Where the acts constituting the assault are alleged to have been
made feloniously and with malice aforethought, it is not necessary
to make such allegations in the preliminary averment of
assault.
Quaere, and not necessary to be decided in this case,
how far, if at all, the court is warranted in inquiring into the
nature of the evidence on which the grand jury acts, and how far in
case of such inquiry the discretion of the trial court is subject
to review.
Indictments should not be upset because some evidence, in its
nature competent, but rendered incompetent by circumstances, was
considered along with other evidence.
Unless the error is manifest the reviewing court should not set
aside the finding of the trial court refusing to sustain a
challenge of a juryman for cause on the ground of partiality or
expressed opinions.
Although the more conservative course is to exclude the jury
during discussions of admissibility of confessions, in the absence
of statutory provision, it is within the discretion of the trial
judge to allow the jury to remain, and where, as in this case, he
cautions the jury that the preliminary evidence has no bearing on
the question to be decided, it is not error to do so.
In this case, the ruling of the trial court that the district
attorney was not guilty of misconduct in making statements in his
opening as to voluntary confessions of the accused sustained.
In considering a motion for new trial in a capital case on the
ground that the jury was allowed to separate during the trial and
that, during the separation, they saw newspaper articles bearing on
the case, the court may, if it is going to deny the motion, assume
that the jurors did read the articles, and the discretion of the
trial court in denying the motion will not be reviewed in the
absence of any conclusive ground that he was wrong, notwithstanding
the more conservative course is not to allow the jury to separate
in such cases.
In this case, the objections to evidence identifying the
military reservation
Page 218 U. S. 246
on which a capital crime was alleged to have been committed,
including introduction of deeds and condemnation proceedings, were
properly overruled, and
quaere whether the United states
is called on to try title to a reservation where it is in
de
facto exercise of exclusive jurisdiction.
The prohibition of the Fifth Amendment against compelling a man
to give evidence against himself is a prohibition of the use of
physical or moral compulsion to extort communications from him, and
not an exclusion of his body as evidence when it is material, and
so
held that testimony of a witness that the accused put
on a garment and it fitted him is admissible, whether the accused
had put on the garment voluntarily or under duress.
In this case, the charge and instructions of the trial court as
to legal presumptions of innocence and what constitutes a
reasonable doubt
held to be correct.
The facts, which involve the validity of a conviction for murder
committed on a military reservation of the United States, are
stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The plaintiff in error was indicted in the circuit court for
murder, alleged to have been committed "within the Fort Worden
Military Reservation, a place under the exclusive jurisdiction of
the United States." There was a trial and a verdict of guilty,
without capital punishment, as allowed by statute. He was sentenced
to imprisonment for life, and thereupon brought this writ of error.
168 F. 141.
Page 218 U. S. 247
The seriousness of some of the questions raised is somewhat
obscured by a number of meticulous objections. We shall dispose of
the latter summarily, and shall discuss at length only matters that
deserve discussion. We shall follow in the main the order adopted
by the plaintiff in error.
The indictment is well enough. The words quoted at the outset
convey with clearness sufficient for justice that the Fort Worden
Military Reservation was under the exclusive jurisdiction of the
United States at the time of the murder. It is alleged that Holt
did with force and arms and assault make upon one Henry E. Johnson
with a certain iron bar, and did then and there feloniously,
willfully, knowingly, and with malice aforethought, strike, beat,
and mortally wound him, the said Henry E. Johnson, with said iron
bar, etc. As the acts constituting the assault are alleged to have
been made feloniously and with malice aforethought, there was no
need to make such allegations in the preliminary averment of
assault.
It is pressed with more earnestness that the court erred in not
granting leave to withdraw the plea of not guilty, and to interpose
a plea in abatement and motion to quash. The ground on which leave
was asked was an affidavit of the prisoner's counsel that they had
been informed by Captain Newton, of the Coast Artillery Corps, that
he testified before the grand jury to admissions by the prisoner,
but that these admissions were obtained under circumstances that
made them incompetent. The affidavit added that, aside from the
above testimony, there was very little evidence against the
accused. Without considering how far, if at all, the court is
warranted in inquiring into the nature of the evidence on which a
grand jury has acted, and how far, in case of such an inquiry, the
discretion of the trial court is subject to review
(
United States v.
Rosenburgh, 7 Wall. 580), it is enough to say that
there is no reason for reviewing it here.
Page 218 U. S. 248
All that the affidavit disclosed was that evidence in its nature
competent, but made incompetent by circumstances, had been
considered along with the rest. The abuses of criminal practice
would be enhanced if indictments could be upset on such a ground.
McGregor v. United States,134 F. 187, 192;
Radford v.
United States, 129 F. 49, 51;
Chadwick v. United
States, 141 F. 225, 235.
Next it is said that there was error in not sustaining a
challenge for cause to a juryman, with the result that the
prisoner's peremptory challenges were diminished by one. On his
examination, it appeared that this juryman had not talked with
anyone who purported to know about the case of his own knowledge,
but that he had taken the newspaper statements for facts; that he
had no opinion other than that derived from the papers, and that
evidence would change it very easily, although it would take some
evidence to remove it. He stated that, if the evidence failed to
prove the facts alleged in the newspapers, he would decide
according to the evidence or lack of evidence at the trial, and
that he thought he could try the case solely upon the evidence,
fairly and impartially. The finding of the trial court upon the
strength of the juryman's opinions and his partiality or
impartiality ought not to be set aside by a reviewing court unless
the error is manifest, which it is far from being in this case.
See Reynolds v. United States, 98 U. S.
145;
Hopt v. Utah, 120 U.
S. 430;
Spies v. Illinois, 123 U.
S. 131. If the decisions of the State of Washington are
of especial importance, we do not understand
Rose v.
State, 2 Wash. 310, 312;
State v. Croney, 31 Wash.
122, 125-126, and intervening cases to be overruled by
State v.
Riley, 36 Wash. 441, 447-448.
Before the above-mentioned motion to withdraw the plea of not
guilty was argued, the judge was asked to exclude the twelve jurors
who had been selected, although
Page 218 U. S. 249
not sworn. He replied that he was unwilling to exclude the jury
from any part of the proceedings in the trial. Later, after the
jury had been sworn, he pursued the same course while hearing
preliminary evidence of the circumstances in which the prisoner was
alleged to have made statements, and while hearing arguments as to
admitting the statements. The district attorney spoke of the
admissibility of "confessions" in the course of his remarks.
Exceptions were taken, and the judge's refusal is urged with much
earnestness to have been error. But we are of opinion that it was
within the discretion of the judge to allow the jury to remain in
court. Technically, the offer of the evidence had to be made in
their presence before any question of excluding them could arise.
They must have known, even if they left the court, that statements
relied on as admitting part or the whole of the government's case
were offered. The evidence to which they listened was simply
evidence of facts deemed by the judge sufficient to show that the
statements, if any, were not freely made, and it could not have
prejudiced the prisoner. No evidence was admitted that the prisoner
had made any confession, and his statements were excluded.
Moreover, the judge said to the jury that they were to decide the
case on the testimony as it came from the witnesses on the stand,
not what counsel might say or the newspapers publish; that he was
not excluding them, because he assumed that they were men of
experience and common sense and could decide the case upon the
evidence that the court admitted. He also told them in the
strongest terms that the preliminary evidence that he was hearing
had no bearing on the question they had to decide. No doubt the
more conservative course is to exclude the jury during the
consideration of the admissibility of confessions, but there is
force in the judge's view that, if juries are fit to play the part
assigned to them by our law, they will be able to do what a judge
had to do
Page 218 U. S. 250
every time that he tries a case on the facts without them, and
we cannot say that he was wrong in thinking that the men before him
were competent for their task.
Objections similar to the last are taken to the conduct of the
district attorney. They are stated and argued, like the last, with
many details, which we have examined, but think it unnecessary to
reproduce. In his opening, the district attorney stated that the
prisoner admitted that a coat with soot marks upon it and a
gunner's badge were his, and was going on to recite further
statements when they were objected to. The district attorney
answered that these were voluntary confessions, but that he would
omit them, if objected to, until the proper time, and desisted.
Objection was made to the word "confessions," and the judge replied
that he did not hear any statement that the prisoner made any
confession. No instruction was asked, but, as we have said, the
judge told the jury that they were to regard only the evidence
admitted by him, not statements of counsel, etc. The attempt to get
in the evidence is criticized also as unduly pressed. We see no
reason to differ from the judge's statement upon a motion for a new
trial, that the United States attorney was guilty of no misconduct.
The exceptions on this point also are overruled.
We will take up in this connection another matter not excepted
to, but made one of the grounds for demanding a new trial, and also
some of its alleged consequences, because they also involve the
question how far the jury lawfully may be trusted to do their duty
when the judge is satisfied that they are worthy of the trust. The
jurymen were allowed to separate during the trial, always being
cautioned by the judge to refrain from talking about the case with
anyone and to avoid receiving any impression as to the merits
except from the proceedings in court. The counsel for the prisoner
filed his own affidavit that members of the jury had stated to him
that
Page 218 U. S. 251
they had read the Seattle daily papers with articles on the
case, while the trial was going on. He set forth articles contained
in those papers, and moved for a new trial. The court refused to
receive counteraffidavits, but, assuming in favor of the prisoner
that the jurors had read the articles, he denied the motion. This
Court could not make that assumption if the result would be to
order a new trial, but the probability that jurors, if allowed to
separate, will see something of the public prints is so obvious,
that, for the purpose of passing on the permission to separate, it
may be assumed that they did so in this case.
We are dealing with a motion for a new trial, the denial of
which cannot be treated as more than matter of discretion or as
ground for reversal except in very plain circumstances indeed.
Mattox v. United States, 146 U. S. 140.
See Holmgren v. United States, 217 U.
S. 509. It would be hard to say that this case presented
a sufficient exception to the general rule. The judge did not
reject the affidavit, but decided against the motion on the
assumption that more than it ventured to allege was true. As to his
exercise of discretion, it is to be remembered that the statutes or
decisions of many states expressly allow the separation of the
jury, even in capital cases. Other states have provided the
contrary. The practice has varied, with perhaps a slight present
tendency in the more conservative direction. If the mere
opportunity for prejudice or corruption is to raise a presumption
that they exist, it will be hard to maintain jury trial under the
conditions of the present day. Without intimating that the judge
did not go further than we should think desirable on general
principles, we do not see in the facts before us any conclusive
ground for saying that his expressed belief that the trial was fair
and that the prisoner has nothing to complain of is wrong.
Several objections were taken to the admission and
Page 218 U. S. 252
sufficiency of evidence. The first is merely an attempt to raise
technical difficulties about a fact which no one really doubts --
namely, that the band barracks, the undisputed place of the crime,
were within the exclusive jurisdiction of the United States. A
witness testified that they were within the enclosure of Fort
Worden, under military guard and control, from which all
unauthorized persons are excluded, and that he knew that the fence
was coincident with the boundaries shown on a map objected to, but
admitted. He identified the band barracks as described in certain
condemnation proceedings. The State of Washington had assented by
statute to such proceedings, and Congress had authorized them. The
deeds and condemnation proceedings under which the United States
claimed title were introduced. The witness relied in part upon the
correctness of official maps in the Engineer's Department, made
from original surveys under the authority of the War Department,
but not within his personal knowledge, and he referred to a book
showing the titles to Fort Worden compiled under the same
authority. The documents referred to are not before us, but they
properly were introduced, and, so far as we can see, justified the
finding of the jury, even if the evidence of the
de facto
exercise of exclusive jurisdiction was not enough, or if the United
States was called on to try title in a murder case. We think it
unnecessary to discuss this objection in greater detail.
Another objection is based upon an extravagant extension of the
Fifth Amendment. A question arose as to whether a blouse belonged
to the prisoner. A witness testified that the prisoner put it on,
and it fitted him. It is objected that he did this under the same
duress that made his statements inadmissible, and that it should be
excluded for the same reasons. But the prohibition of compelling a
man in a criminal court to be witness against himself is a
prohibition of the use of physical or moral
Page 218 U. S. 253
compulsion to extort communications from him, not an exclusion
of his body as evidence when it may be material. The objection in
principle would forbid a jury to look at a prisoner and compare his
features with a photograph in proof. Moreover, we need not consider
how far a court would go in compelling a man to exhibit himself.
For when he is exhibited, whether voluntarily or by order, and even
if the order goes too far, the evidence, if material, is competent.
Adams v. New York, 192 U. S. 585.
The remaining exceptions relate to the charge. One was to a
refusal to embody an instruction requested as to reasonable doubt.
The court, however, gave full and correct instructions on the
matter, and indeed, rather anxiously repeated and impressed upon
the jury the clearness of the belief they must entertain in order
to convict.
See Dunbar v. United States, 156 U.
S. 185,
156 U. S. 199;
4 Wigmore, Evidence, § 2497. Another exception was to the refusal
to give an instruction that
"the presumption of innocence starts with the charge at the
beginning of the trial, and goes with [the accused] until the
determination of the case. This presumption of innocence is
evidence in the defendant's favor,"
etc. The judge said:
"The law presumes innocence in all criminal prosecutions. We
begin with a legal presumption that the defendant, although
accused, is an innocent man. Not that we take that to be an
absolute rule, but it is the principle upon which prosecutions must
be conducted -- that the evidence must overcome the legal
presumption of innocence. And, in order to overcome the legal
presumption, as I have already stated, the evidence must be clear
and convincing, and sufficiently strong to convince the jury beyond
a reasonable doubt that the defendant is guilty,"
with more to the same effect. This was correct, and avoided a
tendency in the closing sentence quoted from the request to
mislead.
Agnew v. United States, 165 U. S.
36,
165 U. S. 51-52.
See also 4 Wigmore, Evidence § 2511.
Page 218 U. S. 254
After the jury had been sent out, they returned and asked the
court what constituted a reasonable doubt. The court replied:
"A reasonable doubt is an actual doubt that you are conscious of
after going over in your minds the entire case, giving
consideration to all the testimony and every part of it. If you
then feel uncertain and not fully convinced that the defendant is
guilty, and believe that you are acting in a reasonable manner, and
if you believe that a reasonable man in any matter of like
importance would hesitate to act because of such a doubt as you are
conscious of having, that is a reasonable doubt, of which the
defendant is entitled to have the benefit."
He denied the notion that any mere possibility was sufficient
ground for such a doubt, and added that, in the performance of jury
service, they should decide controversies as they would any
important question in their own affairs. This was excepted to
generally, and the court was asked to add that, if the jury found
one fact inconsistent with the guilt of the defendant, they should
acquit. The court already had given this instruction in the charge,
and was not called upon to repeat it. As against a general
exception, the instructions given were correct. Some other details
in the trial are criticized, but we have dealt with all that seem
to us to deserve mention, and find no sufficient reason why the
judgment should not be affirmed.
Judgment affirmed.