"All murder committed * * * in perpetrating or attempting to perpetrate rape * * * is murder in the first degree." Gen. Stats., ch. 264, sec. 1. The State claimed (1) that the prisoner murdered Josie A. Langmaid; and (2) that the murder was committed in perpetrating or attempting to perpetrate upon her the crime of rape. Both these facts were put in issue by the plea of not guilty. It was for its supposed bearing on the second issue that the testimony of Julienne Rousse was admitted; and the judge who charged the jury guarded against any other application of that evidence, so far as a direction from the bench could have that effect upon the minds of the jury. The ground upon which the jury were told they might consider it, in determining whether the prisoner was perpetrating or attempting to perpetrate a rape when he committed the murder, was, that it bore upon the question of intent; and the ingenious, not to say subtle, argument of the attorney-general rests wholly, as I understand it, on the same ground. He says, — "If he [the prisoner] had passed counterfeit money at the time and place when and where he raped Julienne Rousse, and other counterfeit money had been found in his possession at the time and place when and where he killed Josie Langmaid; if he had got a negro boy into his possession at the former time and place with intent to send him into slavery, and had got another negro boy into his possession at the latter time and place, — would there be any doubt that his intent on the former occasion would in fact be considered by every intelligent member of the human family as entitled to some weight on the question of his intent on the latter occasion? * * * What is there in the act, the circumstances, or the intent of kidnapping, or passing counterfeit money, that makes us feel the probative force of the proved intent of one occasion upon the question of intent four years and four months afterwards, and prevents our feeling any probative force of such evidence in the present case?" Starting, then, with the claim that this evidence was admissible upon the question of intent, it is necessary to understand just what intent is meant. Was it an intent to commit the crime of murder? Certainly not. That crime must be fully made out, as the learned judge correctly told the jury, by other and entirely independent evidence. He said, — "It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence. This principle we must take care not to violate. And, therefore, you are not to regard the evidence of Julienne Rousse as any proof or evidence that the prisoner killed Josie Langmaid. Therefore, unless you find from other evidence, entirely independent of that of Julienne Rousse, that the prisoner killed and murdered Josie Langmaid, you must reject her evidence altogether." *Page 298 This, of course, covers all questions of intent, so far as regards the crime of murder.
Was it an intent to commit murder in the first degree? The answer to this is surely in the negative. Such a general intent could only be shown by evidence of a deliberate and premeditated killing in one of the ways pointed out by the statute, or otherwise. Besides, this question, like the other, seems to be fully answered by the charge. The jury were told that "the evidence is open to your consideration, if at all, only so far as it may seem to you to bear upon the character of the homicide of Josie Langmaid; only as it may bear upon the question whether she was murdered by the prisoner in perpetrating or attempting to perpetrate rape." The intent, then, which it is claimed this evidence was admissible to establish, was an intent to perpetrate or attempt to perpetrate the crime of rape upon Josie A. Langmaid at the time he murdered her. But an intent to perpetrate rape, or to attempt the perpetration of that crime, is not what the statute requires to make the killing murder in the first degree. The most that can be said is, that intent may constitute an element in those crimes, as in most others. To meet the requirement of the statute, the act as well as the intent must be shown. The whole crime of perpetrating or attempting to perpetrate rape must be made out, and that includes all questions of intent that may be involved. Was he in the act of perpetrating or attempting to perpetrate rape at the time he did the killing? To this the state said Yes; the prisoner, No. Here was a clear and distinct issue; just as clear and just as distinct as though there had been nothing else in the case. The state charged rape, or an attempt to commit that crime, as the basis of their claim that the verdict should be murder in the first degree. This charge they must prove, or the claim based upon it fails. The question is, How is it to be proved? What is the rule of evidence to be applied? Is evidence to be received upon the trial that would be inadmissible if the charge were rape alone? If so, upon what ground? What principle of law, or logic, or humanity, will admit evidence to prove rape when the consequence of a finding against the prisoner is death, and exclude the same evidence when the consequence is only loss of liberty? I do not know whether the argument for the State holds that a distinction in this respect should be made. Certainly, the ingenuity and industry of the attorney-general have failed to point out any ground upon which evidence that would be inadmissible to prove rape upon the trial of an indictment for that crime alone, can be received to prove rape when charged on the trial of an indictment for murder in the first degree, and relied on by the State as an essential element of that offence under the statute. And I confess it is impossible for me to imagine the shadow of a reason upon which such a claim could be sustained were it put forth. What, then, is the question presented by this exception? Clearly, no other than this: Was evidence that the prisoner committed rape upon Julienne Rousse, in Canada, in 1871, legally admissible to show that he committed or attempted to commit rape upon Josie A. Langmaid, at Pembroke, *Page 299 in 1875? There was no question as to the defendant's physical strength and ability to commit the crime of rape. By no refinement, therefore, can State v. Knapp, 45 N.H. 148, be said to apply. There is no room nor occasion to argue that the actual perpetration of rape upon one woman tends to show physical strength sufficient to commit the same crime upon another. No such connecting link is in the case. The simple naked question is that just stated, namely, Can evidence that he committed rape upon one woman be received as evidence from which the jury may find that he committed rape upon another? — the two events being entirely independent and distinct, — no way connected in time, or place, or circumstances; and we cannot, in my judgment, suffer that question to be changed in form, or to be covered up and disguised by vague and general observations as to the matter of intent, however astute and plausible, without imminent danger of losing our way in a wilderness of fallacy and error. The answer to that question is to be sought for in the recognized authorities of the common law; and I must say, that if there is any break in those authorities, any want of unanimity in the answer which they give, I have failed to discover it. Doubtless some of the cases to which we have been referred run pretty near the line. But no court has yet said, to my knowledge, that the commission of one crime is legal evidence of the commission of another, when there is no connection of time, or place, or circumstance, or intent between the two, except that the commission of the first tends to show a heart capable of committing the second.
This very question was answered in the same way, as it seems to me, by the learned judge, when he said, — "It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence."
But it is nevertheless argued on behalf of the State (if I have not wholly misapprehended the drift of the argument) that the evidence was admitted because, as matter of fact, its natural tendency was to produce conviction in the mind that the prisoner committed rape upon his victim at the time he took her life. The learned attorney-general says, — "The question of fact here is, whether, on those grounds of natural law, natural reason, and human experience, upon which such a question of fact must be decided, the intent with which the defendant assaulted Julienne Rousse is capable of affording any light on the intent with which he assaulted the deceased. * * * It will be admitted, I suppose, that every intelligent person, untrammelled by technical rules, will concur in the opinion of the circuit court. And the question being one of pure fact unmixed with law, and therefore not subject to technical rules, on what ground will any one dissent from the unanimous judgment of the rest of mankind?" And further, that unanimous judgment "is the spontaneous and irreversible judgment of every grade of intellect that has appeared, or is likely to appear, in this state of existence. It is an involuntary and unavoidable perception of the inherent and self-evident relations of conduct and intention, a mental revelation as natural as memory, and as trustworthy and unanswerable as consciousness." *Page 300
I shall not undertake to deny this. If I know a man has broken into my house and stolen my goods, I am for that reason more ready to believe him guilty of breaking into my neighbor's house and committing the same crime there. We do not trust our property with a notorious thief. We cannot help suspecting a man of evil life and infamous character sooner than one who is known to be free from every taint of dishonesty or crime. We naturally recoil with fear and loathing from a known murderer, and watch his conduct as we would the motions of a beast of prey. When the community is startled by the commission of some great crime, our first search for the perpetrator is naturally directed, not among those who have hitherto lived blameless lives but among those whose conduct has been such as to create the belief that they have the depravity of heart to do the deed. This is human nature — the teaching of human experience.
If it were the law, that everything which has a natural tendency to lead the mind towards a conclusion that a person charged with crime is guilty must be admitted in evidence against him on the trial of that charge, the argument for the State would doubtless be hard to answer. If I know a man has once been false, I cannot after that believe in his truth as I did before. If I know he has committed the crime of perjury once, I more readily believe he will commit the same awful crime again, and I cannot accord the same trust and confidence to his statements under oath that I otherwise should. Yet does the law permit the credit of a witness to be impeached by showing individual acts of falsehood? We do not and we can not believe a known liar the same as we believe a known man of truth. Why, then, ought not evidence showing that a witness has lied on any particular occasion to be received, in order that we may weigh the credit of his testimony by rules derived from human nature and experience, such as we naturally and instinctively apply in the other affairs of life?
Suppose the general character of one charged with crime is infamous and degraded to the last degree; that his life has been nothing but a succession of crimes of the most atrocious and revolting sort: does not the knowledge of all this inevitably carry the mind in the direction of a conclusion that he has added the particular crime for which he is being tried to the list of those that have gone before? Why, then, should not the prosecutor be permitted to show facts which tend so naturally to produce a conviction of his guilt? The answer to all these questions is plain and decisive: The law is otherwise. It is the law, that the prisoner shall be presumed innocent until his guilt is proved: it is the law, that his bad character shall not be shown by the State until he has put that matter in issue by attempting to show good character for himself: it is the law, that the credit of a witness shall not be impeached by showing specific instances of falsehood against him: and it is the law, that evidence of the commission of one crime shall not be received to show the commission of another when there is no connection between the two. Whether the law in this respect is wise or unwise, whether it accords with human reason and experience, *Page 301 whether it affords too great protection to the criminal or too little to the community, are not questions with which we have to do. It has been thought, that to confront a man on trial for a crime that involves no more than his liberty and property with every act of his former life, and require him to purge himself from the suspicion of guilt which may be raised by the testimony of witnesses to individual instances of alleged wrong-doing, would be not only oppressive and unfair, but arbitrary and inhuman.
The rules of the common law in reference to the detection and punishment of crime, which are the growth of ages, and embody the practical wisdom and experience of many great and learned men, carry upon every page unmistakable evidence that they were devised as well to shield the innocent as to punish the guilty. Throughout they recognize the fact that innocent men may be accused of crime. A highly wrought condition of the public mind, the popular horror and indignation that arise upon the commission of a dreadful crime, are not favorable to the calm and dispassionate application of a just and humane law. They do not always leave the vision clear. But popular clamor, however loud, cannot be permitted to invade this place without imperilling the most sacred rights of the innocent as well as the guilty. The rule which we apply in the trial of a wretch who has ravished and killed an innocent girl, and then, with the incarnate spirit of a fiend, torn and cut and mutilated her body in a way that causes the blood to curdle and the heart to rise in almost uncontrollable rage, is the same rule which we must apply in the trial of the innocent victim of a wicked and audacious conspiracy, or of one who, without fault, has become entangled in a mesh of circumstances which threaten an innocent life.
I think the admission of the testimony of Julienne Rousse was error, because it violated the fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence. The other exceptions, I think, should be overruled, for the reasons given by the attorney-general in his brief.
SMITH, J. The jury were instructed that the testimony of Julienne Rousse should be considered by them only so far as it might seem to them to bear upon the question whether Josie Langmaid was murdered by the prisoner (if they should find from other evidence that he did murder her) in perpetrating or attempting to perpetrate rape. The question at once arises whether her evidence had any legal tendency to prove the character of the homicide.
It was correctly stated by the presiding judge at the trial to be "a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to prove that he committed another and distinct offence." There are seeming exceptions to this rule, as when guilty knowledge is an ingredient of the crime, or the intent with which a particular act is done is material. These exceptions have been very clearly classified by the chief-justice, and I shall not attempt to go *Page 302 over the same ground, except incidentally, in what I may have occasion to say. The exceptions will all be found, I think, to be governed by principles that exclude this case from their operation.
The great objection to admitting such evidence is the injustice that would be done thereby, which is very forcibly stated by ALLEN, J., in Coleman v. People, 55 N.Y. 90: "The general rule is against receiving evidence of another offence. A person cannot be convicted of one offence upon proof that he committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime, if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions upon the particular charge made by proof of other acts in no way connected with it, and to uniting evidence of several offences to produce conviction for a single one."
It is always competent for the government to introduce evidence of any facts tending directly to show an evil intent, or from which such evil intent may be justly and reasonably inferred; but all proof in relation to transactions not intimately and directly connected with the particular accusation against the defendant, or with the evidence, or in necessary explanation of the evidence introduced in support of the charge contained in the indictment, is irrelevant and inadmissible. Com. v. Tuckerman, 10 Gray 198. In that case the rule is laid down, that such evidence should have a peculiar and intimate if not also an inseparable connection with, and tending to explain and characterize, the act in issue charged against the prisoner, and is only admissible on the question of intent.
So in Com. v. Campbell, 7 Allen 542, it was held that such evidence is inadmissible where the offence charged and that offered to be proved are distinct.
In our own case of State v. Renton, 15 N.H. 174, it was very clearly held that it is not competent to show that the respondent had a tendency to commit the offence with which he was charged.
The charge made by the State is, that this respondent killed the deceased in perpetrating or attempting to perpetrate a rape upon her. As having some tendency to show that he committed or attempted to commit a rape upon Josie Langmaid, the State was permitted to show that four years and more previously he had committed a rape upon Julienne Rousse, in Canada. Had the testimony any such tendency? There was obviously no connection whatever between the two offences or transactions, either in the persons upon whom the crimes were committed, or in the places where or times when committed. The evidence of Julienne Rousse, at most, would only show that the respondent was depraved enough to commit the crime of rape, or that he possessed a lustful desire in his heart which he on that occasion did not hesitate to gratify by violent means.
But how does the fact that the respondent committed a rape more than four years previously, in Canada, upon another person, have *Page 303 any tendency to show the intent with which he killed Josie Langmaid? It is not claimed that he killed her to enable him to commit a rape: the rape preceded the killing, and the killing was done to conceal the rape.
Suppose the respondent had committed only the crime of rape upon Josie Langmaid, and then had spared her life: I think no case can be found that would authorize the State, upon the trial of an indictment against the respondent for the rape, to give in evidence the rape committed upon another person more than four years previously. No case of a more marked and distinct offence, as to time, place, victims, and circumstances, can be found. How, then, does such evidence become any more relevant when the trial is upon an indictment for killing while committing a rape?
Lord MANSFIELD has expressed the rule in these apt words: "When an act, in itself indifferent, becomes criminal if done with a particular intent, then the intent must be proved and found; but when the act is in itself unlawful, the proof of justification or excuse lies on the defendant; and in case of failure thereof, the law implies a criminal intent."
Thus, upon the charge of passing counterfeit money, proof that the respondent knew it was counterfeit is necessary, as showing the intent with which it was passed. Upon the charge of obtaining goods under false pretences, proof of fraudulent intent is necessary. Upon the charge of murder, the killing being proved, the malice is implied in the absence of any explanation by the prisoner of the act. In this case there was no connection whatever between the rape of Julienne Rousse in 1871 in Canada, and the murder of Josie Langmaid in New Hampshire in 1875. There can be no pretence that they are continuous parts of one transaction; that when the rape was committed upon Julienne Rousse, in 1871, the prisoner had any design to commit a rape upon or to murder Josie Langmaid, or any other woman, in 1875. The two acts are so wholly distinct and separate, that when the prisoner formed the design of committing a rape upon Julienne Rousse, and carried that design into effect in 1871, he did not and could not, as a part of that evil design and act, or as a consequence thereof; have then premeditated the murder of Josie Langmaid, or the perpetration of rape upon her.
No point is better settled than that the State cannot give evidence of the bad character of the respondent, unless he shall first put his character in question by introducing evidence in support thereof. As the only effect of the State's introducing evidence of another rape by the respondent is that it tended to show that he possessed a disposition to commit that particular crime, a disposition which would incline him to the perpetration of rape whenever the opportunity might occur, how does such testimony differ from that of evidence as to the prisoner's bad character, before he has elected to put it in question, and that too by introducing proof of an isolated fact?
The whole answer to the position, that the evidence of Julienne Rousse was relevant to the issue tried, is, that it does not show *Page 304 or tend to show that the prisoner perpetrated or attempted to perpetrate a rape upon Josie Langmaid. Proof that he committed a rape in Canada, four years previously, upon Julienne Rousse shows what? Not that he then had any design or intent to perpetrate a rape four years afterwards upon another woman whom he had never seen or heard of, or in a place two hundred miles distant where he never had been; not that he had then formed a design to rape and murder women whenever he might have opportunity; not that he had ever before or since committed that crime, — but that the defendant had a disposition to commit the crime of rape four years previously. No one will pretend that evidence that the prisoner had committed another murder, in Canada, or Texas, or Europe, could be shown on this trial. One cannot be convicted of murder, by showing that he has at some time and somewhere else committed another murder; or of larceny, by showing that he has committed the crime before, and therefore has an evil disposition inclining him towards that particular crime.
The trouble with the position of the state is, that it is not a question of motive or intent. Certainly, committing a rape in Canada in 1871, would not not show any motive for committing a rape in New Hampshire in 1875; nor does it disclose any intent so to do. Evidence tending to prove collateral facts is admissible only when it has a natural tendency to establish the fact in controversy, or to corroborate other direct evidence in the case. Com. v. Merriam, 14 Pick. 518. So, in Com. v. Ferrigan, 44 Pa. St. 386, in a trial for murder, evidence that an adulterous intercourse between the wife of the deceased and the prisoner had existed and continued to near the time of the homicide was received, on the ground that one crime furnished a motive for the other. In People v. Wood, 3 Parker Crim. Cas. 681, which was a trial for murder, proof of other crimes than that alleged, but connected with it by unity of plot and design, and influenced by a single motive, was held admissible.
In State v. Renton, 15 N.H. 174, GILCHRIST, J., very aptly remarked, — "Where a person is charged with an offence, it is important to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to be prepared to answer. It is therefore not competent for the prosecutor to give evidence of facts tending to prove another distinct offence, for the purpose of raising an inference that the prisoner has committed the crime in question. Nor is it competent to show that he has a tendency to commit the offence with which he is charged. Thus, on a prosecution for an infamous offence, an admission by the prisoner that he had committed such an offence at another time was held to have been properly rejected. Rex v. Cole, cited 1 Ph. on Ev. 499 (8th ed.). The case of the respondent is to be tried upon its own merits. * * * It is argued that reference may be made to what was done on a former day, that this transaction may then be compared with that, and thus may acquire a certain character. But then, if found guilty, he would be so, not so much *Page 305 because what he did was wrongful in itself, but because his conduct on this occasion was like his conduct on some previous occasion. * * * By comparing one with the other, we establish the guilt of the respondent by arguing in a circle. But this is to be shown by proof of what he did on the present occasion."
So, in East Kingston v. Towle, 48 N. H, 57, which was an action against the owner of a dog alleged to have been concerned in killing sheep, PERLEY, C. J., said (p. 65), — "We are not acquainted with any rule of evidence which will allow the character of the dog, or the fact that he had killed or worried sheep before, to be admitted as evidence that he did the damage complained of in this suit. To show that he did this mischief, it is not competent to prove that he had done similar mischief before, more than it would be to prove that a defendant sued for an assault and battery had beaten other men before, or the same man."
In State v. Prescott, 33 N.H. 212, which was an indictment for keeping a gaming-house, the allegation in the second count was confined to a single day; and it was held that the government could not prove, for the purpose of charging the defendant on that count, that the crime was committed on more than one day, although evidence covering a longer time would be admissible for the purpose of showing what character the house had on the particular day when it was sought to prove that the offence was committed.
In State v. Wentworth, 37 N.H. 197, evidence that the prisoner placed on the railroad track obstructions other than those for which the indictment was found was held competent, upon the ground that the acts were so connected that they might be regarded as being the continuation of the same transaction. But the fundamental rule, that the evidence of another distinct offence could not be shown for the purpose of raising an inference that the prisoner has committed the crime with which he is charged, was distinctly recognized.
The testimony of the other witnesses excepted to is free from the objection made to that of Julienne Rousse. They all testified to facts which tended to show that the respondent was forming in his mind a plot to commit the crime of rape upon some one in the vicinity of the place of this homicide. No lustful desire or particular animosity or malice against Josie Langmaid need be shown. She became the victim of his lustful passion, and his evil designs were consummated in the attack which deprived her of life.
But because of the admission of the testimony of Julienne Rousse, there must be
A new trial granted. *Page 306