Evidence, or what purports to be evidence, in a criminal case,
printed in a newspaper, is "a statement in a public journal" within
the meaning of the act of Utah declaring that no person shall be
disqualified as a juror by reason of his having formed or expressed
an opinion upon the matter or cause to be submitted to him
"founded upon public rumor, statements in public journals, or
common notoriety, provided it appear 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 judgment of the court as to the competency of the juror upon
his declaration under oath or otherwise, as above, is
conclusive.
When a challenge by a defendant in a criminal action to a juror,
for bias, actual or implied, is disallowed, and the juror is
thereupon peremptorily challenged by the defendant and excused, and
an impartial and competent juror is obtained in his place, no
injury is done to the defendant if until the jury is completed he
has other peremptory challenges which he can use.
Page 120 U. S. 431
The opinion of a physician, after making a
post mortem
examination of the deceased, who came to his death by a blow
inflicted upon his lead, as to the direction from which the blow
was delivered is admissible in evidence.
If the evidence produced in a criminal action be of such a
convincing character that the jurors would unhesitatingly be
governed by it in the weighty and important matters of life, they
may be said to have no reasonable doubt respecting the guilt or
innocence of the accused, notwithstanding the uncertainty which
attends all human evidence. Therefore a charge to the jury that if,
after an impartial comparison and consideration of all the
evidence, they can truthfully say that they have an abiding
conviction of the defendant's guilt such as they would be willing
to act upon in the more weighty and important matters relating to
their own affairs, they have no reasonable doubt, is not
erroneous.
An allusion in the final argument to the jury by the counsel for
the prosecution to the case as having been many times brought
before the tribunals is not a ground for reversing a judgment under
the statute of Utah which declares that on a new trial, the "former
verdict cannot be used or referred to either in evidence or
argument."
This writ of error was sued out by the defendant below, who was
indicted, tried, and convicted of murder, to review the proceedings
and judgment there. The case is stated in the opinion of the
Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
The defendant below, the plaintiff in error here, Frederick
Hopt, was indicted in the District Court of the Third Judicial
District of Utah, in December, 1880, for the murder of John F.
Turner on the third of the preceding July. He was four times
convicted in that court, upon this indictment, of murder in the
first degree. The judgment of death pronounced against him on each
previous conviction was reversed by this Court. The decisions are
found in
104 U. S. 104 U.S.
631;
110 U. S. 110 U.S.
574, and
114 U. S. 114 U.S.
488. The last conviction took place in September, 1885. Judgment
was passed in October following,
Page 120 U. S. 432
and on appeal to the supreme court of the territory it was
affirmed in January 1886, except as to the time of its execution;
that was to be fixed by the district court, to which the cause was
remanded for that purpose. To secure a reversal of this judgment,
the case is brought before us on a writ of error.
The errors assigned are 1st, the ruling of the trial court upon
challenges to several jurors, 2d, the admission in evidence of the
opinion of a witness as to the direction from which the blow was
delivered which caused the death of the deceased, 3d, the
instruction to the jury as to the meaning of the words "reasonable
doubt," and 4th, the reference on the argument by the district
attorney to previous trials of the case.
1st. Four persons summoned as jurors were examined on their
voir dire, and challenged by the defendant, one for actual
bias, under § 241 of the act of the territory regulating
proceedings in criminal cases, passed in 1878, and the other three
for both actual and implied bias. Actual bias is defined by that
act to be
"the existence of a state of mind, on the part of a juror, which
leads to a just inference in reference to the case that he will not
act with entire impartiality."
The juror Young, challenged as having that state of mind -- that
is, for actual bias -- testified that he had heard of the case, but
had never talked with anyone who pretended to know about it; that
he had impressions as to the guilt or innocence of the defendant,
but could not say that he had ever formed any opinion on the
subject, and did not remember that he had ever expressed any; that
possibly his impressions were strong enough to create, from
sympathy, some bias or prejudice, but he thought he could sit on
the jury and be guided by the evidence, and try the case
impartially, as if he had never heard of it before. Upon this
testimony, the court was of opinion that he was a competent juror,
and accordingly the challenge was disallowed. In this ruling we see
no error. The juror was then peremptorily challenged by the
defendant, and was excused.
That act also provides, in § 242, that a challenge for
implied
Page 120 U. S. 433
bias may be taken for all or any of the following causes, and
for no other:
1. Consanguinity or affinity within the fourth degree to the
person alleged to be injured by the offense charged, or on whose
complaint the prosecution was instituted, or to the defendant.
2. Standing in the relation of guardian and ward, attorney and
client, master and servant, or landlord and tenant, or being a
member of the family of the defendant, or of the person alleged to
be injured by the offense charged, or on whose complaint the
prosecution was instituted, or in his employment on wages.
3. Being the party adverse to the defendant in a civil action,
or having complaint against or being accused by him in a criminal
prosecution.
4. Having served on the grand jury which found the indictment,
or on a coroner's jury which inquired into the death of a person
whose death is the subject of the indictment.
5. Having served on a trial jury which has tried another person
for offense charged in the indictment.
6. Having been one of the jury formerly sworn to try the same
indictment, and whose verdict was set aside, or which was
discharged without a verdict, after the case was submitted to
it.
7. Having served as a juror in a civil action brought against
the defendant for the act charged as an offense.
8. Having formed or expressed an unqualified opinion or belief
that the prisoner is guilty or not guilty of the offense
charged.
9. If the offense charged be punishable with death, the
entertaining of such conscientious opinions as would preclude his
finding the defendant guilty, in which case he must neither be
permitted nor compelled to serve as a juror.
The act provides in § 244 that "in a challenge for implied bias,
one or more of the causes stated in § 242 must be alleged." Laws
1878, pp. 111, 112.
Another act of the territory, passed in March, 1884, declares
that
"No person shall be disqualified as a juror by reason of
Page 120 U. S. 434
having formed or expressed an opinion upon the matter or cause
to be submitted to such jury [juror] founded upon public rumor,
statements in public journals, or common notoriety, provided it
appear 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
challenge may be oral, but must be entered in the minutes of the
court or of the phonographic reporter."
Laws 1884, p. 124.
The juror Gabott, challenged for both actual and implied bias,
testified on his direct examination in substance as follows: that
he had heard of the case through the newspapers and read what was
represented to be the evidence; that he had talked about it since
that time; that he did not think he had ever expressed an opinion
on the case, but that he had formed a qualified opinion -- that is,
if the evidence were true, or the reports were true; that he had an
opinion touching the guilt or innocence of the accused which it
would take evidence to remove, but that he thought he could go into
the jury box and sit as if he had never heard of the case, and that
what he had heard would not make the least difference. On his
cross-examination, he testified that he knew nothing about the case
except what he had read from time to time in the public press; that
if what he had heard turned out to be the facts in the case, he had
an opinion, otherwise not -- that is, his opinion was a qualified
one, and that, according to his present state of mind, he could sit
on the jury and determine the case without reference to anything he
had heard; that he was not conscious of any bias or prejudice that
might prevent him from dealing with the defendant impartially, and
that he thought he could try the case according to the law and the
evidence given in court. On his reexamination, he further stated
that he would be guided by the evidence altogether, without being
influenced by any opinion he might then have or may have previously
formed. The court held that the juror was competent. By the express
terms of the statute of 1884, he could not be disqualified as a
juror for an opinion formed or expressed upon statements
Page 120 U. S. 435
in public journals if it appeared to the court upon his
declaration, under oath or otherwise, that he could and would,
notwithstanding such an opinion, act impartially and fairly upon
the matters submitted to him. We think that evidence, or what
purports to be evidence, printed in a newspaper is a "statement in
a public journal" within the meaning of the statute, and that the
judgment of the court upon the competency of the juror in such
cases is conclusive.
The juror Winchester, who was also challenged for actual and
implied bias, testified that he had heard of the case through the
papers; that he had heard it talked of some years ago; that he
believed he had heard what purported to be the evidence as given in
the newspapers on previous trials, and believed he had formed and
expressed an opinion as to the guilt or innocence of the accused,
and though it was an unqualified opinion, it was not a fixed or
settled one; that at the time he read the papers, he had formed
such an opinion as would have required testimony to remove it from
his mind, and if his memory was refreshed as to the testimony,
there would probably be a renewal of the opinion he had formed;
that he had not talked with anyone, and could hardly tell the
circumstances now; that he believed that his mind was free from any
impression, and that he could sit on the jury and try the case
precisely as if he had never heard of it or read of any of the
facts. To inquiries of the court, the juror repeated in substance
what he had previously said -- that he thought he could sit in the
jury box and try the case according to the evidence without
reference to any opinion he may then or theretofore have formed;
that he could try the defendant impartially according to the
evidence, and that he would do so. The court thereupon held that he
was competent, and the challenge was disallowed. This ruling
disposed of the challenge, and the judgment of the court, for the
reasons stated, was conclusive under the statute of March, 1884.
The defendant thereupon peremptorily challenged the juror, and he
was excused.
The fourth juror, Harker, who was challenged for actual and
implied bias by the defendant, was examined on his
voir
Page 120 U. S. 436
dire, but after hearing his testimony the challenge was
disallowed, and thereupon the district attorney peremptorily
challenged him, and he was excused.
The challenges for implied bias fell, as there was no
specification of the grounds for such challenges, as required by §
242 of the act of 1878.
In capital cases in Utah, the government and the accused are
each allowed fifteen peremptory challenges. Laws of Utah, 1884, c.
48, § 24. Notwithstanding the peremptory challenges made by the
defendant to two of the jurors, he had several such challenges
which had not been used when the jury was completed. If therefore
the ruling of the court in disallowing the challenges to the two
for bias, actual or implied, was erroneous, no injury to the
defendant followed.
Those jurors were not on the jury, and impartial and competent
jurors were obtained in their place, to whom no objection was made.
Hayes v. Missouri, ante, 120 U. S. 68;
Mimms v. State, 16 Ohio St. 221;
Erwin v. State,
29 Ohio St. 190. It is therefore only the ruling on the challenge
to the juror Gabott which can properly be assigned as error here,
and for the reasons stated, that ruling was in our judgment
correct.
2d. The deceased came to his death from a blow inflicted upon
the left side of his head, which crushed his skull. A
post
mortem examination of the body was made by a physician, who
was allowed, against the objection of the defendant, to give his
opinion as to the direction from which the blow was delivered after
he had stated that his examination of the body had enabled him to
form an intelligent opinion upon that point. The ground of the
objection was that the direction in which the blow was delivered
was not a matter for the opinion of an expert, but one which should
be left to the jury. The court overruled the objection, and the
defendant excepted. The witness stated as his opinion that the blow
was delivered from behind and above the head of the person struck,
and from the left toward the right. This testimony was supposed to
have some bearing upon the case when considered in connection with
the fact that the accused was a left-handed man. On the following
morning, counsel on behalf of the prosecution,
Page 120 U. S. 437
moved that this evidence should be stricken from the record and
the jury be instructed to disregard it. The counsel for the
defendant did not object to that, but he wished the record to show
that the application was made on the following morning. The court
thereupon instructed the jury that the evidence was stricken out
and that they were not to consider it at all. The defendant now
contends that it was error to admit the evidence and that the error
was not cured by striking it out and the instruction to the jury.
To this the answer is 1st, that the evidence was admissible, and
2d, that if not admissible, the error was cured by the evidence
being stricken out with the accompanying instruction.
The opinions of witnesses are constantly taken as to the result
of their observations on a great variety of subjects. All that is
required in such cases is that the witnesses should be able to
properly make the observations, the result of which they give, and
the confidence bestowed on their conclusions will depend upon the
extent and completeness of their examination and the ability with
which it is made. The court below, after observing that every
person is competent to express an opinion upon a question of
identity, as applied to persons in his family or to handwriting,
and to give his judgment in regard to the size, color, and weight
of objects, and to make an estimate as to time and distance, cited
a great number of cases illustrative of this doctrine. We quote a
passage containing them. "He may state his opinion," says the
court,
"with regard to sounds, their character, from what they proceed,
and the direction from which they seem to come.
State v.
Shinborn, 46 N.H. 497;
Commonwealth v. Pope, 103
Mass. 440;
Commonwealth v. Dorsey, 103 Mass. 412.
Non-experts have been allowed to testify whether certain hairs were
human,
Commonwealth v. Dorsey, 103 Mass. 412; that one
person appeared to be sincerely attached to another,
McKee v.
Nelson, 4 Cowen 355; as to whether another was intoxicated
People v. Eastwood, 14 N.Y. 562; as to whether a person's
conduct was insulting,
Raisler v. Springer, 38 Ala. 703;
as to resemblance of foot-tracks,
Hotchkiss v. Germania Ins.
Co., 5
Page 120 U. S. 438
Hun. 90; as to value of property when competent,
Brown v.
Hoburger, 52 Barb. 15;
Bank v. Mudgett, 44 N.Y. 514;
Bedell v. Long Island R. Co., 44 N.Y. 367;
Swan v.
Middlesex Co., 101 Mass. 173;
Snyder v. Western Union Tel.
Co., 25 Wis. 60;
Brackett v. Edgerton, 14 Minn. 174;
as to market value of cattle, derived from newspapers,
Cleveland &c. Railroad v. Perkins, 17 Mich. 296;
whether there was hard pan in an excavation,
Currier v. Boston
& Maine Railroad, 34 N.H. 498; whether one acted as if she
felt sad,
Culver v. Dwight, 6 Gray 444; as to rate of
speed of a railroad train on a certain occasion,
Detroit
&c. Railroad v. Van Steinburg, 17 Mich. 99; as to whether
noisome odors render a dwelling uncomfortable,
Kearney v.
Farrel, 28 Conn. 317; whether the witness noticed any change
in the intelligence or understanding or any want of coherence in
the remark of another,
Barker v. Comins, 110 Mass. 477;
Nash v. Hunt, 116 Mass. 237."
Upon the same principle, the testimony of the physician as to
the direction from which the blow was delivered was admissible. It
was a conclusion of fact which he would naturally draw from the
examination of the wound. It was not expert testimony in the strict
sense of the term, but a statement of a conclusion of fact, such as
men who use their senses constantly draw from what they see and
hear in the daily concerns of life.
Conn. Life Ins. Co. v.
Lathrop, 111 U. S. 612,
111 U. S. 620.
But independently of this consideration, as to the admissibility of
the evidence, if it was erroneously admitted, its subsequent
withdrawal from the case, with the accompanying instruction, cured
the error. It is true in some instances there may be such strong
impressions made upon the minds of a jury by illegal and improper
testimony that its subsequent withdrawal will not remove the effect
caused by its admission, and in that case, the original objection
may avail on appeal or writ of error. But such instances are
exceptional. The trial of a case is not to be suspended, the jury
discharged, a new one summoned, and the evidence retaken when an
error in the admission of testimony can be corrected by its
withdrawal with proper instructions from the court to disregard it.
We think the present
Page 120 U. S. 439
case one of that kind.
State v. May, 4 Devereux, Law
330;
Goodnow v. Hill, 125 Mass. 589;
Smith v.
Whitman, 6 Allen 562;
Hawes v. Gustin, 2 Allen 125;
Dillin v. People, 8 Mich. 369;
Specht v.
Howard, 16 Wall. 564.
3d. The instruction to the jury, which is the subject of
exception, relates to the meaning of the words "reasonable doubt"
which should control them in their decision. The following is that
portion which bears upon this subject:
"The court charges you that the law presumes the defendant
innocent until proven guilty beyond a reasonable doubt. That if you
can reconcile the evidence before you upon any reasonable
hypothesis consistent with the defendant's innocence, you should do
so, and in that case find him not guilty. You are further
instructed that you cannot find the defendant guilty unless, from
all the evidence, you believe him guilty beyond a reasonable doubt.
The court further charges you that a reasonable doubt is a doubt
based on reason, and which is reasonable in view of all the
evidence. And if, after an impartial comparison and consideration
of all the evidence, you can candidly say that you are not
satisfied of the defendant's guilt, you have a reasonable doubt,
but if, after such impartial comparison and consideration of all
the evidence, you can truthfully say that you have an abiding
conviction of the defendant's guilt, such as you would be willing
to act upon in the more weighty and important matters relating to
your own affairs, you have no reasonable doubt."
The word "abiding" here has the signification of settled and
fixed, a conviction which may follow a careful examination and
comparison of the whole evidence. It is difficult to conceive what
amount of conviction would leave the mind of a juror free from a
reasonable doubt if it be not one which is so settled and fixed as
to control his action in the more weighty and important matters
relating to his own affairs. Out of the domain of the exact
sciences and actual observation, there is no absolute certainty.
The guilt of the accused, in the majority of criminal cases, must
necessarily be deduced from a variety of circumstances leading to
proof of the fact. Persons of
Page 120 U. S. 440
speculative minds may in almost every such case suggest
possibilities of the truth's being different from that established
by the most convincing proof. The jurors are not to be led away by
speculative notions at to such possibilities.
In
Commonwealth v. Webster, 5 Cush. 320, the Supreme
Judicial Court of Massachusetts stated in its charge that it was
not sufficient to establish a probability, though a strong one
arising from the doctrine of chances, that the fact charged against
the prisoner was more likely to be true than the contrary, and
said:
"The evidence must establish the truth of the fact to a
reasonable and moral certainty, a certainty that convinces and
directs the understanding and satisfies the reason and judgment of
those who are bound to act conscientiously upon it. This we take to
be proof beyond reasonable doubt."
The difficulty with this instruction is that the words "to a
reasonable and moral certainty" add nothing to the words "beyond a
reasonable doubt;" one may require explanation as much as the
other. In
Commonwealth v. Costley, 118 Mass. 1, the same
court held that, as applied to a judicial trial for crime, the two
phrases were synonymous and equivalent, and that each signified
such proof as would satisfy the judgment and consciences of the
jury that the crime charged had been committed by the defendant,
and so satisfy them as to leave no other reasonable conclusion
possible. It was there also said that an instruction to the jury
that they should be satisfied of the defendant's guilt beyond a
reasonable doubt had often been held sufficient without further
explanation. In many cases it may undoubtedly be sufficient. It is
simple, and as a rule to guide the jury, is as intelligible to them
generally as any which could be stated with respect to the
conviction they should have of the defendant's guilt to justify a
verdict against him. But in many instances, especially where the
case is at all complicated, some explanation or illustration of the
rule may aid in its full and just comprehension. As a matter of
fact, it has been the general practice in this country of courts'
holding criminal trials to give such explanation or illustration.
The rule may be, and often is, rendered obscure by
Page 120 U. S. 441
attempts at definition which serve to create doubts instead of
removing them. But an illustration like the one given in this case,
by reference to the conviction upon which the jurors would act in
the weighty and important concerns of life, would be likely to aid
them to a right conclusion when an attempted definition might fail.
If the evidence produced be of such a convincing character that
they would unhesitatingly be governed by it in such weighty and
important matters, they may be said to have no reasonable doubt
respecting the guilt or innocence of the accused, notwithstanding
the uncertainty that attends all human evidence. The instruction in
the case before us is as just a guide to practical men as can well
be given, and if it were open to criticism, it could not have
misled the jury, when considered in connection with the further
charge, that if they could reconcile the evidence with any
reasonable hypothesis consistent with the defendant's innocence,
they should do so, and in that case find him not guilty. The
evidence must satisfy the judgment of the jurors as to the guilt of
the defendant, so as to exclude any other reasonable
conclusion.
The instruction is not materially different from that given by
Lord Tenterden, as repeated and adopted by Chief Baron Pollock in
Rex v. Muller. "I have heard," said the Chief Baron,
addressing the jury,
"the late Lord Tenterden frequently lay down a rule which I will
pronounce to you in his own language:"
"It is not necessary that you should have a certainty which does
not belong to any human transaction whatever. It is only necessary
that you should have that certainty with which you should transact
your own most important concerns in life."
"No doubt the question before you today -- involving as it does
the life of the prisoner at the bar -- must be deemed to be of the
highest importance; but you are only required to have that degree
of certainty with which you decide upon and conclude your own most
important transactions in life. To require more would be really to
prevent the repression of crime, which it is the object of criminal
courts to effect."
4 Fost. & Fin. 388-389, note. We are satisfied that the
defendant was in no way prejudiced by the instructions of the
court.
Page 120 U. S. 442
4th. On the final argument to the jury, the counsel for the
prosecution alluded to the case as the most remarkable one ever
tried in the territory, and to "the many times it had been brought
before the tribunals." To this latter remark exception was taken.
Thereupon the remark was withdrawn by the counsel, and the court
said to the jury that the case was to be tried on the evidence, and
that they were not to consider it with respect to any previous
trial, but only on the evidence given on this trial. The counsel
for the defendant now contends that this allusion was in
contravention of that section of the act of the territory
regulating proceedings in criminal cases which declares that "the
granting of a new trial places the parties in the same position as
if no trial had been had," and that "all the testimony must be
produced anew, and the former verdict cannot be used or referred to
either in evidence or in argument." Laws Utah 1878, p. 126, § 317.
The object of this law was to prevent the accused from being
prejudiced by reference to any former conviction on the same
indictment. There was in fact no reference to any verdict on a
previous trial, but merely a mention of the times the case had been
before the courts, so as to magnify its importance. If allusions to
previous trials such as were here made were to vitiate a subsequent
trial, a new element of uncertainty would be introduced into the
administration of justice in criminal cases. We do not see that the
defendant was in any way prejudiced by such reference. The fact
that previous trials had proved unavailing may perhaps have induced
greater care and caution on the part of the jury in the
consideration of the case.
The judgment of the court below is
Affirmed.