State v. Barrington

DISSENTING OPINION.

VALLIANT, J.

There is no country on the face of the earth where the life and liberty of the individual, whatsoever his station, is more highly prized or more .sacredly guarded than in this land of ours. When we *119read, as we sometimes do, the proceedings of the court in a criminal case of celebrity in some other country, although, if our sympathy happens to be on the side of the prosecution, we may excuse the celerity and promptness with which conviction has been accomplished and say it was well enough since it happened there, yet, however we may applaud the result, we contrast those court proceedings with the orderly proceedings in criminal trials in this country and congratulate ourselves that such proceedings could not occur here, that in our courts the accused are given fairer trials. It sometimes happens that in the strict application by ■our courts of the rules of law prescribed by the lawmaking power of the State for the orderly procedure ■of criminal trials, the community shows impatience at the delay and the result, yet that same community when passion has subsided and it comes to speak its sober second thought through its representatives in the General Assembly would not repeal or alter one feature of that law which was aimed only at securing to the accused a fair trial. The milestones along the path of the progress of civilization are in no respect more clearly marked than in the changes that have been made, as enlightment has come into the minds of our lawmakers, in regard to the treatment of men arraigned before the bar of justice to answer for crimes. It has not been a great while, measuring time by the life of the nation, since a defendant in a criminal case in England was not allowed to have the aid of counsel learned in the law, but he had to depend for what aid in that way he might get, upon the impartiality of the judge who tried the case or the mercy of the counsel who prosecuted in behalf of the crown, and beyond that ■court there was no appeal. But that law has never been our law since this has been a free country, and although oüb people in a time of excitement may declaim against our law as it is, yet after awhile the excitement passes away and no voice is heard in the *120halls of the Legislature demanding a return to the laws of those ancient days when the life and liberty of a man were esteemed of little value. But if those who are appointed to administer laws that are designed to give every man a fair trial, are themselves subjected to the influence of an excited community, it is sometimes impossible for them, however honest and conscientious they may be, to resist that influence, and the result is that unconsciously their judgment is biased. Our law recognizes the liability of that condition and by providing for a change of venue it has humanely and wisely made provision to guard against it and to secure to the accused even in spite of such condition a fair trial. Prom the other side of the ocean occasionally comes a reproach that we are addicted to mobs and lynching, but, admitting that we do sometimes have mobs and that they are lawless and barbarous, inflicting the swift and cruel vengeance of an intensely excited community, still it cannot be said of them that while pretending to give the man a fair trial according to law, they disregard plain rules prescribed for his especial protection. If law is to be violated and wrong is to be done, it is better that it be done by a lawless mob than by a tribunal created and commissioned to administer justice according to law.

There are many reasons why in. my opinion this judgment should not be affirmed, and those reasons all combine to establish one proposition, that is, that this man did not have a fair trial. Every step' in the case from his arrest to his trial was attended with dramatic scenes that evinced no care to guard from unjust imputation the man who, howsoever unsavory his reputa-' tion and howsoever strongly involved in apparently incriminating circumstances, might in fact still be innocent and who was in law presumed to be innocent.

It is not my intention to undertake to state in detail the facts on which this prosecution was based, but briefly I will say that in June, 1903, one James Me*121Gann, who had been sojourning in St. Louis a short while, disappeared; a few days after his disappearance a dead body was found in St. Louis county bearing evidence of death by violence; there was evidence tending to identify it as the body of McCann, and there was also circumstantial evidence tending to show that the defendant was the man who had committed the deed. The defendant had been, for some months before that, very much in the public mind in a very unfavorable light. It was said of him that he had falsely pretended to be an English Lord, under which pretense he had married a young woman here; his false character was exposed, he was convicted of some offense, not very clearly stated in this record, and sentenced to the city 'Work House, was pardoned by the mayor, and was immediately employed by a saloon-keeper in the city, who gave his concern the name of ‘ ‘ The Lord Barrington Saloon.” McCann was a sporting man, interested especially in race-horses; instead of sharing in the general unfavorable estimation of the supposed English Lord he seems to have been attracted to him by his notoriety, sought his acquaintance by visiting him at the saloon which bore his name, and on his first meeting expressed admiration and friendship for him, gave him $50 as a token of his esteem, and invited him to live with him at a house he was keeping which he called the Leland Hotel. This circumstance indicates to some extent the kind of man McCann was, and whilst, of course, the character of the man would in no degree be a palliation for the crime, yet it is of some assistance to the triers of the fact who are asked to draw inferences from the circumstances. The only thing that. McCann knew of the defendant was what the daily press which held.him up as a most despicable character said of him, yet that character was to McCann so attractive that he sought his acquaintance and pledged him his friendship on first sight. One of the defenses was that McCann, concerning whose past life, character and *122business there was evidence, had contracted enemies who had waylaid him. It is charged that the defendant murdered his best friend; if friendship is to be taken into account let us note that this was a frienship based on a diseased sentimentality.

Barrington accepted McCann’s invitation, went to his hotel and became a sort of assistant manager of the business. On the evening of June 18, 1903, these two men left this house together, they went to the Suburban Garden, thence on the St. Charles electric railroad to a point in St. Louis county called BonfilS, where they left the car, and that is the last that was seen of McCann alive; the defendant returned to the hotel the next morning about 9 o’clock. When the dead body supposed to have been that of McCann was found, suspicion rested on the defendant and public interest in him was again aroused, the newspapers took up the subject and defendant’s past life and character, as indicating a man capable of such a crime, became their theme and the overshadowing sensation for the time being. He- was arrested, subjected to what the State’s witness called “a course of sweating,” and lodged in jail. During his preliminary examination, which took place at the court house at Clayton, the county seat of St. Louis county, a witness states that whenever the ruling of the examining magistrate on a question was in favor of the State the audience applauded. While he was in jail awaiting his trial the managers of one of the public theaters in St. Louis caused to be prepared for the stage a sensational drama to which was given the name “The Desperate Lord Barrington,” and which dealt in a highly melodramatic style with the supposed life and character of the defendant, showing him in the most despicable light and professing to portray on the stage the murder for which the defendant was being held. When this drama was advertised, the defendant petitioned the court to have the parties who were purposing to put it on the *123stage cited for contempt, bnt tbe court denied the petition and the play went on. After it had been enacted and the prejudicial effect which it was liable to have on the defendant’s cause was shown to the court, the defendant again applied to the court to have it stopped, but the court again refused and the play went on. After-wards the defendant moved the court for a change of venue on the ground of the prejudice of the inhabitants of St. Louis county, and at the hearing introduced the testimony of a large number of citizens of the county to sustain the charge of prejudice, he introduced also numerous articles published in the principal newspapers of the city calculated to create prejudice of the strongest kind against the defendant, and he introduced evidence of the character of the melodrama above mentioned enacted on the stage of the theatre. But the court denied the application for a change of venue.

Defendant filed a plea in abatement to the indictment on the ground that the State had failed to indorse the names of its witnesses on the indictment. There were twenty-nine witnesses examined by the State whose names were not indorsed on the indictment. The prosecuting attorney testified that to the best of his recollection he did indorse on the indictment the names of all the witnesses who appeared before the grand jury. The testimony for defendant on that point showed that eleven of these twenty-nine witnesses had been subpoenaed by the State in the preliminary examination, and three of them had testified before the coroner. The defendant asked the court to require the State to produce the subpoenas that had been issued for the witnesses to come before the grand jury, but the court refused. The plea in abatement was overruled.

During the trial the State was allowed over the defendant’s objection to introduce testimony as to what the defendant was said to have said implicating himself *124during the sweating process. The State was also allowed to cross-examine the defendant on matters concerning which he had not testified in chief.

The above is a very brief .outline of the case but it is sufficient to present the points to which I would call attention.

I. Section 2517, Revised Statutes 1899, requires the names of the State’s material witnesses to be indorsed on the indictment. It is not for the courts to discuss the wisdom of the law; it is sufficient for us to know that it is the law and it is our duty to enforce it. It was made for the benefit of the accused, it is one of the rules prescribed by the Legislature to secure him a fair trial. It does not prohibit the State calling other witnesses who were unknown to the prosecuting officer when the indictment was presented, but it does mean that the State shall not purposely withhold the names of witnesses and surprise the defendant with them on the trial. It calls for good faith and fair dealing. The evidence tends to show that some of these witnesses were known to the State’s attorney and what their evidence was. Besides, the court by refusing to order the production of the grand jury subpoenas deprived the defendant of the means of contradicting the evidence of the prosecuting attorney that the names of all the witnesses who were before the grand jury1were indorsed on the indictment. But in view of the' other more important features of this trial I regard the failure to indorse the names of the witnesses on the indictment as of comparatively small consequence; and especially since if a new trial should be granted the defendant, now knowing the names of these witnesses, cannot again be placed at disadvantage on that account.

II. In the olden times to which I have already alluded when one suspected of a crime was arrested, he was put to the torture and broken piece by piece until the confession came; whether guilty or not guilty, the *125confession usually came. We have advanced many' milestones from that station, we no longer break them on the wheel, we now only ‘ ‘ sweat ’ ’ them, and some of these days we will advance beyond that station. When this man was arrested he was taken to the office of the chief of detectives and from 9 o’clock in the evening until 2 o’clock in the morning he was subjected to what the witness for the State called “a course of sweating. ’ ’

According to testimony in his behalf all the technical skill and ingenuity of the most experienced experts bore upon him to entrap him into saying something that would be evidence against himself. There was no threat, no promise, oh, no; in fact the prisoner was expressly told that they would make no threat, they would make no promise, he was entirely free to answer or not as he might elect, yet free as he was, the sweating process went on until at length his nerves gave way, he broke down and wept. What he said on that occasion was given in evidence by the State, and the court in its instruction to the jury on that point said: “What the defendant said against himself, if anything, the law presumes to be true because said against himself. WTiat he said for himself you are not bound .to believe because said in a statement or statements proved by the State, but you may believe it or disbelieve it as it is shown to be true or false by all the evidence in the case.”

I am not going now to contend that that testimony was illegal because although we have advanced beyond the rack and the wheel we still cling to the “sweating process. ’ ’ But I do contend that testimony so obtained should not be given to the jury with the stamp of the legal presumption of absolute truth upon it. The jury could not have understood the instruction to mean anything else than that what the prisoner said that might be construed as tending to incriminate himself, was to be taken as Gospel truth, while what he said which *126tends to exculpate him is to he received with caution and believed or disbelieved as the other evidence in the case might warrant. Not only does the court by that instruction invade the province of the jury who alone are entitled to. weigh the evidence and determine the credibility of the witness, whether, he be the party in interest or not, but.it fails to distinguish between what all the law-writers on the subject call solemn admissions, that is, admissions in juclicio or admissions extra judicium, which have been made to influence the conduct of others and therefore worked an estoppel, and mere verbal admissions. Those of the first class are presumed in law to be true (1 G-reenleaf on Ev. (16 Ed.), sec. 27), while those of the second class should be received with caution. [Id., sec. 45.] And in section 200 the author says: “With respect to all verbal admissions, it may be observed that they ought to be received loith great caution

In connection with the instruction above quoted I would call attention to instruction number 22 given by the court concerning the testimony of the defendant himself: “The defendant is a competent witness in his own behalf. The fact that he is the defendant and the interest he may have in the result of the case may be considered by you in determining the credibility of his testimony, but on the whole you should consider and weigh his testimony under the same rules as that of the other witnesses, as explained in the other instructions.” If the jury were to weigh his testimony under the same rules as the testimony of the other witnesses was to be weighed, why single him out and caution the jury to bear in mind his interest and therefore (by implication) his strong temptation to testify falsely in his own behalf?

There is no authority in our statute for such an invasion of the jury’s province. Section 2637, Rev. Stat. 1899, which gives a defendant, or the wife or husband of a defendant, the right to testify in his behalf, says *127that the fact of the interest may be shown, that is, proven, for the purpose of affecting his or her credibility, but that does not authorize the court to single out the witness, whether it be the defendant or the defendant’s husband or wife, and comment on his or her testimony; in fact section 2639 expressly forbids the court to comment on the evidence. I am aware that instructions of like character in other eases have been approved by this court, but I am not reconciled to them.

When the defendant was on the witness stand and had finished his testimony in chief, counsel for the State on cross-examination took up the subject of his past life and asked him questions about it, some of which he answered and some he refused to answer, and it is difficult to say whether the reluctant answers he gave or the refusals to answer made the more injurious impression on the jury; they were both calculated to seriously injure his defense. These were subjects not touched upon in his direct testimony and therefore the State had no right to examine him about them.

The questions related to some of the accusations contained in the newspaper statements shown in evidence on the motion for a change of venue, among which were the murder by defendant of an officer in the British Army, his marriage under the name of Burton to a woman in New York, his marriage under the name of Lord Barrington to a woman in St. Louis, his sentence to the Work House in St. Louis and other matters designed to hold him up before the jury as a man well worthy of death even if he was not guilty of the murder for which he was being tried. The court seems to have admitted this evidence on the theory that it bore on the question of the credibility of the witness. The statute which allows a defendant to testify in his own behalf and expressly limits the right of cross-examination to matter referred to in his examination in chief says: ‘‘He may be contradicted and impeached *128as any other witness in the ease.” [Sec. 2637.] The fair construction of that clause is that he may he contradicted, and that testimony showing his general reputation in the community for truth may be given. If it means that for purposes of impeachment he may be examined on every subject that has ever come into his life for the purpose of degrading him, then the words of the statute which limit the subjects on which he may be cross-examined may as well be stricken out; if the statute allows a cross-examination like this, there is no limit to the cross-examination to which he may be subjected.

It is said in the brief for the State that this point was not properly brought to the attention of the court in the motion for a new trial. That is so, if the general statement that the court admitted illegal evidence is not sufficient. But when a man’s life is at stake, is this court going to overlook so grave an error as this for so small a technicality? The counsel for the prisoner and the prisoner himself pressed their objections to the question to the very verge of Hat refusal to answer after the court had ordered him to do so and provoked the court into reprimanding the prisoner in the presence of the jury for such refusal, and drew from the prosecuting attorney this damaging remark: “If he wants to avail himself of his constitutional privilege for fear of incriminating himself, that is a constitutional privilege.” To which remark when objection was made the court ruled as follows: “You gentlemen don’t refrain from making remarks on either side. You should not do so,” which, if a rebuke at all, was as much a rebuke to the defendant’s attorney as it was to the State’s attorney who had made the objectionable remark. That course of cross-examination should never have been allowed; even if no objection had been made to it, the court who sits to administer justice should have protected the prisoner from such wrongful .procedure.

I come now to a consideration of what I consider *129the gravest error in the case; that is, the refusal of the court to grant a change of venue.

It will he impossible in the space which I am willing to take in this opinion to give anything like a detailed summary of the evidence that was presented to the court in support of this application. A large number of respectable witnesses of St. Louis county testified that there was a prejudice in the minds of the people of that county against the defendant; but the strongest evidence was the production of the newspapers which circulated in the county and which moulded public opinion. Every strong influential newspaper in the city published, day after day, columns of the most damaging statements concerning the man. These professed to have discovered and brought to light events in hi.s -.past history connecting him with the most atrocious crimes in Europe before he came to America, and the despoiling of at least two young women under fictitious marriages in this country; then they took up what was said to be the evidence in this cause, and showed the defendant in the light of the cruel murderer of his best friend; there could be, according to the newspapers, no doubt of his guilt. To such a high point in the public mind was the subject brought that the managers of one of the prominent theatres in the city caused a most thrilling melodrama entitled “The Desperate Lord Barrington” to be prepared and put upon the stage in which this defendant was the chief villain and McCann his latest victim. The play was advertised in all the prominent newspapers and in flaming posters. In the posters it was described as the “Acme of Sensational Melodrama. A play filled with thrills, throbs, laughter and tears. It quickens the pulse beats, excites emotions and stirs the better nature of every auditor. A play in which virtue wins and the villains get all that is coming to them. ’ ’ The chief actor in the play was, in theatrical parlance, “made up” to look like the defendant, and *130imitated Ms voice and manner. According to the play the defendant was guilty of murdering the real Lord Barrington before he came to America, and besides marrying several women, committed another murder in this country before he landed in St. Louis. The scene of the climax of the drama was made to represent the rock quarry near Bonfils in St. Louis county where the dead body was found, and there the defendant and Mc-Cann appeared.

It is eight miles from the court house in St. Louis to the court house at Clayton. Clayton is a close suburb to the city of St. Louis, two lines of street cars connect it with the city. The inhabitants of St. Louis county are so intimately connected with the city in vicinage, in social and business relations, that it is impossible for them to be uninfluenced by that which influences to a high degree the inhabitants of the city.

In matters of the kind we are now considering the newspapers, especially when they are all agreed, mould public opinion. When these newspapers with their exciting reports of alleged discoveries of inculpating evidence, and the character of this extraordinary theatre performance were laid before the court on the motion for a change of venue, there was no necessity to call witnesses to testify that there was a prejudice in the minds of the people of St. Louis county against this man. No case has ever come under my notice where the evidence on this subject was so overwhelming. The inhabitants of the county, if they possessed that abhorrence to crime that is felt in all enlightened • communities, could not, when subjected to these influences, have failed to have conceived a strong prejudice against this defendant.

It is said in the brief for the State that the application for the change of venue was not supported by the affidavit of two credible disinterested witnesses of the county as required by section 2576, Revised Statutes 1899. It appears that the application was supported by *131the affidavit of two witnesses; just what the particular objection to them is does not quite appear, but I consider that immaterial at this stage of the ease. The court might have refused to receive the application or hear evidence in support of it if it was not fortified as the statute requires, but after receiving the application and hearing the evidence pro and con, the court could not deny the petition because of such a trivial technical defect, if the testimony showed that the change ought to have been granted. No court would stick in the bark in such a matter.

It is also said that the application for the change of venue was addressed to the discretion of the trial judge, and he having exercised his discretion it ends the case. It is a discretion to be exercised, but it is a judicial discretion, not a personal one, and it is subject to review. The trial judge had the witnesses before him, was perhaps acquainted with many of them, and therefore better able to judge o"f the weight to be given to their testimony. But the oral testimony on both sides was mere opinions; the court had before it the facts which make public opinion, and with those facts in view the opinions of no number of witnesses could make it appear that this much-advertised and dramatized man/ could have a fair trial in that community.

Lastly it is said that the St. Louis newspapers circulate throughout the State and the probabilities are that their influence would be felt in whatever county the case might go. Possibly that may be true to some degree, but it is not likely to be true to the same degree, and at all events the law has given the defendant the right to the change; he only asks what the law gives him, and we have no right to deny him by saying it will do him no good to grant his prayer. The evidence shows that he is entitled to a change of venue and if the court fears that the prejudice has gone beyond the lines of that county, it would send the case where the preju*132dice is least likely to exist, or at least to tbe least extent.

There is one other incident of this trial that I will mention.

Counsel when arguing a case before the jury ought to represent their client, and reflect their client’s mind. The State of Missouri is not vindictive; when it arraigns aman beforethe bar of justice to answer a charge that involves his very life, it does so with the dignity and solemnity of a sovereign and without passion. Counsel intrusted to speak for the State should speak with dignity, solemnity and without passion, otherwise they do not represent the State. At this trial counsel intrusted with the duty of representing the State in his argument before the jury said: “In all candor and with due reverence, I wish to confess to you that during the progress of this trial, my conception of the devil has been materially changed. And if I were to portray him to you now, I would not paint him as hoofed and1 horned, lurid with purgatorial fires,' but rather would I picture him to you as arrayed in white vest and Prince Albert coat, with a voice as soft as the breath of summer and with a steel gray eye.” And while so saying he pointed with his hand across the counsel table to the defendant who sat there wearing a white vest and a Prince Albert coat, whereupon the court said to the counsel: ‘ ‘ That is not proper argument. ’ ’ It was not proper argument, it was no argument at all, it was a vindictive, passionate, pitiless, cruel denunciation of a prisoner. No one defends it, it is indefensible. But it is contended that the gentle rebuke cured the wrong that was done. How can we who are weighing in the judicial scales the life of a fellow man say that although this was a flagrant wrong yet the wrong was cured? Can we enter into the minds of the jury to see what the effect of the so-called rebuke was ? The words of denunciation came with hot zeal and were calculated to burn themselves into the memories of the jury. And we cannot dispose of the subject by saying the court rebuked *133the counsel — what more could it do ? If the court can do nothing more when a wrong like this has been done in a case of life and death than to say to the counsel, “that is not proper,” then the court has but little power to direct the course of justice, and counsel are free to indulge in such abuse if they are so inclined. But there is a power intrusted to the trial court to right such a wrong. The court in such case has the power to set aside the verdict and grant a new trial, that is the only real remedy for such wrong and that is what it should have done in this case.

The probable cost should not influence the selection of a forum; when we put human life in one side of the scales we should not put dollars in the other side. But even from an economical point of view it is bad policy.

A large part of the enormous sums paid by the State every year for costs in criminal cases would be saved and as many criminals would be convicted if the laws of criminal procedure enacted by the Legislature to secure to every man a fair trial were more carefully observed. Guilty men can be convicted in a fair trial as easily as in an unfair one, and when they have been fairly tried their conviction will stand and the State will not be put to the expense of a second or third trial.

There are other points in the case, but I will not discuss them because this opinion is already very much longer than I intended it should be when I began to write. In my opinion the judgment ought to be reversed and the cause remanded with directions to the circuit court to grant the application for a change of venue.