A petition for a rehearing has been filed in this case, and three points are relied on in that petition. Those points are as follows: *Page 479
1st. That this Court erred in sustaining one of the instructions given by the Judge in the Court below.
2d. That the indictment was bad because, when our Constitution was adopted requiring that "No man shall be prosecuted for a capital or otherwise infamous crime, except upon indictment or presentment," etc., the word indictment was used in its common law signification, and meant what it meant at common law and not what it might be made to mean by subsequent enactment.
3d. That the examination of D. Black showed that he was not a competent juror, and not capable of rendering an impartial verdict.
We will examine the objections in their reversed order. With regard to the third point, it was fully discussed both in oral argument and the written brief of appellant's counsel. The objection was carefully examined by this Court, and we were unanimously of the opinion the juror was not disqualified, and we see no reason to change that opinion. No new light is thrown on the subject.
The second point was argued with great ability by counsel on the first hearing of this case. His brief was certainly very full on this point, and we read with great care and attention the arguments of Mr. Bishop as to the necessity of an indictment for murder drawing the distinction between murder of the first and second degree. We examined all the authorities cited by counsel, with many others not referred to; and after a very careful examination of this point, the Court was satisfied of the sufficiency of the indictment under our statute upon the subject.
The counsel, in his petition for rehearing, presents no new argument on this point. He perhaps lays more stress now than he did in his first argument, upon the proposition that the word indictment, as used in our State Constitution, must be understood to have meant an indictment as that word is understood at common law. This view of the case was under consideration, but on mature reflection we could not come to the conclusion that appellant's counsel seems to think should have been arrived at. When the Constitution of the United States was adopted, it only required a person before being put on his trial for a capital, or other infamous crime, to be presented or indicted, showing that the formality of an indictment might be dispensed with if the grand *Page 480 jury acted by presentment. In other words, that it was only necessary that the grand jury, in some form, should sanction the proceeding before a party should be put on his trial.
If it was meant to require a common law indictment, what was such an indictment? Before the Norman conquest, I am not certain what language was used in law proceedings, probably either Latin or Anglo Saxon, in most parts of England; in other parts, probably either the Danish or Welsh language. After the conquest of England by the Normans, all legal proceedings were either in Norman, French, or Latin. The older forms of indictment with which we have any particular acquaintance under the common law system were in Latin. But the Latin forms had been abolished in England before we adopted our Federal Constitution. Certainly it was not the intention of the Convention who formed our Constitution to reintroduce the obsolete Latin form of indictment. If they did not intend to re-establish the old Latin form, how are we to know that it was the intention to require any particular form for our indictment. Even if the framers of that instrument had used the single term indictment, without connecting the other and more latitudinous term presented with it, would it not be more rational to conclude they only meant that, before a party was put on his trial for a certain class of offenses, a "grand jury legally convoked," should upon their oaths prefer a written charge against him, stating the nature of the acts done and the crime of which he was accused, leaving the form of that charge and the language in which it was to be stated to be regulated by law, as it heretofore had often been. That this was their intention, is we think, clearly shown by the use of the word presentment in connection with the term indictment.
That this was the view taken by the framers of our own Constitution there is less reason to doubt. We have copied most of our Constitution and most of our laws from the sister State of California. Long before the adoption of our Constitution that State had passed laws simplifying, shortening and omitting many of the more formal parts of the old fashioned indictments. These more simple and less formal indictments had often been sustained by the Courts of California, and also by the Territorial Courts of Nevada. It *Page 481 could not have been the intention of the framers of our Constitution to compel this State to go back to the old and almost obsolete form of the common law indictments.
We see no reason for changing the views we first expressed on this point.
The remaining point in the petition for a rehearing which we deem it necessary to notice, is in regard to one of the instructions complained of. That instruction is in the following language: "The distinction between murder of the first or second degree is quite nice. I will briefly state such distinction, although from the testimony I apprehend that you may conclude that the defendant was either guilty of murder of the first degree or innocent."
The complaint is that the jury were instructed as to matters of fact, when the Constitution provides that they alone shall be the judges of fact; in other words, that the Court usurped the province of the jury in expressing an opinion as to matters of fact. Whilst judges are prohibited from charging juries in respect to matters of fact, thay are authorized to "state the testimony." It may be doubtful as to what is the exact meaning of this latter expression. It was hardly intended to confine the Judge, in stating the testimony, to a parrot-like repetition of what the witnesses said. For such a purpose the wisest Judge would be less competent than a good phonographic reporter. It must surely have been intended to allow the Judge some latitude in commenting on the testimony he was stating. If not, it was foolish to say he should state it. If the Judge may comment on the testimony given, what character of limitation will you place on those comments? That he may weigh the evidence and comment on it, point out the discrepancies in the testimony on either side, show were one piece of evidence corroborates another, or where the testimony of two or more witnesses contradict or conflict with one another, is generally admitted. As we stated in our former opinion, it is admitted that the Judge may in many cases determine that there is no evidence to support a given proposition.
On this ground nonsuits are granted in civil cases, and juries directed or advised to acquit in criminal cases. It has certainly been held in some cases that the opinion of the *Page 482 Court expressed as to the weight or sufficiency of evidence on any given point was not error. On the other hand, it has been held that it would be error where there was any conflict of evidence for the Court to say to the jury that a certain fact was or was not proved. But there is a great difference in the two propositions. In the first the Judge only gives his opinion and advice, still leaving the jury perfectly free to find the fact as they think right, only giving to the advice and opinion of the Judge such weight as it is entitled to. In the other they are imperatively commanded to find a fact in a certain way, or in making up their verdict to consider that particular fact as fully established.
The case of The Commonwealth v. Child, 10 Pick. 252, establishes the first proposition. The case cited by Mr. Justice Lewis in his opinion in this case from 3 A.K. Marshall, is one wherein the Court below was asked to instruct the jury positively that a certain fact had not been proved, when in fact certain evidence had been given tending to show that fact. The Court refused to give the instruction, and the appellate Court held the ruling correct. But that Court in expressing their views of the law use language going far beyond the case before them. They go farther and say the Court should not even express an opinion in regard to a fact where there is a conflict of evidence. But where an opinion goes beyond the case before the Court it amounts to a mere dictum. So far as this case goes it only establishes the second proposition we have stated, which is not necessarily in conflict with the Massachusetts case. The dictum (which is probably the mere result of carelessness) certainly is in conflict with the case in 10 Pick.
In the case of the People v. Ybarra, 17 Cal. 166, the defendant was indicted for the murder of a woman. There was evidence and among other things the dying declarations of the murdered woman, that she was murdered by Pedro, a man with whom she had been living. But the defendant who was on trial was not arrested until the lapse of a considerable period after the offense committed, and his main reliance before the jury was that he was not the Pedro who had lived with the woman. In other words, there was a question as to the identity of the defendant, whether he was the Pedro Ybarra who had formerly lived with the murdered *Page 483 woman, or was a different man unfortunately bearing the same christian name, (Pedro) and a close personal resemblance to the former companion of the murdered woman. These facts do not distinctly appear in the reported case, though it is clear from the opinion of the Court that some question of this kind was raised in the case. The writer of this opinion having been of counsel, recollects the main features of the case distinctly. A witness in that case gave in evidence the dying declaration of deceased, and swore that he recognized the defendant as the Pedro with whom deceased had lived, and of whom she spoke in her dying declarations. The Court instructed the jury that if they believed the dying declarations of deceased were true they must convict the defendant. This took from the jury the right to exercise any judgment as to the sufficiency of the proof as to the identity of the prisoner with the other Pedro. Of course this was wrong under all rules. This does not conflict with the Massachusetts case.
Some general rules seem to be tolerably well established as to how far a Judge may go commenting on evidence and giving his opinion thereon. The general result seems to be, that a Judge may express his opinion on the weight or sufficiency of evidence if he is careful to inform the jury distinctly, that whilst he as Judge may comment on the evidence and give his opinion as to its effect and sufficiency to prove any given fact, yet they are the ultimate judges of the fact, and may find according to their own views of its sufficiency, even though it be contrary to the opinion of the Court. This view of the law is sustained by a multitude of authorities, and perhaps none is more directly in point than the case of the N.Y. Fire Insurance Co. v. Walden, 12 Johns. 513. Those wishing to further investigate this subject will find many cases cited by Graham Waterman, in their work on New Trials, vol. 1st, 310 et seq., and also at page 825 etseq., in vol. 3d (the paging of volumes two and three being continuous). There are some dicta to the effect that a Judge ought not to express his opinion about matters of fact in the presence of the jury, and Graham Waterman, whilst admitting that the rulings have been to the contrary, seem to think that Judges in this democratic country ought not to trespass on the province of the jury by expressing an opinion on matters of fact. *Page 484 We cannot find a single case where a new trial has been granted because of a mere expression of opinion of a Judge, unless in cases where the Appellate Court has held the Judge was clearly wrong in the opinion expressed. There the case has been reversed, not merely because of an expression of opinion, but because the jury seemed to have been misled by a wrong opinion, for if the jury found according to the force of the evidence, notwithstanding the bad instruction, the case would not be reversed by the Appellate Court.
Here it is complained the Judge intimated an opinion that the jury ought not to convict of murder in the second degree. was not this intimation clearly correct? There was no testimony tending in the slightest degree to convict the prisoner of any such offense. It is urged by counsel that it might be true that the prisoner killed the deceased, yet was not guilty of murder in the first degree; that he may have killed her upon some sudden quarrel and afterwards perpetrated the robbery. That is possible, but there is no testimony tending to prove it, nor is there any evidence adduced on the trial showing a reasonable probability that such may have been the case. The killing was by choking. To kill in this way requires time and a continuous exertion which at best strongly tends to negative the idea that it was done in a sudden heat of passion, or that it was the unexpected result of what was only intended to be chastisement, or injury of a character not expected to produce death. Again: the robbery followed the death of the woman almost immediately, for she was alive late at night and in the morning she was found dead and the goods were gone. Judging by experience of the conduct and actions of other criminals in similar circumstances, we can hardly conceive that if the murder had been the result of hot blood or accident, the murderer would have had the hardihood to remain in the house long enough to rob it. He would have fled to conceal his guilt, or have given himself up to some officer, trusting by a prompt surrender and statement of his own case to palliate or excuse the crime. We apprehend that the deliberation required to effect the robbery must have been the result of a well matured plan either to murder and rob, or at least to plunder the house, and to murder if necessary in carrying out the main object. *Page 485
We can see no evidence in the case upon which the jury might have found the prisoner guilty of murder in the second degree. Had they so found, we would have been forced to the conclusion that the jury had either compromised with some obstinate member, compromised with their own conscience, (being doubtful of the guilt of the prisoner) or else, taking the law-making power into their own hands, said this man shall be only imprisoned, although the law declares that for such an offense death shall be the penalty.
The rehearing is denied.