The defendant was convicted of the crime of murder in the second degree, in the district court of Burleigh county upon a change of venue from Stark county, and sentenced to fifteen years' imprisonment in the penitentiary for the murder of her husband, Nathaniel Gibson. Sentence was pronounced June 29, 1935. On July 20, 1935, the defendant moved for a new trial. On July 26, 1935, the trial court entered an order denying such motion. Thereafter the defendant made a second motion for a new trial based upon all the grounds and assignments of error specified in the former motion and also upon certain additional specifications of error. The second motion was noticed to be heard on November 2, 1935. The trial court denied the second motion for a new trial on the ground that the motion came too late and that the court was without jurisdiction to entertain it. This appeal is taken from the judgment of conviction and from the said two orders denying the motions for a new trial.
The trial was quite extended. The transcript of the proceedings had upon the trial is contained in eight volumes aggregating more than twenty-three hundred pages. The facts as they are necessary for a consideration of the errors assigned will be stated in connection with the assignments to which they relate.
The errors assigned divide themselves into three main classes:
(1) Assignments predicated upon rulings in the admission or exclusion of evidence;
(2) Errors assigned upon instructions to the jury, given or refused;
(3) The sufficiency of the evidence to sustain the verdict.
Nathaniel Gibson, the then husband of the defendant, died at Dickinson, North Dakota, on December 5, 1933, as the result of his being *Page 80 shot with a revolver. The wound from which he died was inflicted in the early morning of December 5th. At about 4 o'clock on the morning of that day the defendant called one Dr. Rogers in Dickinson on the telephone, saying to him: "Doctor, will you come over right away, something terrible has happened." The doctor went to the Gibson house immediately and arrived there about eight or ten minutes later. He then found Nathaniel Gibson lying on a bed in the bedroom occupied by him and the defendant, with a gun in his left hand and a bullet hole through his head. Nathaniel Gibson was unconscious and bleeding profusely. He died about one hour and forty minutes later, without regaining consciousness. On December 18th, 1934, the defendant was arrested and charged with the crime of murder.
The evidence in the case shows beyond all doubt that the shot which killed Nathaniel Gibson was either fired by the defendant or was self-inflicted. It is the claim of the state that the shot was fired by the defendant, and it is the claim of the defense that Nathaniel Gibson committed suicide. The decedent, Nathaniel Gibson, was a rural mail carrier residing in Dickinson. He was about thirty-seven years of age. He and the defendant were married in 1916 and had living with them two daughters, Edith, age seventeen, and Pearl, age fourteen. His income as rural mail carrier aggregated nearly $200 per month. In addition to his wife and two daughters there was residing with the Gibson family a maid, one Katherine Donis; one Donald Webster, a brother of the defendant; and one Billy Amos, a friend of the defendant's brother.
Nathaniel Gibson and the defendant's brother, Donald Webster, were members of the Dickinson Company of the National Guard.
After supper, on the evening of December 4, 1933, the defendant drove her husband and her brother Donald to the Armory where they were to attend a drill of the National Guard Company of which they were members. One Lillie, a mechanic who performed some work on one of the cars used by the decedent, Gibson, in carrying mail, testified that Gibson came that evening about 9:45 and got the car.
The defendant testified that Nathaniel Gibson came home a little after 1:00 A.M.; that he had some trouble with his car in the driveway; that she went out to see what the trouble was and found him to be intoxicated; that he vomited in the car; that she tried to get him *Page 81 into the house but couldn't and went to the house and got her brother Donald Webster to come and assist her. She testified that after he was taken into the house he was seated on the davenport in the living room and undressed; that there was vomit all over his clothes; that she laid the clothes on the floor in the bedroom; that there was no gun in the clothing removed from the decedent when he was undressed. After being undressed, Nathaniel Gibson was placed in bed and the defendant's brother went to his room in the basement. Defendant testified that she laid down on the bed beside Mr. Gibson; that she was up a number of times to attend to him when he vomited; that the odor from the vomit nauseated her and that shortly before 4 o'clock she went upstairs to the bathroom. Before going to the bathroom she looked into the room where her daughter Edith and the maid, Katherine Donis, were sleeping and that she then went into the room where her daughter Pearl was sleeping and talked with her; that she then went to the bathroom and was just coming downstairs when she heard the shot fired; that when she came into the room, she saw her husband lying in the bed with the gun in his left hand and blood coming from the wound in his head; that she thereupon called her brother and his friend Bill Amos and that thereafter she called the doctor; that same evening an inquest was held.
A few hours before the defendant was arrested on December 18, 1934, she signed a written statement to the effect that she had shot her husband. The admissibility of this statement is one of the strongly controverted questions in the case. There is also a conflict in the evidence, — a conflict between the testimony of the defendant and the testimony of the maid, Katherine Donis, as to the defendant's movements immediately before and where the defendant was at the time the shot was fired. These matters, however, will be referred to at greater length in the discussion of the particular assignments of error in connection with which they arise.
As said, defendant made two motions for a new trial. The first motion was made July 20, 1935, and on July 26, 1935, an order was entered denying that motion.
The second motion for a new trial was noticed to be heard on November 2, 1935. The trial court denied the second motion on the ground that it came too late and that the court was without jurisdiction to entertain *Page 82 it. This ruling of the trial court was clearly correct. Under our laws an appeal from a judgment in a criminal action must be taken within three months after its rendition. Section 10,994, Comp. Laws 1913, as amended by chapter 217, Laws 1927. Our laws provide that an application for a new trial in a criminal action must be made "before the time for appeal has elapsed." Comp. Laws 1913, § 10,920. The precise question presented here was considered and determined by this court in State v. Hagen, 54 N.D. 136,208 N.W. 947. In that case this court held: "The district court has no power to entertain a motion for a new trial made after the time for appeal has elapsed. An appeal from the judgment and a motion for a new trial are independent remedies, and the taking of an appeal does not extend the time within which the motion for the new trial must be made." (Syllabus, ¶ 2.)
In this case the judgment of conviction was entered June 29, 1935. The time in which to appeal from such judgment expired three months after its rendition. The second motion for a new trial was noticed to be heard on November 2, 1935, more than four months after the rendition of the judgment. Therefore, under our statutes the trial court was without power to entertain the second motion for a new trial. The statute as construed in State v. Hagen, supra, has received the tacit approval of succeeding legislative assemblies. No effort has been made to change the rule or to adopt a new one. This court has no power to substitute its judgment for that of the Legislature.
Error is predicated upon the admission in evidence of a written statement signed by the defendant which reads as follows: "I killed my husband to protect my oldest daughter. I am writing this with my own free will. No one ever helped me to do this."
It is the contention of the defendant that the statement was not voluntarily given; that the statement constituted a confession and that under the rule laid down by this court in State v. Kerns, 50 N.D. 927, 198 N.W. 698, it was incumbent upon the trial court to hear the evidence touching the voluntary character of this alleged confession out of the presence of the jury and to determine its admissibility. The trial court ruled that the statement was not a confession but an admission and submitted to the jury the question whether it was or was not voluntary. *Page 83
The statement was an admission and not a confession. "A confession is an acknowledgment in express terms, by a party in a criminal case of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission, as applied to criminal law, is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt." 2 Wharton, Criminal Evidence, 11th ed. p. 954, § 580.
The statement in question here was not an acknowledgement of guilt in express terms. Everything stated might be true and yet the defendant might not be guilty of any crime. If she had killed her husband while he was attempting to ravish his daughter, and the defendant then honestly and reasonably believed that her daughter was in real danger, and that it was necessary to kill the husband to prevent him from committing the felonious act, then the defendant would have committed no crime. And proof of these facts would not have conflicted with anything said in the written admission, but would have been wholly consistent therewith.
The defendant contends, however, that in any event the same rules apply to the admissibility of an admission as those which apply to the admissibility of a confession; that in a criminal case it is incumbent upon the state to show that an admission was made voluntarily and that this question must be determined by the court and may not be submitted to the jury.
There are authorities sustaining the rule for which defendant contends, but in our opinion the sounder reason supports the rule that an admission is admissible in evidence without regard to whether it is shown to have been made voluntarily, and it is for the jury to determine the evidentiary value thereof in light of all the facts and circumstances attendant upon the making thereof. It is true that in a sense a confession is one form of admission, but there are, nevertheless, certain fundamental distinctions between a confession and an admission. A confession is an intentional voluntary statement of a person accused of a crime specifically admitting his guilt. A plea of guilty is a judicial confession. "A confession is a voluntary admission or *Page 84 declaration by a person of his agency or participation in a crime. It is an acknowledgment of guilt and not of incriminating facts." People v. Kircher, 309 Ill. 500, 141 N.E. 151.
"A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission, as applied to criminal law, is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. To the credibility of a confession of guilt, it is necessary that there should be an animus confitendi, or intention to speak the truth as to the specific charge of guilt. Such intention, however, is not essential to attach credibility to admissions of particular facts, in themselves indifferent, but which go to make up a case on which guilt is assumed to rest." 2 Wharton, Criminal Evidence, 11th ed. § 580. Confessions are "only one species of admissions; and all other admissions than those which directly touch the fact of guilt are without the scope of the peculiar rules affecting the use of confessions." 2 Wigmore, Evidence, 2d ed. § 821. And "since a confession is merely one sort of an admission, all admissions are usable against theaccused in a criminal case precisely as against a party in a civil case (§ 821); i.e., so long as they have satisfied the confessional rule, or fall without its scope, they are to be tested, like other admissions, by the ensuing principles common to all admissions." 2 Wigmore, Evidence, 2d ed. § 1050, p. 508. People v. Shannon, 203 Cal. 139, 263 P. 522; Lawrence v. State,29 Ariz. 247, 240 P. 863; State v. Guie, 56 Mont. 485, 186 P. 329; Com. v. Dascalakis, 243 Mass. 519, 137 N.E. 879, 38 A.L.R. 113; Com. v. Gleason, 262 Mass. 185, 159 N.E. 518.
The admission was written by the defendant herself. It had been obtained from her by a person who claimed to be a detective, and had been employed by the state as such, and the defendant claimed that she wrote the admission at the dictation of such detective. The testimony showed fully the circumstances under which the written admission was given. The methods employed by the detective in his dealings with the defendant were by no means commendable. This did not render *Page 85 the admission inadmissible in evidence, but was a matter for consideration in determining what weight should be given to it as evidence. The admission went to the jury together with the testimony of all the facts and circumstances tending to minimize or destroy its probative effect, and with instructions more favorable to the defendant than those to which she was entitled.
The trial court instructed the jury that in arriving at their verdict, they should take into consideration oral or written statements made by the defendant only provided: (1) They were satisfied from the evidence that the oral or written statements or admissions were in fact made; and (2) they were satisfied from the evidence that the same were made voluntarily, and (3) they were satisfied that the same were true.
The court further charged the jury that the state had the burden of proving that the alleged admissions had been made voluntarily. The court, also, charged: "So in this case if you find from the evidence that any statement or admission or purported confession or so-called confession or an actual confession, either written or oral, made by the defendant Gladys Gibson touching upon the circumstances surrounding the death of Nathaniel Gibson and tending to connect her with his alleged murder, if you find she made any such oral or written statements or admissions or purported confessions or actual confessions, were not her free and voluntary act but were induced or secured by threats, or force, or compulsion, or by putting her in fear, or by any offers or promises of reward or immunity, then you will totally disregard such statements, admissions or confessions thus secured."
The court further instructed the jury at some length as to what they might consider in determining whether the alleged admissions were made voluntarily or involuntarily; and at the close of such instructions the court said: "If you find that any of them, as so made, are not voluntary, then those you will discard and totally ignore and give them no weight or consideration in arriving at your verdict in this case." These instructions were more favorable than the defendant was entitled to have the court give on this subject. They directed the jury to wholly disregard any admission unless they first found that it had been made voluntarily.
The state also offered in evidence testimony tending to show that the *Page 86 defendant, at a time subsequent to the written admission, during a conversation had with the state's attorney, admitted that she had killed her husband and also admitted that she had maintained illicit relations with Joe Donis. Under the court's instructions to the jury, these alleged oral admissions were also subject to the same test as that which the court directed should be applied to the written admissions. What has been said as regards the admissibility of the written admissions is equally applicable here. The testimony as regards the alleged oral admissions was admissible, and under the court's instructions, the jury was required to consider such admissions under limitations distinctly favorable to the defendant.
The state offered in evidence letters written by some of the persons who testified as witnesses for the defendant. It is contended that it was error to admit these letters in evidence. Letters on which particular stress is laid were written to the defendant by one Elnora Donis and one Mrs. McKenzie. One of them contained a warning to the defendant to watch out for certain parties, and especially to be careful so that the defendant and one Joe Donis were not found together. Appellant's counsel contend that they were not admissible for impeachment purposes because sufficient foundation had not been laid to show that the witnesses had made contradictory statements at some designated time and place, and that they were inadmissible to show bias because the witnesses had never denied bias in favor of the defendant. The admission of evidence to show interest and bias on the part of a witness rests upon a different theory from that upon which evidence is received to show contradictory statements. In order to show bias on the part of a witness a party is not required to show a denial of such bias. Even though a witness admits his bias or prejudice in favor of or against a party in a lawsuit, it is always competent to show acts or statements indicating the extent of the interest of the witness, and the fact that a witness goes to great pains in writing instructions and directions for the guidance of a party such as the witness did here, clearly has a bearing upon her credibility.
It is true a witness may not be impeached on a collateral matter. But it is generally recognized that the interest or bias of a witness in the particular case is not a collateral matter; but is, so far as that particular witness is concerned, a question directly involved in the *Page 87 determination of the particular issues of fact to which the testimony of the witness relates.
Underhill (Underhill, Evidence, pp. 906, 907) says: "The bias of the witness and his interest in the event of the prosecution are not collateral, and may always be proved to enable the jury to estimate his credibility. They may be proved by his own testimony upon cross-examination, or by independent evidence, and while much latitude is allowed, the extent of such cross-examination rests very much in the sound discretion of the court. . . . The bias of the witness may be shown, either by independent testimony or by questions put to him upon his examination. He may be interrogated as to his sympathy for the prisoner, or as to his hostility towards him."
In Wharton, Criminal Evidence (3 Wharton, Criminal Evidence, pp. 2225-2227) it is said: "It is competent, as tending to impeach him, to show the witness's bias, prejudice, hostility, or animus, and the extent and cause of it. Since such matters are recognized as not being collateral, any evidence showing bias, prejudice, or antagonism on the part of a witness toward the defendant, or the existence of a biasing influence, is competent, even, it is held, though it is hearsay evidence. The hostility of the witness may be shown by any competent evidence obtained through examination of the witness himself or through the testimony of other witnesses."
"It is competent to show the motives of a witness to impeach him. . . . Motive may include either the purpose of gratifying the witness's prejudice, bias, hostility, or friendship in favor of, or against, a party, or the purpose of serving his own interest, and may be shown by the proof of specific wrongful acts."
While bias and interest may be shown by cross-examination and if the witness denies the particular act or statement concerning which inquiry is made, evidence may be introduced to contradict him, this is but one of the modes of establishing such bias or prejudice.
Wigmore says that facts tending to establish bias of a witness in the particular case in which his testimony is offered "may be offered either by extrinsic testimony or by cross-examination, without discrimination against the former." 2 Wigmore, Evidence, 2d ed. § 948. Where it is sought to impeach a witness by showing former statements indicating bias or prejudice it seems entirely logical to require that inquiry *Page 88 be made from the witness as to whether such statements were made and if they are admitted, then, of course, there is no need to offer testimony to show that the witness made the statements he admits that he made, but the general admission by a witness of ill will against, or friendship for, a party to an action does not bar further inquiry as to the extent of such bias or prejudice. The acts of the witness are frequently a more accurate gauge as to the character and extent of interest or bias than what the witenss may state while upon the witness stand.
There is a conflict in the authorities as to whether it is necessary to lay a foundation for introduction of proof of acts by a witness showing bias or prejudice or whether testimony of such facts may be offered in the first instance without laying a foundation upon cross-examination of the witness. The authorities in support of both rules are collected in a note in 16 A.L.R. commencing on page 984. In this case it is unnecessary to determine whether foundation must be laid. The letters in question here were admitted as a part of the cross-examination of the witnesses who wrote the letters and each of the letters contains statements showing clearly the friendship of the writer for the defendant and concern in her behalf as regards matters arising out of the death of her husband. The letters were properly admitted in evidence.
The defendant called two expert witnesses — Dr. Bell, and Dr. Heron. Dr. Bell is Director of the Department of Pathology in the College of Medicine in the University of Minnesota, and Dr. Heron is, and for a number of years has been, deputy coroner of Ramsey county, Minnesota. Neither of these doctors had examined the body of Nathaniel Gibson. There were exhibited to these doctors photographs of the deceased, showing the entrance and the exit of the bullet. They were permitted to testify, and did testify, as to the course of the bullet through the brain, according to the photographs, and as to the probable effect and consequences of the wound thus caused; as to whether there would be loss of all voluntary movement; whether it would be possible to place a gun in the hand of a person rendered unconscious by such a shot "so that three fingers would remain tightly clasped about the butt of the gun;" as to the reflex, whether there would or would not be tendency of the fingers of a person so injured to grasp an object that was in his hand at the time the wound was inflicted or *Page 89 one that was subsequently placed there; as to the different actions that likely would occur as regards the grasping and holding on to the pistol in case the injury were deliberately self-inflicted and where the injury were inflicted by another. Objections were sustained, however, to certain hypothetical questions propounded by defendant's counsel to these doctors, and error is predicated upon such rulings. As said, there were exhibited to the doctors, photographs of the deceased, showing the entrance and exit of the bullet.
Hypothetical questions were propounded to the doctors embodying a description of the wound, the position in which the body was found after the shooting occurred, and inquiry was made as to where, and in what position, the arm holding the gun would drop if the wound were self-inflicted. Other questions were propounded reciting the facts as regards the position in which Nathaniel Gibson's body lay when Dr. Rogers and the sheriff came, and based upon the facts stated, the doctors were asked to give their opinion whether the wound was self-inflicted or was inflicted by some other person. While the evidence showed that the doctors had a great deal of experience in the matter of gunshot wounds, there was nothing to show their expert knowledge of firearms. Many of the questions went far beyond an inquiry where the special training and qualifications of a physician and surgeon would qualify a person to speak as an expert. The obvious and immediate object of the questions was to obtain the opinion of the witness on the ultimate question whether the deceased had committed suicide. That is to say, the questions asked for the opinion of the expert on the ultimate question which was for the determination of the jury. Among the questions propounded to Dr. Bell, to which objections were sustained, and upon which error is predicated, are the following:
1. Q. "So that the holding of the gun would, in your opinion, Doctor, indicate a self-inflicted wound, would it not?"
2. Q. "Now, from what experience that you have had, Doctor, could you tell us in what position the hand would fall, assuming a self-infliction of the kind shown on Exhibits 3 and 4?"
3. Q. "Well, will you explain, Doctor, what you did expect to find if a person was shot and wounded in the manner shown by these pictures, Exhibits 3 and 4, where the wound by the shooting was not self-inflicted?" *Page 90
While expert testimony is admissible, for the enlightenment of the jury and to enable the jury to decide questions of fact, it is not permitted to have experts decide the ultimate question of fact in the case for the jury. There are certain very definite limitations upon expert testimony.
Jones says: "Since expert testimony is an exception to the general rule of law excluding opinions from evidence, and trenches upon the province of the jury, it is not to be extended beyond the necessities of the case. The determination of the matters directly in issue is not thereby to be taken from the jury. Hence, the ordinary rule is that opinions of experts upon the merits, or upon the very matter to be tried, are inadmissible. All questions calling for expert opinions should be so framed as not to call upon the witness to determine controverted questions of fact, or to pass upon the preponderance of evidence. When the question is so framed as to call upon an expert witness, or any other, to determine on which side the evidence preponderates or to reconcile conflicting statements, he is, in effect, asked to decide the merits of the case, a duty wholly beyond his province. Whatever liberality may be allowed in calling for the opinions of experts, such witnesses must not be permitted to usurp the province of the court and jury by drawing those conclusions of law or fact upon which the decision of the case depends. Although this has been earnestly criticized, it is sustained by the undoubted weight of authority. It is, moreover, founded in practical necessity as well as theory; for in many cases trials would become farcical if zealous experts were allowed to express direct opinions upon the very issue to be tried." Jones, Commentaries, Evidence, Vol. 3, 2d ed. pp. 1321, 1322.
In Underhill, Criminal Evidence, 4th ed. § 234, it is said: "Conclusions of law or of fact upon which the decision of the case depends are not permissible to be drawn in evidence by expert witnesses, as, for example, that a wound was either accidentally or purposely inflicted, that it was not accidental, that accused could have been shot by the deceased, that deceased could not have fired the fatal shot, that it was impossible for the prosecuting party to have fired the first shot, the relative positions of the parties in a homicide. . . . Expert testimony which is merely argumentative is not admissible." *Page 91
We find no prejudicial error in the rulings made in the examination of the medical experts.
The defendant testified before the coroner's jury at the inquest. Her testimony was taken down in shorthand. The reporter who took the testimony was called and testified regarding certain statements made by the defendant in her testimony at the coroner's inquest. It is contended by the appellant that this testimony was inadmissible, and that its admission violated the provisions of § 13 of the North Dakota Constitution which provides that no person shall "be compelled in any criminal case to be a witness against himself." N.D. Const. § 13.
The admission of testimony as to the statements made by the defendant at the coroner's inquest was not violative of the constitutional rights of the defendant.
"The constitutional right of defendant not to be compelled to be a witness against himself is not violated by the introduction in evidence of his testimony, voluntarily given, on a former trial for the same offense, or in another court, or at the coroner's inquest, or at the preliminary hearing, or before the grand jury, or at an extrajudicial investigation, or at a preliminary examination or trial for another offense." 16 C.J. 569.
The reporter who took the shorthand notes of the testimony of the defendant at the coroner's inquest used his notes to refresh his memory. He testified that he had correctly transcribed the notes and he produced what he testified to be a complete, true, and correct transcript of the notes of the testimony given by the defendant at the inquest. On cross-examination defendant's counsel offered the entire transcript in evidence and it was so received.
The testimony given by the defendant at the coroner's inquest did not constitute a confession. There were no statements made by the defendant in such testimony to the effect that she shot her husband or was in any manner responsible for such shooting. As regards this particular act her testimony was all to the effect that her husband had shot himself and that the wound from which he died was self-inflicted. It is true the record does not show that she was warned that any statements she then made might be used against her; but the record clearly negatives that any of her testimony was given as a result of intimidation, threats, force, or coercion. The statements made by the defendant *Page 92 upon the coroner's inquest were voluntary within the meaning of the term. Anderson v. State, 133 Wis. 601, 114 N.W. 112.
Appellant cites a statement by Professor Wigmore to the effect that "voluntary testimony before a coroner's inquest . . . is . . . not a waiver for the main trial." 4 Wigmore, Evidence, 2d ed. § 2276.
This statement does not relate to the admissibility of statements made by a witness before a coroner's inquest. It relates to the extent of waiver of the privilege against self-incrimination by an accused who takes the witness stand.
The entire statement of Professor Wigmore is: "The waiver involved in the accused's taking the stand is limited to the particular proceeding in which he thus volunteers testimony. His voluntary testimony before a coroner's inquest, or a grand jury, or other preliminary and separate proceeding, e.g., in bankruptcy, is therefore not a waiver for the main trial; . . ."
In a note following the statement it is said:
(Note 5) "But of course his voluntary testimony on the formeroccasion may itself be used (subject to the rule for confessions, § 852) on the subsequent occasion." 4 Wigmore, Evidence, 2d ed. p. 920.
In other words, the rule as stated by Professor Wigmore is to the effect that a party who appears and testifies at the coroner's inquest does not thereby render himself subject to be called as a witness upon a subsequent trial of a criminal action involving the death of the person upon whose body the inquest was held; but that testimony given by a witness at a coroner's inquest is subject to admission against the defendant in a criminal action the same as other statements made by such defendant. If such statements constitute a confession then, of course, foundation must be laid to bring them within the confessions-rule; but if they are admissions which do not constitute a confession, then they are admissible the same as other admissions made by the accused. 4 Wigmore, Evidence, 2d ed. § 2276 (5) and cases cited in note 8. State v. Kimes, 152 Iowa, 240, 132 N.W. 180; Roberts v. State, 89 Tex.Crim. Rep.,231 S.W. 759; State v. Finch, 71 Kan. 793, 81 P. 494. See also State v. Burrell, 27 Mont. 282, 70 P. 982.
Error is, also, predicated on rulings made in the course of the examination of Katherine Donis as a witness for the state. Katherine Donis was the maid in the Gibson household. She was in the house the night *Page 93 preceding, and on the morning of, Gibson's death. She testified, among other matters, as regards the actions of the defendant and her brother, Joe, before Gibson's death, as well as afterwards. She testified that Joe moved into the Gibson house two or three days after Gibson's death. She testified that before Gibson's death she had noticed certain signals given by lights to indicate when Mr. Gibson was away; that Mrs. Gibson would go upstairs and turn the lights on and off; and that after such signals had been given, Joe would sometimes come over to the Gibson house, and that other times the defendant would go over after him. She also testified that Mrs. Gibson used to go out riding with Joe "a lot." She testified that she went down to the post office with Mrs. Gibson; that she (the witness), would go in and get the mail and bring it out to the car and that at times the defendant would go into the postmaster's office, and that when the defendant came out to the car, she asked the witness not to tell Joe. There was objection by the defendant's counsel to the latter question on the ground that it was immaterial, that if it is an admission, it is an admission on a matter that is wholly immaterial and not connected with the claim of the defendant. The state's attorney stated: "It is on the theory of infidelity." Defendant's counsel then said: "Everything she did is not an admission. It must be inconsistent with the claim now made in order to be admissible as an admission." The objection was overruled, and the witness answered: "Yes, she would tell me not to tell Joe," and again: "She told me not to tell Mr. Gibson or Joe that she had been down to see Mr. Lenneville (the postmaster)." There was a motion to strike the answer as immaterial, which was denied. There was no exception to the remark of the state's attorney. Apparently, at that time, it did not occur to anyone that there was anything improper in the reasons stated by the state's attorney.
It was the theory of the state that motives for the murder were: (1) An illicit love affair between the defendant and Joe Donis, of which the deceased had knowledge and on account of which he had required Donis to leave his home; and (2) certain life insurance policies on the life of the deceased, payable to the defendant.
At the time the questions were propounded to the witness, Katherine Donis, there was nothing to indicate the nature of the particular statement the defendant had made to the witness, Katherine Donis, and *Page 94 concerning which inquiry was made. The statement which the witness stated the defendant had made indicated a concern on the part of the defendant as regards any possible action on her part that would give rise to jealousy on the part of Joe Donis. The fact that she had this concern, even to the extent of desiring that nothing be said to Joe Donis about that she had gone into the office of the postmaster when she was at the post office for the mail, would have a tendency to corroborate the other testimony that had been offered as regards her relations with Joe Donis, and for that reason the trial court was correct in refusing to strike the answer. As said, at the trial no exception was taken to the statement of the state's attorney as to the purpose of the inquiry. After the answer had been given, it was apparent that the testimony was offered as tending to substantiate the claim that had been made as to the irregular or improper relations between the defendant and Joe Donis. The remark of the state's attorney was addressed to the court and not to the jury. It was in the nature of an explanation after defendant's counsel had made the objection.
We find no error in these rulings of the court. The only points on which the court's rulings were invoked were first as to the questions, and later by motion to strike the answer. It is possible that a more happy way of stating the object of the testimony might have been devised, but we must view the matter in the way the situation arose and as it existed at the time. The language used by this court in State v. McGahey, 3 N.D. 293, 55 N.W. 753, is quite applicable here: "Counsel must have some latitude and some discretion. In the heat of nisi prius trials, where questions are raised that must be instantly met, counsel cannot be expected to weigh with nicety and precision the effect of their words. This matter must, of necessity, rest largely in the discretion of the court, and abuse of that discretion is not to be rashly presumed. We are in full accord with the language of the learned supreme court of the state of Indiana, that `when the statement is a general one, and of a character not likely to prejudice the cause of the accused in the minds of honest men of fair intelligence, the failure of the court to check counsel should not be deemed such an abuse of discretion as to require a reversal.' Combs v. State, 75 Ind. 215. And more emphatically would this be true where, as in this case, the remarks were addressed to the court, and were entirely pertinent *Page 95 and proper for the court to hear; and, while in the presence of the jury, yet in no sense directed to them, or intended to influence them. No case cited by counsel would warrant us in sustaining his point." 3 N.D. 293, p. 306, 55 N.W. 753.
The defendant also assigns error upon the instructions to the jury given and refused. The respondent asserts that these assignments may not properly be considered on this appeal for the reason that the appellant did not file written exceptions to the instructions within twenty days after they were filed as provided by § 10,824, Comp. Laws 1913. In support of this contention respondent cites State v. Reilly, 25 N.D. 342, 141 N.W. 720; State v. Shoars, 59 N.D. 67, 228 N.W. 413; State v. Balliet,61 N.D. 703, 240 N.W. 604; State v. Bossart, 61 N.D. 708,240 N.W. 606; State v. Youman, 66 N.D. 204, 263 N.W. 477.
Appellant's counsel concede that the former decisions of this court support the contention of the respondent, but they argue that the rule is erroneous and not warranted by § 10,824, supra, when that section is construed together with §§ 10,825, 10,906 and 10,915. Appellant's counsel further contend that the rule established by the former decisions is predicated upon the holding in State v. Reilly, 25 N.D. 342, 141 N.W. 720, supra, and it is contended that the decision on that point in State v. Reilly was overruled on rehearing, and the holding in the original opinion on that point repudiated.
The contention of the respondent must be sustained. The statutes relating to the charge of the court to a jury in a criminal case and the taking of exception thereto have remained in force without change since they were embodied in the Revised Codes of 1895.
The question whether it is essential to file written exceptions with the clerk of the district court was first considered in State v. Campbell, 7 N.D. 58, 72 N.W. 935. In that case written exceptions had been filed and the court held that the defendant was restricted to the exceptions thus filed and could not predicate error upon instructions which had not been challenged by such written exceptions. After so holding the court said: "The exigency of the case at bar does not require this court to determine whether, in a case where no such exceptions to the charge are filed by counsel, an exception to each feature of the charge will presume to result under the statute and by operation of law." The *Page 96 court then cites all the sections of the statute which are invoked by the parties to this action.
The question next arose in State v. Reilly, supra. The holding in the original opinion in that case is stated in ¶ 12 of the syllabus thus:
"The trial judge said:
"The court at this time will submit to the jury a written charge, but owing to the fact that there is but one counsel for the defense, and that his time has been thoroughly taken up during the progress of the trial so that he has not had proper and sufficient time to consider the charge in order to file his written exceptions thereto, which he would be required to do before the charge was given, the court will permit the defendant to consider the charge the same as if it had been delivered orally, and save to him his right to file exceptions thereto the same as if it were an oral charge. Held: that under §§ 9987, 9988, and 10,078, Rev. Codes 1905, such exceptions were required by the order to be filed within twenty days, and that unless such exceptions were so filed the right thereto was waived."
A rehearing was ordered and in the opinion on such rehearing it was stated that it had been discovered that the trial judge had extended the time for filing exceptions to the charge, and said the court: "We must therefore on this rehearing overrule the ruling made in ¶ 12 of the syllabus and the statement in the main opinion upon which the same is based as the waiver if any has been excused by the trial court." It is clear that the word "overrule" was used inadvertently and that what the court meant was that that portion of the opinion was withdrawn because the question was not involved upon the record in the case. There was no intention to express any disapproval of what had been said in the original opinion but merely to indicate that the question was not involved and, hence, not decided. That there was no intention to disapprove of what had been said is apparent from the syllabus on the opinion on the petition for rehearing. The paragraph of the syllabus relating to the matter under consideration reads as follows: "Although under §§ 9987, 9988 and 10,078, Rev. Codes1905, exceptions to an oral charge are required to be filedwithin twenty days, and unless so filed the right thereto will bewaived, the omission will be deemed to have been cured where the record discloses that the court allowed an extension of time to settle the case on condition that exceptions *Page 97 to his charge be filed within a time limited, and that subsequently to such time the said court certified as a true and correct statement of the case, a statement which included the exceptions in question." 25 N.D. 342, 141 N.W. 720.
The decision in State v. Shoars, 59 N.D. 67, 228 N.W. 413, supra, did not rest upon the doctrine of stare decisis. The question of the meaning and effect of the statutes relating to the filing of exceptions to the court's instructions to the jury was considered as though it were an open one, and after a discussion of the meaning and effect of the statutes attention was called to what had been said in the Reilly Case.
The rule announced in the Shoars Case has subsequently been reaffirmed in State v. Balliet, 61 N.D. 703, 240 N.W. 604, supra, State v. Bossart, 61 N.D. 708, 240 N.W. 606, supra, and State v. Youman, 66 N.D. 204, 263 N.W. 477, supra.
In State v. Bossart, supra, this court said: "The record does not show affirmatively that the written charge was first submitted to counsel for examination as permitted by § 10,825 of the Compiled Laws, 1913. If so submitted and no exceptions taken and filed, we cannot consider the specification of error. If not first submitted to the counsel, it is in no better position for the state than an oral charge, and while an oral charge is deemed excepted to in order that the other party may have an opportunity to examine it after delivered and transcribed, yet these exceptions must be reduced to writing and filed within the time fixed by statute. Not having filed any such exceptions, the right thereto is waived. See State v. Shoars, 59 N.D. 67, 228 N.W. 413; State v. Reilly, 25 N.D. 342, 141 N.W. 720; State v. Balliet,61 N.D. 703, 240 N.W. 604, just decided." State v. Bossart, 61 N.D. 708,240 N.W. 606, 610.
This language applies here. In this case it appears that the charge was in writing. The record does not affirmatively show that it was submitted to counsel for examination. The record does show that no exceptions were taken at the time the charge was given or filed with the clerk of the district court within twenty days after it had been filed.
It is a matter of common knowledge that the settled practice in this state always has been to file written exceptions to the charge in criminal cases. And until the adoption of the Civil Practice Act in 1913 *Page 98 this was also the practice in all civil cases. That is, prior to the adoption of the Civil Practice Act of 1913 it was the established practice in all cases, both civil and criminal, where a written charge was not submitted to counsel and exceptions required to be taken before the charge was delivered to the jury, to file written exceptions in both civil and criminal cases. The practice act adopted in 1913 related only to civil actions and the practice which formerly prevailed in criminal cases remained unaffected, and that practice was in accordance with the construction which had been placed upon the statutes by this court in all cases where it has been required to pass upon the question.
The Shoars Case, 59 N.D. 67, 228 N.W. 413, was decided in January, 1930. Four legislative assemblies have since convened and there has been no attempt to change the rule that was announced in that decision. That rule is in harmony with the rule prevailing in practically all other jurisdictions. To attempt to depart from or change it by judicial interpretation would be, in effect, to enter into the field of legislation.
Appellant also contends that the verdict is against the law. This contention is predicated upon § 9459, Comp. Laws 1913, which reads as follows: "No person can be convicted of murder or manslaughter or of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt; but in no case upon a plea of not guilty, shall the confession or admission of the accused in writing or otherwise, be admissible to establish the death of the person alleged to have been killed."
It is argued that the corpus delicti consists of two elements: 1. The fact of death, and 2. That the death was produced through some criminal agency. It is the contention of the appellant that under the provisions of § 9459 supra, both elements must be established by direct proof, that it is not sufficient to establish the fact of death by direct proof, that there must also be direct proof that the death was produced by some criminal agency; and that under this statute the confession or admission of the accused is not admissible, and may not be considered, upon the question whether Nathaniel Gibson was killed by the defendant. This contention cannot be sustained. The statute draws a clear *Page 99 distinction between the proof of death and proof that the death was produced through the criminal agency of the accused. It is only the fact of death that must be established by direct proof, and it is the fact of death that the statute says may not be established by the confession or admission of the accused. The reason for the rule embodied in the statute was stated at some length in State v. Sogge, 36 N.D. 262, 161 N.W. 1022. As there stated, the rule as announced by Lord Hale was that "the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body; a rule warranted by melancholy experience of the conviction and execution of supposed offenders, charged with the murder of persons who survived their alleged murderers."
The defendant also contends that the court erred in giving to the jury instructions relating to murder in the second degree. It is argued that under the evidence, the defendant, if guilty at all, was guilty of murder in the first degree, and that therefore it was error to submit any instructions relating to the murder in the second degree. The contention is without merit. If the defendant shot her husband, she was guilty of murder. It is inconceivable that the jury would find her guilty of murder in the second degree if they had reasonable doubt as to whether she fired the shot at all. The defendant was not prejudiced by the fact that the jury, if, after a consideration of the evidence, they were convinced beyond a reasonable doubt that she killed her husband as they must have been to return the verdict they did, were afforded an opportunity to and did bring in a verdict for the lesser degree.
Error is assigned upon certain statements made by the state's attorney in his argument to the jury. The statements to which exception is taken, related to some of the letters heretofore referred to, which were admitted for impeachment purposes. The letters referred to in the comment of the state's attorney had been written to the defendant by Elnora Donis, and had been introduced in evidence during her cross-examination. The testimony given by Elnora Donis in her examination in chief tended to impeach her sister, Katherine Donis, and also tended to impeach the witness Mrs. Donis, the mother of Elnora Donis, who, also, had testified as a witness for the prosecution. Elnora Donis, also, testified to certain statements which, she said, her mother had made, tending to show strong bias and ill-will on the part of her mother *Page 100 toward the defendant. In the course of her cross-examination, Elnora Donis was asked whether she had ever observed any "conduct of indecency" between her brother, Joe, and the defendant. She answered in the negative. She was then asked if she had ever heard of such a thing, and likewise answered in the negative. But, on motion of counsel for the defendant, the answer was stricken out. She was then asked if she had made any statement to the defendant to the effect that she would not tell what she knew about the defendant and her brother, Joe. She answered in the negative. She was then asked whether she had corresponded with the defendant, and whether she had written her letters containing certain statements relating to the defendant and her brother, Joe. She answered in the negative. She was then shown one of the letters in question and asked if she had written it to the defendant. She answered in the affirmative. Counsel for the state then offered the letter in evidence. There was an objection by counsel for the defendant on the ground that the letter was immaterial; and explanatory of the objection, defendant's counsel stated that there was nothing in the letter "that would tend to impeach her" or "dispute" anything said by the witness on direct examination. The following colloquy then occurred:
"Mr. Mackoff (Assistant State's Attorney): It shows interest.
"Mr. Eberhard (Counsel for defendant): We object to it on the ground it is immaterial.
"Mr. Mackoff: It shows interest, affects the credibility.
"Mr. Eberhard: It doesn't affect the credibility.
"Mr. Mackoff: Disputes statements she made.
"The Court: That was the theory I was letting it in on, showing interest and affecting the credibility."
Subsequently, other letters were exhibited to the witness, which she admitted that she had written to the defendant.
The state's attorney, in his argument, stated that there had been an attempt to explain the relationship between the defendant and Joe Donis as being wholly proper, and the attitude of the defendant toward Joe as being wholly "motherly." He then referred to an incident that had been mentioned in the testimony adduced by the state, tending to show that the relationship was improper, and he also referred to the letter from the witness, Elnora Donis, to the defendant, and stated he *Page 101 would read the letter. There was objection by the defendant's counsel to the reading of "excerpts from the letter," as part of the argument then presented, on the ground that the letter had been admitted for impeachment purposes only; the objection was overruled. The state's attorney proceeded with his argument and stated that the witness, Elnora Donis, had denied that she had observed any improper conduct between the defendant and her brother; and he then proceeded to read the letter.
In the letter the witness, among other things, asked the defendant to be careful and to tell Joe the same; that they were being watched and that some day a certain party would come to the defendant's place and find Joe in hiding. The state's attorney, — after again calling attention to the fact that Elnora Donis, on the witness stand, had denied all knowledge of any improper relations between the defendant and her brother, Joe, — stated that Elnora Donis had written another letter to the defendant, which the state's attorney started to read. There was similar objecion by the defendant's counsel as to the former letter. The objection was overruled, and the state's attorney read the letter. The letter indicated concern on the part of the writer, and rather a strong interest in behalf of the defendant, and made some references to what her sister, Katherine, had said as regards the defendant and her brother, Joe.
In so far as the argument of the state's attorney called to the attention of the jury the contradiction between the testimony of Elnora Donis upon the trial and the statements formerly made in her letters; and in so far as he called to the attention of the jury the bias and interest of Elnora Donis in favor of the defendant as evidenced by the statements in her letters; and in so far as he questioned the credibility of Elnora Donis and the weight to be given to her testimony, the argument was wholly proper. But, in so far as the argument might be construed as suggesting, or contending, that what Elnora Donis had said in her letter, or letters, might, or should be, considered as proof of the existence of the facts purported to be stated in her letters, it was not proper. There was no objection, or exception, to the argument that preceded, or that followed, the reading of the letters. The objection was to the state's attorney's "reading any excerpt from the letter" as evidence of any misconduct on the part of the defendant. *Page 102
The letters were admissible, and had been admitted, in evidence only for the purpose of impeaching the testimony of Elnora Donis by showing her bias in favor of the defendant, and her statements in the letters contrary to her testimony on direct examination. To this extent, and in this sense, the letters would have a bearing on whether the alleged illicit relationship between the defendant and Joe Donis existed, — but they had a bearing only to the extent that they affected the credibility of Elnora Donis. The principal tenor and effect of the testimony of Elnora Donis as given in her examination-in-chief, was to impeach her sister, Katherine, and her mother. Elnora Donis testified that her sister, Katherine, in a conversation with her some time before the trial, had stated that the testimony which she (Katherine) gave at the inquest was true. Elnora testified also that her mother had ill-will toward the defendant, and she gave an instance evidencing intense ill-will. Both Katherine and the mother had given testimony tending to show an illicit relationship between the defendant and Joe Donis. In fact, the testimony of the mother was devoted almost wholly to this subject. So, in determining whether such relationship existed, the jury must, of course, determine what weight and credence to give to the testimony of Katherine Donis and her mother, and in making this determination, the jury was required to consider the testimony of Elnora Donis, inasmuch as such testimony tended to impeach the credibility of Katherine and her mother. And in determining the weight and credence to give to the testimony of Elnora Donis, the jury would have to consider not only the testimony which Elnora Donis had given in her examination-in-chief, but, also, the testimony she gave on her cross-examination, including the letters that had been received as a part of the cross-examination.
What is proper, and what is improper argument is frequently a matter on which there is room for diversity of opinion. It happens at times that in the course of an argument, statements and deductions are made that may be unsound, incorrect, and unwarranted. In the very nature of things, the trial judge must be, and is, vested with large discretionary powers in controlling the remarks of counsel. 16 C.J. 887. It does not follow that because erroneous, unwarranted, or even improper statements are made in the course of an argument in a criminal action, that the verdict must be set aside. That result can follow only where *Page 103 the unwarranted or improper statements are such that it is likely that they prejudiced the cause of the accused and thus affected the verdict.
"The control of the remarks of counsel for the state during a criminal trial is a matter largely in the discretion of the trial court; and where the objectionable remarks are of a general character, and such as would not be likely, under the attending circumstances, to prejudice the cause of the accused in the minds of honest men of fair intelligence, the failure of the court to strike out such remarks, or caution the jury against them, is not such an abuse of discretion as will constitute error." (Syllabus ¶ 5) State v. McGahey, 3 N.D. 293, 55 N.W. 753.
It is not claimed in this case that there was a violation of any statutory limitations upon counsel, — such as the inhibition against comment on the failure of the defendant in a criminal action to testify.
"The objections are placed upon broader grounds, and, to support them, it must clearly appear that counsel have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the testimony. This rule was never intended to limit counsel in any manner that could injuriously affect his case upon the merits. He is allowed a wide latitude of speech, and must be protected therein. He has a right to be heard before the jury upon every question of fact in the case, and in such decorous manner as his judgment dictates. It is his duty to use all the convincing power of which he has command, and the weapons of wit and satire and of ridicule are all available to him so long as he keeps within the record. He may draw inferences, reject theories and hypotheses, impugn motives, and question credibility, subject only to the restriction that in so doing, he must not get clearly outside the record, and attempt to fortify his case by his own assertions of facts. . . . But this matter is, and of necessity must be, largely within the discretion of the trial court, and the action of the trial court should be reversed only in cases of clear and prejudicial abuse of this discretion." State v. Kent (State v. Pancoast) 5 N.D. 516, 559, 560, 67 N.W. 1052, 35 L.R.A. 518.
Our laws provide that: "After hearing the appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties." Comp. Laws 1913, § 11,013. *Page 104
The jury in this case heard the statements that were made by counsel and by the court at the time the letters were received in evidence. They heard what the court then said was the purpose for which they were admitted in evidence.
When the argument to which exception is taken is considered in light of all the facts and circumstances in the case, including the instructions of the court to the jury, we are of the mind that honest, intelligent jurors could not, and did not, as a result thereof, return a verdict which they otherwise would not have returned.
There remains one further question for consideration. It was urged upon the motion for a new trial, and is urged here that the evidence is insufficient to sustain the verdict. The members of this court, being fully aware of the extreme importance of this case, and of the responsibility which is placed upon them here, have given the most careful attention to the evidence in the case. The record is lengthy. The evidence which is presented literally in the transcript as it was given in the court room, has been read and reread. The members of the court have had the benefit of briefs and extended oral arguments. Owing to the nature of the case, the mass of testimony, and the difficult questions involved, no time limit was placed upon the oral arguments. Each member of the court has, for himself and upon his individual consideration of the facts, come to the conclusion that the evidence is wholly sufficient to sustain the verdict. That is, the members of the court are all agreed as to the legal sufficiency of the evidence and that there was, and is, substantial evidence in support of the verdict. The members of the court are all of the mind that the evidence is such that reasonable men, in the exercise of reason and judgment, in consideration of the facts and circumstances in this case, could intelligently and honestly reach the conclusion beyond a reasonable doubt that the defendant is guilty as found in the verdict. State v. Gummer, 51 N.D. 445, 200 N.W. 20.
There was introduced in evidence, not only the written admission of the defendant, but a subsequent oral admission to like effect, as well as an admission of her illicit relations with Joe Donis. While the written admission was obtained under circumstances that had a tendency to lessen its probative force, the subsequent oral admission, although given while the defendant was in custody, was given under circumstances *Page 105 where there can be no reasonable claim that it was obtained by inducement, threat, or force. But wholly aside from the admissions, there is evidence from which, in our opinion, reasonable men, in the exercise of reason and judgment, might honestly reach the conclusion beyond a reasonable doubt that the defendant killed her husband. There is ample evidence to warrant the conclusion that the defendant was, and for some time had been, infatuated with Joe Donis, and that illicit relations then existed, and had been existing between them for some time. There is evidence to the effect that almost a year before the death of Nathaniel Gibson, he had required Joe Donis to leave his home, and had forbidden him to come back or to stay there; that clandestine meetings between the defendant and Joe Donis continued, not only in the Gibson home during the absence of Mr. Gibson, but elsewhere; and that two or three days after the death of Gibson, Donis returned to the Gibson home and took up his residence there. It also appears from the evidence, that Nathaniel Gibson carried a substantial amount of life insurance with the policies payable to the defendant.
According to the testimony of the defendant, her husband returned home about 1 o'clock on the morning of his death in a very intoxicated condition; that she undressed him and placed him in bed; that he vomited continually. She testified that she lay down on the bed with him; that she became nauseated as a result of attending to him, and went upstairs to the bathroom; that before going, she kissed him; that she remained upstairs a few minutes; that the shot was fired as she was coming downstairs. That when she came into the bedroom, she noticed him lying on the bed with a gun in his left hand, bleeding from a wound in his head. (Testimony was adduced showing that the deceased was ambidextrous and handled a pistol well with his left hand.) She testified that almost immediately she called the doctor who came a few minutes later. The bed and the body had not been touched, and it is undisputed that the covers and pillows on the bed showed no evidence of anyone having occupied the bed besides the deceased. That same evening at the inquest, the defendant's story as to what occurred immediately before the shooting was corroborated among others, by Katherine Donis, the maid. On the trial of this case, however, Katherine Donis testified quite differently. She testified that she did not hear the shot; that the defendant came upstairs and wakened her and told *Page 106 her that something terrible had happened, — that Mr. Gibson had been shot. Katherine Donis further testified that the defendant told her what testimony to give at the inquest. The inquest was held on the evening of the day that Gibson was shot. At such inquest the defendant stated that only about a week before, her husband one night started to get out of bed, declaring that he intended to go upstairs and get in bed with his older daughter and the maid, for the purpose of having sexual intercourse with his daughter. She also related other instances of sexual aberrations and irregularities of her deceased husband.
It is the claim of the defendant that the deceased committed suicide. It is contended that the physical facts, such as the manner in which the gun was held in the hand of the deceased, and the position in which the hand and arm were found, all indicate suicide. A consideration of all the evidence, including the testimony of the medical experts who testified for the state, does not, in our opinion, establish any such condition. If the body had been found as it was, without any other proof, it would not have established either that the death was a result of a self-inflicted wound or a wound inflicted by someone else. As bearing upon the question of suicide, evidence was adduced that tended to show that owing to financial difficulties, the deceased had been compelled to go through bankruptcy some time before; that he was very concerned about this; that he did not want to go through bankruptcy and that from that time on he was very depressed; that a postal inspector had called to see him, apparently in regard to some complaint against him; that for some time the deceased had devoted most of his spare time to reading certain religious tracts and booklets written by one Judge Rutherford. Many of these tracts and booklets were offered in evidence. These tracts and booklets embody the teachings of, and are circulated by, the sect known as "Jehovah's Witnesses." The defendant testified, and other witnesses called in her behalf likewise testified, that the deceased for a number of months prior to his death had been taciturn, and morose; that he no longer went to church; that he did not participate as formerly in conversation and activities in the home, but devoted himself largely to the reading of the religious booklets already mentioned. There was also evidence adduced by the defendant, showing that the deceased, only a relatively short time before his death, prepared some small booklets containing unspeakably lewd and indecent caricatures. *Page 107 It seems rather strange, if the deceased was so impressed with the religious teachings contained in the booklets that were offered in evidence, and was pondering upon religious questions, was depressed over the fact that he had been unable to pay his creditors, that he should at the same time be engaged in drawing the lewd caricatures, which, so far as the evidence discloses, he never exhibited to anyone; but which testimony adduced by the defendant tended to show he had drawn during the same time, that it is said he was spending a greater portion of his spare time in reading religious tracts. It is also strange that during this time he should express, and actually take steps to satisfy, an unnatural desire to have sexual relations with his own daughter, and that he should discuss this fact with his wife. All of these acts are wholly inconsistent with the religious teachings which, it is said, had so seriously impressed him. Nor has anything been pointed out in those teachings so far as the booklets offered in evidence are concerned, that in the slightest degree could induce anyone to commit suicide, but quite the contrary. The tenor of such booklets was "to know and understand the word of Jehovah God;" to obey and follow the law of Jehovah, and it is said in one of them that: "They that will know Jehovah and his beloved son, Christ, Jesus, and will walk in the way of righteousness, will be the recipients of his boundless blessings."
According to the evidence, the one and only person who had the opportunity to inflict the wound, aside from the deceased himself, was the defendant, and the record also establishes ample motive on her part for the alleged crime. The jury considered and weighed all the evidence in this case. We believe there is ample evidence which might appeal to their judgment as reasonable, intelligent, and honest men, and convince them beyond reasonable doubt that the defendant fired the shot that killed her husband.
Upon the application of the defendant, the case was transferred to another county, and trial was had more than 100 miles distant from the place where the crime is alleged to have been committed. The case was tried more than a year and a half after the death of Nathaniel Gibson. There is no claim, and there is no basis for claim, that the jury selected to try the case was not wholly impartial and free from prejudice. The record discloses that the jury gave the case extended consideration. They returned and asked for further instructions. Their *Page 108 questions indicate that they had given careful and intelligent consideration to the case, and apparently had arrived at the conclusion to exclude the written admission as evidence in this case.
As heretofore pointed out, the instructions of the trial court directed the jury to disregard any admission that was found not to have been made voluntarily, and in this respect was more favorable than the defendant was entitled to have the court give. The record discloses that the defendant was defended with ability and zeal. There can be no doubt that the cause of the defendant was presented to the jury, — as it was to this court, — ably and forcefully. The one, and the only, basic question in issue was whether the defendant had fired the shot that killed Nathaniel Gibson. All questions that arose during the course of trial were incidental to this main question. The defendant testified in her own behalf, and denied that she shot her husband. She denied that she had told her counsel that she had shot her husband, and her counsel testified to like effect. The jury, after what must have been careful and earnest consideration of the case, reached the conclusion that their minds were satisfied beyond a reasonable doubt that the defendant had killed her husband. While, under the applicable rules, this court may not consider the assignments predicated upon the instructions to the jury, the members of this court have read the instructions with care, both those given and those refused, and without expressing either approval or disapproval of some of the instructions challenged, and some of those refused, we are of the mind no prejudicial error was committed by the court so far as concerns the instructions or so far as any other rulings upon which error has been assigned.
When the case is considered as a whole, as it went to the jury, it does not appear at all probable, that anything that was said, or done, upon which error has been predicated could, or did, affect the verdict. Upon the record presented on this appeal, we are of the view that the cause was presented to the jury fully and fairly. The jury, after careful consideration, deliberately reached the conclusion that the defendant fired the shot which resulted in the death of Nathaniel Gibson, and we are all of the view that the evidence was sufficient to justify twelve intelligent, honest, and reasonable men, in the exercise of reason and *Page 109 judgment, in returning the verdict which they did return. The judgment and orders appealed from are affirmed.
CHRISTIANSON, Ch. J., and BURR, MORRIS, and NUESSLE, JJ., and HOLT, Dist. J., concur.
Mr. Justice SATHRE, being disqualified, did not participate, HON. DANIEL B. HOLT, Judge of First Judicial District, sitting in his stead.