I dissent. I do not think the propriety of the admission of the evidence tending to prove the existence of incestuous relations between the defendant and his daughter should under the circumstances of this case have been left in doubt. That such evidence would tend to show motive on the part of the father to kill a man whom he knew to be paying attentions to her of an amatory character, whether honorable or dishonorable, seems to me too clear to admit of doubt or justify elaborate discussion. The instruction quoted in the main opinion on the subject of the purpose for which the evidence of incest should be considered by the jury, and which was refused by the court, was, in my opinion, clearly objectionable. It purported to give a positive direction to the jury, in effect, that the evidence of incest by the defendant and his daughter could not be considered as a reason for convicting him of murder. The rule is, and it is supported by the main opinion, that if they should believe from the evidence of such incest and the other evidence in the case that the motive for the killing was to prevent exposure of the incest, or was rage or jealousy growing out of the incestuous relations, then the fact of the existence of such incestuous relations must constitute one of the reasons (using the word in a sense very common) which would impel the jury to convict him of murder.
With respect to the instructions asked after the argument, and after the giving of all the other instructions, the rule of the court referred to by defendant's counsel applies to criminal cases as well as civil, but leaves the court at liberty to give the instruction or not in criminal cases. The matter treated of in these instructions — self-defense — was fully treated in other instructions given by the court, and hence they do not come within the principle that in criminal cases an instruction which, under the rules of the trial court, is requested too late should nevertheless be given if it is upon a point material to the defense and not covered by other instructions. *Page 354
As to the alleged improper remarks of the district attorney in his argument to the jury, it is clear they were provoked, if not justified, by the misconduct of the defendant's attorney, who in his argument stated to the jury facts not in the record relating to the same subject, and did so manifestly for the purpose of prejudicing the case of the people in the minds of the jury. I am unable to approve the view which seems to have been adopted in the main opinion, with respect to such misconduct. The commonwealth must necessarily, in its efforts to prevent and punish the commission of crime, avail itself of the agency of mere human beings who are subject to the common weaknesses incident to humanity, and are influenced and controlled by like passions and impulses as the rest of mankind. The trial courts and the prosecuting officers when engaged in the trial of a criminal case must proceed with some celerity. In the argument, particularly, the district attorney is liable to be moved by sudden and ill-advised impulses, and to say things on the spur of the moment and under the provocation frequently so freely given by the opposing attorneys, which, if taken seriously and considered by the jury as part of the evidence, would be prejudicial to the rights of the defendant. And the court itself, under the pressure of the occasion, is likely to manifest some human impatience with the untimely interruption of an argument, and to overrule objections which, upon maturer reflection, it would sustain. In view of these difficulties naturally existing in the prosecution of every case, and of the further fact that such improper action is not infrequently deliberately provoked by shrewd attorneys for the defense for the very purpose of causing a subsequent new trial or reversal, and that such motive cannot usually be exposed, it should not be the policy of this court, sitting in chambers, with ample opportunity for grave deliberation, to be swift to criticise, or declare injurious error, the action of the trial court or of the district attorneys in such matters. Under our system of criminal jurisprudence it is taken as a certainty that a properly impaneled trial jury is a fit tribunal for the determination of the question of the guilt or innocence of the defendant. This necessarily implies that these triors are capable of discerning the radical difference between the evidence and the argument, *Page 355 and to know the different manner in which each is to be considered by them. If not, they would be utterly unfit for the performance of their office. The rule of practice in regard to such alleged misconduct should require the counsel for the defendant not only to object at the time to the improper argument complained of, but also to make formal request to the court to instruct the jury that they must disregard such argument and decide the case solely on the law and the evidence. If the court does so instruct the jury, that should be deemed the end of the matter, unless the trial court, in its discretion, believes the injury from the misconduct to be so serious as to require a new trial.
In the present case the court did not, at the time of the objection and request for an instruction concerning this particular part of the argument, either deny or grant the request. Afterwards, however, during the same argument, objection was made to another portion thereof, and a like request made for an instruction to the jury, and thereupon the court instructed the jury not to consider the remarks as influencing their verdict, and "not to be influenced by any remark of any attorney, but to decide it on the law and the evidence." This instruction was clearly intended to apply to all the previous remarks of the district attorney, and it must be presumed to have been so understood. The other instructions also repeatedly directed the jury that the several facts involved in the guilt of the defendant must be determined from the evidence and proved beyond reasonable doubt. They were also sworn to "a true verdict render, according to the evidence." If the jury were fit to try the case at all, as they are conclusively presumed to be, they must have obeyed these clear instructions and their own solemn oath.
I desire to say, in addition, that I concur in the remarks of Justice Henshaw in his concurring opinion. I think the judgment should be affirmed.