Hartung v. People

Hogeboom, J. Four exceptions have been presented and argued in this case, upon which a new trial is claimed for the prisoner. The first three relate to the admission of evidence on the trial, and the fourth to the refusal of the court below to grant a new trial for alleged misconduct of the jury. We will examine these in their order. 1. The prisoner having been arrested by the sheriff of Albany, and committed to the jail of that county, had a conversation with the sheriff at the jail, about a month after her commitment, upon the subject of a letter alleged to have been written by her. It was introduced' by an inquiry by the prisoner of the sheriff, what he thought they would do with her, and the sheriff replied he did not know; it may be it would not be very hard with her; yet he did not know what the evidence was. She then said if she had not written a letter she would not have been there. He asked her how she came to direct a (or the) letter to Ferdinand Shultes. She said Eeimann told her to direct it so. So much of this evidence as related to the letter was objected to by the prisoner, the objection overruled, and the prisoner excepted to the decision. The general rule is, that the confessions of a party are admissible evidence where exiled for by his adversary, upon the presumption that a party — 323 — is not likely to state his own case more unfavorably to himself than the truth requires, and therefore should not be permitted to object to his own version of a transaction, if his adversary will take the same. In criminal cases, on account of the law’s tender regard for the rights of life and liberty, it is required that it should be preliminarily shown that the confession was voluntary—not made under the influence of fear or the excitement of hope. The circumstance that the party was at the time under arrest, is a very proper one to be taken into consideration, but not of itself sufficient to exclude the evidence. It may sometimes furnish additional reason for confiding in the truth of the statement, as giving more seriousness and solemnity to the transaction. The only question in the case in such a contingency, is, is it voluntary ? was it induced by the fear of punishment or the hope of bettering the condition of the party? was it drawn out by the act or the conduct of the opposite party ? or was it made under an excitement or agitation of mind which would probably affect its verity. I am not able to see that the confession in question was obnoxious to any of these objections. The prisoner, so far as we can see, was entirely self-possessed; the arrest had not been recent; the conversation was introduced by herself; no inducements or flattering hopes were held out, unless they are contained in the declaration of the sheriff in reply to her inquiries: “ It may be it wouldn’t be very hard with her; yet he didn’t know what the evidence was.” This does not seem to have been said for the purpose of drawing out any disclosure from her, or in the expectation that any disclosure would be made, and might as naturally be expected to operate to discourage, as to invite, any communication from her. It does not seem, therefore, to have been the result of any influence exercised over her by the officer; nor can I see that she can be supposed to have been under such excitement or agitation of mind as would tend to discompose her or lead her to say what she did not in reality mean to utter. I think we must go the length of excluding all declarations made by prisoners when under confinement, — 324 — or else we must regard this as proper for the consideration of the jury to receive from them such weight as it deserves. 2. The second exception relates to the admission in evidence of a letter alleged to have been written by the prisoner before her arrest. The objection was, that it was not sufficiently proven to have been her handwriting. A witness (Louisa Streit) had sworn to her acquaintance with the prisoner, and to having seen her write; to her opinion that she would know her handwriting, and that the letter' in question (which was shown to her) was the prisoner’s handwriting. She also testified to having seen her write a letter and two receipts, although she did not critically examine either. Independent of other ■ evidence, I think this was sufficient to allow the letter to be read.' There is no precise standard fixing the degree of knowledge which a witness must possess of a person’s handwriting to be allowed to express an opinion as to the authenticity of a particular paper. The witness must have seen the party write, and acquired a knowledge, more or less perfect, of the character of the hand, and he is then allowed to express an opinion upon the paper shown. This opinion was expressed in this, case, and was given without objection, the only objection being' to the sufficiency of the proof to allow of the letter being read in evidence after this testimony was taken. But there was' other and intrinsic evidence justifying, in connection with the evidence of handwriting, the admission of the letter. The prisoner had stated to the sheriff, that if she had not written a letter she would not have been there (in jail); and on being asked how she came to direct a (or the) letter—:the witness being uncertain which expression was used—to Ferdinand Shultes, she replied, Reimann told her to direct it so. The letter spoke of her being at Dr. Wetterbee’s. She was found there when arrested. It was addressed to Ferdinand Shultes. She had stated to the sheriff that Reimann had so directed her to address a letter. It was addressed on the inside to William. Such was Reimann’s name. It spoke of matters in Albany. She had formerly lived there, and did so at the time of the homicide. It referred to her being in great grief and almost — 325 — crazy, and to an unhappy disaster or misfortune having befallen her. These had a natural, if not a necessary, connection with the transaction for which she was on trial. A portion of the letter was addressed to her parents, and spoke of her mother’s name being Louisa Leopold. Such in fact it was. It requested communications to be addressed to her as “ Elizabeth Shuldes.” Such was the name under which she was known at Dr. Wetterbee’s. The signature to the letter was “Mary Theresa Koehler.” Such, it subsequently appeared, was her maiden name. These and other circumstances were sufficiently corroborative of the authenticity of the letter to justify its introduction in evidence in connection with the evidence of Mrs. Streit, and abundantly authorized the jury to conclude it was hers, when this strong presumptive evidence was in no way impeached or contradicted.- I cannot believe there was any error committed in this part of the case. 3. The third exception, and that principally relied on by defendant’s counsel, was in allowing a question to be put to Professor Porter. I state it in the words of the case, “ The counsel for the People then proposed to the witness the following question: ‘ In your opinion, can a physician, from a mere postmortem examination of the exterior surface, and the indications of inflammation which he discovers, determine, with any degree of certainty, the precise period of time when such inflammation was caused ?’ The prisoner, by her counsel, duly objected to such question, first, as immaterial and improper; second, as incompetent. The objections were overruled, and the question permitted, and the prisoner, by her counsel, duly excepted.” Under well established adjudications, these objections raised no question as to the form of the interrogatory, but only as to its substance. They presented no questions whether opinions were competent evidence upon such a subject, for the objection does not state any such specific ground, and such a ground would not naturally be inferred from the character of the objection. Much less do they convey to the mind of the court, or the opposing counsel, that the point of the objection was that Professor Porter was not one of — 326 — the class of persons who were competent to express an opinion upon the subject matter of the interrogatory. And yet this is the principal ground upon which the force of the objection is argued. It is obvious no such question was raised on the trial, and therefore it cannot be presented here. It is not fair to urge that great liberality should be exercised in cases of this magnitude and importance in interpreting the intent of the objector. We must try this matter by the ordinary rules of evidence. Justice requires that the objection should be explicit and clearly intelligible to the court and the opposite party, because only in such case can it be intelligently disposed of by the court, and only in such case can it, if seen to be well founded, be obviated by a withdrawal or change of the question, or by the introduction of additional evidence by the opposite party. (People v. Dalton, 15 Wend., 585, 586.) We must therefore confine our attention to the substance of the offered evidence, and determine whether it was immaterial, improper or incompetent. I think it was neither, for the defendant had already introduced evidence on the cross-examination of a former professional witness of the prosecution (Dr. Eheinhart), tending to show that, in his opinion, the irritating matter must have been administered some two months before death; and that the appearances upon the dead body could not be produced by arsenic administered within three days of the time of the death. As the latter was substantially the theory of the prosecution, it became important for them to show that this opinion of Dr. Eheinhart was incorrect, and the question objected to had a direct and legitimate tendency, if answered in the negative, to lead to such a result. It cannot, therefore, be said to have been immaterial, incompetent or improper, and the objection, if tested, as it must be, on its merits and fair meaning, was properly overruled. But assuming that the objection was broad enough to present the questions argued under this exception, I think, in the first place, that the subject matter of the question was one upon which a professional man or expert might rightfully be called upon to express an opinion. Whether a post-mortem — 327 — examination of the exterior surface of the stomach would enable a professional man to determine accurately when the inflammation supervened, was not a matter as to which unlearned persons or ordinary men could speak with confidence or reliability. It depended upon experience, or familiar acquaintance with the parts affected, their constitution and properties. It was beyond the range of ordinary knowledge. The parts affected were in the living body, hidden from view, and the effect upon them of such an irritating substance as arsenic, administered internally, and the precise time when these effects would be first visible in the form of inflammation upon the exterior surface of the stomach, were matters wholly beyond the range of ordinary knowledge or observation, and peculiarly within the scope of the comprehensive knowledge, large experience and close observation of the scientific man. So also, if, by an extraordinary stretch of liberality, the objection can be supposed to mean that Professor Porter’s profession or precedents had not qualified him to express an opinion upon the matter embraced in the question, I regard the objection as untenable. To answer the question intelligently, would require a knowledge of the nature and properties of the stomach, of the foreign substance introduced into it, and of the effect of contact or combination between the two. I regard this as in an eminent degree within the province of the chemist, whose legitimate profession is to inquire into the nature and properties of matter, and of a combination or union between the elements of which different substances are composed. A chemist, therefore, would, I think, be quite as competent to answer such a question intelligently and satisfactorily, as a physician whose appropriate business was to cure and remove disease. This might require a knowledge of the nature and constitution of the affected part, and of the foreign ingredients introduced into the stomach. And I do not deny that & physician would be competent to answer the question. But his competency would arise quite as much from the knowledge of chemistry, which is essential to make the skillful and accomplished physician, as from any other department of medical — 328 — science. But if it were necessary that Professor Porter should be a physician in order to make him competent to answer the question, I think the case shows him to belong to that profession, or at least to have the knowledge requisite in that department of science to solve the inquiry propounded. It is conceded and expressly proven that he was a professor of chemistry. It is further proved that he had had experience in post-mortem examinations, with a view to the detection of poison ; that he could determine whether arsenic was placed in the stomach before or after death. He testified, without objection, that a portion of the arsenic was, in his opinion, removed by purging and vomiting, and absorption into other organs; that the person died from the effects of the arsenic; that he could and' did form an opinion as to the length of time that elapsed between the administration of the arsenic and the death, and that it was administered not long before death; ■that arsenic was a soluble poison; that his profession led him to become acquainted with the symptoms of poisoning by arsenic, which symptoms he details, as also the quantity necessary to produce death; that, among other things, inflammation ' of the stomach and of the smaller intestines, and also of the oesophagus, would be likely to ensue. How, several of the matters here detailed are founded purely, or at least principally, upon medical, in distinction’ from merely scientific or chemical knowledge, and would scarcely have been allowed to be stated without objection, unless'it had been known or assumed that the witness was a physician or medical man. At all events, they evince precisely the kind of knowledge which, as applied to such a question, a physician would be expected to have or require. The witness is, therefore, shown by the evidence to possess the knowledge and skill belonging to the profession of a physician, and must be regarded as competent to pronounce such opinions upon this subject as physicians are competent to do. But it is said that, by the question, one physician was, in effect, called upon to pronounce upon the competency or scientific attainments of another, and that this was improper. But the question does not assume that — 329 — aspect, and is not presented in that form. The question is general: Can a physician—can any physician—or person skilled in that department of scientific knowledge, determine the precise period of access of inflammation? Is it possible, in your opinion, to do so ? The answer to this might be a disagreement with the previous witness; but that would not render the question improper. Such questions are of every day occurrence, and it is proverbial that “ doctors disagree.” But there was nothing that I can discover, in the form or scope of the interrogatory, that makes it justly obnoxious to this last named charge. In every aspect, therefore, in which this exception can be examined, I regard it as untenable. These exceptions embrace all the matters which respect the admission or rejection of the evidence at the trial, or the instructions of the court to the jury, and I think all which are the legitimate subjects of exception. 4. But the defendant’s counsel have taken and argued a fourth exception, to wit: to the refusal of the Court of Oyer and Terminer to grant a new trial for alleged misconduct of the jury. This alleged misconduct consists of several particulars. 1. That the jury, during their deliberations, improperly possessed themselves of a copy of the Bevised Statutes, and consulted the same. 2. That in like manner they obtained and consulted a newspaper containing a report of part of the evidence. 3. That the officers having the jury in charge, were present all or most of the time during their deliberations. 4. That the verdict was rendered under the improper expectation that the prisoner would never be executed. 5. That the jury improperly sent a communication to the presiding judge without the knowledge of the accused or her counsel, or of the other members of the court. The application to set aside the verdict upon these grounds, was properly made to the court which tried the prisoner, and was refused by them, as to the second, fourth and fifth objections, upon the ground that they were unsupported by sufficient evidence and unfounded in fact; and as to the first and third objections, that no actual detriment ensued to the prisoner, inasmuch as though one or — 330 — more of the officers were in the room, no improper communication prejudicial to the prisoner took place between them and the jury, and that although the jury did, at one period of their . deliberations, examine portions of the Revised Statutes touching the offences of murder and manslaughter, they subsequently appeared in court and were specifically and imperatively instructed by the court as to the nature of those offences and the discrimination between them. I do not regard it as essential to travel over the entire evidence relied upon to establish the existence of these irregularities. I concur in the conclusions to which the court below arrived in regard to them on the'questions of fact. This disposes of the second, fourth and fifth objections, without the necessity of further remark. .The first and third specifications were charges of mere irregularities—censurable ones it is true, but not resulting in any actual prejudice to the prisoner; and I think we may safely dispose of them on that ground, expressing our concurrence in the views of the court below upon those points. (People v. Hartung, 17 How. Pr. Rep., 85; Baker v. Simmons, 29. Barb., 198; People v. Carnal, 1 Park. Cr. R., 256.) But it may be proper to say that we do not regard these irregularities as the subject of exception, so as to present them for review in this court. Exceptions properly relate only to matters of law arising upon the trial of the cause. The law expressly limits the taking of exceptions to matters occurring at the time of the trial. (2 B. S, 736, §21; lb., 422, §73.) The subject has been frequently before the courts, and the decisions, so far as I know, have been uniform against enter-» taining jurisdiction to review any errors except such as occurred strictly at the' trial. (People v. Haynes, 11 Wend., 561; People v. Dalton, 15 Wend., 583; Freeman v. The People, 4 Den., 21; Wynehamer v. The People, 2 Park. Cr. R., 382.) These decisions are to the effect of excluding everything from the consideration of the court of review, except what occurs in the progress of the trial, and on the trial of the main issue. No matters which either precede or follow the trial are subjects of exception. ThuSj in The People v. Haynes, objections that — 331 — the verdict was against evidence, and that the court erred in their comments upon the testimony, were disregarded. In The People v. Dalton, objections to the insufficiency of the evidence to make out the crime, and a motion in arrest of judgment, were disposed of in the same way. In Freeman v. The People, the same disposition was made of exceptions taken on a preliminary issue to test the insanity of the prisoner. In Wynehamer v. The People, decisions made on a motion to quash an indictment, on the grounds of irregularity in organizing the grand jury, and on the trial of an issue joined on a challenge to the array of jurors, were .held not to be reviewable on a bill of exceptions; and although in the case of Eastwood v. The People (3 Park. Cr. R., 25), affidavits were allowed to be read, and were considered in the Supreme Court, when the case came there on a bill of exceptions from the Monroe County Oyer and Terminer, no objection was taken to their being so read, and the question of their admissibility was not considered. (See page 27 and Reporter's note a.) The fact that Courts of Oyer and Terminer now entertain motions for new trials, furnishes no reason for sustaining an exception to their decision in the disposition of such motions. We cannot enlarge the statute, and the decision of motions of this character, so far as they concern the weight of evidence or questions of irregularity, were never reviewable on exception or writ of error in a superior tribunal. (The People v. Haynes, 11 Wend., 562; Pelletreau v. Jackson, 7 Wend., 471; The People v. Rathbun, 21 Wend., 546 to 551.) This court, therefore, sits only to review matters of law, and not to correct all irregularities which attach to the proceedings in the court below. These last pertain more especially to the orderly conduct of the cause in the tribunal of original jurisdiction—are mostly matters of practice, and some of them were matters of discretion, and all of them presumed to be controlled and directed by the trial court, in a manner to subserve the ends of justice. It would be intolerable if every alleged irregularity was susceptible of review in the appellate tribunal. It would involve a vast consumption of time and a vast increase of expense. Hundreds — 332 — of questions are every day disposed of in every courtKand in this court at the circuit and special term, which can never go further. A proper degree of confidence must be entertained in the ability and willingness of courts of original jurisdiction, properly and justly to dispose of the questions presented to them. Litigation must cease at some point, and we should accomplish in fact a less amount of practical good if we allowed parties to carry up to our highest tribunals every debateable question presented in the progress of the whole proceedings. It is sufficient to say that the law countenances no such course, and the practical remedy must be, where, notwithstanding all these precautions apparent and serious injustice has been done, by an appeal to the pardoning power. This will probably be found to be an ample and efficient remedy, when the emergency of the case requires its application. If we are right in these views, that part of the case which contains a history of the proceedings, so far as it is intended'to show the misconduct of the jury, has no proper place there, and the motion to strike the same out of the case should be granted. A bill of exceptions should contain no more of the case than is necessary to present the questions of law actually raised, and which are the legitimate subjects of exception. But as the question is pressed with much confidence by the learned counsel for the defendant, and the issue is one of vast importance to the prisoner, we allow the matter sought to be expurgated to stand, notwithstanding our clear opinion that it forms no proper part of the case, to enable the prisoner, if she is so advised, to present the questions to the court of final resort. We have given to this case a careful and deliberate examination, and are brought to the conclusion that no error of law, to the actual prejudice of the prisoner, has been committed. Her remedy, if any exists, lies elsewhere, and while we may commisserate her unfortunate condition, as we should that. of any of her sex similarly circumstanced, however guilty, we are not at liberty to interpose any obstacle to the due execution of the law. The judgment of the Court of Oyer and Terminer must be affirmed, and the record and proceedings remitted — 333 — to that tribunal, with directions to enforce the judgment of this court. Gould, J., concurred.