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Joe HILL
Birth name:
Joel Emmanuel Hägglund
A.K.A.:
Joseph Hillström
Classification: Murderer
Characteristics: Labor activist, songwriter, and member of the IWW
(Industrial Workers of the World, also known as the Wobblies)
Number of victims: 2
Date of murder: January 10, 1914
Date of arrest:
4 days after
Date of birth: October 7, 1879
Victim profile:
John G. Morrison and his son Arling
Method of murder:
Shooting(.38
caliber automatic revolver)
Location: Salt
Lake City, Utah,
USA
Status:
Executed by firing squad in Utah on November 19, 1915
State V. Hillstrom
(No. 2764)
(Supreme
Court of Utah. July 3, 1915)
1.CRIMINAL LAW 1159 – INFERENCES FROM EVIDNECE – FUNCITN OF
JURY.
The drawing of inferences from
facta in evidence is for the jury.
[Ed. Note. – For other cases,
see Criminal Law, Cent Dig. ŞŞ
3074-3083; Dec. Dig.
1159.]
2.CRIMINAL LAW 1159 – APPEAL QUESTIONS REVIEWABLE –
CREDIBILITY OF WITNESSES.
The credibility and weight of
the testimony of a witness was for the jury, not for the appellate
court.
[Ed. Note.- For other cases, see
Criminal law. Cent. Dig. ŞŞ
3074-3083; Dec. Dig.
1159.]
3.CRIMINAL LAW 407 – EVIDENCE – ADMISION –SILENCE OF
DEFENDANT.
Where defendant, when in custody
charged with murder, declined to give the officer any information
in regard to the quarrel over a woman in which be claimed to have
received a shot through the body, or to make any statement
whatever concerning the matter, his refusal to make any such
statements in answer to the officer’s offer to set him free if he
would do so, or his refusal to answer any question, could not be
considered as an admission of guilt.
[Ed. Note.- For other cases, see
Criminal law. Cent. Dig. ŞŞ
SOS-902, 040, 068, 970, 971; Dec. Dig 407.]
4.CRIMINAL LAW 317 – EVIDENCE – PRIVILEGE OF ONE ACCUSED OF
CRIME.
The failure of a defendant in a
criminal case to take the stand cannot in any
manner prejudice him, or be used
against him, but the defendant, without some proof tending to
rebut proven facts within his knowledge, may not avoid the natural
and usual inference deducible from them by merely declining to
take the stand.
[Ed. Note. – For other
cases, see Criminal law, Cent. Dig. Ş 732; Dec. Dig. 317.]
5.CRIMINAL LAW 561 – TRIAL – REQUISITE PROOF OF GUILT.
In a prosecution for homicide,
the state, as in all circumstances must prove the
defendant guilty beyond a
reasonable doubt.
[Ed. Note. – For other cases,
see Criminal law, Cent. Dig. Ş
1267; Dec. Dig 561.]
6.HOMICIDE 234 – TRIAL – IDENTITY – SUFFICIENCY OF EVIDENCE.
In a prosecution for first
degree murder, evidence as to the identy
of the defendant with the victim’s assailant held sufficient to
sustain verdict of guilty.
[ Ed. Note. – For other
cases, see Homicide, Cent Dig. ŞŞ
482-493; Dec. Dig. 234.]
7.AMICUS CURLE 1 – TRIAL – DISCHARGE OF COUNSEL
In a prosecution for homicide,
defendant was represented by two counsel of his
own selection. When the state
was about half through with its case, up on a witness being
tendered for cross-examination, the defendant arose, stated that
he had three prosecution attorneys and intended to get rid of two
of them, and told his counsel they were fired. After a colloquy,
defendant insisting on his right to conduct his own case, the
court said he might do so , but appointed defendant’s attorneys
amici curiae to conduct examinations
for him and protect his interests. Thereafter both defendant and
the attorneys cross-examined witnesses, and such attorneys
elicited matter beneficial to defendant. After a noon-hour
conference with his friends and the attorneys defendant returned
to court and stated he was willing the attorneys should ask
questions, and that he himself would also examine the witnesses.
Thereafter other counsel came into the case for defendant, and all
three attorneys, with defendant’s consent, represented him and
took part in all proceedings to the end of the trial. Defendant
contended that the court erred in appointing his counsel
amici curiae after he had discharged
them, in refusing to allow him to conduct his case in person and
alone without counsel, in not taking an adjournment at once after
he had discharged his counsel to enable him to procure other
counsel, and in proceeding against him without counsel. Held that,
since the court granted all defendant asked, his right with or
without cause to discharge counsel and defend in person, he not
having asked for other counsel, or for time to procure them, but
in a most unseemly manner, without cause, abruptly demanded the
discharge of his counsel when damaging testimony was being
elicited against him, the action of the court in appointing such
counsel amici curiae to protect
defendant’s interests was entirely proper.
[Ed. Note. – For other
cases, see Amicus Curiae. Cent. Dig. Ş 1; Dec. Dig. 1.]
8.CRIMINAL LAW 543 – EVIDENCE – TESTIMONY ON PRELIMINARY
EXAMINATION – STATUTES.
Comp. Laws 1907, Ş
4070, provides that in a
case of homicide the evidence at
the preliminary hearing
examination must be reduced to writing as a deposition, and that
the transcript of such evidence, properly certified and tiled,
shall be prima facie a correct statement of the testimony; while
section 4685 x 1, provides that it may be used at the trial with
the same effect as though the witness were testifying, if witness
is dead, insane, or cannot with due script of testimony of a
physician on preliminary examination was sought to be used at a
trial for first degree murder on the ground that he could not with
due diligence be found in the state. The officer who had
attempted to subpoena him testified that ten days before the trial
he had called at the doctor’s house, but found him out making a
call, that the next time they told him that the witness was going
on a trip, and that before he could get him the next time he had
left the state. Held, that the transcript of the doctor’s
testimony on preliminary examination was admissible in evidence;
due diligence having been shown.
[Ed. Note. – For other
cases, see Criminal Law, Cent. Dig. ŞŞ
1233, 1236; Dec. Dig
543.]
9.CRIMINAL LAW 544 – EVIDENCE – TESTIMONY ON PRELINARY
EXAMINATION – STATUTE.
Under Comp. Laws 1907,
ŞŞ
4670, 4685 x 1, regulating the introduction in
evidence on a trial for homicide
of the transcript of testimony on preliminary examination of a
witness who is dead, insane, or unable to be found within the
state by due diligence, where the stenographer’s transcript of the
proceedings at such examination showed that the defendant was
present and was given opportunity to cross-examine a medical
witness out of the state at the time of the trial, whose testimony
on preliminary examination was sought to be introduced in evidence,
such transcript was not inadmissible as denying the defendant an
opportunity to cross-examine the witness in the presence of the
trial jury.
[Ed. Note. – For other cases,
see Criminal Law, Cent. Dig. Ş 1234; Dec. Dig.
544.]
10.CRIMINAL LAW 547 – EVIDENCE – TRANSCRIPT ON PRELIMINARY
EXAMINATION – STATUTE.
Under Comp. Laws 1907,
ŞŞ
4670, 4685 x 1, providing
that in cases of
homicide the testimony of
witnesses on preliminary examination shall be transcribed by a
stenographer, certified, and filed, and that such transcript may
be used at the trial as evidence if the witness be dead, insane,
or not, with due diligence, to be found within the state, such a
transcript was not inadmissible because the certificate to the
transcript was to the effect that it was transcribed in longhand,
while in fact, it was transcribed in typewriting.
[Ed. Note. – For other
cases, see Criminal Law. Cent. Dig. ŞŞ
1237-1246; Dec. Dig.547]
11.HOMICIDE 338 – HARMLESS ERROR – RECEPTION OF INADMISSIBLE
TESTIMONY.
In a prosecution for homicide,
where empty shells and bullets with which the
two victims were killed were,
without controversy, 38 caliber, and shot from a 38 caliber
automatic pistol, the admission of opinion evidence of a medical
witness not properly qualified on the subject that, in his opinion,
a wound through one of the bodies was made by a 38 caliber bullet
was harmless.
[Ed. Note. – For other
cases, see Homicide, Cent. Dig. ŞŞ
709-713l Dec. Dig. 338.]
12.JURY 131 – TRIAL – EXAMINATION OF VENIREMAN
In a prosecution for homicide,
where a venireman testified in
response to
questions that he presumed
defendant was innocent, that the state was required to prove guilt
beyond a reasonable doubt, that the jury was the sole judge of
guilt of innocence, etc., the action of the court in sustaining
objections to questions as to whether the
venireman understood hews partly interested in the
defendant’s side of the case on account of the presumptions of
innocence, and whether he understood that a juror is under no
obligations to take the opinion of any witness, was not erroneous,
since the matter had been covered.
[Ed. Note. – For other
cases, see Criminal Law. Cent.. Dig. ŞŞ
561-582; Dec. Dig. 131.]
13.CRIMINAL LAW 785- TRIAL – INSTRUCTIONS – CREDIBILITY OF
WITNESSES.
In a prosecution for murder, an
instruction that, if the jury believed any
witness willfully testified
falsely to a material fact, his testimony might be disregarded in
whole or in part, except as he might have been corroborated by
credible witnesses or evidence in the case, was not erroneous as
not correctly guiding the jury as to the rules of law in
determining the credibility to be given the testimony of witnesses.
[Ed. Note.- For other cases, see
Criminal Law, Cent. Dig. ŞŞ
1774, 1776-1781,
1889-1894; Dec. Dig. 785.]
14. CRIMINAL LAW 829 – TRIAL –
INSTRUCTIONS – CREDIBILITY OF WITNESSES.
The refusal of
requested charges substantially given is not erroneous.
[Ed. Note. – For other
cases, see Criminal law, Cent. Dig. ŞŞ
2011; Dec. Dig, 829.]
15. CRIMINAL LAW 782 – TRIAL –
INSTRUCTIONS – CIRCUMSTANCES OF SUSPICION.
In a prosecution for
homicide, an instruction that circumstances of suspicion, if they
amount to no more than suspicion, are not sufficient proof of
guilt, was not
erroneous as telling the jury
that circumstances of suspicion are evidence. [Ed. Note. – For
other cases, see Criminal Law, Cent. Dig. ŞŞ
1847, 1849, 1851, 1852,
1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967;
Dec. Dig. 782.]
16. CRIMINAL LAW 1137 – INVITED
ERROR – REQUESTED CHARGE.
Where claimed
objectionable language in an instruction was taken from on e of
the defendant’s requests, he could not complain.
[Ed. Note. – For other
cases, see Criminal law, Cent. Dig. ŞŞ
3007- 3010; Dec. Dig.
1137.]
Appeal from District
Court, Salt Lake County; M. L. Ritchie, Judge.
Joseph
Hillstrom was convicted of murder, and
he appeals. Affirmed.
O.N. Hilton, of
Denver, and Soren X. Christensen, of
Salt Lake, for appellant. A. R. Barnes, Atty. Gen., and E.V.
Higgins and G. S. Iverson, Asst. Attys. Gen., for the state.
STRAUP, C. J. The
defendant was convicted of first degree murder and appeals. The
principal question presented is that of sufficiency of the
evidence. The claim made is that there is not sufficient evidence
to identify the defendant, to connect him with the commission of
the offense, nor to show motive.
[1-6] In the
information it is charged that he with a revolver shot and killed
J. G. Morrison. The deceased was conduction a grocery store at or
near the corner of Eight South and West Tempe streets, in Salt
lake City,. The store, with a glass front, faced east on West
Temple street, running north and south. About a half block to the
west s a cross-street known as Jefferson Street. Midway between
that street and West Tempe is an alley. The homicide was
committed in the store between 9:45 and 10 o’clock pm. on the 10th
day of January, 1914. With the deceased in the store were his two
sons. Arling, about 17, and Merlin,
about 12, years of age. The night was a bright, moonlight night.
Near the store was an electric light. There was another near
Jefferson street. The sidewalk and the street near the store were
also lighted from brilliant lights in the store. As the deceased
and his two sons were preparing to close the store, two men with
red bandana handkerchiefs over their faces as masks, and with
revolvers in their hands, suddenly entered the store. One of them
was tall and slender, and wore a dark, or dark gray, soft hat, and
a dark coat and dark trousers. The deceased was near a counter on
the north side of the room, moving a sack of potatoes behind the
counter. Arling was on the south side,
sweeping near a cash register and an ice chest. In the upper part
of the chest, from which the door was removed, the deceased kept a
loaded, six chamber, 38 caliber revolver. Merlin, the only living
witness to the shooting testified that as the two assailants
entered the store and approached his father they said, “We have
got you now,” and immediately shot. He gave it as his best
judgment that about seven shots in all were fired, when the
assailants fled, without attempting to take anything from the cash
register or elsewhere. The father and Arling
were both killed. The former was shot twice, and the latter three
times, twice in the back. Later five or six bullets and empty
cartridges were founding the store. They all were shot from a 38
caliber automatic revolver. Two bullet marks were found in the
shelving or the counter where the deceased was killed, another on
the inside of the ice chest, where the deceased kept his revolver,
and two or three where lay the body of Arling,
behind the counter, with one bullet hole through his body and
straight down through the floor. Merlin testified he did not see
the first shot fired, which hit his father, but saw the second,
which was shot by the taller of the two assailants, who then
directed his attention towards the ice chest. Merlin retreated
into a little storeroom, where he no longer saw
Arling nor the assailants, but heard
shots. After the assailants had fled, Merlin first went to his
father, and then to Arling. He found
the latter dead behind the south counter, and but a short distance
from the ice chest. Near his outstretched hand lay the revolver,
which was kept in the ice chest, which one chamber discharged. An
officer who examined it shortly thereafter testified that tit was
freshly discharged. Merlin testified that he saw the revolver in
the ice chest earlier that evening, and that then all six chambers
were loaded. He testified that he did not see
Arling get the gun from the chest, and
did not know that he had discharged it until he found it lying on
the floor with one chamber discharged. From this it is quite
evident that at some period during the shooting
Arling went to the ice chest, got the
gun, and discharged it at the assailants.
Another witness
whose attention was attracted by the shooting saw the taller of
the two assailants come out of the store in a rather stooped
position, with his hands drawn over his chest, and heard him
exclaim as if in great pain, “Oh, Bob!” and saw him cross the
street to the alley, where he was joined by two other men. They
there halted for a moment and disappeared in the alley. Another
witness saw the taller of the two assailants run from the store
into the street near a pole, there halt, and then go to wards the
valley, and heard him in a clear voice say, “I am shot.” The next
morning a gob of blood about the sizes of a quarter spattered over
the sidewalk for a space of about a foot was found at the entrance
of the alley. The blood had the appearance, as described by the
witnesses, as coughed up and spat on the sidewalk. Similar blood
was found down the alley where the assailants went and were heard
to mutter to themselves.
The defendant on the
day of the homicide was visiting with acquaintances by the name of
Eseilus, at Murray, a town about 5
miles south of the place of the homicide. At that house were Mrs.
Eseilus, her six brothers, her father,
and one Otto Applequiest. Some of
them had been working at the mills or smelters at Murray. On the
day of the homicide some of them left Murray about 5 o’clock pm.
to attend a theater at Salt Lake City. The defendant and
Applequist remained. They were seen
at the Eselus house as late as 6
o’clock that evening. They left that evening some time between 6
and 9; the exact time is not made to appear.
Applequist did not return, and has not been seen nor heard
of since. That night between 11:30 and 12 o’clock the defendant
called at a Dr. McHugh’s Office on Fourteenth South and State
streets, about 2 ½ miles south of the place of the homicide, and
about midway between the place of the homicide and Murray. The
doctor had just retired. He was called to his office by the
defendant ringing the bell. The doctor was acquainted with him,
and had known him as “Joe Hill.” Upon the doctor entering the
office and asking what the trouble was, the defendant replied that
he was shot, and stated: “I wish this kept private.” The doctor
removed the defendant’s clothes, and found him suffering form a
gunshot wound through the chest and lungs. As the doctor
described it: “The bullet entered a little below and a little to
the outer side of the nipple line, ranging upward, backward and
outward, and emerged a little below the interior angle of the
scapula.” He found the defendant’s undershirt and shirt saturated
with blood, and the defendant in a weakened condition, almost
ready to collapse, from loss of blood. As the doctor was
attending the defendant, a Dr. Bird, residing at Murray, passing
Dr. McHugh’s office, and seeing a light in the office, stopped to
see Dr. McHugh on other matters. Dr. Bird also saw the wound.
The bullet had gone clear through the defendant’s body and clothes
and was missing. From the appearance of the wound the doctors
gave it as their opinion that the bullet causing the wound was
shot from a 38 caliber gun. They further testified that such a
wound would case internal hemorrhages, coughing, and spitting of
blood. After the wound was attended the doctors assisted the
defendant in dressing. In doing that a revolver in a holster with
shoulder straps fell from the defendant’s clothes to the floor.
Dr. McHugh picked it up and handed it to the defendant. He put it
in his pocket. The doctors saw but the handle of the gun sticking
out of the holster. From the appearance of the handle they gave
it as their opinion that the gun was a 38 caliber automatic gun,
and that the handle was similar to a Colt’s automatic 38 gun
exhibited to them. While the defendant was there at the office he
told the doctors that “he had had a quarrel with some one over a
woman, and that in the quarrel he was shot and that he was as much
to blame as the other fellow, and wanted it kept quiet, kept
private.” That was all that was said by him concerning the manner
in which he received the wound. That was volunteered by him. The
doctors did not ask him anything concerning the place the
circumstances or particulars under which he received it, nor did
the defendant tell them anything further about it. After the
wound was dressed and the defendant ready to leave Dr. McHugh
asked Dr. Bird to take the defendant in Dr. Bird’s automobile to
the Eseliuses. As Dr. Bird and the
defendant approached the Eselius place
the defendant requested the doctor to turn down the lights of the
automobile. Dr. Bird did so. As they neared the house the
defendant, “with a combination of the teeth, tongue, and lips,
gave two shrill, penetrating whistles.” Dr. Bird assisted the
defendant to the kitchen or back door. As the defendant and Dr.
Bird entered “a number of men seemed to have just gone from the
back room that we first entered into the next room, and all were
standing or walking in that direction as we entered the door, and
seeing him with me, expressed surprise, and asked if he was hurt.”
The doctor assisted the defendant to a cot into an adjoining room,
and there left him sitting on the cot. Two or three days after
that the defendant was arrested. In his room on a table was found
a red bandana handkerchief similar to that worn by the assailants.
The defendant’s coat and clothing worn by him on the night of the
homicide were seized and put in evidence. They were similar in
appearance to those worn by the taller assailant. One of the
officers asked the defendant where his gun was. He told him that
Dr. Bird, on the way from Dr. McHugh’s office to the
Eseliuses, had trouble with his
automobile, and as Dr. Bird got out to crank it with defendant
threw the gun away. No gun was found. The defendant was not a
witness in the case, and at no time explained or offered to
explain the place where, nor the circumstances under which, he
received his wound, except as stated by him to the doctors, that
he received it in a quarrel over a woman; nor did he offer any
evidence whatever to show his whereabouts or movements on the
night of the homicide.
A Mrs. Seeley,
living about a block from the deceased’s store, testified that she
and her husband, returning from uptown just a few minutes prior to
the homicide, passed few minutes prior to the homicide, passed the
store and saw the deceased and his two sons in the store. As they
crossed Jefferson street they met two men with red bandana
handkerchiefs tied around their necks. One of the men was tall
and slender. In passing they crowded her off the sidewalk. She
turned and looked at them. The taller turned and looked at her.
She gave this description of him:
“By the
District Attorney: Q. Did this man that turned, the taller of the
two, did he look directly at you? A. Yes. Q. And did you look
directly at him? A. Yes. Q. Did you notice anything peculiar
about the features of the face of the man that turned at that time
and looked at you after you had just seen crowded off the sidewalk?
A. Yes. Q. I wish you would just tell in your own way, Mrs.
Seeley, what there was about the face of that man that attracted
you. A. Well, his face was real thin; he had a sharp nose, and
rather large nostrils. He had a defection on the side of his face
or neck. Q. On the side of the face or neck? A. Right here on
his face. Q. What do you mean by that – apparently a scar? A.
Yes; it looked as though it might be a scar. Q. And you observed
that? A. Yes, sir. Q. Did the nose appear to be particularly
sharp that you saw on the tall man there at that time? A. Yes. Q.
And the nostrils were peculiar? A. Yes; the gentleman that I met
was a sharp-faced man with a real sharp nose, and his nostrils
were rather large.”
The witness, after
testifying that she saw and observed the defendant shortly after
his arrest, was further asked:
“Q. How does
the height of the defendant compare with the height of the man
that turned and looked at you? A. Very much the same. Q. How
does the nose of Mr. Hillstrom compare
with the nose of the man you looked at there? A. Very much the
same. Q. How do the marks, especially upon the left-hand side of
his face and neck, that you have had an opportunity to observe,
correspond with the marks on the man that you saw there at the
time? A. Well, they look a great deal alike to me, as on the same
man that I saw.”
The witness at the preliminary
examination and on cross-examination testified that she would not
say positively that the defendant was that man, and that she had
an honest doubt as to whether they were the same person.
Merlin testified that the size
of the defendant was similar to that of the tall man who entered
the store, but he, too, would not testify that it was the same man.
The witnesses who saw the taller of the two men run out of the
store and to the alley, and heard him exclaim, “Oh, Bob!” and “I
am shot,” testified that they saw the defendant shortly after his
arrest and heard him talk, and that his appearance and voice were
similar to that man. One of them testified that he was “exactly
the same.”
When the defendant stood erect
with his coat on and his arms down the bullet hole where the
bullet entered the coat was four inches lower than the wound where
the bullet entered his body. From this it is argued by defendants
counsel that the defendant received the shot causing his wound
when his hand and arm were raised above his head drawing his coat
up, and that the arms of the assailant in the store were at no
time in such a position, and therefore the defendant’s wound was
not received in the store. Such argument does not demonstrate
that the defendant was not the man who was shot in the store by
Arling. At most, it is but an
inference of fact, which, and the weight of it, were for the jury.
That Arling shot one of the assailants
in the store is sufficiently shown; indeed, the fact is not
seriously controverted. But no one at
that moment saw either the assailant or
Arling. In what position Arling
was when he shot or the assailant when he received the shot is not
disclosed. Counsel, in oral argument, told us that that was very
clearly shown; but the record does not support the contention. It
clearly and without dispute supports the contrary. As already
shown, the only living witness to the homicide was Merlin. When
the second shot was fired at the deceased, and the assailant
directed his attention toward the ice chest, Merlin retreated to
the storeroom. Shots were fired after that, but he while in the
storeroom could not see either Arling
or the assailants, and did not know that
Arling had taken the gun from the ice chest or had
discharged it until the assailants had fled. Thus counsel base a
positive conclusion upon non-existing premises, at least upon
premises wholly conjectural and speculative – the position the
assailant or Alring was in at the time
the former was shot. The argument that the defendant, if he was
one of the assailants, must, when he was shot, have been in the
middle of the room with his hands raised above his head, is not
the only deducible inference. It was shown that when the
assailants entered the store Arling
was sweeping near the ice chest, in which lay the deceased’s
revolver. On the record, when the assailants entered and began
shooting the deceased, it can be inferred that
Arling rushed to the ice chest for the
revolver, and as he reached for it he either was shot, or was shot
at, for one bullet mark was found on the inside of the chest where
was the revolver. It can further be inferred that he got the
revolver and ran or fell behind the counter where his dead body
and gun were found, a short distance from the chest. One bullet
hole was clear through his body and straight down through the
floor, showing that the assailant, when he fired that shot, leaned
or reached over the counter while Arling
was down on the floor behind the counter. It can also be inferred
that Arling may have shot the
assailant as the latter was leaning and reaching over the counter,
which position would account for the upraised arm and coat of the
defendant and the course the bullet took through his coat and body.
That, of course, is but an inference, but it is as probable as the
argument of counsel that the defendant, when he was shot, must
have had his hands in the air above his head. Then, too, much
depends upon the cut and fit of the defendant’s coat. Some coats
are so cut and fit at the armpit that to raise the ram does not
much disturb the body of the coat. Other coats are so cut and fit
that to raise the arm draws the body of than unbuttoned coat up
very materially, even though the outstretched hand is raised but
level with the face. Then the defendant at the time he was shot
might have been in a stooping or crouching position with his arm
raised, or, seeing the gun in the hands of
Arling, might instinctively have thrown his arm and hand up
as the shot was fired. Other instances and positions may be
conceived to account for the bullet hole in the coat four inches
lower than the wound where the bullet entered the defendant’s body.
But all this is mere matter of inference and argument, and was for
the jury.
It further is claimed that no
bullet shot from the deceased’s gun was founding the store, and
that all the bullets which were found fired from the guns of the
assailants, from which, and from further fact that the bullet
which produced the defendant’s wound went clear through his body.
It is argued that it was not the defendant, but another, who was
shot in the store by Arling, and who
was not shot through the body, but carried away the bullet lodged
somewhere in his body. These also are positive conclusions based
on but conjectural or speculative premises, arguing things certain
from other things uncertain. Such argument is proper enough
addressed to a jury; but it has no foundation when addressed to a
court to conclusively overcome and repel all other facts and
circumstances tending to point to the defendant as the perpetrator
of the crime.
Evidence also was given to show
that the red bandana handkerchief found in the defendant’s room at
the time of his arrest was given him by Mrs.
Eselius the next morning after the defendant was shot, and
that he was not possessed of it on the night of the homicide. Mrs.
Eselius testified to that. The
credibility and weight of her testimony were for the jury, not for
us.
The state produced a witness who
shortly after the homicide, examined the gun found by the body of
Arling, and who testified that, in his
opinion, the gun was discharged within an hour prior to the time
he examined it. The defendant produced a witness who testified:
“It would be
impossible to tell with any degree of accuracy when a cartridge in
a revolver was exploded.”
It is argued that the defendant’s
witness showed greater knowledge of, and more familiarity with,
the subject. Again that was more weight for the jury. We think
it of little consequence, for, as already observed, we think there
is ample evidence to show that one of the assailants was shot in
the store by Arling, and that he shot
him with the gun found by Arling’s
body.
Evidence was also given to show
that about four blocks west of the place of the homicide dog
tracks stained with blood were found in the next morning, which,
when followed up, led to a dog with a sore foot; but that was not
connected in any manner with the blood found on the sidewalk and
in the alley near the place of the homicide, and was wholly
different from the spatter of blood found on the sidewalk.
Further evidence was given to
show that the deceased prior to his engaging in the grocery
business was a member of the police force, and “that all the
revolvers on the police department have six chambers; they are
loaded with five cartridges, and the sixth one is empty, and the
hammer rests on the sixth chamber.” This and the testimony of the
witness that it could not be told when a cartridge was exploded
were offered to show that the gun found near
Arling was not discharged by him, and hence that neither of
the assailants was shot. The probative effect of that was for the
jury. It cannot, as matter of law, be said to overcome and to
conclusively repel all the other evidence showing that just prior
to the homicide all the chambers of the gun were loaded, that
immediately thereafter the gun was found on the floor, not with an
empty chamber, but a chamber containing an exploded cartridge, and
other evidence showing that Arling
with that gun show one of the assailants in the store.
Another witness testified that
at about 11:30 o’clock on the night of the homicide he saw two men
about eight blocks (more than a mile) west of the place of the
homicide, one taller than the other, and as he approached them, a
block or more away, he saw the taller fall or lie down on the
ground. The witness testified that he walked up to him, and saw
him lying on his side moaning and groaning, with his head raised
on his elbow. The witness observed him but a moment, and without
saying anything to him walked away. The man on the ground arose
and followed him for a block, where the witness saw him board a
streetcar. The conductor of the streetcar testified that a tall
man, “acting suspiciously,” at that time and at that place boarded
the car. The conductor though he was drunk. He rode with him
uptown, and there left the car. Both witnesses testified that
that man was not the defendant. This was offered to show that
that man was suffering from a gunshot wound, and that he was the
man who was shot in the store by Arling.
The testimony has little relevancy. No one claimed that that man
was the defendant; nor was it claimed that the defendant that
night was in that neighborhood. The state claimed, and produced
evidence to support the claim, that the defendant then was at or
near the doctor’s office on Fourteenth South receiving attention
for a serious gunshot wound. Testimony that on that night after
the homicide one answering the description of one of the
assailants in the store was found at Eight West street suffering
from a gunshot wound would have had probative effect; but the
defendant did not prove that the man seen at Eight West street was
suffering from a gunshot wound or any wound. That a man, after
the homicide, was seen a mile or more from the place of the
homicide, moaning and groaning on the ground and appearing to be
drunk, and acting strangely, boarded a streetcar, proves little,
if anything. Sufferers may moan and groan from gunshot wounds.
But all who moan and groan are not shot.
But the claim of insufficiency
of the evidence is chiefly based on the fact that none of the
witnesses who saw the assailant at or about the store on the night
of the homicide testified positively that the defendant was one of
them; and for that reason it is argued that the case is no
stronger than the case of State V. Hill, 44 Utah, 79, 138 Pac.
1149, where the evidence was held insufficient to connect the
accused with the commission of that offense. We think the cases
on the facts dissimilar. The testimony of Merlin that one of the
perpetrators of the crime was about the same size as that of the
defendant, had about the same shaped head, and wore about the same
clothes as were shown the defendant wore that night is alone not
sufficient. But there is testimony of the witnesses who saw the
taller of the two assailants, in size answering the description of
the defendant, run out of the store, heard his voice, and that the
voice, size, and appearance of that man were similar to those of
the defendant. Though it be conceded that that also was
insufficient, still there is further testimony of the witness who
but a few minutes prior to homicide, close to one of the
assailants, in a bright light nearly as light as day, looked him
directly in the face. Her attention was particularly attracted to
him because of the incident crowding her off the sidewalk. That
man and the defendant, as testified to by her, were similar in
size and features, had the same slim face, sharp nose, and large
nostrils, and the same “defection” or scar on the side of the face
and neck. True, that witness would not testify positively that
the defendant was that man; but the facts testified to by her as
to the description of that man pointed most strikingly to the
defendant, and may be entitled to as much or more weight that had
the witness, without such description, but testified that, in her
opinion or judgment, the defendant was that man. In addition to
all this was the fresh bullet wound on the defendant. That would,
unexplained, or unsatisfactorily explained by him, was, in
connection with other evidence that one of the perpetrators of the
crime answering the defendant’s description was shot in the store,
a relevant mark of identification, especially in light of the
defendant’s effort to have the fact of his wound concealed, and in
view of his statement that he threw his gun away, of his request
that the lights of the automobile he turned down, and of no
apparent good reason for his giving two sharp penetrating whistles
before he entered the Eselius house
with Dr. Bird. Gunshot wounds such as had the defendant are
unusual and extraordinary. Under all the circumstances the
defendant’s wound, unexplained, was quite as much a distinguishing
mark as though one of the assailants in the assault had one of his
ears chopped off. The only explanation the defendant gave of his
wound was that he received it as some undisclosed place in a
quarrel with some undescribed man over
some undescribed woman, in which he
“was to blame as much as the other fellow.” With other evidence
in the case, that unexplained or unsatisfactorily explained wound
might, to the triers of facts, pint
with as much certainty to the defendant as one of the perpetrators
of the offense as though that night at 11:30 or 12 o’clock some
stolen and identified article from the store had been founding his
unexplained or unsatisfactorily explained possession. One
suffering from such a wound as did the defendant – a wound of such
serious and oft-fatal consequences – ordinarily does not walk
around the country seeking surgical aid until, from loss of blood,
he is about to collapse. Generally, such aid is promptly summoned
and brought to such a sufferer. The defendant himself, in the
cross-examination of on of the state’s witnesses, an officer,
brought out the fact that the officer after the defendant’s arrest
stated to him that, if the defendant would tell him the place
where and the circumstances under which he received his wound, so
that the officer could investigate the facts in such respect, and
if true that the defendant received his wound, so that the officer
could investigate the facts in such respect, and if true that the
defendant received his wound in a quarrel over a woman, he would
be given his liberty. The defendant declined to give the officer
any information, or to make any statement whatever respecting such
matter, expect that he threw his gun away as Dr. Bird was taking
him from Dr. McHugh’s office to the Eseliuses.
The defendant, of course, was not required to make any statement
to the officer. His refusal to make any or to answer any question
cannot, though the fact was brought out by the defendant, be
considered as an admission of guilt. He had a right to remain
silent. Nor can his neglect or refusal to be a witness in any
manner prejudice him or be used against him. The state, as in all
other criminal cases, was required to prove the defendant’s guilt
beyond a reasonable doubt. But the defendant, without some proof
tending to rebut them, may not avoid the natural and reasonable
inferences deducible from proven facts by merely declining to stay
off the stand or remaining silent. If in case of larceny the
theft and the unexplained or unsatisfactorily explained recent
possession of the stolen property in the accused are shown, he may
not avoid the natural inference deducible from such facts that he
is the thief by remaining silent or staying off the strand, and
offering no proof to rebut such inference. Here the commission of
the offense is proved beyond all doubt. That is conceded. Other
facts also are shown from which natural and reasonable inferences
arise that the defendant was one of, and the active, perpetrator
of the offense. The probative effect of them and the natural and
reasonable inferences deducible from them cannot be avoided by the
defendant remaining silent or refusing to take the stand and
offering no proof to rebut them. While the proven facts and
inferences against him are neither strengthened nor weakened by
his mere silence or failure to take the stand, yet when he, with
peculiar knowledge of facts remains silent, or has evidence in his
power by which he may repel or rebut such proven facts and
inferences, and chooses not to avail himself of it, he must suffer
the consequences of whatever the facts and inferences adduced
against him tend fairly and reasonably to prove.
We think the evidence sufficient
to justify a finding that the defendant was one of the
perpetrators of the crime. To hold otherwise is to hold that the
accused must be identified or connected with the commission of the
offense. By direct testimony of eyewitnesses who unerringly are
able to testify positively and unequivocally that he was the
perpetrator. There are many instances where the proof of identity
rested wholly on circumstantial evidence, as was the case in State
v Mortensen, 26 Utah, 312, 73 Pac. 562, 633; State v.
Sirmay, 40 Utah, 525, 122 Pac. 748;
State v Inlow, 44 Utah, 485, 141 Pac
530. Here there is testimony of eyewitnesses and circumstances
pointing to the identity of the defendant. Against that evidence
to hold that three is no evidence to connect him with the
commission of the offense is to ignore the record. To do what
counsel, both by brief and in oral argument, in effect have asked
us to do, place ourselves in the jury box, weigh the evidence,
determine the credibility of witnesses, consider their opportunity
and means of observation, and the reliability and worthiness of
their testimony, is to ignore the law and to
unsurp a function not possessed by us. And yet the import
of their argument, especially the oral argument, is on mere weight
and worthiness of testimony; arguments such as the witness had not
positively identified the defendant and had not sufficient means
or opportunity of observing and giving a reliable description of
the assailants; that of discrepancies as to the description of the
hat and clothes worn by one of them; that the defendant was not
shot in the store, because the bullet hole in his coat was four
inches lower than the wound on his body, and because no bullet
shot from the gun near the outstretched hand of
Arling’s body was found; that because
of the custom of police officers to carry guns with the hammer
resting on an empty chamber; and because of the testimony of the
defendant’s witness that it could not with accuracy be told when
an empty cartridge was exploded, the gun found near
Arling’s body was not discharged by
him; that the blood found on the sidewalk and in the alley was
from a dog; that the man found moaning and groaning oat Eight West
street was the man shot by Arling;
that the handkerchief found in defendant’s room was given him the
day after he was shot; and that no motive was shown for the
defendant to mask himself and with the gun in hand to enter the
store and shoot to death his victim, with whom it was not shown he
had any acquaintance. All this, it is contended, when properly
considered and weighted, so clearly repelled whatever testimony
there may be to point to the defendant’s guilt as to leave no
evidence to connect him with the commission of the offense. It is
apparent all this was for the jury.
With this conclusion it is
unnecessary to inquire into the question of motive. From the
proven facts of the homicide it is clear the assailants entered
the store to commit murder or robbery. It is immaterial which
view is taken of that. State v. Thone,
39 Utah, 208, 117 Pac. 58. Since the evidence is sufficient to
show that the defendant was one of the perpetrators who, with his
face masked and gun in hand, entered the store and deliberately
shot his victim to death, it is immaterial to inquire whether the
motive was assassination or robbery. Nothing but a wicked motive
emanating from a depraved and malignant heart is attributable to
the commission of such a crime as is here indisputably shown.
[7] The defendant was
represented by two counsel of his own selection an hire. When the
state was about half through with its side of the case, and at the
conclusion of the direct examination of a chemist by whom it was
shown that the blood found on the sidewalk was of mammalian origin,
and upon the witness being tendered for cross-examination, the
defendant, without any warning to his counsel, and to their
complete surprise, arose and addressed the court:
“May I saw a
few words?”
“The Court:
You have a right to be heard in your own behalf.”
“The Defendant:
I have three prosecuting attorneys here, and I intend to get rid
of two of them.”
Addressing his
counsel, he said to them:
“You sit over
there, you are fired, too, see. And there is something I don’t
understand –“
“The Court (interrupting):
you need not carry out in detail any difference you may have with
counsel if any.”
“Defendant: I
wish to announce I have discharged my counsel, my two lawyers.”
“His Counsel:
If you have discharged us, that is all there is to it.”
“The Defendant:
If the court will permit, I will act as my own attorney after
this, and cross-examine all the witnesses, and I think I will make
a good job of it. As far as the district attorney is concerned, I
think we will get along fine; he comes right out in the middle of
road. I know where he is at. These fellows here [his counsel], I
think I can get along very nicely without them; they are dismissed.
Can I act as my own attorney in this case, and cross-examine all
the witnesses, and will I have the right to withdraw any witness
who has been on the stand here? Bring buckets of blood for all I
care, I intend to probe these records here of the preliminary
hearing are the rankest kind of fake. That is what I will prove.
And I will prove a whole lot of other things. I will prove that I
was not at that store –“
The district attorney
interrupted, and suggested that the defendant at the proper time
would have an opportunity to make a full statement. Further
colloquy followed, when the district attorney, addressing the
defendant, stated:
“I will pause a moment and give
you an opportunity to cross-examine” the witness.
Counselfor
defendant stated that before they retired they desired to say that
they had no difference whatever with the defendant, and that his
action was entirely unexpected.
The court stated:
“I think until
further order counsel who have been representing the defendant may
proceed. If the court is satisfied that the defendant really
knows his own mind, of course, he has a right to discharge his
counsel if he prefers to do that.” – and requested counsel to
proceed with the cross-examination.
“The Defendant:
Haven’t I a right to discharge my own counsel?”
“The Court: The
court will make due inquiry into that, Mr.
Hillstrom; and if the court is convinced that you really
mean what you say, the court will accord you that right.”
The Defendant
replied: Without my permission?”
The court
thereupon directed the defendant to be seated, and said to him:
“The court will
give you an opportunity if you want to cross-examine this witness
after counsel who have been representing you have concluded.”
Defendant
stated the witness was a scientific man and needed no
cross-examination, and that “he wouldn’t tell anything but the
truth.” When one of the defendant’s counsel began the
cross-examination, the defendant, addressing counsel, stated:
“I told you to
get out of that door.”
“His Counsel:
I am acting under the court’s instruction; I think you are a
little beside yourself at present.”
“The
Defendant: I am the defendant in this case; I have got something
to say.”
“His Counsel: I
will talk with you later.”
Thereupon one of his counsel
cross-examined the witness, and then the witness was
cross-examined by the defendant himself. At the conclusion of
that examination the court again requested counsel to remain –
“for the present at least, and to use your best efforts for the
protection of the defendant’s interest. You at least will have
the status of amici curiae, and that
the defendant also will have the right to cross-examine or examine
witnesses, and to take any part in the trial that a defendant may
under the Constitution.
“Counsel for Defendant: From
the defendant’s statement he apparently was under the impression
that we were representing the state as well as the district
attorney. We trust the court has not observed any such
indication.”
The court and district attorney
both replied that they had not.
When another witness was called,
Mrs. Seeley, and on being examined by the state, and defendant’s
counsel indicating some hesitation in making an objection to a
question propounded by the district attorney, the court remarked
that he wished counsel to make any objection they thought proper,
and to safeguard the interests of the defendant, and then
observed:
“I think the
status better be made definite if counsel do not understand it.
“The
Defendant: Am I recognized as my own attorney here?”
“The Court: I
will hear from you.”
“The
Defendant: My counsel seem to be very insistent upon holding
their job.”
“The Court:
The court is going to look into that matter in a moment.
“The
Defendant: I wish you would.”
Thereupon the jury was directed
to retire. After it retired the defendant said:
“There are some
packages here; I would like to take charge of them; they belong to
the defense and are paid for.*** My counsel is discharged. I
think I have the right to take these. *** I have friends right
here to take charge of them now.”
The court told him that he had
the right to take charge of them, and that he had the right to
discharge his counsel. Upon inquiry from the court as to the
defendant’s mental condition, counsel for the defendant stated
that they had not observed any evidences of insanity, except his
recent conduct in court, and at no time thought that he was
insane; that he was for some reason unknown to them grew
suspicious of, and lost confidence in, them, and that they were in
collusion with the state. The district attorney intimated that
the defendant’s conduct looked like “a frame-up” to raise an issue
of insanity. Defendant’s counsel assured him that the defendant’s
conduct was as unexpected to them as to him, and that no defense
of insanity was at any time discussed or thought of; that they had
not intended, and did not intend, to present any such issue, and
had not heard or observed anything to indicate that the defendant
was insane.
“The
Defendant: There won’t be no insanity pleas; I assure you of
that; no brainstorm either.”
“The Court
(addressing the defendant): The court wishes to ask you, in view
of the statement you have just made, you realize it is a
remarkable proceeding, at least to get up in the midst of a trial
and discharge your counsel?”
“The
Defendant: Yes, sir.”
“The Court
(addressing the defendant): You realize that if there is not
sufficient reason for discharging them that it would be quite
difficult to get other counsel to go on with the case at this
time; you now that, do you not?”
“The
Defendant: I will act as my own counsel, and I am going to win
this case without counsel.”
Upon request of defendant’s
counsel, the court granted an intermission to enable them to
confer with the defendant and his friends. After such conference
the defendant and his counsel returned in court. The latter,
addressing the court:
“Under the
situation, we will proceed to act in behalf of the defendant on
the court’s appointment, unless the court chooses to appoint some
one else in our place. If the defendant wishes some other
attorney appointed, we will cheerfully withdraw.”
“The Court
(addressing the defendant): According to the best information the
court has, and after affording you an opportunity to consult so as
to protect your rights, I see no reason, at present at least, why
the proceedings should not continue.”
“The District
Attorney: If I understand, the defendant now consents that
counsel continue to represent him.”
“Defendant: I
want the court to understand that my position is final. I do not
object to counsel remaining in the courtroom; it is none of my
business; anybody can remain.”
“The Court: I
understand you do not object to their asking questions, under the
direction of the court, providing you have an opportunity to
examine witnesses yourself; is that your attitude?”
“The
Defendant: Yes; I will examine the witnesses; if they want to
also they can go ahead.”
Thereupon the jury were recalled
and the trial resumed but a short time when the regular
adjournment was taken for the noon hour, and before the
examination of the witness Seeley was concluded. When the court
convened in the afternoon, additional counsel appeared and asked
that his name, at the request of the defendant, and of his
friends, and at the special request by wire of an attorney at
Denver, be entered as counsel for the defendant. His name was
entered, and from thence on all three counsel, with the
defendant’s consent, represented him, and took part in all of the
proceedings to the end of the trial. Such additional counsel and
the attorney from Denver have prosecuted appeal for the defendant.
From all this it us claimed that
the court erred in appointed defendant’s counsel as
amici curiae after the defendant had
discharged them; in refusing the defendant permission to conduct
his case in person and alone without counsel; in not taking an
adjournment at once after the defendant had discharged his
counsel, to enable him to procure other counsel; and in proceeding
against the defendant without counsel. Let it be conceded that
the defendant with or without cause had the right to discharge
counsel of his own selection and hire, and to defend in person.
That was all he asked; that the court granted. He did not ask for
other counsel, nor time to procure other counsel; but in a most
unseemly manner, wholly without cause, abruptly demanded that his
counsel be summarily discharged, and that he be permitted to
conduct his case in person. The court granted everything the
defendant asked, except the court requested his counsel, as
friends of the court, to remain, and in every way protect and
safeguard the rights of the defendant. That was for his benefit.
It is not claimed that his counsel had been disloyal or unfaithful
to him, nor is it made to appear that they had not done all that
was proper and competent to be done in defending him. He
summarily discharged them just before and in the midst of the
examination of one of the most important witnesses for the state –
the examination of Mrs. Seeley. With such damaging testimony
being elicited against him, to have permitted the defendant to
stumble along without assistance of counsel, though that was what
he demanded, would have been almost cruel. The cross-examination
which counsel conducted for him induced the witness to say that,
notwithstanding the marked similarity between the defendant and
the man she saw at the store just a few moments before the
homicide, she nevertheless had an honest doubt as to whether the
defendant was that man, and not to testify positively that the man
she saw was the defendant. Counsel, in the cross-examination of
the state’s witnesses, in nearly every instance elicited something
of more or less benefit to the defendant, and were alert with
objections to all doubtful testimony and questions proffered and
propounded by the district attorney. They were familiar with the
case, and, as they informed the court when the defendant asked for
their discharge, believed in his innocence. That they were loyal
to the defendant is not here disputed. Still the defendant had a
right to discharge them. After their discharge they no longer
could bind him with anything they did or said until after the noon
hour, when they, in effect, were re-employed, or re-engaged. When
the defendant, in the forenoon, discharged his counsel and
demanded that he be permitted to conduct his case in person, the
court was required to let him do that alone as he demanded, in
which instance, in a case where the defendant’s life was at stake,
the court would have felt itself obligated to interpose on its own
motion all proper objections for him, and to protect him against
all improper and irrelevant proceedings, or to appoint counsel as
friends of the court to safeguard and protect the defendant’s
interests. The court, in its discretion, did the latter. True,
it appointed the very counsel the defendant had discharged. But
the court appointed those whom it believed, because of their
familiarity with the case, their loyalty to the defendant, their
belief in his innocence, their proper conduct of his defense,
could best serve the defendant, and best protect and safeguard his
interests. The court may have thought they were in better
position to do that than new counsel to be called in. We think
the court took proper and most commendable course. The
defendant’s conduct in the presence of the court and the jury so
abruptly discharging his counsel was so strange and uncalled for,
so groundless and senseless, as to cause the court to make inquiry
as to his mental condition. Finding nothing to justify a judicial
inquiry as to the defendant’s insanity or the conclusion that he
was irrational, every one disclaiming that, the court, for the
benefit of the defendant, appointed his discharged counsel as
friends of the court to safeguard his interests. Though it should
be thought it was not proper for the court to permit counsel after
their discharge and until re-engaged by the defendant to
participate in the proceedings in the manner and for the purpose
indicated, still, on the record, it is manifest that the
defendant, with the assistance of such counsel, was benefited, and
not harmed. Under all the circumstances, the argument in one
breath that the defendant was denied his constitution right to
appear and defend in person, and in the next was proceeded against
without counsel, is as groundless as was senseless the defendant’s
action discharging his counsel in the forenoon and re-employing,
or re-engaging, them in the afternoon.
[8-10] A witness, a physician
at Salt Lake City, produced by the state at the preliminary
examination, there testified concerning the gunshot wounds found
on the deceased, the course of the bullets, and the cause of
death, and expressed an opinion that the wounds were produced by
bullets shot from a 38 caliber gun. The statute (Comp. Laws 1907,
4670) provides that in case of homicide the testimony at the
preliminary examination of each witness must be reduced to
writing, as a deposition by the magistrate, or under his
direction, and that the magistrate, with the consent of the county
attorney, may order the testimony and proceedings to be taken in
shorthand, and for that purpose permits the magistrate to appoint
a stenographer who, if the defendant be held to answer, is
required, within ten days thereafter, to transcribe his notes in
longhand, and to certify and file the transcript with the county
clerk. The statute further provides that the transcript so
certified to and filed “shall be prima facie a correct statement
of such testimony and proceedings,” and (section 4685x1) may be
“used *** at the trial *** with the same force and effect” as
though the witness were present in court and testifying, provided
that it be satisfactorily shown to the court that the witness is
dead or insane, “or cannot with due diligence be found within the
state.” The trial began on the 10th of June, 1914.
About the 1st of June subpoenas were issued by the
state, among them a subpoena for the physician. The officer in
whose hands the subpoenas were placed for service testified that
he, on the 1st or 3rd of June, called at the
doctor’s house to serve him, but found him out making a call, and
that “the next time I went, they told me that he was going to go
on a trip, and before I could get him the next time he had gone,
left the state before I had subpoenaed him.” On the 14th
of June, and at the trial, the transcript of the physician’s
testimony was offered in evidence by the state. It was made to
appear that the witness then was out of the state and in
California, and had been in California since about the 3rd
or 4th of June. It was not made to appear when he
would return, or when he was expected to return. The transcript
of the testimony was received over the defendant’s objections that
due diligence had not been used in subpoena the witness before he
departed; that to admit the transcript was to deny the defendant
“an opportunity to cross-examine the witness in the presence of
this jury”; and that the certificate of the stenographer “did not
agree with the testimony given, the certificate being that it was
transcribed in longhand, and the evidence being to the contrary
effect.” Just what is meant by this is not clear, unless that the
notes were transcribed in typewriting, and no in “longhand.” In
addition to these objections, it also here is urged that it was
not shown that the testimony at the preliminary examination was
taken in the presence of the defendant; that he in person, or by
counsel, cross-examined the witness, or had an opportunity to do
so; and that the testimony was not taken by an “official court
stenographer.” We do not see anything to any of these
objections. The stenographer was called, and testified that he
stenographically reported all the
testimony given and proceedings had at the preliminary
examination, transcribed his noted in typewriting, certified to
the transcript, and filed it with the clerk of the court as by the
statute provided, and that his transcript was correct. The
transcript show s that the stenographer was appointed and sworn by
the magistrate to stenographically
report all the testimony and proceedings, and that the testimony
of the physician, as well as all other testimony, was given, and
that all proceedings were had in the presence of the defendant,
and that he was given full opportunity to cross-examine that
witness, as well as all other witnesses. That the witness before
the trail began and at the time of the transcript of his testimony
was offered was not within the state, and was in California, is
not controverted. The only claim made
in such respect is that proper diligence was not used to subpoena
the witness before he left the state. The court found due
diligence was used. We see nothing to justify a different
finding, and think the objections were properly overruled.
Further, the things shown by the transcript of the testimony of
that witness were all shown by other witnesses present and
testifying, and were things not disputed nor
controverted by any evidence.
[11] The physician, after he had
described the wounds found on the deceased’s body, was asked:
“Are you able to state with what
kind of a bullet that wound was made, judging from the appearance
of the wound?”
He answered:
“ I passed on it at the time; it
was a 38; that was my opinion.”
When the transcript of his
testimony was read, an objection was made to the question and
answer on the ground that it was not shown that the witness
possessed sufficient knowledge to express an opinion on such a
subject. Here the further ground is urged “that expert testimony
must not be offered on matters of fact of common knowledge.” This
is of but little moment, for the empty shells and bullets found in
the store with which the deceased and his son were shot and killed
confessedly, and without any controversy whatever, were shells and
bullets of 38 caliber, and were shot from a 38 caliber automatic
gun.
[12] Complaint is made of the
court’s refusal to permit answers to certain questions propounded
by defendant’s counsel to a venireman
or voir dire. Great latitude was
given counsel in the examination of the
venireman. After he had repeatedly answered, in response
to questions put to him in different forms, that he presumed the
defendant innocent, that the state was required to prove his guilt
beyond a reasonable doubt, that the jury was the sole judge of the
guilt or innocence of the defendant, and that, if he was accepted
as a juror, he would aquit him, if
there was any uncertainty or doubt as to the defendant’s guilt,
and that he would not convict him if the state had not proved him
guilty beyond a reasonable doubt, and the fact that the defendant
remained silent and refused to testify would not make any
difference, he was asked, “Do you understand you are particularly
interested in the defendant’s side of this case on account of the
lawful presumption of the defendant’s innocence?” and “You
understand, do you not, that a juror is under no obligation to
take the opinion of any witness?” Objections were sustained to
these questions. Complaint is made of the rulings. We see no
error in this. The defendant was permitted to fully examine the
venireman as to all these matters;
and, further, the venireman was not
accepted as a juror, but was peremptorily challenged by the
defendant, who then had ten peremptory challenges left.
[13] The court charged the
jury:
“If you believe
any witness has willfully testified falsely as to any material
facts in this case, you are at liberty to disregard the whole or
any part of the testimony of such witness, except as he may have
been corroborated by credible witnesses or credible evidence in
the case.”
Complaint is made of
this. It is urged that, “standing alone, it is not the proper
instruction,” because the jury were not correctly guided as to
“rules of law in determining the credibility to be given to the
testimony of the witnesses.” A similar charge was before us in
the case of State V Morris, 40 Utah, 431, 122 Pac. 380. What we
there said answers, we think, all the objections here made.
[14-16] The
defendant requested six instructions on circumstantial evidence.
Complaint is made because they were not given as requested. A
comparison of the charge and the requests shows that the substance
of them was given. The court gave two paragraphs on the subject,
and therein stated all that was necessary to be said. In one of
them the court used this language:
“You are
instructed that circumstances of suspicion, are not sufficient
proof of guilt. In order to convict the defendant upon
circumstantial evidence, it is necessary, not only that all the
circumstances concur to show that he committed the crime charged,
but that they are inconsistent with any other reasonable
conclusions. It is not sufficient that the circumstances proven
coincide with, account for, or rener
probable merely that he is guilty, but they must exclude beyond a
reasonable doubt every other conclusion but that of the guilt of
the defendant.”
Complaint is made of the first
sentence. The criticism made of it is that the court by that
language told the jury that “circumstances of suspicion” was
evidence. We do not think the charge open to that. Besides, the
claimed objectionable language was language taken from one of the
defendant’s requests, and hence, if erroneous, was error of the
defendant’s own creation.
Thus on a review of
the record we are satisfied that there is sufficient evidence to
support the verdict; that the record is free from error; and that
the defendant had a fair and impartial trial, in which he was
granted every right and privilege vouchsafed by the law.
Hence does is follow that the
judgment of the court below must be affirmed. Such is the order.
FRICK, J. I concur. It may,
however, not be improper for me to add a few words regarding
appellant’s contention that this case should be controlled by the
decision in State v. Hill, 44 Utah, 70, 138 Pac. 1149, where we
held that the evidence, as a matter of law, was insufficient to
sustain the verdict of the jury. The inferences that the jury
were authorized to deduce from the
uncontoverted acts in this case clearly distinguish it from
the Hill Case. Had there been conclusive evidence in the Hill
Case that Hill was shot through the body with a revolver, and it
was further shown that the revolver in question had been in the
hands of the deceased in that case, and no explanation had been
made regarding the wound in Hill’s body other than that vouchsafed
in this case, there would be at least some similarity between the
cases. In such event, however the decision in the Hill Case would
have been different. Moreover, the evidence of identification in
the Hill Case was wholly different in its legal effect from that
in this case. While it is true that the witnesses in the Hill
Case stated that the person they saw before and about the time of
the homicide resembled Hill in size and build, yet in every
instance when these witnesses undertook to describe the person
they claimed they saw, they described a person other than Hill.
The latter statements thus clearly neutralized the prior
identifying statements of the witnesses, and thus left Hill wholly
unidentified as the person who was supposed to be implicated in
the homicide with the slayer who was killed in the saloon, and who
it was shown killed the officer. In view of the
uncontroverted facts in this case, the
jury were justified in entirely ignoring the claim made to the
doctor by the appellant that he was shot elsewhere than in the
store where the homicide occurred. The all important facts that
appellant was shot through the body by some one, that he was shot
about the time, and as all the circumstances show, at the place
where the homicide occurred, and that no one discovered or heard
of any other shooting occurring on the night of the homicide
except at the Morrison store are all unquestioned.
From the foregoing facts, when
considered in connection with the other identifying evidence and
circumstances, the jury were authorized to conclude – indeed, it
is not easy to perceive how ration men could have arrived at any
other conclusion – that the appellant was, in fact, shot in
Morrison’s store at the time of the homicide. The fact that
appellant was not required to take the stand and testify in his
own behalf, as pointed out by r. Chief Justice STRAUP, cannot
affect the inferences that naturally spring from the
uncontroverted facts and
circumstances. The jury had a right to assume that, even though
the appellant wanted to shield one from disgrace, if nothing more,
and was unwilling to disclose who shot him, yet the public
generally had no such interest to shield any one, and for that
reason, if the shooting mentioned by the appellant had, in fact,
occurred, some one would have discovered the fact, if not the
case, and would have made it known before the trial. The shooting
of a human being, whatever the cause, in a populous city like Salt
Lake, is not such a common and ordinary occurrence that the fact
that occurred can long be kept secret; and yet, if appellant’s
claim is true, the shooting in this case has entirely escaped
discovery by any one. The jury were not bound to believe what to
all other must appear to be unreasonable and wholly improbable.
Again, the jury had the further right to believe that any
reasonable human being would be willing to suffer most any
humiliation rather than to shield a murderer who could commit a
murder as foul as was the murder of the
Morrisons. In order, therefore, to advise the officers, as
well as the public, that some one else committed the dastardly
crime, and to give the officers an opportunity to discover and
apprehend the real assassin or assassins, any reasonable person
situated as was appellant would at least disclose where and for
what reason he was shot, even if he did not pursue the person who
shot him, and in that way place the responsibility of the Morrison
homicide where it belonged. His refusal to do that by refusing to
disclose where and by whom his wound was inflicted left the jury
no choice save to accept the natural and probable inferences to be
deduced from all the uncontroverted
facts and circumstances, and no doubt in their judgment, those
inferences, without a single exception, pointed to the fact that
the appellant was shot in Morrison’s store at the time of the
homicide, and hence is guilty of the charge preferred against him.
In view, as pointed out by Mr.
Chief Justice STRAUP, that no errors of law occurred at the trial,
we have no alternative save to permit the verdict of the jury to
stand.
McCarty J. (concurring). I have
with much care examined the record in this case and I’m convinced
that the evidence is not only consistent with the theory that the
defendant participated in the commission of the crime for which he
stands convicted, but that is inconsistent with any other theory.
In my brief discussion of what I regard to be this valiant points
raised in presented by the defendant, II shall not attempt to set
forth or to review the evidence in detail the statement made by
the Chief Justice of the facts and circumstances in evidence is so
full, fair, and comprehensive, and so clearly reflects the record,
that nothing more by the way of marshaling at the facts need be
said.
Counsel for defendant in support
of their contention that being evidence of insufficient to justify
the verdict claim, among other things, that the defendant was not
identified as one of the menu into the Morse and store on the
night in question in January 101914 and committed the crime
charged in the information. Ass I reading consider the evidence
tending to identify the defendant is one of the perpetrators of
the crime, it is about as its conclusive on that point as though
the witnesses positively identify the defendant as the tolerably
team and you are at hand in the immediate vicinity of the crime
just before and immediately after it was committed. The
description that Mrs. Seeley gave of the of the two men whom she
and her husband met at the intersection of eight South Street and
Jefferson Avenue tallies with the description of the defendant in
practically every particular. She testified that the man she met
“was a sharp-faced man with the real sharp nose, and his nostrils
were rather large,” and that he had a “defection” or scar
underside of his face and neck to defend it was described as
having a similar scar underside of his face and neck, “a real
sharp nose,” and large nostrils. The witness further testified:
“Q. How does of
the height of the defendant, Mr. Hillstrom,
compare with the height of the man that turned in the date you
there at that time? A. Very much the same. *** Q. As to build? A.
Yes; they were slender build both of them. *** Q. How does Mr.
Hillstrom, as he sits here, compare in
regard to thinness with the man that you saw that day? A. His
thinness is just about the same, *** but his hair is entirely
different. Q. In what respect is his hair different? A. His hair
has been cut. *** Q. did you state whether or not the appearance
of the defendant’s hair is anything like the hair you saw on this
man that night? A. He had light hair; yes; the one I saw. Q.
Light hair? A. Yes; medium complexioned, like this man.”
Another witness, Mrs. Vera
Hansen, testified:
That she lived on
West Temple street directly opposite Morrison’s store; that she
was at home on the evening of January 10, 1914, between 9 and 10
o’clock, and “was sitting in the front room, the nearest the
street”; that she “heard a loud noise that sounded like pistol
shots”; that she immediately “opened the front door and looked out
to see what it was”; that she saw a man “just coming out, just
stepping out, of the door” of the store, and saw “little Merlin”
Morrison “back in the store”; that she then ran out on the
sidewalk; that the man she saw came out with his hands “to his
chest and in a stooping position,” and that she heard him say “Oh,
Bob!” that it sounded like a “voice full of pain; that it was
unusually clear for a man’s voice, *** not hoarse at all”; that in
less than a week thereafter she visited the county jail and heard
the defendant talk, and that his voice “sounded exactly *** like
the voice of the man that came from the store that night calling,
“Oh, Bob!” that she saw the defendant standing erect in the county
jail after he was arrested. “Q. How did his height and how does
his height now, Mrs. Hansen, compare with the man that you saw
come out of the Morrison’s store? A. Compares exactly.”
Another witness,
Nellie Mahan, testified that between 9:30 and 10 o’clock p.m. on
the night in question she was at her home across the street south
from the Morrison store; that she heard shots, and immediately
thereafter looked out of the window and saw a man stooping with
his hands on his chest and running with his hands on his chest and
running from the store diagonally across the street in a
southwesterly direction towards the alley mentioned by the Chief
Justice in his statement of the facts; that she heard the man say
two or three words that she did not understand has he was crossing
the street, and then heard him say, “I am shot;” that she saw the
defendant at the county jail stand erect, and “all I can say is,
that man was very tall and very thin, and so is Mr.
Hillstrom.”
Counsel for
defendant, in their printed brief, refer to and characterize the
evidence of Mrs. Seeley as “very shadowy pretense of testimony,
*** thoughless, loose, flippant talk,”
and urge that it should have been “stricken from the record.”
Commenting on Mrs. Hansen’s evidence, they say:
“Consider for a
moment the utter worthlessness of such testimony to prove a fact.
*** The actual experience of mankind
contutes this testimony.”
This ipse
dixit of counsel are the only
expressions (aside from criticisms, which are without merit,
directed to the manner in which the examination of these witnesses
was conducted by the district attorney) we have from them
respecting this evidence. No claim is made that these witnesses,
or any of them, were unfriendly to the defendant, or that they
showed any bias or prejudice in the case. In fact, a perusal of
this evidence, as contained in the bill of exceptions, I, think,
will show so far as it is possible for a record to reflect the
demeanor and state of mind of witnesses that they were not biased
or prejudiced against the defendant, and that neither of them was
“thoughtless,” or “flippant” in giving testimony. The weight,
however, that should be given the testimony, regardless of whether
the witnesses were sedate and serious or
thoughelss and flippant while testifying, was for the
jury.
Mr. Wharton, in
discussing this character of testimony in his work on Criminal
Evidence (10th Ed.), at section S03 says:
“We have a
right to hold, in fact, that it is an absolute law that each
individual should have certain features assigned to him by which
he is distinguishable from all others, and that these features,
while subject to gradual modification by age, should yet retain
their characteristics so as to be distinguishable for months, even
under the most artful disguises. The whole figure may be changed
by dress; the hair may be cut off or dyed; yet the eyes, the
nose, the mouth, the voice remain, each of which possesses
traits that cannot be defaced by any means short of destruction.
*** But the face is not the only test. Voices are equally
distinguishable, and their
distinguishability has been made the basis of convictions
in criminal courts.” (Italics are mine.)
In 3 Wharton in and
Stille’s Med. Jur.
636, it is said:
“Besides the
general appearance, dress, manner, and voice of the person,
peculiar marks upon the body are very important, perhaps much the
most reliable, means of identification. Scars, burns, cicatrices,
fractures, etc., upon some portion of the body of the prisoner,
distinctly remembered by those who have seen them, will generally
be received as evidence of identity. Very often where the scars
resemble each other they may have been caused by different
agencies. In such cases the evidence of physicians can be brought
to testify as to the cause of the wound. Still such evidence is
not always reliable, for a mark of such a nature may exist from
exactly the same cause in two different persons. It goes,
however, a great way in establishing an identity, and is generally
conclusive, unless rebutted by stronger contradictory evidence.”
See, also, 3
Chamberlayne, Mod.
Ev. 1367; Commonwealth v. Scott, 123
Mass. 222, 25 Am. Rep. 81; People v. Botkin,
9 Cal. App. 244, 98 Pac. 861.
The undisputed
evidence shows that the scar on the face and neck of the taller of
the two men whom Mrs. Seeley and her husband met across the street
a short distance west of the Morrison store just before the
homicide was committed corresponded in size and appearance with
that on defendant’s face and neck. In this case there is, in
addition to the scar and other natural features, characteristics,
and marks more or less peculiar to individuals mentioned by Mr.
Wharton, the dangerous gunshot wound inflicted on the taller of
the two assassins, which the evidence tends to show corresponded
with the gunshot wound received by the defendant the same night.
Besides, there are other facts and circumstances in evidence of an
incrimination character. The statement made voluntarily by the
defendant to Dr. McHugh that he was shot in a quarrel over a woman
and wanted the matter “kept private,” his refusal to inform the
officers of the place and the circumstances under which the
alleged “quarrel over a woman” took place, notwithstanding the
officer assured him that he would be given his liberty if his
statement in that regard should be found to be true (the evidence
on his point, as stated by the Chief Justice, was brought out by
defendant on his cross-examination of the officer), his throwing
away his gun as he was being taken by Dr. Bird to the
Eselius home, his request that the
doctor turn down the lights of the automobile just before they
arrived at the Eselius home, his two
“shrill and penetrating” whistles when he and the doctor arrived
at and just before they entered the Eselius
home, were also unusual and extraordinary inset experience with
the conduct and movements of men who are peacefully inclined and
law-abiding of the jury were justified in finding that the
explanation of the defendant gave up his wound was false, a mere
subterfuge, and that the Eselius home
was at the time a rendezvous for criminals, and recognized as such
by the defendant.
There is but little,
if any, similarity of facts in this case and the case of State v.
Hill, 44 Utah, 79, 138 Pac. 1149, cited by defendant in support of
his contention that the evidence is, as a matter of law,
insufficient to justify the verdict. In the Hill case evidence not
only failed to identify the defendant as one of the robbers who
committed the crime there charged, but tended to show
affirmatively that he was not. Whereas in this case the movements
and conduct of the defendant on the night of and soon after the
homicide was committed, coupled with the other facts and
circumstances in evidence to which I have referred, in which are
set forth in detail by the Chief Justice, point with unerring
certainty, as I read the record, to the defendant as one of the
perpetrators of the crime charged in the information.
I therefore for
fully concur in the reasoning of and in the conclusions reached by
my Associates.
