State v. Shawn

Dent, Judge,

(dissenting) :

While I concur in the syllabus, I desire to enter my protest and dissent against the argument contained in the opinion and the conclusion reached by the court in this case.

The error complained of is that the prosecuting attorney, in his closing argument, having referred to the conviction, imprisonment, and pardon of the Chicago anarchists, said: “If you sentence the prisoner to the penitentiary for life, it won’t be five years till he will be let out on some excuse or pretext, and return home to enter on a new course of crime.” “This is the grand culmination of an epidemic of crimes that bave been committed in this county.” “He is so steeped in crime that be has no friend to sit beside him during bis-trial.” There was no evidence before the jury to justify any of these expressions. From them the jury might infer — and for this purpose they were evidently uttered — that the accused was guilty of many crimes, and this was the grand culmination of his wicked career, and that, if sent to the penitentiary, he would be back in five years, to repeat these crimes. What language could be stronger or more reprehensible? It was used for no other purpose than to arouse human passion, and prejudice the prisoner in the minds of the jury, converting them into an unreasonable mob, with vengeance in their hearts, rather than a calm deliberate tribunal of his fellow men, coolly reaching the unbiased verdict to which the law and evidence unerringly point.

The rule of the law is well settled that an attorney, through undue ardor to secure a conviction in accordance with his desires has no right to stir up the passion and prejudice of the jury by referring to matters irrelevant or facts not in proof. Hatch v. State, 34 Am. Rep. 751. Granting that the prisoner was guilty of murder in the first degree — which I do not pretend to dispute — the law, in tender consideration of human frailties, seeks to distinguish between the different degrees of depravity entering into each particular commission of the highest of crimes, and, in doing so, weighs the motives that led to the criminal act. That is to say, the man who kills because of bitter feelings-rankling in his breast from a wrong or injury done him by his victim, even though it be imaginary, is not equally guilty with' the man who kills in the commision of a felony, or for hatred of human kind generally, or for the love of human, gore; hence the leniency of the law in permitting a jury to-discriminate and fix the punishment of confinement in the penitentiary for life. The intemperate and unjustifiable language used by the prosecutor was to inflame the minds of the jury, and to prevent this discrimination on their part. He accomplished his purpose, which is the best evidence-possible that the prisoner was prejudiced by his conduct.

In this case, while the killing was deliberate, the prisoner,. from Ms words and conduct, had even recently publicly suffered contumely and abuse on the part of his unfortunate victim, until life had 'become to him unbearable, and tMs injury, rankling in his heart, had driven him to desperation. His expression after the shooting is proof positive of this, when he says to his sister-in-law, “Now, you can hang me, or do what you please with me.” These are the words of a man driven to dispair, and fully conscious that he had placed his life in jeopardy, and without attempting to escape, he gave himself up to be dealt with as his fellow men should determine. Can such a man be equally guilty with the monster who destroys children because he hates the human race, or kills his wife and mother for their money, or, to satisfy his brutal lust, first outrages and then murders the victim of his horrible crime? Cain was a guiltier man, for he slew his innocent and confiding brother for an imaginary wrong; yet his maker permitted him. to go free, though he denied his crime, with the admonition that, “whosoever slayeth Cain, vengeance shall be taken on him sevenfold.”

The most solemn and awful duty that men are called upon to perform is to inflict the death penalty on their fellows, and it should be done only in extreme cases, when no other punishment will vindicate the law, and protect society against the totally depraved. The unwarranted, cruel and diabolical destruction of human life under the forms of law, even in the name of religion, by human agencies, has already been so great that, if entered up by divine justice against the human race as a race, must seal its eternal and everlasting condemnation. How careful, then, should we be, before we lend our sanction to the taking of life, that the accused has, beyond all reasonable doubt, had a fair and impartial trial before an unbiased jury .of his fellow men, free, from any undue influence of prejudice or passion. It is bet- ■ ter that the guilty escape than any should be unjustly pun-. ished. And no man who is not totally depraved should .be denied the opportunity “which imprisonment for life affords him of repenting of his crimes, redeeming his life, and making preparation to stand before the bar of that all-wise Judge, from whom no secret thing can be hidden, and who will condemn our disobedience to His statutes according to the standards we have created for our fellow men.

May He have mercy on the soul of Daniel D. Shawn when it is ushered into His presence in obedience to the final judgment of this Court.