will no longer
be considered to be murder, but manslaughter merely. Such
changes in the law of murder have often occurred, both in
this country and in England; yet it never has been thought
necessary to change the common-law form of the indictment to
meet cases of this description." ( People v. Enoch, 13 Wend.
175.) "The court and jury in such cases immediately apply
the common-law principle, and the killing is adjudged to be
murder or manslaughter, according to the nature and quality
of the crime that the offender was perpetrating at the time
the homicide was committed." ( People v. Enoch, 13 Wend.
176.) The chancellor, therefore, arrives at the conclusion
that a common-law indictment for murder is proper under the
provisions of the Revised Statutes of New York, and that a
defendant cannot be convicted on such an indictment of a
felonious homicide with malice aforethought, unless the
evidence is such as to bring the case within the statutory
definition of murder. ( People v. Enoch, 13 Wend. 176.)
The indictment in the case of Enoch contained three counts
substantially alike, except that in the first the offense
was charged to be contrary to the forms of the statute. The
indictment was predicated upon the Revised Statutes of New
York, which provides that the homicide should be murder: (1)
When perpetrated from a premeditated design to effect the
death of the person killed, or of any human being. (2) When
prepetrated by any other act, imminently dangerous to
others, and evidencing a depraved mind, regardless of human
life, although without premeditated design to effect the
death of any particular individual. (3) When perpetrated
without any design to effect death, by a person engaged in
the commission of any felony. (Rev. Stats. N. Y. 656, sec.
5.)
In the indictment in that case, the form is the same as
the case now under consideration, except in the number of
the counts. The offense was charged in the common-law form
to have been committed feloniously, wilfully, and of malice
aforethought, instead of charging it to have been
perpetrated from a "premeditated design to effect the death
of the person killed," which are the words of the statute,
and the indictment was held to be good, after being
subjected to the ordeal of two courts of review.
Pennsylvania, in 1794, passed an act materially modifying
the rules of the common law in reference to felonious
homicide. In this act, among other qualifications, it is
provided "that all kinds of wilful, deliberate, and
premeditated killing shall be murder in the first degree;
also, all killing committed in the perpetration or the
attempt to perpetrate any arson, rape, robbery, or
burglary;" and the jury trying the case shall, if they find
such person guilty thereof, ascertain in their verdict
whether it be murder in the first or second degree.
(McKinny's Digest Penn. Stats. 658.)
In Virginia there is also a similar statute, which, after
providing for murder perpetrated by means of poison, etc.,
adds, "or by any other kind of wilful, deliberate, and
premeditated killing," and then follows as in the
Pennsylvania statute.
It has been held under the Pennsylvania statute, that it
is not necessary that the indictment should describe the
offense, so as to show whether it be murder in the first or
second degree. ( White v. Commonw. 6 Binn. 179; 6 Am. Dec.
443.)
Nor is it necessary to describe it as wilful, deliberate,
and premeditated, as expressed in the act of assembly. (
Commonw. v. Joyce, cited in 6 Binn. 179 at 183.)
Nor is it necessary to set forth that it was perpetrated
in the actual or attempted arson, rape, burglary, or
robbery. (Commonw. v. Flanagan, 7 Watts & Serg. 415.)
In Virginia it is necessary that the indictment should
charge the offense as murder in the first degree. ( Wicks v.
Commonw. 4 Va. 387, 2 Va. Cas. 387; Commonw. v. Miller, 3
Va. 310, 1 Va. Cas. 310.)
Nor is it necessary to use that description which,
according to the statute, is murder in the first degree. (
Commonw. v. Miller, 3 Va. 310, 1 Va. Cas. 310.)
Other authorities might be brought in support of these,
but we think it unnecessary.
The statutes of Pennsylvania and Virginia provide that the
jury are to determine, from the evidence under an indictment
for murder in the first degree, whether the homicide be
murder in the first or second degree. A like duty devolves
upon them under the provisions of our statutes. (Laws W. T.
sec. 122, p. 120, sess. 1854.)
It is enacted that, "upon an indictment for an offense,
consisting of different degrees, the jury may find the
defendant not guilty of the degree charged in the
indictment, and guilty of any degree inferior thereto, or of
an attempt to commit the offense." We are therefore of the
opinion that, in this particular, there is no error.
Fifth assignment of error: "The jury were not duly
elected, tried, and sworn, according to law, to try the
issue joined, in this: The oath required by law was not
administered to them." Laws of W. T., page 119, section 107,
sess. 1854, provides "that the jury shall be sworn, or
affirmed, to well and truly try, and true deliverance make,
between the Territory and the prisoner at the bar whom they
shall have in charge, according to the evidence."
The record exhibits the following entry: "And thereupon
comes a jury of twelve good and lawful men, duly elected,
tried, impaneled, and sworn, to wit," etc. The form of oath
of jurors is usually prescribed by statute. There is nothing
in our act requiring the oath administered to be spread upon
the record. If it appear affirmatively that the jury were
lawfully sworn, it will be sufficient. In this case, the
record affirms that the jury were duly sworn, that is,
legally, lawfully sworn. We think this sufficiently appears
from the record, and can work no prejudice to the prisoner.
It is claimed that the verdict in this case should be
arrested as being contrary to law. (1) That the jury do not
find the degree of the offense, but find, as it appears by
the record, in the words following, namely: "On their oaths
do say, we, the jury, find the defendant Leschi guilty, as
charged in the indictment, and that he suffer death."
It is claimed that the offense being of different degrees,
the jury should have found specifically that the defendant
was guilty of murder in the first degree, in order to
warrant judgment of death.
The indictment in this case is drawn in the common-law
form, containing but one count, and that for murder in the
first degree. The practice, both in England and this
country, has always been, when there has been a general
verdict of guilty, on an indictment containing several
counts, some bad and some good, to pass judgment on the
counts that are good, on the presumption that it was to them
the verdict of the jury attached, and on the same reasoning,
where one of two counts is bad, and the defendant is found
guilty and sentenced generally, the presumption of law is
that the court awarded sentence on the good count, and the
sentence is not erroneous if it is warranted by the law
applicable to the offense charged in that count. (Wharton's
Criminal Law $(3d ed.$), p. 976.) In the case of State v.
Montague, 13 S.C. L. 257, 2 McCord 257, it is said that
where there are several counts, prescribing offenses to
which there are several punishments, a general verdict of
guilty is bad. Where an indictment charges in one count the
breaking and entering a building with intent to steal, and
in another count a stealing in the same building on the same
day, and the defendant is found guilty generally, the
sentence, whether that which is proper for burglary only, or
for burglary and larceny also, cannot be reversed on error,
because the record does not show whether one offense only or
two were proved on the trial, and as this must be known by
the judge who tried the case, the sentence will be presumed
to be according to the law that was applicable to the facts
proved. ( Kite v. Com., 52 Mass. 581, 11 Met. 581.)
In Pennsylvania it has been held that, where the
indictment charged the prisoner with perpetrating the crime
by means of poison, and the jury found the prisoner "guilty
in manner and form as stated in the indictment," without
specifying the degree of the offense, there being different
punishments provided by the statute, the court will adjudge
the offense to be murder in the first degree, and will
pronounce sentence of death. (Commonw. v. Earle, Lewis,
Pres. Lycoming, Oyer, and Ter. 1836, 1 Whart. 525.)
In a later case decided by the same judge, in the same
court, in 1838, United States C. L., page 398, it was ruled
that when the indictment charged the prisoner with
perpetrating the murder "by lying in wait" on or near a
certain highway, and the jury find him guilty, without
stating the degree, the court will adjudge it murder in the
first degree, and pass sentence of death.
The indictment in this case sets forth all the facts
necessary to constitute the offense murder in the first
degree. The statute makes it incumbent on the jury, when
they find the defendant guilty, to state the punishment to
be inflicted. The jury returned a verdict of guilty, as
charged in the indictment, and that he suffer death.
We have not been able to find a single authority which
would go to show that this verdict, under this indictment,
is wanting in any of the specific qualities required by law.
Had the jury returned a general verdict, and found a
different punishment from that prescribed for the offense,
as charged in the indictment, it would have furnished
sufficient cause for the arrest of judgment. The jury,
however, find the prisoner guilty as charged in the
indictment--that charge is for murder in the first degree,
and they have found the punishment corresponding to the
facts charged, as provided by our statute.
The indictment itself is framed in accordance with the
precedents furnished the profession in the United States C.
L. We think there is no sufficient error here which would
warrant us in disturbing the judgment.
The right of the prisoner to a trial in the district in
which the crime was committed, which shall have been
previously ascertained by law, is the second proposition
urged by the counsel for the prisoner, in arrest of
judgment. Having discussed this in connection with the
proposition contained in the first assignment of errors, we
shall not add anything.
It is alleged for error, that the verdict of the jury is
contrary to the evidence in the case.
We have examined the evidence as presented by the record,
and which has been made a part of the same, and in so doing
we have been desirous of giving the prisoner the benefit of
every reasonable doubt. The testimony of Rabbeson is clear
and positive against the prisoner; he speaks with certainty
of the fact of Leschi's presence. He says he has known him
for ten years, and gives a plain narrative of the whole
transaction. With reference to many of the material facts,
he is fully sustained by the witness principally relied upon
by the prisoner, except that he did not see or recognize
Leschi at the place where the shooting took place. An
attempt was made on the trial to discredit the witness,
Rabbeson, but it was unsuccessful. It is well settled as a
rule of law, that in all cases jurors are judges of the
facts, and emphatically so, in criminal cases, and unless
the evidence greatly preponderates against the verdict in
criminal cases, courts are exceedingly cautious in
interfering with the verdict of the jury.
In this case the prisoner has already had the benefit of a
review of the evidence by the judge who tried the case
below, who had not only the evidence before him, but who had
an opportunity of observing the deportment of the witnesses
on the stand. We are of the opinion that there is no such
preponderance of evidence against this verdict as would
warrant us in interfering.
But it is claimed that a new trial should have been
granted, on the ground of newly discovered evidence, and
which he could not have discovered with reasonable
diligence, and produced at the trial.
The counsel in this case on the first trial had every
opportunity to determine the relevancy of the testimony
against the prisoner, and, as the fact which they wish to
establish was not exclusively within the knowledge of the
witness, whose testimony they desire, but might have been
shown by others in the neighborhood, we are inclined to
doubt whether there has been exercise of that reasonable
diligence which should be required. There is, however,
another view of this, which supersedes the necessity of
determining this point. It is laid down as a rule of law,
that, when a motion for a new trial is considered, the court
must judge, not only of the competency, but of the effect of
evidence. If, with the newly discovered evidence before
them, the jury ought not to come to the same conclusion,
then a new trial may be granted, otherwise they are bound to
refuse the application. In the case of Ludlow v. Park, 4
Ohio 5, it is ruled that, in considering the motion, the
court will not inquire whether taking the newly discovered
testimony in connection with that exhibited on the trial, a
jury might be induced to give a different verdict, but
whether the legitimate effect of such evidence would require
a different verdict. In the case of Martin v. Marvin, 9
Legal Intel. 2, it was ruled in the same way. We are
satisfied from an examination of the affidavit on which this
application was grounded, that should a new trial be granted
by this court, the legitimate effect of the whole evidence
would not require a jury to find a different verdict.
It is alleged that the court erred in failing to charge
the jury that they could not find the prisoner guilty of an
offense less than that of murder in the first degree.
There is nothing in the record going to show what the
charge of the court was. But it is said that the court erred
in remarking to the jury, after the argument of counsel,
"that they had now heard the arguments of counsel, and the
charge of the court, and that the closing counsel had, in
some degree, gone outside the case; that all the jury had to
decide upon was the evidence given upon the trial--the law
they were to take from the court." We see nothing improper
here. It is always the duty of the court to restrain
counsel, and keep them within proper limits.
It is alleged that it does not sufficiently appear by the
record that the defendant was present at the trial when the
verdict was rendered, nor yet when sentence of death was
passed. It appears from the record that the jury, naming
them, on their oaths do say: "We, the jury, do find the
defendant Leschi guilty as charged in the indictment, and
that he suffer death; and thereupon the defendant gives
notice for a motion for a new trial." The sentence as stated
in the record, "and the defendant saying nothing why
judgment should not be pronounced against him, it is
considered by the court now here, that the defendant be
taken to Steilacoom, in Pierce County, on Wednesday, the
tenth day of June, in the year 1857, and there, on said day,
between the hours of ten o'clock in the forenoon and four
o'clock in the afternoon, be hung by the neck until he be
dead." We think it sufficiently appears that the defendant
was not only present when the verdict was rendered against
him, but that he was present when the sentence was
pronounced. We are, therefore, of the opinion that the
judgment in this case should be affirmed.