Jefferds v. People

By the court, Ingraham, P. J.

The prisoner was convicted of murder in the first degree, in killing John W. Matthews.

The offense was committed in June, 1860. The cause was tried in December, 1861, and the prisoner was sentenced, on the 4th January, 1862, to suffer the punishment of death on the 20th February, 1863, and to be confined at hard labor in the State prison until such punishment of death shall be inflicted.

The case comes before us on a writ of error and bill of exceptions.

Upon the trial, the court admitted evidence of threats made by the prisoner two years prior to the murder. To this the prisoner’s counsel objected. At the time this evidence was offered, no proof had been given of any friendly feeling existing between the prisoner and Matthews. It was admissible to show that for a period even as long as two years the prisoner had threatened the life of the deceased. It is no objection to such evidence that a period of years had expired since the threats were made. On the contrary, long continued animosity and ill will are better evidence of a state of mind which would ripen into deliberate murder than the hasty ebullition of passion. The theory of the law as to murder is that it is made on premeditation, and the motives for such an act are not the less powerful because they are the result of ill feelings' entertained for years.

It was, however, urged upon the argument that it was im properly admitted because it was afterwards shown that friendly feelings existed between the parties. This evidence was put in afterwards. It was proper to be submitted to the jury, and from it to urge reasons why the threats before proven should lose their weight with the jury; but this evidence furnished no reason why the previous evidence was improper when admitted.

It is also urged that his honor the recorder, in his charge to the jury, referred to this evidence as furnishing motive for the crime.

I see nothing in the recorder’s charge which is objectionable in this respect. It is true that he referred to these threats as evincing a state of feeling of hostility. At the same time he told them, if those threats had been made over .two years previously, they would be entitled to little weight with the jury. It was only in subsequent disagreements between the parties they assumed more force and effect.

The instructions on this point were not erroneous, and contained sufficient caution to prevent the jury from giving more weight to them than was proper.

William J. Walton and William B. Moore, were examined by the prosecution, to prove admissions made by the prisoner, in regard to the killing of Walton. At the time these admissions were proven, no objections were made to them on behalf of the prisoner. Subsequently, the prisoner’s counsel moved to have them stricken out, on the ground that they were given by the prisoner under such circumstances as not to warrant their reception.

It appeared in evidence, that these conversations were held with Moore and Walton while the prisoner was, to some extent, intoxicated. Moore, being a police officer, was employed by superintendent Kennedy and the district attorney, to follow Jefferds, with a view of obtaining this information. It does not appear that he received any instructions as to the means which he was to use to effect his purpose. The instructions he received are not stated. It also appeared in evidence, that one means used by Moore, to obtain the confidence of the prisoner, was to ingratiate himself into his friendship, and, with the aid of liquors freely supplied by the officer, the confessions were obtained.

It was for these reasons that the motion was made to strike out the testimony.

It must be remembered that the evidence from both witnesses was received without objection, and it was not till the whole examination was closed that the motion was made to strike out the testimony. It was, therefore, properly received at the time it was given. The subsequent evidence, showing that the confessions were made in a state of intoxication, was not sufficient to warrant the court to take these admissions from the jury. It was by no means clearly established that the prisoner, at the time he made the admissions given in evidence, was so much intoxicated that he was unconscious of what he @ said, or to warrant the supposition that what he said was untrue. The state of the prisoner, when the confessions were made, was properly before the jury. The argument which has been addressed to us, to convince the court that the evidence should have been stricken out, might, with more propriety, have been addressed to the jury to satisfy them that the confessions of the prisoner, made by him while in that condition, were not reliable, and ought not to have been used for his conviction. It was a question of fact for the jury to determine, what the condition of the prisoner was when he made the confessions, and how much reliance might be placed in them.

In Rex v. Spillbury et al. (7 Carr. & P. R., 187; 32 Eng. Com. L. R., 565), Coleridge, J., held that statements made by a prisoner to a constable, when he was drunk, were admissible. In that case, also, as in this, it appeared that the constable had given liquor to the prisoner to cause him to make such statements. The judge said this was matter of observation to the jury, as to the degree of credit such statements were entitled to.

Similar in their nature áre the remarks of Seldef, J., in The People v. McMahan (15 N. Y. R., 384, 391), referring to the case of a letter written by a prisoner to his father,- which the turnkey promised to put into the post, but which he delivered to the magistrate,'who used it in evidence,' and, also, to the case of a confession made to one who had taken an oath not to reveal it, he says: “If the law was scrupulous about the means of. arriving at the truth, would it have received such evidence ? Is fráud more honorable than force ? . These cases. show this, that the question always is, whether the evidence can.be relied on, and not how it was obtained.”

And in The People v. Hendrickson (8 How. Pr. R., 176), Seldef, J., says, in his dissenting opinion, “ the object of the law is to ascertain truth, and it rejects no evidence, come from what source it may, which is calculated to show lights upon it.”

It is true that a witness, in a state of intoxication, ought not to be allowed to go on the stand as a witness, and the counsel has urged upon us to apply to these confessions the same rule. But, while I concede to that rule all the force that can be asked -for it, it is not applicable to this case. I have already remarked that it belonged to the jury to say how far the prisoner was affected when he made the confessions, and to

# decide what weight they would give them. A more analogous case is where a witness testifies to a matter which occurred while he was in a state of intoxication. There his evidence is not excluded, but his condition may be shown to the jury for their decision, as to its effect on the-truth of his statements. Nor do I think there is anything in the objection that these confessions were not voluntary, and, therefore, should have been excluded. .

Laying out of view the condition of the prisoner at the time he made the confessions, it would not be urged that they were not voluntary. They were made in conversation with a supposed friend, without any- promise or inducement, and rather as a boast of what the prisoner had done, and with the knowledge of his former trial and acquittal. Such confessions, although obtained by deception, must still be considered as voluntary on the part of the prisoner. It is for the jury to take all these attendant circumstances-into consideration, when they determine the weight to be given to the confessions made in such a manner.

But, while I am of the opinion that there was no error in suffering this testimony to go to the jury, that would call for a new trial, I do not wish to be considered as in any manner assenting to the propriety of obtaining evidence in such a manner for the purpose of convicting a criminal.

An officer may be employed by the prosecution for the purpose of watching a.supposed criminal, and for the purpose of detection. Crime often cannot be otherwise discovered. But when such an officer ingratiates himself as a friend to the criminal, when he procures liquor and uses it for the intoxication and ruin of the supposed culprit, when he urges upon him the constant use of intoxicating drinks, until maddened by their use, the accused, in a spirit of boasting rather than in the exercise of his reason, and in response to suggestions made by the officer, proclaims his guilt, it appears to me that the officer goes far beyond the line of his duty, and is guilty of conduct throwing no credit on such an administration of criminal justice. But, however much we may condemn this proceeding, still it was not.error to admit the testimony on the trial. The learned judge before whom the case was tried, while he correctly held that the confessions were not to be kept from the jury, felt also unwilling to state to the jury his approval of the mode in which they were obtained.

It was also urged on the argument, that these confessions were the remarks of a drunken man, and that drunkenness was partial insanity, and therefore should have been excluded. I have heretofore referred to the condition of the prisoner as a matter proper for the jury to pass upon. He may have been so intoxicated as to have been unconscious of what his words meant, and he may only have been excited by liquor, but still possessed of his reason and judgment. All this was properly submitted to the jury, and the instructions on this point were not objected to.

Upon the trial, the witness, Mrs. Walton, was asked a question about John Boardman, whereupon the counsel for the prisoner stated that they did not wish to prevent the fullest investigation, and wished to leave the witness to answer fully and freely every question, but desired the court to consider them as excepting to each question.

Such a general mode of exception, if sanctioned, would very much tend to shorten the argument of questions relating to the evidence. If a counsel can, on the commencement of the cause, give notice that he excepts to each .question thereafter to be put to a witness, it would be unnecessary to make any further objections. Such a course cannot be sanctioned, and such an exception must be unavailing. If the court, on the trial, choose to sanction it, still it can have no effect until the exception is incorporated, in the bill of exceptions to each distinct question. The proposition that a full and free examination is assented to by the counsel, while at the same time he can have an exception secretly laid up to use, if necessary, on appeal, is contrary to any rule that I have known on the trial of a cause.

These remarks apply to the .questions put to the witness as to Boardman, and also whether she had made oath that she was the wife of Morrison. I do not consider that these questions can be considered as answered under exception.

Even if they were, I am of the opinion that they Were not irrelevant.

It would have been irrelevant for the prosecution, in the first instance, to have asked of the witness if she had been the wife of Morrison, and then, for the purpose of impeachment, to show that on some occasion the witness had made an affidavit to the contrary.

Such was not the testimony. The witness had sworn she was the widow of Walton, in answer to a question put on behalf of the prisoner.

Whether this was so or not, was not material, unless for the purpose of describing her relation to the deceased; but having been proved for the defense, the prosecution had a right to show that she was not in fact his widow, by facts which disclosed the legal relation she bore to him.

For this purpose the inquiry as to Morrison was proper.

The inquiry as to the affidavit was not objected to at the time. It was urged that the proper foundation had not been laid to admit the affidavit in evidence, to contradict the witness as to her statement in regard to Morrison.

That rule rather applies to the inquiry put to the witness, whether she had made such an- affidavit, than to the admissibility of the affidavit itself. The paper, if in existence, should have been shown to the witness before the witness could be asked as to its existence.

In Billenger v. The People (8 Wend. R., 595, 598), SüTHERlahd, J., says: The question (viz., what the witness had sworn to before the magistrate) was inadmissible on other grounds. It appeared that the examination was reduced to writing. So far, therefore, as the object of the inquiry was to show what her testimony was before the magistrate it was improper, because the examination itself was higher and better evidence, and, citing the ruling in the Queen!$ Case, that a witness could not, upon cross-examination, be asked whether, in a certain letter, he did, or did not, make certain statements,^ or use certain expressions, but that the letter itself must first be read before the cross-examination can be pursued, he adds, “ such is believed to be the established rule and practice in this State.” “ This principle seems to be applicable to a case like this, and to show that the examination of the witness, taken by the magistrate, should first have been read or shown to the witness, before she could be cross-examined in relation to her testimony upon that occasion.

When the question was put to Mrs. Walton whether she had ever made oath that she was the wife of Morrison, no objection was made by the counsel calling for the production of the affidavit. It was too late afterwards to object on that ground.

But even if made, the fact of its being lost rendered its production -impossible. .It could not be produced for that reason, and its contents could not be stated to the witness, because they were not known with certainty to the party making the inquiry. In The People v. Moore (15 Wend. R., 419-422),. Savage, Ch. J., says: “ It is argued that the examination was not admissible until after the attention of the justice had been called to the supposed discrepancies between his parol account of the testimony of Crofoot and the testimony, as stated, in writing, in the examination, in answer to which it will be observed that it was impossible to draw the attention of the justice to the supposed discrepancy, as the paper was not in evidence, nor in the possession of the defendant’s counsel, who could not, therefore, know with certainty what it contained.”

So, in this case, the production of the paper was excused by its loss. The time and place, and subject matter of the affidavit, was stated to the witness, sufficient to call it to her recollection. This was all that could be done if the paper was lost, and was all that was required to warrant proof of its contents.

The evidence of the deed executed by Morrison and Mrs. Walton, as his wife, was admissible for the purpose stated by the court, if I am correct, in the preceding remarks, as to the admission of evidence to show that she had sworn she was the wife of Morrison.

The same rule will apply to this evidence as to that, viz., that it is admissible as contradicting the testimony of the witness, given by the defense, that she was the widow of Walton.

The other excejptions are to the charge of the recorder.

I see nothing in the comments on the facts which shows any error. How far it is advisable for a judge to refer to;the -facts of a case, must depend entirely on his judgment and discretion, It is not error to comment upon them," or even to give the theory of the judge in regard to such facts as are proven. If,. after all, the decision of the facts is left to the jury, it affords no ground of exception that the judge has reviewed the evidence on any branch of the case. This was done by the recorder throughout his charge.

Nor do I consider the charge obnoxious to the construction, put upon it by the defendant’s counsel, that a drunken man could, in view of the law, make a voluntary confession. His remark was, where a man voluntarily, whether sober or drunk, makes a confession, &c., such confession is to be received in evidence. There is no error in that remark, more especially with the qualification that it was the province of the jury to decide what weight was to be given to it.

The charge that, whether this offense was murder in the first degree depended upon whether the jury should find that the killing was willful, deliberate and premeditated, was only in accordance with the words óf the act of 1860. Whether it was so or not, was left to the jury, and also what degree of murder, if any, was for them to decide.

Hpon all the exceptions thus raised, I find no error calling for a new trial; and am of the opinion that the verdict should not -be disturbed, therefore.

This cause having been tried in the Sessions, the rules applicable to exceptions by the statute of 1855 are very much relaxed, and the court may order a new trial if.it shall be satisfied that the verdict was against law or against the weight of evidence, or that justice requires a new trial.

If the evidence was properly admitted, there can be no ground for a new trial in" this case. I have already referred to all the grounds of objection suggested to us by the counsel for the prisoner. Nor do I feel warranted in saying that there is anything in the case which would bring it within the provision of the statute that justice requires a new trial. No error has been committed; and the case having been fairly submitted to the jury, and their verdict having been rendered without any appearance of prejudice or partiality, there is nothing which calls for the exercise by this court of the powers conferred by that statute:

The remaining question is that which arises as to the effect of the act of 1860 in altering the law of murder. By a stipulation between the counsel, the argument in this case was to be made in the case of Lowenberg at the-same term. In that case the court have decided to affirm the judgment. I have expressed my dissent in that case; but the conclusion of the court being adverse to the prisoner, the judgment must be affirmed.