The action of a trial court, upon an application for a
continuance, is purely a matter of discretion, and not subject to
review by this Court unless it be clearly shown that such
discretion has been abused, and in this case it could not be said
that an abuse of discretion was clearly shown.
There is no impropriety in permitting the government to search
the mind of a juror, to ascertain if his views on circumstantial
evidence were such as to preclude him from finding a verdict of
guilty, with the extremest penalty which the law allows.
Voluntary statements made by a defendant before and after a
preliminary examination are admissible in evidence when made to the
magistrate who conducted the preliminary examination.
The case is stated in the opinion of the Court.
MR. JUSTICE BREWER delivered the opinion of the Court.
On September 10, 1901, in the District Court for the District of
Alaska, Second Division, Fred Hardy, plaintiff in error, was found
guilty of the crime of murder and sentenced to be hanged. Thereupon
he sued out this writ of error.
In the record appear thirty-two assignments of error, but in the
brief filed by his counsel only three are pressed upon our
attention. First it is claimed that the court erred in refusing the
defendant a continuance.
"That the action of the trial court upon an application for a
continuance is purely a matter of discretion, and not subject to
review by this Court unless it be clearly shown that such
discretion has been abused is settled by too many authorities to be
now open to question."
Isaacs v. United States, 159 U.
S. 487,
159 U. S. 489,
and authorities there cited.
See also Goldsby v. United
States, 160 U. S. 70.
This proposition of law is not disputed, but it is contended
Page 186 U. S. 225
that abuse of discretion is shown. The pertinent facts are as
follows: the indictment charged the murder of Con Sullivan on June
7, 1901. The killing took place on Unimack Island. The defendant
filed in support of his motion his affidavit stating that he had
been in custody since July 27; that at the time of his arrest, he
had $685 upon his person, which was taken from him by the arresting
officer; that one Captain Mackintosh and one John Johnson, captain
and mate, respectively, of the schooner
Arago, upon which
affiant came as a sailor from San Francisco to Unimack Island,
would testify that he remained on that vessel continuously from the
time it left San Francisco until June 11; that the schooner, with
the captain and mate on board, left Alaska prior to the finding of
the indictment against him, but that he believed and had been
informed that the vessel would probably return within a reasonable
time, and if not, that the depositions of the captain and mate
could be obtained in San Francisco, the place of their residence.
The affidavit further stated that two witnesses, whose names were
unknown, who were both in the employ of the government on a boat
named the
Pathfinder, plying in the waters of the Northern
Pacific Ocean and the Behring Sea, and which frequently called at
Dutch Harbor -- within one mile of the place where court was being
held -- would testify that they knew affiant in San Francisco from
about March 26 to April 15, and then saw him in possession of a
large amount of money, an amount in excess of $1,500, a part of
which was the money taken from him when arrested. The affidavit
also stated that one Major Whitney, a paymaster of the United
States Army at San Francisco, would testify that, on or about March
28, affiant, on his return from the Philippine islands as a soldier
in the United States Army, was mustered out of the service at San
Francisco; that said Whitney at that time paid affiant $1,875; that
the deposition of said Whitney could be obtained, as he was
permanently stationed at San Francisco. By these witnesses,
defendant sought to show that he was on the schooner at the time
the murder was charged to have been committed, and also to explain
the possession of the money found on his person. But the date named
in an indictment for the commission of the
Page 186 U. S. 226
crime of murder is not an essential averment. Proof that the
crime was committed days before or days after the date named is no
variance. Again, accounting satisfactorily for the money found on
his person made no defense. It is not stated in the affidavit that
the deceased had money in his possession. There is nothing in the
indictment to suggest that he had, and nothing had at that time
been disclosed to indicate that the fact that the defendant was in
possession of so much money had any significance in connection with
the charge. So that, upon this presentation alone it could not be
said that an abuse of discretion was clearly shown.
But, further, the government offered the affidavits of several
parties, which were received without objection, three of whom
testified that they had been soldiers in the United States Army,
doing service in the Philippine Islands, were convicted of some
military offense, and sentenced to imprisonment at Alcatraz Island
military prison, San Francisco; that, when they arrived at the
prison in the fall of 1900, the defendant Hardy was there as a
military prisoner; that he was discharged therefrom the latter part
of February or the first of March following, and one of them added
that the defendant said that he had been sentenced for a term of
five years and a forfeiture of all pay and allowances. Another
witness, George Aston, testified that he came with the defendant
from San Francisco on the schooner
Arago; that affiant
left the schooner on June 2, and that, on June 20, he met the
defendant Hardy, who told him that he had left the schooner three
or four days after affiant; also that Hardy showed him a roll of
paper money which he said was about $1,200, and added: "You know,
this is more money than I had when I was on board the
Arago." Another witness testified that the defendant told
him that he left the schooner the day after the witness Aston.
Another, that Hardy made a statement to him, which was afterward
reduced to writing and signed by Hardy, that he left the schooner
Arago about June 9, but could not tell the exact date.
Some of these witnesses also testified to the defendant's being in
possession of a gold watch and other articles, which he did not
have when on the
Arago and which were afterward shown to
have belonged to the
Page 186 U. S. 227
deceased, and also to Hardy's contradictory statements as to how
he obtained possession of those articles, statements which in
themselves were, to say the least, singular, and tended to create
strong doubts as to the truthfulness of his affidavit.
Under these circumstances, it seems to us clear that the court
did not abuse its discretion in refusing a continuance. It is true
the trial was held in a remote part of the nation, and where
facilities for securing the attendance of witnesses were not as
great as in more thickly settled portions, but it is also true that
many of the witnesses for the government were engaged in
prospecting, men without settled abodes, and whose attendance at
subsequent terms it might have been difficult to secure, and it
must have been perfectly obvious to defendant and his counsel that
the longer he could postpone the trial, the greater the probability
of the absence of witnesses against him. It was the right of the
court to consider all these matters, and when it appeared clearly
from the testimony that some of his statements were false, the
court might well have concluded that no reliance was to be placed
on the others.
The second assignment of error presented by counsel is that the
court erred in permitting the district attorney to propound to
juror Hayden the following question:
"Q. Have you any such conscientious scruples or opinions as
would prevent or preclude you from rendering a verdict of guilty in
a case where the penalty prescribed by law is death, upon what is
known as circumstantial evidence?"
It is insisted that the district attorney should have been
compelled to modify the question by striking out the words "where
the penalty prescribed by law is death" and insert "where the
penalty prescribed by law may be death," and this because of a
provision in the statute which permits a jury finding a party
guilty of murder in the first degree to add "without capital
punishment." We see no objection to the question. The defendant was
not prevented from asking the question in the qualified form which
is suggested, nor was any question propounded by him ruled out.
There was no impropriety in permitting the government to search the
mind of the juror to ascertain if his views on circumstantial
Page 186 U. S. 228
evidence were such as to preclude him from finding a verdict of
guilty with the extremest penalty which the law allows.
Finally, it is insisted that the court erred in permitting the
government to introduce in evidence a statement made by the
defendant to one R. H. Whipple, United States commissioner, before
whom the preliminary examination was had -- a statement reduced to
writing and signed by the defendant. Sections 307 to 311,
inclusive, of c. 429 (30 Stat. 1319) are relied upon to sustain
this assignment of error. Those sections provide that, on a
preliminary examination, after the government's witnesses have been
examined, the magistrate must inform the defendant that it is his
right to make a statement in relation to the charge against him,
that the statement is designed to enable him, if he sees fit, to
answer the charge and explain the facts alleged against him, that
he is at liberty to waive making a statement, and that such waiver
cannot be used against him on the trial; they further provide that,
if he does waive his right to make a statement, a memorandum
thereof shall be made by the magistrate, but the fact of the waiver
cannot be used at the trial; that, if he chooses to make a
statement, the magistrate must take it in writing, propounding only
certain specified questions; that his answer to each of the
questions must be read as taken down, and he given liberty to make
any corrections that he desires, and that such statement, so
reduced to writing, must be authenticated in the following form. It
must set forth that the defendant was informed of his rights in
respect to making or waiving a statement; it need not contain the
questions, but must contain the answers, with the corrections or
additions made by the defendant, it may be signed by him, but if he
refuses to sign, his reason therefor must be stated as he gives it,
and the whole must be signed and certified by the magistrate. The
magistrate testified that, before the preliminary examination was
commenced, the defendant, voluntarily and without any suggestion,
insisted upon making a statement. Whereupon he, the magistrate,
informed him that he was entitled to counsel, that he was under no
obligations and need not make any statement, but that, if he did it
would be used against him on the trial, and also that, if he waited
an opportunity
Page 186 U. S. 229
would be given to him to make a statement at the proper time;
that, notwithstanding this, he insisted on making a statement, and
it was then reduced to writing by the clerk of the court and signed
and sworn to by the defendant; that, after the examination had
commenced and the testimony of witnesses for the government had
been taken, the statutory questions were put to him and he was
advised that he could then make a statement if he desired, but he
refused to say anything. Upon this showing, the statement was
admitted in evidence. The magistrate also testified that, after the
examination was over and the defendant had been placed in jail, the
latter sent word that he wanted to talk with him about the case,
and in an interview stated orally that his former statement was
untrue, and volunteered a different account of the transactions.
There was no contradiction of the testimony as to the circumstances
under which these two statements -- one written and the other oral
-- were made except that, in reference to the last statement,
defendant, when on the witness stand, testified that the
magistrate
"came up to the jail and ordered me to return to his office for
the purpose of securing some information to arrest some other
fellows, or get some points of me of other parties."
From this testimony it clearly appears that the statements were
not made pending the examination or under the provisions of the
statute, but voluntarily, one before and the other, after the
examination; that the provision of the statute as to giving him
notice pending the examination was complied with, and that, at that
time, he declined to make any statement. So the question is whether
voluntary statements made by a defendant before and after a
preliminary examination are inadmissible in evidence because made
to the magistrate who in fact conducted the preliminary
examination. We know of no rule of evidence which excludes such
testimony. Of course, statements which are obtained by coercion or
threat or promise will be subject to objection.
Bram v. United
States, 168 U. S. 532.
But, so far from anything of that kind appearing, the defendant was
cautioned that he was under no obligations to make a statement;
that it would be used against him if he made one, and that there
was a proper time for him to make one if he so desired.
Page 186 U. S. 230
Without even a suggestion, he insisted on making, prior to the
examination, a statement which was reduced to writing and by him
signed and sworn to, and after the examination was over and he had
been placed in jail, he had an interview with the magistrate and
volunteered a further statement. Affirmatively and fully, it
appears that all that he said in the matter was said voluntarily,
without any inducement or influence of any kind being brought to
bear upon him. Indeed, it is not claimed by counsel that there was
any improper influence, his contention being only that the
provisions of the statute with respect to a statement pending an
examination were not complied with in respect to these statements.
The statements were properly admitted in evidence. These are the
only matters called to our attention. No errors appear in them, nor
do we perceive any plain error otherwise in the record. The proof
of defendant's guilt is clear and satisfactory, and the judgment
is
Affirmed.