Dyson v. State

Handy, J.: This case has been submitted on the re-argument very fully and elaborately, and we shall confine our present examination to the points therein presented in behalf of the plaintiff in error. 1. It is insisted, in the first place, that it appears by the record that the jury were not properly and legally sworn. The opinion of the court on this point delivered on the former argument, seems to proceed on the assumption that the full oath, as administered to the jury, is stated in the record, or intended to be stated, a view which we have not been able to take. And had the oath administered been properly and fully shown in the record, and contained nothing more than is embraced in the statement of it in the record, we should be strongly inclined to hold it insufficient. It would not embrace the important duties required of the jury, and would be a wide departure from the just and comprehensive oath so necessary to injoin upon them the faithful discharge of their solemn responsibilities, which, for ages past, has been sanctioned by wisdom and experience, and has received almost universal adoption at the present day. But we cannot think that the oath here was intended to be set out in the form or entire substance in which it was administered, or that it was necessary to set it out for the purposes of the record of proceedings in the court below. It is not the duty of the clerk, in making up the record of the proceedings in a cause, to set out the oath administered t& the jury. All that is required of him, in this respect, under the law as settled by this court, in reference to courts of general jurisdiction is, that the record should show that the jury were sworn according to law.1 1 How., 24; 3 ib., 497. And we are — 727 — not disposed to extend this rule beyond its strict limit. If he undertakes to state other things connected with the administration of the oath, these additional statements wouid be unofficial and not properly a part of the record. The general rule in relation to acts of this character will be found in the cases referred to in 3 Phil. Ev. (Cow. & H. ed.), 1045, 1046, 1083. The statement of the oath administered, is no more a part of the duty of the clerk, than it is his duty to incorporate it in any document or deposition offered in evidence in the course of the trial. In the case of Barfield et al. v. Impson, 1 S. & M., this court says: “We cannot notice a mere certificate of the clerk that this or that evidence was introduced; the certificate of the court is required.” And in Abbott v. Hackman, 2 S. & M., 510, it is said: “ This court is bound to presume the judgment of the court below correct, unless, from a review of the grounds of such judgment, certified to by the court, manifest error is apparent.” 4 How., 222; ib., 431. If a document offered in evidence in the cause cannot be made a part of the record by the mere act of the clerk, much less could his mere statement of its substance be treated as a part of the record, and that is what is here attempted. If, then, the swearing of the jurors is improper in any respect, the objection must be presented by bill of exceptions, and unless it is so presented, if sufficient evidence appears of record to show that the jury were sworn, it must be presumed that they were legally sworn. This principle is distinctly held in the cases in this court just cited; and in Barfield et al. v. Impson, the court says : “ That (the bill of exceptions) affords the only evidence which we can recognize, of what takes place upon the trial; and we are bound to presume the proceedings of the court below to be correct, unless by the bill of exceptions we are furnished with evidence to the contrary.” This rule we think altogether applicable to the present objection. It is the true rule in relation to courts of general common law jurisdiction, but it does not apply to courts of special and limited jurisdiction; and for this reason, the case of Holt v. Mills, 4 S. & M., does not sustain this objection. That was a case of unlawful detainer, a matter of special and statutory jurisdiction, in which the oath re — 728 — quired to be administered is prescribed in the statute. Moreover, the oath actually administered is fully set out in the record, and shown not to be in conformity to the statute. And the court says, “ in this proceeding, if the oath is set out, and is not such as the law requires, the verdict cannot stand.” In the present case, it appears manifest that it was not intended by the clerk, as it was no part of his duty, to set out the oath in the manner and form used in administering it to the jurors. The statement is by way of recital, thus : “ And thereupon came a jury of good and lawful men, to wit,” etc., “ who being elected, tried, and sworn the truth to speak in the issue joined,” etc., referring to what had previously taken place, in order to show that an oath had been administered, rather than to state its form or substance. It is a memorandum relative to a proceeding in the case, made after the fact had transpired, and not the record of the very thing done at the time, and in the manner and form in which it was done. Great strength is given to this view of the subject, by referring to the practice and precedents touching it. It is conceded that in England, the form of oath, as contended for by the counsel for plaintiff in error, is adopted. It also prevails in practice in Yirginia and Maryland. 3 Rob. Va. Prac., 174; 2 Harris, Ent., 282. Notwithstanding this, and though this form of oath has been duly administered in empanelling the jury, yet, when the record of the proceedings is being made, the entry of swearing and empanelling the jury is made nearly in the very terms contained in this record. Blackstone has the entry as follows: “ Who being elected, tried, and sworn to speak the truth of and concerning the premises.”. 4 Black. Com. Appendix. Robinson has it thus: “ Who being elected, tried and sworn the truth of and upon the premises to speak.” 3 Rob. Pr., 177. Harris has it thus: “ Who are sworn to say the truth in the premises.” 2 Harris, Ent., 293. The distinction between the fact of the oath actually administered to the jurors, and the reference afterwards made to it as a part of the history of the case by the clerk in making up the record, is clearly shown by these precedents ; and they are certainly authorities of high character. Justified by these precedents, a practice has grown up in this — 729 — state to make up the records of jury trials after tlie manner of tbe record in this case; a practice in violation of no principle, and in keeping with the proper office of the clerk in making up records of such proceedings. The records of this court show, that this mode of making up such records, has become the established practice of the state. It has ripened into general usuage without objection, and the instances are numerous where men have suffered the extreme penalty of the law under its operation. If it were unsupported by precedents from other states, this court would hesitate long before it would hold, considering the nature and office of such an entry in the record, that for such an inaccuracy, if it should be one, the trial in the court below should be treated as illegal and nugatory. But, sanctioned as it is by precedent, and no right of the accused or rule of law being sufficiently shown to be violated, we cannot hesitate to say that it constitutes no ground for reversing the judgment below. Again, no objection to the oath, as administered, rvas made in the court below ; and the very universality of the adoption of the form urged by plaintiff’s counsel as the proper and legal oath, renders it almost certain, that if it had been so materially departed from on the trial in this case, as is inferred from the reference to it in the record, objection would have been made to it. But it is urged, that the record must affirmatively show that the jury were regularly sworn, and that such has been the ruling of this court. It is undoubtedly true, that the record must affirmatively show those indispensable facts, without which the judgment would be void, such as the organization of the court; its jurisdiction of the subject matter, and of the parties; that a cause was made up for trial; that it was submitted to a jury sworn to try it (if it be a case proper for a jury); that a verdict was rendered, and judgment awarded. Out of abundant tenderness for the rights secured to the accused by our constitution, to be confronted by the witnesses against him, and to be heard by himself or counsel, our court has gone a step further, and held that it must be shown by the record that the accused was present in — 730 — court pending the trial. This is upon the ground of the peculiar sacredness of this high constitutional right. It is also true, as has been held by this court, “ that nothing can be presumed for or against a record, except what appears substantially upon its face.” But this rule has reference to those indispensable requisites necessary to the validity of the record, as a judicial proceeding, and can have no application to those incidental matters, which transpire during the progress of the proceeding in court. For otherwise, what would be the limit to the rule ? There could be none short of requiring every thing tjiat was connected with the trial, the summoning of the jury, the facts touching the examination and empanelling of each of them, the summoning of witnesses, their oath, the course of their examination; in short, every matter, however trivial, to be set forth in .the record. No such details are required by justice or law. If irregularities occur in relation to any of them, the party aggrieved is not without remedy. He can introduce them into the record by bill of exceptions; but otherwise the rule is, as to all incidental acts which transpire on the trial, ommda prmmnuntur rite et solem-niter esse acta, donee probatur in contrarium. See instances of this application of this rule to judicial proceedings in Best on Presumptions, 79. In addition to this view, the bill of exceptions, taken upon overruling the motion for a new trial, states that after the defendant had been arraigned, a jury was “ selected and sworn to try the issue joined,” etc. This statement in the defendant’s own bill of exceptions, taken together with his failure to raise any objection on the trial to the oath administered to the jurors, when the oath alleged to have been administered would have been so unprecedented, greatly strengthens the legal presumption, and must remove all doubt from the mind that a formal and sufficient oath was administered, and that the present objection is an afterthought, founded on the mere reference by the clerk to an act previously and formally done. 2. The second error assigned is the exclusion of the question propounded to the witness Turner, inquiring what took place on the occasion of an attack made by one Jones, on the defendant, on the day Nelms was killed. — 731 — Upon its face, this question has not the most remote connection with the point in issue, the killing of Nelms by Dyson. The bill of exceptions presenting the objection, shows nothing but the questions asked and overruled, and contains nothing from which a connection could possibly be justly inferred. This court cannot, then, presume upon the possibility, that the question might have some pertinency to the cause. As it was presented, it was clearly irrelevant, and the defendant has failed to show its relevancy by anything either in the special bill of exceptions in relation to it, or in the general bill of exceptions setting out the whole evidence. No connection whatever, anywhere appears between the attack of Jones upon Dyson, and the killing of Nelms by Dyson. If, as is contended, the witness might have proceeded in answering the question to connect Nelms with Jones, in the attack upon Dyson, and then to show the connection of that transaction with the killing of Nelms by Dyson, is it not strange that the witness was not interrogated afterwards, and in some form, whether Nelms was connected with the attack of Jones upon Dyson? This inquiry would have been unobjectionable, and it is not to be supposed that all effort to prove facts alleged to be so important in the defense, would have been abandoned simply because a question not showing the connection of the evidence with the case on trial, had been rejected. This court cannot know what the testimony proposed to be brought out was; but for all that appears in the record, we cannot say but that the court acted correctly in sustaining the objection. But it is said that the objection was improperly sustained because it was general. The ground of the objection or the reasons urged in support of it are not stated, but it is not in every instance necessary to state the reason for an objection to a question ; for it may be so palpably illegal as not to require reasons to be stated against it. No settled practice seems to be established as to the manner in which objections in such cases should be made. But if an objection be made, and either allowed or overruled, the ruling of the court below will be sustained in the appellate court, if in any point of view regarding the whole record, the question allowed or overruled was legal and proper, — 732 — or illegal and improper, as the case may be. It is true that a party is not compelled to adopt any particular order in the introduction of his testimony. But if evidence is proposed, which of itself appears to be foreign to the issue on trial, and it is objected to, it is incumbent on the party offering it to show its relevancy, either by explanation to the court as to its bearing on the case, or by introducing ■ other evidence connecting it with the res gestae, and opening the door to its admission. Otherwise the most prejudicial testimony might go to the jury, the effect of which it might be impossible fully to destroy by instructions of the court to disregard it. And for obvious reasons, the rule confining the evidence strictly to the point in issue, is more rigidly applied in criminal cases.1 2 Russ. on Or., 772. It will not do to say that the evidence may be shown, by subsequent developments, to be immediately connected with the res gestae, for of this the court can know nothing, unless brought to its notice by a proper showing of its connection. 3. Again, it is urged that the court erred in granting the 7th instruction asked in behalf of the state, and in qualifying the 2d instruction in behalf of the defendant. The 7th instruction is as follows: “ That a bare fear that a man’s life is in danger from the violence of another, however well founded, and whatever may be the character of the man feared, as that such man lies in wait to take away the life of the party, unaccompanied by any overt act indicating an intention immediately to kill such party or to do him some great personal injury, will not warrant him in killing that other, by way of precaution, if there is no actual danger at the time of killing; that both the design to commit a felony, or to do such person some great personal injury, and the imminency of the danger of such design being carried into execution, must both éxist to warrant the man thus in fear of his life to kill, and that imminency of danger means danger at the time of the killing.” The explanation of defendant’s 2d charge is as follows: “ In explanation of defendant’s 2d charge, that although a party is not bound to retreat in some cases, and may pursue his adver — 733 — sary until be is out of danger, yet this only applies when there is immediate danger of a felony, or some violence being committed by the party killed.” Without an extended recital of the evidence on the trial, it is sufficient for the present purpose to say that the testimony on the part of the prosecution characterized the killing of which the defendant stood charged, as premeditated, malicious and aggravated to an extraordinary degree, the defendant lying in wait and shooting the deceased as he passed unsuspectingly along the highway. The only evidence in justification or mitigation of the deed, consists of proof that the deceased had had a grudge against defendant; had made threats against his life; was a violent and desperate man, and that defendant’s life was in danger at his hands. It therefore became necessary for the court to declare the law arising upon the facts alleged to constitute a justification or extenuation of this deed, and I see nothing in the rulings of the court in doing so, in violation of law or sound policy. By the rules of the common law, in order to justify the killing, bare fear of danger or great bodily harm, unaccompanied' by any overt act indicating a present intention to kill or injure, would not warrant a party in killing another. There must have been actual danger at the time. 1 East, Cr. Law, 271, 272. Our law renders the act justifiable: “ When committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” Hutch. Code, 957, § 3. The only modification of the common law made by this statute, consists in the justification extended to the accused “ when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury,” instead of the old rule requiring “ actual danger at the time.” But it is not the intention of the legislature to dispense with the necessity of showing some overt act indicating a present intention to kill or do some great personal injury, and that the danger thus — 734 — indicated, was imminent at the time of tbe killing. It was intended to alter tbe rule of tbe common law so far as to justify a party acting conscientiously upon reasonable fears, founded on present overt acts to all appearances hostile, altbougb there was really no actual danger. If this were not so, what is to constitute “ reasonable grounds of apprehension V’ By what limit is this dangerous rule to be defined % Must this reasonable ground of apprehension be founded on a present and immediate emergency, unavoidable to the party, or may it consist of mere fear, which though reasonable, all danger may be avoided ? Are we to refer the reasonableness of the grounds of apprehension to the judgment or feeling of the party implicated, and not to a just and dispassionate standard ? The peace of society and the security of life require that “ the reasonable grounds of apprehension,” as justifying homicides, should be limited as strictly as possible to the right of self-defense, and this seems to have been properly regarded by the court below in the instructions under consideration. In substance, the entire instructions in the case, as given by the court, contain the following principles: First. That, in order to justify killing, there must be some overt act indicating a present intention to kill the party, or to do him some great bodily injury. Second. That the danger of such design being accomplished must be imminent, that is to say, immediate, pressing, and unavoidable at the time of killing. Third. That mere fears of a design to commit a felony or to do some great personal injury to the party, though honestly entertained, unaccompanied by any overt act indicating a design immediately to commit the felony or to do the injury, will not justify the killing. And this exposition of ‘the law meets my approbation as the law of this case, and the sound and salutary rule for the protection of society. 4. The last objection presented for our consideration is, that the jury were allowed to separate after they were sworn, and during the time they were deliberating of their verdict, and were not kept together. — 735 — By reference to the bill of exceptions, taken upon the motion for a new trial, it appears that there is no evidence tending to show a separation of the jury, or any act of impropriety on their part, nor is there any thing shown calculated in the least to impeach or cast suspicion upon their verdict. But it is insisted, that, inasmuch as the record shows that the jury were several days deliberating of their verdict, and it does not affirmatively appear by the record that they were duly kept together, during all that time, under the charge of a properly sworn officer, this is sufficient to set aside the verdict; that the disposition made of the jury must be shown by the record, and makes a necessary part of it; otherwise the verdict ⅛ erroneous. We do not think this position well founded, either on principle or sound authority. We have already adverted to those acts of the court which are required to appear affifmatively of record, by which it appears that every incidental act connected with the trial, and which transpires during its progress, is not necessarily to be incorporated in the record. If this were not true, every important fact, without which a verdict and judgment could not be rendered, must positively appear on the record; the swearing of witnesses, the evidence to support the verdict, and every minute act which the convenience or necessities of the jury would require to be done in the course of a greatly protracted trial. It is said that these are matters in pais, and, therefore, not a part of the record. But we cannot perceive how the swearing witnesses, or the fact of the admission of evidence, or the evidence itself as admitted, are matters im, pais, but the disposition made of a deliberating jury is matter of record. . They are equally acts of the court, and the former are more strictly matters of judicial action than the latter, and at least equally necessary to a proper and legal judgment. And it may be remarked in reference to all the instances of judicial action, adduced by the counsel for the plaintiff in error, necessary to appear of record, that they are examples either in relation to the organization of the court, or its jurisdiction of the subject-matter or of the person, or held by this court to be matters of so solemn a judicial nature, or of such high constitutional right, as to form an exception to — 736 — the general rule. These instances have been above alluded to, and we are not disposed to extend exceptions to the rule further than has already been done by this court. It is a firmly established and wise maxim of the law in relation to the acts of public officers, and especially of judicial tribunals acting within their jurisdiction, that all things shall be presumed to be done rightly until the contrary is proved. This is a rule of convenience, because it dispenses with unnecessary prolixity, and the incorporation of immaterial matter in the record. It is a rule of justice and safety, because it prevents advantage being taken of acts that have been legally and formally done, but the recital of which in the record might be inar-tificial, and tend to prevent justice by informality; and we know of no class of judicial duties to which the reason and propriety of the rule has more just application than to criminal trials, which, from their nature, constantly give rise to strange and novel proceedings. The justice of applying this principle to the objection under consideration, is forcibly shown by the history of this case, as it appears of record. In the court below, the objection was to the fact of separation. No suggestion or showing whatever was made, on the motion for a new trial, that the fact then alleged was true; and if it was made, it must have been shown not to be true, for the defendant’s counsel omitted all notice of it in the bill of exceptions. It must, then, have been abandoned or disproved on the motion for a new trial. Nor was it pretended in the court below, as this court is asked to presume, that the jury were not under the charge of a duly sworn officer. That court was most competent to pronounce whether that suggestion was true or not in fact, and the silence of the bill of exceptions upon that point again creates a strong presumption that no such irregularity existed, and, therefore, that no complaint was made of it. Under these circumstances, it would subserve any thing else than the purposes of justice or law, for this court to indulge the presumption that the court below had" committed so gross an outrage upon propriety, in a case of life and death, as not to place the jury under proper and legal custody. But, although the defendant abandoned the charge of separa — 737 — tion or want of proper custody of the jury, in the court below, or it is shown to be unfounded, yet the objection here rests upon the silence of the record, and we are asked hence to infer, that the irregularity existed. This objection is entitled to loss favor, than if no objection as to the separation or custody of the jury had been made in the court below; for it not only encounters the general presumption in favor of the regularity of the proceedings of that court, but also that arising from the fact that the alleged irregularity was there objected to, and either abandoned or shown to be unfounded. The objection, therefore, now founded on the mere silence of the record about an incidental fact in the trial, certainly comes with a very bad grace. Had it been urged in the court below, it doubtless could have been corrected to suit the views of the defendant according to the fact. It is the settled law of this court, that it will take no cognizance of points not presented in the court below; 3 How., 214; 4 ib., 90; 8 S. & M., 197; and the rule applies with greater force where the point is one of fact, and was raised and abandoned in the court below. The only exceptions to this rule which this court has indulged, or which now receive its sanction, are cases where the record shows that the court was not properly constituted, or that it had not jurisdiction of the subject-matter or person, or that some judicial act so absolutely essential and indispensable to the validity of the proceeding as to be shown, in due form, to have been performed, does not appear to have been done. We do not consider the action of the court, in relation to the disposition of a jury, such a judicial act, but an incidental step in progress of the cause, which will be presumed to have been duly and legally done until the contrary is shown. Opposed to this view, two decisions from the state of New York, and one from the state of Indiana, have been brought to our notice. 2 Caines R., 373; 11 I. R., 442; and 2 Blackf., 475. The first two cases relate to proceedings of courts of special and limited jurisdiction, upon certiorari from justices of the peace. In such cases, the courts of New York seem to hold that they cannot intend that any thing was done which is not stated in the justice’s return, because he is required to state all — 738 — bis proceedings and the whole history of the case. This is the proper rule in reference to courts of special and limited jurisdiction, but it does not apply to courts of general common law jurisdiction. 2 Phil. Ev., (Cow. & Hill,) 305; 3 ib., 1013. In the case in Indiana, it is broadly held that, as the law requires the clerk to send up a full and complete transcript of all the proceedings in the court below, the court must conclude that nothing more was done than is certified to have been done. Whatever may be the law in Indiana upon this point, the position declared in the case referred to cannot be recognized by this court as sound law. On the contrary, it has been constantly held by this court, that every fact incidental to the proceeding in the circuit court not required by law to be incorporated in the record must be presumed to have been properly done. Upon this principle, it will be presumed that the jury are good and lawful men; that they have been duly summoned and empanelled; that the witnesses, if any were produced and examined, were sworn; that there was sufficient evidence to support the verdict and judgment ; and, as in this case, that the jury were legally and properly disposed of, unless the contrary be made to appear. But according to the case in Indiana, every judgment in this state, in which the record did not show affirmatively that these things had been done, could be declared erroneous, and reversed; and this court would have to retrace its steps from its earliest organization, and establish a new rule, alike unsound in practice and unsupported in principle. This court has always manifested a sedulous anxiety to preserve the purity of trials by jury, especially in criminal cases, by setting aside verdicts, where it was shown affirmatively that the jury w'ere not in charge of a sworn bailiff, or that strangers had been with them, or where one had separated from his fellows out of the charge of the bailiff, although no tampering or improper influence was shown to have been practiced, declaring that the mere possibility of improper influence or, irregular conduct is sufficient to vitiate the verdict. In this case there is no pretence of any such impropriety in fact, but it is insisted that we must presume that the court below failed to perform its duty in having the jury properly disposed of on its retirement, on the sol739 emu issue of life or death, a presumption in violation of established principle and the settled law of this court. After a careful examination of the objections urged to the¿ proceedings below, upon a re-argument of this case, we are of opinion that they show no sufficient ground for reversing the judgment. The judgment is therefore affirmed. Footnotes [1] Archbold Cr. Pr. & Pl., 624; Harriman v. State, 2 Greene (Iowa), 270; Patterson v. State, 2 Eng., 59; Warren v. State, 1 Greene (Iowa), 106; Bell v. State, 5 Eng., 536; Sanford v. State, 6 Eng., 328; State v. Jones, 5 Ala., 666; State v. Pile, ib., 72; State v. Rollins, 2 Foster, 528; Russell v. State, 10 Tex., 288; Archbold, 542; 1 Bishop Cr. Procedure, 918; Bivens v. State, 6 Eng., 465; Drake v. Brander, 8 Tex., 351; Arthur v. State, 3 Tex., 403; Pierce v. State, 12 Tex., 210; Wrocklege v. State, 1 Iowa. 167. [1] Greenl. Ev., 65; Roscoe Cr. Ev., 73; 1 Deacon’s Dig. Cr. Law, 459, 460; 2 East P. C., 785, 1201; 1 Phil. Ev., 506; Rex v. Watson, 2 Stark, 116, 155; Lord Melville’s case, 29 How. St. Er. 376; Russ. on Cr., 588; U. S. v. Brittain, 2 Mason, 464, 468.