Beery v. United States

Wells, J.,

dissenting. I dissent from the opinion of the chief-justice upon these points: The cause assigned by the prisoner for his challenge to the array, and in the overruling of which error is said to have intervened, is as follows : “Because the said jurors have not been selected and drawn from the body of said district, or county of Park, in Colorado territory, where it is alleged in the indictment preferred against this defendant, the said crime was committed.” The allegation, like every other pleading, is to be construed against the challenger. Applying this rule, it will, I think, be apparent that the cause of challenge asserted goes to the poll only, and not to the array ; for while it may be that the prisoner intended to assert that none of the jury came from the body of the district, yet clearly, as I think, it is entirely consistent with his allegation that some of the jurors were drawn from the district, and others from beyond it. If any one of the jury was taken from beyond the district, then what the defendant has alleged as cause of his challenge is true ; the jurors considered collectively, were not drawn from the body of the district; yet clearly, if one only of the panel had been drawn from another district, this should not be ground to quash the whole array, but goes only to the poll.

Again, it is manifest that the prisoner’s challenge is a traverse of the marshal’s return, which, according to the *206only authority which I have seen, is not admissible. Hare v. Brown, Cro. Eliz. 369; Rex v. Higgins, Raym. 484; Bac. Ab., Juries, B. 3 E.

2. That the courts of this territory, while exercising their jurisdiction in causes arising under the constitution and laws of the United States, are still territorial courts, and not courts of the United States, is conceded ; that the practice and course of proceedings in these causes, as well as in causes arising under the laws of the territory, is within the scope of the powers conferred by the organic act upon the territorial legislature, I also concede; but that they have regulated or assumed to regulate it, as to the number of challenges allowed to the accused in an indictment under the laws of the United States, the only point in question here, I deny.

The 141st section of the act concerning criminal jurisprudence contains the first attempt of the legislature of this territory to regulate the number of challenges to be allowed to an accused person. By the act under consideration, the legislative assembly, after defining in detail the several crimes against society and individuals, under several divisions and sections, proceed to the 13th division of the statute. By section 133 of the statute, which is the first section of this division, it is provided that the district court, when any indictment shall be found, shall fix the sum in which the accused, when by law the offense is bailable, may be admitted to bail, and the officer who shall make the arrest is required to let the accused to bail upon his entering into recognizance in the sum specified, “which recognizance” it is provided “ shall be made' payable to the people of the territory.” By the next section it is provided that it shall be the duty of the clerks of the district courts to issue process of capias for the apprehension of all persons indicted in said courts, respectively, to be directed “to the .sheriff, coroner and constable of the county where such indicted person shall then be,” and then follows a provision as to the arrest and return of the accused.

By section 135 it was provided that the clerks of the dis*207trict court shall issue subpoenas “either on the part of the people or the accused, in any indictment.” Sections 136 and 137 provide for the manner of summoning the jury, supplying vacancies in the panel, and that the prisoner shall in certain cases be entitled to a copy of the indictment and a list of the jury. By section 138, the manner of pleading is prescribed, “and such plea,” it is declared, “shall constitute the issue between the people of the territory and the prisoner.” Sections 139 and 140 provide for the cases in which the prisoner shall stand mute, or shall plead the plea of guilty. And by the 141st section it is provided that every person arraigned for any crime punishable with death shall be admitted on his trial to a peremptory challenge of ten jurors and no more; and every person arraigned for any offense, that may be punished by imprisonment for a term exceeding eighteen months, shall be admitted to a peremptory challenge of four jurors ; and in all other criminal cases the defendant shall be allowed a peremptory challenge of two jurors. The attorney prosecuting on the part of the people shall be admitted to a peremptory challenge of one-half the number of jurors that the accused is entitled to, and no more.” The sections of the act of 1861, to which I have referred, continued in force until the revision of the statutes in 1868, and were then re-enacted in the same words (R. S., ch. 22, §§ 203, 212) and so the law continued until the passage of the act of February 9, 1872, concerning criminal proceedings (Laws 1872, p. 94), and in this act, which still remains of force, the provision is, that “ the peo pie and the accused shall be entitled each to fifteen peremptory challenges, in capital cases,” etc. Therefore, the law stands at present, as it did after the adoption of the criminal code of 1861, save that the number of challenges without cause shown, has been increased ; the same enactments in the same words, are still of force, and apply in the same cases to which the act of 1861 was intended to apply, and in no others. The question is, did the legislature, by the enactment of 1861, re-enacted in the revision of the statutes of 1868, intend to regulate the number of challenges to be *208allowed upon the, trial of indictments, for offenses against the laws of the United States. If we look to the letter of the particular section merely, I think it is clear that they did not. The concluding words would seem to make it apparent that the purpose of the legislature was to prescribe the number of challenges to be allowed to the accused on one side, and to the people of the territory upon the other; statute can apply, therefore, only to those cases in which the people are party, i. e., to causes arising under the laws of the territory. If any doubt remains after consideration of this section by itself, it will, I think, be dissipated by reference to the context. The organic act provides, section 10, that the marshal shall execute all processes issuing from the district courts, when exercising their jurisdiction as circuit and district courts of the United States ; but by the 184th section of this act, as before seen, the legislature provide that process for the arrest of any indicted person shall be directed only to officers appointed under territorial law. Certainly, it is incongruous that, in prosecutions for offenses against the laws of the United States, the accused should be recognized as a penalty payable to any other than the United States, or the executive thereof, and in practice the recognizance of an accused person admitted to bail has, I believe, been invariably made to the president, yet, by the section 133 above cited, it is provided that whenever any person indicted in the district court shall be let to bail, the recognizance shall be made to the people of the territory. If these sections were intended to regulate the proceedings of the courts when exercising the jurisdiction of the circuit and district courts of the United States, the latter is in direct violation of the organic act, and both the former and the latter have from the beginning been persistently set at defiance by the courts. The inference is, I think, irresistible ; that they never were intended to be of force in such cases, and that the courts never understood them to be so intended. If these sections do not apply, how can it be said that that touching challenges shall ? What reason can be assigned for attributing to the latter section an effect broader *209than the former ? The argument to be drawn from the other sections, to which I have referred appears to me equally convincing. It would seem impossible, by argument, to make more clear the particular class of criminal prosecutions to which the mind of the legislature was directed in this enactment. If we look to the contemporary usage and practice of the courts, it will serve to fortify the argument drawn from the words of the statute, for I believe that, until a period dating since the last session of our legislature, it had not been suggested by any one that, in causes arising under the laws of the United States, the courts were governed by the rules of practice prescribed in the criminal code of the territory ; but, on the contrary, the courts in general assumed to conform, in their procedure, to the acts of congress, regulating proceedings in the federal courts. It was not, I believe, until the announcement of the opinion of the supreme court, in Clinton v. Engelbrecht, that any doubt was suggested as to the propriety of the usage which had obtained in this respect. In the opinion of the chief-justice, it is asserted, in substance, that the purpose of congress was, that the jurisdiction of the territorial courts, in causes arising under the laws of the United States, should be exercised according to the practice adopted in other cases arising under the laws of the territory.

I conceive that all questions as to the purpose of congress is beside the mark. By the .organic act, full power was given to the territorial legislature to regulate the practice of the territorial courts, in all cases which might come before them under whatsoever jurisdiction arising (Palmer v. Cowdery, Feby. T., 1873), and there is no syllable or word in the organic act, or elsewhere in the legislation of congress, which looks to a purpose in congress to control the power of the legislature in this respect. The whole subject was remitted to them to provide the rule which shall govern. Was it the intention of the legislative assembly, in the statutes which have been referred to, to exercise this power ? For the reasons before set forth I am clear that such was not their intention.

*210It remains to consider whether the legislature have else - where declared their purpose as to this matter. By the act of October 11, 1861 (Laws 1861, p. 35), it was provided in substance, that the common law of England, so far as applicable, and certain acts of parliament in aid thereof, shall, so far as applicable, and of a general nature, be deemed and taken to be of full force within this territory, until repealed by legislative authority. The common law of England, therefore, whenever and so far as capable of application, affords the rule of decision as to cases in which the legislative assembly have not otherwise provided, and from hence I conceive is to be drawn the rule to govern the present case.

The offense of which the plaintiff in error was indicted is misdemeanor merely. U. S. v. Mills, 7 Pet. 141. By the common law, no peremptory challenges of jurors are, in such case, allowed. 2 Hawk. P. C. 580, 581; U. S. v. Cottingham, 2 Bl. C. C. 470. Therefore, the challenges made on behalf of the prisoner were properly denied.

3. The doctrine asserted in the opinion of the chief-justice, touching the admissibility of the confessions of the prisoner, is, 1 concede, fully sustained by the current of authority. There are, it is true, dicta, which assert the admissibility of the confession made in like cases. State v. Crank, 2 Bailey, 77; State v. Moore, 1 Hogue, 482; State v. Jenkins, 2 Tyl. 377; 1 Phill. Ev. (5th Am. ed.) 555*, note 159. But 1 am not prepared to assert that there is any authoiitative decision which is at variance with the doctrine generally received in the courts.

Nevertheless, this is one of those venerable errors abounding in the law which rest altogether upon authority, and are' respectable only for their antiquity, as I shall attempt briefly to show.

The reason uniformly assigned for the exclusion 'of confessions extorted by promises or threats is the unreliable character of confessions delivered under such influences. That the courts pay no. regard to the indecency of subjecting an unfortunate person, accused of crime, to flattery, torture or artifice, in order to induce inculpatory *211statements, is well established. The rule resting solely upon the supposed probability of the untruth of the confessions, it is to be observed.

1. That the rule established in this instance is at variance with the rule in other cases, where, as is conceded, there is equal probability of deception; e. g., the case of accomplices, approvers, and persons notorious among their associates and acquaintances for their disregard of the truth. The testimony of such witnesses, notwithstanding its admitted unreliability, was, I believe, never rejected.

2. In the other instances in which the probability of deceit has heretofore sufficed to exclude the testimony of witnesses, that is, in the case of parties and interested persons speaking in their own behalf, and persons deficient in religious faith, the rule established by the courts has, with us, and I believe almost everywhere else, been abrogated by legislation ; and the general acquiescence with which the new rule has everywhere been received, impels the belief that the fear which excited the courts to the exclusion of such evidence in the beginning, was without just foundation.

3. I think that no one at all acquainted with the practical workings of the rule in question can doubt that it has served more frequently to defeat than to promote justice ; and upon this I quote the declaration of a learned commentator, that “The cases probably are rare in which such unfounded self-accusations occur, or at least, where a jury would be misled by them ; and certainly the rule occasions, in a multitude of instances, the escape of the guilty. 1 Phill. Ev. (5th Am. ed.) 543*

4. If the exclusion of the confession rests altogether upon the probability that the confession is untrue, as we have seen, then, if the prosecution produce evidence tending to show and sufficient to warrant the jury in finding that it is true, it ought to be received; for in such case the reason of the exclusion is done away. All the courts recognize the propriety of this reasoning, but illogically decline to pursue it to its legitimate results.

*212If one accused of larceny, being put to torture, confess the crime and produce the goods from his own possession, or disclose the place of their concealment, and they are afterward found in the place indicated, you may, it is agreed, give in evidence the fact of the finding of the goods, conformably to information given by the prisoner ; but you may not, in the same case, according to the received doctrine, give in evidence the prisoner’s statement that he deposited the goods in the place where they were found, or that he stole them. But why may you not? The reason assigned for receiving so much of the confession as is received is, that in so far it is shown to be true, notwithstanding the improper influence by which it was extorted, i. e., it is shown that it is probably true, for, considering the possibility of perjury in the testimony as to the fact or the place of the finding of the goods, it cannot be asserted that the truth of the prisoner’s declaration even as to this is incontrovertibly established; therefore the doctrine amounts to this, that, in so far as the prisoner’s confession is shown to be probably true, it shall be received. But I assert, in the case supposed, the finding of the stolen goods at the place indicated not only tends to corroborate the declaration of the prisoner that they will be found there, but also his declaration that he stole them and concealed them at that place, if he make this statement; for the courts, without dissent, agree to this, that the jury will be warranted in finding the prisoner guilty of the larceny upon the mere circumstance that the place of concealment is disclosed by him. And this amounts to saying that the finding of the goods at that place tends to show and warrants the belief that when he confessed, to the larceny he spoke truthfully.

In other words, the received doctrine involves this absurdity, that while, in passing upon the primary question whether the evidence shall be received, the court, notwithstanding the corroborating circumstances, shall find the confession probably untrue, .and therefore exclude it, the jury, considering the same evidence, may find the very fact confessed to be absolutely true.

*213For these reasons I am of opinion that the rule which the authorities establish ought to be abandoned. It was in the beginning illogical, at variance with all the analogies of the law, and I am persuaded that only the unfortunate complacency with which the courts have always regarded thieves and malefactors has so long maintained.it. I am of the opinion that the judgment of the district court ought to be affirmed.

Reversed.