Willis v. People

By the court, Ingalls, J.

Two questions are presented for consideration. One arises upon the charge of Justice Peck-ham, and the portion excepted to is as follows: “ That a man is not insane who knows right from wrong; who knows the act he is committing is a violation of law and wrong m itself.” In giving effect to that branch of the charge, it is proper to consider other portions which accompanied it. The learned justice charged the jury as follows: “A person is not insane, surely, who knows right from wrong, and who knows that the act he is committing is a violation of law and is wrong in itself. If he is conscious that the act is wrong at the time he is committing it, that is a violation of law; that is a violation of the law of the land; he cannot be said to be insane. If, however, at the time he commits the act, he is under a delusion, he does not know right from wrong; he does not know that the act he commits is an offense; he does not know it was wrong; but is under a delusion in regard to it; why, surely, he is not responsible for his acts, he is an' insane man.” I fail to discover wherein the charge in that respect is not quite favorable enough to the prisoner. The test furnished by the charge, and by which the jury were to be governed in determining whether or not the prisoner was insane, was strictly in accordance with the law. (The People v. Pine, 2 Barb. R., 566.) Justice Barculo, at page 572, says: “A simple and sound rule may be thus expressed. A man is not responsible for an act when, by reason of voluntary insanity or delusion, he is, at the time, incapable of perceiving that the act is either wrong or unlawful.” In the same opinion, reference is made to the rule as laid down by Chief Justice Shaw, of Massachusetts, as follows; “A man is not to be excused from responsibility, if he had capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing. A knowledge and consciousness that the act he is doing is wrong and criminal, will subject him to punishment.” (Freeman v. The People, 4 Denio R., 28.) Beardsley, J., says: When insanity is interposed as a defense to an indictment for an alleged crime, the inquiry is always brought down to the single question, of a capacity to distinguish between right and wrong when the act was done. The mode of putting the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not deemed so accurate when put generally and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged.” (2 Greenl. Ev., § 372.) “The rule of law is understood to be this, that a man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing,” (See also Dean's Med. Jurisp., 549, 550, 551; Beck's Med. Jurisp., 588.) ISTo error was committed in the charge; it is fully sustained by the authorities cited; and the exception thereto, not being well taken, must fail.

The remaining question to be considered is, whether Smith H. Shaw was a competent juror ? On the part of the prisoner, it is insisted that he had formed and expressed an opinion unfavorable to the prisoner previous to the trial, which rendered him incompetent to serve, and which fact did not come to the knowledge of the prisoner or his counsel previous to the verdict. It is insisted, on the part of the people, that that question cannot now be raised upon affidavits and considered by this court. The practice has not been uniform as to the manner in which such alleged irregularities are to be brought before this court for review. The Oyer and Terminer properly decided that they had not the power, in such cases, to entertain the motion and grant a new trial. (Quimbo Appo v. The People, 20 N. Y. R., 331.)

Where there has been a conviction, and sentence is suspended in order to take the opinion of the court at general term, the proceedings are removed to this court by writ of certiorari. (2 Rev. Stat., 736; Hill v. The People, 10 N. Y. R., 463 ; The People v. Townsend, 1 Johns. Cas., 104; The People v. White, 22 Wend. R., 167; Colt v. The People, 1 Park. Cr. R, 612 ; The People v. Hulse, 3 Hill R., 310.) ‘In the last case there was a bill of exceptions. (The People v. Shorter, 4 Barb. R., 460; The People v. McKay, 18 Johns. R., 212.)

Where there is a conviction and judgment, the proceedings can only be removed into this court by writ of error, and when the irregularity complained of is of such a nature that it cannot be properly embraced in the return to the writ of error, but the. same has become part of the proceedings, a writ of certiorari may also issue to bring up such proceedings, involving the alleged irregularity. (Rev. Stat, 2d ed., vol. 2, p. 599, § 45; Cancemi v. The People, 18 N. Y. R., 133; Stephens v. The People, 19 Id., 551; McGuire v. The People, 2 Park. Cr. R., 148.) But where the irregularity complained of has not been introduced into the record or proceedings, so as to constitute it a proper subject to be returned to the writ of error or certiorari, I think affidavits may be read upon the argument after the writ of error has been returned, but not before, as this court acquires no jurisdiction of the matter, so as to entertain a motion for a new trial until such return. (Eastwood v. The People, 3 Park. Cr. R., 25, note, p. 27; The People v. Hartung, 8 Abb. Pr. R., 132; The People v. Wilson, Id., 137.)

The case of Hartung v. The People (4 Park. Cr. R, 319) is cited by the district attorney. That case decides' that such alleged irregularities are not the subject of review on exception or writ of error, and such is undoubtedly the law; but it does not necessarily follow that this court may not entertain á motion upon affidavits to correct an error arising out of an irregularity prejudicial to the rights of a prisoner, and .when he-has no other legal mode of redress.

• It is true, the learned justice who delivered the prevailing opinion, questions the expediency of considering such questions at general term, but finally allowed the matter objected to to remain. Since the decision of the last cited case; the case of Quimbo Appo v. The People (20 N. Y. R., 531) has been, decided, in which I understand the Court of .Appeals to decide that a Court of .Oyer and Terminer has not the power to grant a new trial. Selden, J., at page 552, refers to the practice which had been pursued in the Supreme Court where questions of irregularity had been brought into that court for review. Mo motion has been made to suppress any of the matter contained in the printed case. I conclude that this court may, upon the affidavits, consider this question of alleged irregularity.

A conviction will not be set aside and a new trial granted, where it-is apparent that no injury has resulted to the prisoner from the irregularity complained of. Meither justice nor a proper exercise of humanity, even in a capital case, demands such a determination.

The People v. Ransom (7 Wend R., 414), Sutherland, J., says: “ The conclusion from these cases appears to me to be this: That any mere informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not or could not have sustained any injury from it.” (See, also, The People v. Hartung, 17 How. Pr. R., 85; The People v. Carnal, 1 Park. Cr. R., 256; Taylor v. Everett, 2 How. Pr. R., 23; Baker v. Simmons, 29 Barb. R., 198.)

On behalf of the prisoner, the affidavit of William H. Felter is produced, in which he states that in the month of Movember, 1863, Shaw (the juror), in a conversation with him, “ warmly contended that the said Willis should suffer death for the alleged offense, and if he (Shaw) was on the jury which tried him, he would certainly hang him.” This affidavit purports to have been taken April 23, 1864.

The printed case contains another affidavit of said Felter, which purports to have been taken on the 2d day of April, 1864, in which he states as follows: “ That the said Shaw mainly contended that said Willis should suffer death for the alleged offense; and, according to deponents best recollection, said that if he (Shaw) was on the jury which tried him, he would certainly hang him,” It will be observed that in this affidavit Felter qualifies his statement, and does not undertake to speak with certainty; but in the affidavit which was made at a later period, he undertakes to speak without qualification, and without accounting for his improved memory. The joint affidavit of Henry H. Jones and Hyman Houghtaling is also produced, in which they state as follows: “That the said Shaw, in the course of the conversation, gave it as his opinion that the said Willis ought to and should suffer death for the killing of Mrs. Mary Phelan, for which he then stood indicted for murder; that said Shaw did not qualify his opinion by saying that if he (Willis) was found guilty he ought to suffer, death, or be punished, but he expressed himself clearly and positively that the said Willis was guilty, and should suffer death for the act.” This affidavit purports to have been taken on the 2d day of April, 1864.

In the other joint affidavit of Jones and Houghtaling, contained in the printed book, and which purports to have been taken on the said 2d day of April, 1864, they state as follows: “ That said Shaw gave it as his opinion that said William Willis deserves to and ought to suffer death for the act which he had committed.” In neither affidavit do they undertake to give the language used by Shaw, but merely state that he gave it as his opinion, leaving it for the court to adopt the conclusion of the witnesses as to the substance of such opinion.

The affidavit of Andrew Layman is also produced, in which he states that he was present at the conversation referred to in the affidavit of Jones and Houghtaling, and states further as follows: “ That the statement therein of the conversation of the said Jones and Houghtaling is in all respects correct; that deponent well remembers that the said Smith H. Shaw did not in any way qualify his opinion, but expressed his clear and decided conviction that said Willis was guilty, and deserved to and should suffer death.” In this affidavit, Layman merely adopts the statement of Jones and Houghtaling, and does not undertake to give the language used by Shaw, but merely his conclusion deduced therefrom. This criticism upon the affidavits seems justified,,as Shaw expressly denies having made any such statement, or having expressed any such opinion as is attributed to him in these affidavits. The affidavit of Smith H. Shaw (the juror) is produced, in which he expressly denies having the conversation with Felter to which he refers, or any conversation with him in relation to Willis. In regard to the statements contained in the affidavits of Jones, Houghtaling and Layman, he states that he was in the shoe shop, and heard Jones and Houghtaling discussing the case of Willis, and that they continued such discussion nearly all the time he was in there; that Jones asked him (Shaw) if he was going to attend the trial; to which he replied, that he thought he should. He further states as follows: “ That he does not recollect of saying anything whatever in relation to Willis while in the shop; deponent might have said that if the prisoner was guilty, he ought to be punished, or something to that effect, but deponent is positive that he never while in the shop, or at any other place or time, give it as his opinion that Willis ought to suffer death, or was guilty of the crime with which he was charged. He further states: “ Deponent further says that he, deponent, never at any time, or in the presence or hearing of any person, prior to his being sworn, formed or expressed an opinion in regard to the guilt or innocence of the said William Willis. That when he entered the jury box he was entirely free from any bias or prejudice against the prisoner, and was prepared to render, and did render a verdict according to the evidence, independent of anything he had heard or read before, in regard to the homicide.” It appears from the affidavit, that the relations between Shaw and the prisoner were of the most friendly character. Shaw was in the habit of visiting the prisoner after his confinement, loaned him the use of tools, and purchased leather for the prisoner, to enable him to manufacture harness, to raise money to defray the expenses of his defense; and further, directed his men to do certain work upon the harness, which the prisoner could not do in the jail, and for all of which he made no charge. The affidavit of DeWitt 0. Davis supports a portion of the affidavit of Shaw. If inferences were to be indulged, based upon the relations which existed between Shaw and the prisoner, they certainly would be that Shaw inclined favorably rather than prejudicially toward the prisoner.

•. The affidavit of John Lyon is also produced, in which he states that he had been in the employment of Shaw for the period of two years, and boarded in his family, and was almost constantly with him during the day; that he had heard him speak in a friendly manner of Willis, but had not heard Shaw express airy opinion as to the guilt or innocence of the prisoner prior to his acting as a juror; that on one occasion the son of Shaw remarked that Willis ought to be hung; that.his father reprimanded him, and told him every man was presumed innocent until he was-.found guilty, and that he ought to wait and hear the result of the trial before he made such assertions. The affidavit of George H. Shaw (the son) is also produced, in which he concurs in the statement contained in the affidavit of Lyon. There is also the affidavit of Bichard Voorhees,who states .that he worked in the shop with Shaw, and by his side, and boarded in his family; that he never heard Shaw¹ express any opinion as to the guilt or innocence of Willis, or say that he ought to be hung, or .anything to that effect.

■ The affidavit of Henry H. Holden contains the following statement: “That he was foreman of the jury on the trial of William Willis; that the jury, after retiring, individually agreed upon their verdict; that there was not the slightest difference of opinion among the jurors about the guilt of Willis; that Smith H Shaw had no influence in the deliberations of the jury, and took no part in' the rendering of the verdict, except giving his assent thereto."

From a careful examination and consideration of all the facts upon which this alleged irregularity depends, I have come to the conclusion that the case of the prisoner was not in the slightest degree prejudiced by any opinion formed or expressed by the juror Shaw; and that he was in all respects a competent juror. During the examination of this case, I fully appreciate the consideration pressed upon the court, that the life of the prisoner is involved in the determination, and have pursued the investigation, actuated by a conscientious desire to arrive at a just and proper conclusion. And while indulging a proper degree of sympathy for the prisoner, and watchfulness of his rights, have endeavored not to lose sight of the other consideration, that the administration of public justice demands of the court a firm and faithful execution of the law. The judgment of the Oyer and Terminer must be affirmed, and the record and proceedings remitted to that tribunal with directions to enforce the judgment by this court.

Judgment affirmed.¹

1 Note. — This judgment was affirmed by the Court of Appeals, at June term, 1865. ,