It is not error in Utah to proceed to trial of a person accused
of murder before the filing of the transcript of the preliminary
examination had under the Compiled Laws of Utah, section 4883.
The provision in Rev.Stat. section 1033 that the defendant in a
capital case is entitled to have delivered to him at least two
entire days before the trial a copy of the indictment and a list of
the witnesses to be produced on the trial does not control the
practice and procedure of the local courts of Utah.
In Utah, a juror in a capital case who states on his voir
that he had read an account of the homicide in the
newspaper and formed some impression touching it, but that he could
lay that aside and try the case fairly
and impartially on the evidence, is not subject to challenge for
cause. A juror is not subject to challenge for cause in a criminal
Page 159 U. S. 511
against a saloon keeper for homicide who states on his voir
that he has a prejudice against the business of saloon
keeping, but none against the defendant, whom he does not know.
When the relations between a defendant charged with murdering
his wife and the wife are to be settled not by direct and positive,
but by circumstantial, evidence, any circumstance which tends to
throw light thereon may be fairly admitted in evidence.
The order in which testimony shall be admitted is largely within
the discretion of the trial court.
When the court rules correctly that certain matters are not
proper subjects of cross-examination, and notifies the questioning
party that he can recall the witness and examine him fully in
reference to those matters, and he fails to recall him or introduce
testimony thereon, he has no grounds of complaint.
The credibility of a female witness cannot be impeached by
asking her whether she has not had some difficulty with her
When the defendant in a criminal case consents that a member of
the jury+ shall act as interpreter for a witness speaking a foreign
language, none of his rights are prejudiced by the juryman's so
An exception in bulk to a refusal to charge several
propositions, separately numbered but offered in bulk, cannot be
maintained if any one proposition be unsound.
Deliberation and premeditation to commit crime need not exist in
the criminal's mind for any fixed period before the commission of
Exceptions to the ruling of the court in a jury trial, tendered
twelve days after the verdict was rendered, are too late.
The case is stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
On November 5, 1894, in the District Court of Salt Lake County,
Utah Territory, Charles Thiede, the plaintiff in error, was found
guilty of the crime of murder, and sentenced to be hanged. On March
16, 1895, this judgment was affirmed by the supreme court of the
territory, whereupon he sued out this writ of error.
The record of the proceedings in the trial court is
Page 159 U. S. 512
consisting of over four hundred printed pages, and we have not
been assisted in our examination by either brief or argument on the
part of counsel for plaintiff in error. We have, however, carefully
examined the record, with the several assignments of error, and now
state our conclusions thereon.
The first alleged error is in overruling the defendant's
objection to going to trial on October 10, 1894, on the ground that
the evidence taken at the preliminary hearing had not been
transcribed, certified, and filed with the clerk of the district
court, as provided by law. The homicide was charged to have been
committed on April 30, 1894. The indictment was returned on
September 24. On September 28, the defendant was arraigned, and
pleaded "not guilty." On October 2, the trial was fixed by order of
the court for October 10, and on that day, when the case was called
for trial, the objection heretofore referred to was made and
overruled. It was admitted that a preliminary examination had been
had; that the testimony before the justice of the peace had been
taken down in shorthand by one Fred. McGurrin under direction of
the justice; that about ten days before the trial, said McGurrin
was asked by the prosecuting attorney to transcribe the same, and
that he declined to do so. McGurrin stated in open court that he
had in a prior case transcribed the evidence, and been refused
payment therefore both by the county and the territory, and upon
such refusal had brought suit against both, and in such suits it
had been adjudged that he had no cause of action against either,
and that the only reason he failed to transcribe the testimony was
that he would not be paid for the same.
By section 4883, Compiled Laws of Utah, 1888, in cases of
homicide, the testimony taken upon the preliminary examination is
required to be reduced to writing as a deposition by the
magistrate, or under his discretion. If taken down in shorthand it
must be transcribed into longhand by the reporter within ten days
after the close of the examination, and by him certified and filed
with the clerk of the district court. The fees for this are to be
paid out of the county treasury. The defendant did not ask for a
continuance, but simply objected to going to trial because this
transcript of the testimony had
Page 159 U. S. 513
not been transcribed, certified, and filed. As the time within
which this was by the statute required to be done had already
passed, the objection, if sustained, would either have been fatal
to the entire proceeding, and prevented any trial under that
indictment, or at least would have caused a delay of the trial
until such time as, by suitable proceedings, the filing of the
transcript of the testimony could have been completed, and many
things might interfere to postpone or prevent the obtaining of such
Before a ruling is made which necessarily works out such a
result, it should appear either that the statute gives an absolute
right to the defendant to insist upon this preliminary filing or
else that the want of it would cause material injury to his
defense. Neither can be affirmed. A preliminary examination is not
indispensable to the finding of an indictment or a trial thereon,
and if the examination itself is not indispensable, it would seem
to follow that no step taken in the course or as a part of it can
be. Further, the statute does not provide that this transcript
shall be filed at any time before the finding of the indictment or
before the trial, but only within ten days after the examination.
There is no prohibition against finding an indictment or bringing
on of the trial at any time after the commission of the offense.
The statute nowhere expressly places the filing of this transcript
as something necessarily happening intermediate the examination and
the trial, nor does it make the latter depend upon such filing, or
even upon a preliminary examination.
Further, supposing the transcript is filed, of what avail is it
to the defendant? Simply this, that, as such a transcript is by the
statute made prima facie
a correct statement of the
testimony and proceedings at the preliminary examination, if the
defendant wishes to impeach any witness by proof of contradictory
testimony at such examination, it is convenient to have on file
that which is prima facie
such testimony. But if the
defendant can secure the same evidence without the transcript, the
lack of it is no material injury, and that he could do so in this
case appears from the fact that the stenographer was present in the
courtroom, and his attendance could
Page 159 U. S. 514
have been secured by a subpoena, and he compelled under oath to
develop from his notes any testimony taken on the preliminary
examination. We conclude, therefore, that the law does not forbid a
trial before the filing of this transcript, nor was, in this case,
the failure so to file an error working substantial injury to the
rights of the defendant.
The second matter presented is that the court permitted certain
witnesses to testify in the case over the objection of the
defendant when their names were not endorsed on the indictment, nor
included in a list furnished the defendant by the prosecuting
attorney, and defendant had no knowledge that they would be called
to testify until the trial had begun.
It appears that on October 2, when the case was set for trial,
the defendant's counsel in open court requested the district
attorney to furnish them before the trial began with the names of
all witnesses to be called by the prosecution on the trial, stating
that they did not claim it as a matter of right, but of favor, and
thought it was only fair to the defendant that he should be so
advised. Thereupon the district attorney stated that he was unaware
of any witnesses other than those whose names were on the back of
the indictment, excepting four whom he then named, but promised
that if he ascertained there were any others, he would give
information in regard to them as soon as received. On the 8th of
October, he furnished the defendant with a list of other witnesses.
On the 11th, the day after the trial commenced, he notified the
defendant of still another witness, who was in fact not called
until the 15th, and four days before the defense rested.
By § 1033 Rev.Stat., the defendant in a capital case is entitled
to have delivered to him at least two entire days before the trial
a copy of the indictment and a list of the witnesses to be produced
on the trial. Logan v. United States, 144 U.
, 144 U. S. 304
But this section applies to the circuit and district courts of the
United States, and does not control the practice and procedure of
the courts of Utah, which are regulated by the statutes of that
territory. This question was fully considered in Hornbuckle
18 Wall. 648, and it was held,
overruling prior decisions, that the pleadings and procedure of
Page 159 U. S. 515
the territorial courts, as well as their respective
jurisdictions, were intended by Congress to be left to the
legislative action of the territorial assemblies and to the
regulations which might be adopted by the courts themselves.
See also Clinton v.
13 Wall. 434, in which it was held
that the selection of jurors in territorial courts was to be made
in conformity to the territorial statutes; Good v. Martin,
95 U. S. 90
which a like ruling was made as to the competency of witnesses;
Reynolds v. United States, 98 U. S.
, where the same rule was applied to the impaneling
of grand jurors and the number of jurors; also Miles v. United
States, 103 U. S. 304
case coming from the Territory of Utah in which the same doctrine
was announced with regard to the mode of challenging petit jurors.
Page v. Burnstine, 102 U. S. 664
102 U. S.
Referring, therefore, to the territorial statutes, there is none
which directs that a list of the witnesses be furnished to the
defendant. Section 4925, Comp.Laws Utah, requires that the names of
witnesses examined before the grand jury be endorsed on the
indictment before it is presented. There is no pretense that this
direction was not complied with. In the absence of some statutory
provision, there is no irregularity in calling a witness whose name
does not appear on the back of the indictment or has not been
furnished to the defendant before the trial. The action of counsel
for defendant in asking that, as a favor, the names be furnished
the indicates their understanding of the extent of defendant's
right, and, so far as appears, the district attorney fully complied
with this request, and furnished the names as fast as he was
advised that they would be called. There is no suggestion that the
defendant was surprised by the calling of any witness or the
testimony that he gave. This allegation of error therefore is
The third assignment is that the court erred in overruling
defendant's challenges for cause directed against four jurors on
the ground that, on the voir dire,
they showed themselves
incompetent to serve. These jurors testified substantially that, at
the time of the homicide, they had read accounts thereof in the
newspaper and that some impression had been formed in
Page 159 U. S. 516
their minds from such reading, but each stated that he could lay
aside any such impression, and could try the case fairly and
impartially upon the evidence presented. Section 5024, Comp.Laws
Utah, reads that
"No person shall be disqualified as a juror by reason of having
formed or expressed an opinion upon the matter or cause to be
submitted to such jury, founded upon public rumor, statements in
public journals, or common notoriety, provided
to the court, upon his declaration, under oath or otherwise, that
he can and will, notwithstanding such an opinion, act impartially
and fairly upon the matters submitted to him."
The testimony of these jurors clearly placed them within the
terms of this statute, and there was no error in overruling the
challenges. Reynolds v. United States, 98 U. S.
; Hopt v. Utah, 120 U.
; Spies v. Illinois, 123 U.
; Connors v. United States, 158 U.
The defendant was a saloon keeper, and one of the jurors also
said that he had a prejudice against that business; that he did not
know the defendant, and had no prejudice against him individually,
but simply against the business of saloon keeping; that such
prejudice would not influence him in any way in passing upon the
guilt or innocence of the defendant, but that his occupation, like
that of any other witness, might affect the credit he would give to
his testimony. But the charge against the defendant -- the matter
to be tried -- had no reference to the occupation in which he was
engaged, and therefore a prejudice against such occupation is
entirely immaterial. In Spies v. Illinois, 123 U.
, a juror testified to a decided prejudice against
socialists and communists, as the defendants were said to be, but
as the charge to be tried was murder, and there was no prejudice
against the defendants as individuals, he was accepted and sworn as
a juror. In the case at bar, the juror was, however, excused by the
defendant before all his peremptory challenges were exhausted.
Hopt v. Utah, 120 U. S. 430
Hayes v. Missouri, 120 U. S. 68
120 U. S.
A fourth assignment is that the court erred in admitting
irrelevant, incompetent, and immaterial testimony. In order to
appreciate this assignment of error, it becomes necessary to
Page 159 U. S. 517
state briefly the circumstances of the homicide. The defendant
owned a brewery, and adjoining it kept a saloon. He had for some
time prior to the homicide been sleeping in the saloon, while his
wife and their child -- a girl of about nine years of age -- slept
at the dwelling house a short distance away. Somewhere about one
o'clock in the morning of Tuesday, May 1, 1894, the defendant
awakened one Jacob Lauenberger and informed him that he had found
his wife lying dead, with her throat cut. Upon examination, it
appeared that the head had been almost severed from the body by a
wound made with some sharp instrument -- probably not a pocketknife
or a razor, but some large knife or similar instrument. The
deceased was lying within three to five feet of the southeast
corner of the saloon. About thirty feet further east was a pool of
blood, with evidences of a struggle, and from that point to where
the body lay there were marks of blood. The defendant was in or
near the saloon during the night, until he went with the witness
Lauenberger for a physician, and the saloon was lighted during the
whole of the night. There was blood upon his hands and upon his
clothing. When he awakened Lauenberger, and thereafter when going
for a physician, and after his return, he manifested grief at the
loss of his wife. There was evidence of ill treatment by the
defendant of his wife for a number of years, though this was denied
by him, and his denial sustained by other testimony. On the Sunday
evening, preceding the murder the defendant and his wife had
quarreled. The witness Lauenberger called them into his house and,
according to his testimony and that of his wife, the defendant,
while there, slapped his wife in the face and ordered her to go
home, and she refused to go, saying that if she went home, the
defendant would kill her that night. The last time the deceased was
seen by any witness other than the defendant was about ten o'clock
Monday evening, when she was sitting outside the defendant's
saloon. The night was dark.
Now the most of the testimony objected to was introduced for the
purpose of showing ill treatment by defendant of deceased, and a
state of bitter feeling between them. This, of course, bears on the
question of motive, and tends to rebut the
Page 159 U. S. 518
presumed improbability of a husband's murdering his wife. The
witnesses testified to hearing the deceased scream at several
times; to seeing her with black eyes and a bruised face; to her
eyes looking red; to her crying on several occasions and appearing
alarmed and scared, and to bruises and discolorations of her body.
The objection was that these witnesses did not connect the
defendant with these appearances, or testify that he was the cause
of them. It is true these matters do not constitute direct evidence
of ill treatment or a long continued quarrel, but they are
circumstances which, taken in connection with the testimony of what
was seen and beard passing between the defendant and his wife, were
fairly to be considered by the jury in determining the truth in
respect thereto. Whether the relations between the defendant and
his wife were friendly or the reverse was to be settled not by
direct or positive, but by circumstantial, evidence, and any
circumstance which tended to throw light thereon might fairly be
admitted in evidence before the jury. Alexander v. United
States, 138 U. S. 353
Holmes v. Goldsmith, 147 U. S. 150
Moore v. United States, 150 U. S. 57
the second of these cases, page 147 U. S. 164
this Court observed:
"As has been frequently said, great latitude is allowed in the
reception of circumstantial evidence the aid of which is constantly
required, and therefore, where direct evidence of the fact is
wanting, the more the jury can see of the surrounding facts and
circumstances, the more correct their judgment is likely to
Another witness, after stating that he knew the defendant prior
to the homicide, was permitted to testify that he was "a strong,
powerful man." While this was not very material, as the defendant
was in the presence of the jury, yet in view of the medical
testimony that the wound must have been caused by a powerful blow,
we cannot say that it was either incompetent or immaterial, or that
the court erred in admitting it.
There was testimony that after the defendant had returned with
Lauenberger and the physician to his saloon, a stranger came in and
bought some whisky. This was before daylight on the morning of
Tuesday. The physician testified that he
Page 159 U. S. 519
noticed this stranger carefully, and saw him the next day, and
that there were no blood stains on him or his clothing. The latter
testimony was objected to; yet, as there was evidence tending to
show that there must have been something of a struggle between the
deceased and her murderer, with the probability that in such
struggle blood would have gotten onto the person and the clothing
of the latter, we cannot say that the testimony was absolutely
immaterial. At any rate, we cannot see how it in any manner tended
to prejudice the defendant.
We may remark in regard to other alleged errors in the
introduction of testimony that the order in which testimony shall
be admitted is largely within the discretion of the trial court;
that when the court rules correctly that certain matters are not
proper subjects of cross-examination, and at the same time notifies
the defendant that he can recall the witness and examine him fully
in reference to those matters, and the defendant fails to recall
the witness or introduce his testimony thereon, it is difficult to
see any ground or complaint; and further that the credibility of a
witness cannot be impeached by asking her whether she has not had
some difficulty with her husband.
Another assignment of error is that one of the jurors was
permitted to act as interpreter. The record discloses that when
Lauenberger was called as a witness, one Fritz Lomax was sworn as
interpreter. After the examination had proceeded a little while,
defendant's counsel suggested that the interpreter was not
correctly translating the answers of the witness; that the
defendant had so informed him -- which statement was corroborated
by one of the jurors. This juror was asked if he fully understood
the peculiar dialect of the German language which the witness
spoke, and replied that he did, whereupon, with the consent of
defendant, he was sworn to act as an interpreter, and the
subsequent examination of the witness was carried on through him.
We cannot see that in this any substantial right of the defendant
was prejudiced. The juror certainly heard all that the witness
stated, and was therefore fully prepared to act with the
Page 159 U. S. 520
other jurors in considering his testimony, and, as his
interpretation of the witness' testimony was with the consent of
the defendant, the latter cannot now question its propriety.
The remaining assignments of error relate to the matter of
instructions. It appears that at the close of the testimony, the
defendant presented a body of instructions in twenty-two
paragraphs, and asked the court to give them to the jury. They were
marked "Refused as a whole, except as given," and the only
exception to such refusal was in this language:
"The defendant excepts to the refusal of the court to give the
instructions requested by the defendant, being numbered 1, 2, 3, 4,
5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, and 21."
Such an exception is insufficient to compel an examination of
each separate instruction. It is enough that anyone of the series
is erroneous. In Beaver v. Taylor, 93 U. S.
, 93 U. S. 54
precise question was presented, and the Court said:
"The entire series of propositions was presented as one request,
and if any one proposition was unsound, an exception to a refusal
to charge the series cannot be maintained."
See also Indianapolis & St. Louis Railroad v.
Horst, 93 U. S. 291
93 U. S. 295
Block v. Darling, 140 U. S. 234
Bogk v. Gassert, 149 U. S. 17
149 U. S. 26
Holder v. United States, 150 U. S. 91
Hickory v. United States, 151 U.
, 151 U. S. 316
Allis v. United States, 155 U. S. 117
Newport News &c. Valley Co. v. Pace, 158 U. S.
An examination of the twenty-two instructions shows that they
are mainly directed to the matters of reasonable doubt, presumption
of innocence, circumstantial testimony, and confessions in respect
to which the court, while not using the language of counsel,
substantially expressed the same propositions in its charge. Of
course it was under no obligation to use the precise language
adopted by counsel, and if it fully covered the ground indicated by
the requests, it is sufficient. One of the requests, to-wit, No.
21, reads as follows:
"The jury are instructed that marital discord and quarrels are
relevant to prove motive in cases of marital homicide, but, as
instances of such quarrels are very numerous, generally expending
their force in words, such proof is entitled to little weight
unless connected in some way with the fatal wound. "
Page 159 U. S. 521
This, if true under any circumstances, was obviously improper as
applied to the facts of this case, for, as there was no evidence of
what took place between the deceased and her murderer at the night
of the homicide, it might carry the impression to the jury that
they were to ignore all the testimony of marital discord and
quarrels because there was no express connection shown between such
quarrels and the homicide.
It also appeared that defendant's counsel at the close of the
charge, excepted as follows:
"Further, the defendant excepts to the giving of the
instructions to the jury on the definition of the word 'malice,'
and its application to this case, as being misleading, confusing,
and not correctly stating the law as applicable to this case, and
tending to influence the jury to find a verdict not justified by
the evidence in this case."
"The defendant excepts to the giving of the instruction of the
court to the jury on the question of murder in the second degree,
as not being justified by the evidence and tending to mislead and
confuse the jury and cause them to render a verdict not sustained
by the evidence in this case."
"The defendant excepts to the instruction of the court to the
jury in defining 'deliberation,' that the same does not properly
and legally define the meaning of the words used in the indictment
in this case."
"The defendant excepts to the instruction of the court to the
jury in the definition and meaning of 'premeditation' as misleading
and not correct as charged in the indictment in this case."
It may well be doubted whether these exceptions are sufficiently
specific to call the attention of the court to the precise matters
complained of. Beaver v. Taylor, 93 U. S.
, 93 U. S. 55
which this Court observes:
"It is not the duty of a judge at the circuit court, or of an
appellate court, to analyze and compare the requests and the charge
to discover what are the portions thus excepted to. One object of
an exception is to call the attention of the circuit judge to the
precise point as to which it is supposed he has erred, that he may
then and there
Page 159 U. S. 522
consider it, and give new and different instructions to the jury
if in his judgment it should be proper to do so."
Allis v. United States, 155 U.
; Newport News &c. Valley Co. v.
Pace, 158 U. S. 36
if they are, we find nothing in the charge of the court in respect
to those matters which can be deemed erroneous. This was the
definition of "malice":
"The term 'malice' denotes a wicked intention of the mind. An
act done with a depraved mind, attendant with circumstances which
indicate a willful disregard of the rights or safety of others,
indicates malice. 'Malice aforethought' is such wicked intention of
the mind previously entertained."
Evidently there is nothing in this of which the defendant can
complain. 1 Bishop's New Criminal Law § 429. Following this
definition of "malice," the court in its charge referred to the
divisions of "express and implied malice," and discussed them at
some length, but we find nothing in such discussion which is not
supported by accepted definitions or which in any manner would tend
to the prejudice of defendant's rights.
With reference to the giving of an instruction on the question
of murder in the second degree, the accuracy of the instruction is
not questioned, and that it was proper to give one has been already
determined by this Court. In Hopt v. Utah, 110 U.
, 110 U. S. 582
it was said:
"It was competent for the judge, under the statutes of Utah, to
state to the jury 'all matters of law necessary for their
information,' and consequently to inform them what those statutes
defined as murder in the first degree and murder in the second
degree. Laws of Utah 1878, p. 120; Code of Crim.Pro. secs. 283,
As to the other matters, we do not find in the charge any
separate definition of the terms "deliberation" or "premeditation."
Probably counsel referred to the statement that such deliberation
and premeditation need not exist for any fixed period of time --
that it is enough that they were formed before the act. This is the
accepted law. 2 Bishop's New Crim.Law § 728.
Again, the verdict was returned on October 21. On November 2,
counsel for defendant came into court and sought to save other
exceptions to the charge. The court noted those
Page 159 U. S. 523
exceptions but declined to make any ruling on them. Obviously
they were too late. Mich. Ins. Bank v. Eldred,
143 U. S. 293
143 U. S.
These are all the errors assigned. We find nothing in the record
of which the defendant has any just complaint, and therefore the