Fisher v. People

Christiancy, J. The defendant was convicted of stealing a heifer, the property of one A. B. Dorrance. The first error assigned is that the Court refused to charge, as specially requested, “ that, if the jury entertain a reasonable doubt as to whether the heifer in question was the property of A. B. Dorrance or Mary Dorrance, then the jury must give the benefit of that doubt to the respondent and acquit.” As there was a dispute whether the heifer was the property of A. B. Dorrance, or that of his daughter, Mary Dorrance, and it is now claimed, that there was also a dispute whether it belonged to either of them, or to the respondent, the request is ambiguous, if in fact it was claimed on the trial that the heifer belonged to the respondent. And in this aspect of the case, it is not easy, if it be in fact possible from the language, to determine whether the doubt referred to, was a doubt as to which of the two Dorrances the heifer belonged to, or a doubt whether it belonged to either, or to the defendant. If the first was the meaning of the request, it was inconsistent with any claim that the heifer was the property of the respondent himself. If the second is the true interpretation, then the request was consistent with such claim. The counsel for the prisoner insisted that the second is the true interpretation; and there was some evidence in the case, tending in some degree at least, to show that the heifer was his, and from which it was competent for the jury so to find, unless the defendant upon the trial, expressly or by implication, from the course of the defense, admitted that he was not the owner. [144] We have not all the proceedings on the trial before us, nor all the evidence. But it would seem from a part of the charge given, and to which no exception was taken, that the respondent must have rested his defense in this particular, not upon the ground of any claim to the property as his own, but that it was the property of Mary Dorrance, and not, as charged in the information, that of A. B. Dorrance, since the Court tells the jury: “It is claimed by the respondent that the daughter of the alleged owner of the heifer in controversy, was the sole, absolute owner, and that her father, A. B. Dorrance, had no title, or not such title as supports the allegation in the information of ownership.” It is not likely that this statement as a part of the charge, would have been allowed to pass without exception, if untrue in fact. And it may therefore be safely relied upon as a true statement, of what the defendant claimed on the trial. We are satisfied, therefore, that the interpretation, first above given, is the true one, and that it must have been so understood by the Court and jury, if understood at all. Upon any other interpretation, it was too ambiguous to make it erroneous to refuse it. But upon this interpretation, (and we are inclined to think upon either interpretation suggested,) the charge actually given by the Court, to which we refer, without repeating it here, fairly left to the jury, the question intended to be raised by the request. And, we are satisfied that since, as well as before, the act of 1869 (Sess. Laws, vol. 1, p. US), however correct any specific request to charge may be, its refusal will not be error, if the judge in the written charge actually given, fairly leaves to the jury the question substantially raised by the request. The jury will always better understand a charge, given as one connected whole, than if the same matter were broken up into separate and detached portions, which are more likely to confuse than to enlighten. The first error, therefore, is not well assigned. [145] The second assignment of error, is that the Court refused to charge “ that, if the jury find that Jasper and Byron Francisco took the heifer from the actual or constructive possession of the owner, and impounded it in their own field, and afterwards delivered it to the respondent, then that taking of the heifer from the .possession of the Franciscos with their consent, would not be larceny, as there would be no trespass in such taking.” It is quite unnecessary to determine whether the conclusion of law asserted in this request would, or would not result from the facts supposed; since we are satisfied from the record, that the supposed facts are assumed without any evidence in the case fairly tending to prove them. In other words, the request assumes á state of facts, which no evidence in the case tended to prove, which the jury could not have found from the evidence, and which it would have been wrong in the Court to assume they could have found. There was no evidence tending to show that the two Franciscos had impounded the heifer in their own field, or that they delivered her to the defendant. All that appeared was that the heifer was in the woods or wood lot of the Franciscos, without anything to show how she came there. And instead of the Franciscos delivering the heifer to the respondent, the evidence tends to show that he and Jasper Francisco stole and drove her off in concert with Byron Francisco, all three being equally concerned as principals in the larceny. There was nothing, in any degree, tending to show that the property or possession of the owner had been so far divested, as to prevent the owner from maintaining trespass for killing or taking the heifer, by any third person at the time it was taken by the respondent and the Franciscos. — 1 Qhitty’s PI. 194 to 196 ; Owen v. The State, 6 Humph. 330; 2 Bish. Cr. Pr. § 683, note 4. There was no error, therefore, in refusing this request. Two of the witnesses who testified against the defendant on this trial, testified that they had, on a former trial of [146] the same cause, falsely testified in his favor, and knowingly given a false account of the transaction in question; in.fluenced thereto, as they now testified,'by threats of the respondent, that, if they testified against him, they should not leave the court room alive. With evident reference to this the Court charged that: “While it is not the business of the Court to comment on the testimony, yet in view of the peculiarity of some of it, I feel it to be my duty to say to you, that while it is true, that, when it is manifest to the jury that a witness has willfully sworn false, touching any of the material facts involved in the case, the testimony of such witness is not, unsupported by other proof, to be considered worthy of belief; yet it is for you, from all the circumstances in the case, to say whether, if the witness has sworn falsely, there was any reason, justification or excuse for committing perjury. For myself, I can conceive no possible excuse for perjury in any case. You must, however, look at this matter in view of all the circumstances, in view of the known frailty of human nature, unaided and unregenerated by the power of Him who is the scource of truth, and say upon your oaths what, and how much of the testimony you believe to be true.” This charge was excepted to and is assigned as error. The objection is not that it was a violation of the act of 1869, above cited, in reference to charging juries, nor do we perceive that it is objectionable on this ground. By some courts it has been held that when a witness admits or is shown to have perjured himself, the jury are to be instructed as matter of law that they are not to give credit to his testimony in any respect, or unless corroborated by other evidence. But we held in People v. Knowles, 15 Mich., 408, that the credibility of the witness under such circumstances, is exclusively a question for the jury, and that there is no rule of law which prevents their giving credit to such a witness, if they, in fact, do believe him. And this portion of [147] the charge, when fairly examined and construed, seems to us nothing more in substance than the announcement of this rule, as established by the case last cited. In stating this rule, however, some portions of the charge, if considered separately, would be unduly favorable to the respondent; since the Court declares that “the testimony of such witnesses is not, unsupported by other proof, to be considered worthy of belief.” This, if intended as a rule of law to bind the jury, would be in conflict with the decision in People v. Knowles. But the judge immediately corrects this, or explains it by telling the jury that this is a question entirely for them. It is urged that he gave the jury to understand, that there might be some justification or excuse for perjury. But this can hardly be fairly said, when he tells them in the same breath with the language complained of, that for himself he can conceive of no excuse for committing perjury; and finally that they must look at the matter in view of all the circumstances, and say upon their oaths, what and how much of the testimony they believe to be true. We think the charge in this respect was entirely fair, and if calculated to mislead in any way, it was in favor of the defendant. It is further objected that,- if the Court referred to the testimony given on the former trial, then he erred in assuming that the witnesses committed perjury on the former trial instead of the second. We do not think the charge, upon any fair construction, is open to this objection. The charge must be understood with reference to the evidence given; and, when so understood, could not mislead. The Court assumed nothing, but expressly told the jury that the whole question of the credibility of the witnesses was entirely for them. We see no error in the record, and the judgment must be affirmed. The other Justices concurred.