defendant and his wife were together in their | think that it was intended by Congress that bedroom about noon, with the door fastened, in cases where the crime is clearly murder a pistol shot was heard, followed by a loud within the definition of the crime of murder, ery from her, and by two or three other and yet there are circumstances which tend pistol shots; that, on breaking open the to mitigate the offense,-palliating circumdoor, the wife was found lying on the bed, stances that tend to show that the crime is killed by a pistol ball in the brain, and the not heinous in its character,—the jury may[306) defendant lying near her, unconscious, badly add the words 'without capital punishment; wounded by a pistol ball in the side of the and the law then makes the penalty imprishead, and with a pistol near his hand; that onment for life. earlier in the day he had taken a pistol from "That qualification cannot be added unless a place where he had left it; that he had pre- it be the unanimous conclusion of the twelve viously threatened to kill her; and that he men constituting the jury. I think that it afterwards confessed that he had killed her, should not be added unless it be in cases that and said that he shot her because he was commend themselves to the good judgment jealous of her and another man, and wanted of the jury, cases that have palliating cirto shoot both her and her lover, and that he cumstances which would seem to justify and afterwards shot himself. The defendant, be require it. ing called as a witness in his own behalf, “The penalty for the crime of murder has testified that he and his wife lived happily not been abrogated by Congress. The law. together, except that she was jealous of him; making power has seen fit to allow that penthat he did not shoot her, and never said alty to remain; and it is only in those cases that he had shot her; that she shot him, and where the circumstances indicate to the jury he immediately became unconscious, and so that propriety, and the necessity, perhaps, or remained for a week after.

the duty of making such qualification, that The judge instructed the jury that if they the jury should add the qualifying words

believed from the evidence that the woman 'without capital punishment. In all other [805]took her own life, or that the defendant did cases, the law speaks. The jury need not

not fire the fatal shot, their verdict must be qualify the penalty. It is not their duty to
not guilty; but that if they were satisfied be qualify it. It is their right and privilege in
yond a reasonable doubt that she met her la proper case to qualify it.”
death from a pistol ball fired from a pistol “If the defendant did not commit this
held in the hand of the defendant, and that crime, he should be returned by your verdict
her death was caused by him, their verdict not guilty. If he did commit the crime, then
should be guilty as indicted, "for there would he is responsible for these conditions, not
be a presumption of malice arising from the you. Your simple duty is to declare whether
fact that her death was accomplished by the he is guilty or not guilty. If guilty, then
firing of a pistol ball by the defendant from your verdict should be either guilty as in.
& pistol held in his hand; and as there is dicted, or guilty with the qualitication.”
no evidence that has been adduced which Strather was indicted for the murder with
tends to show any palliating or mitigating a hatchet on October 15, 1897, of a woman
circumstances, there could be but one rea- with whom he lived as his wife, but who was
sonable inference from the fact of the shoot. the wife of another man. At the trial, the
ing, and that would be that the act was com- government introduced evidence tending to
mitted with malice aforethought."

prove these facts, and that for several nights The judge further instructed the jury as wefore the homicide she failed to join the de. follows: "You have been told, and it is the fendant, and he threatened to kill her. The law since the act of Congress, passed in Jan. testimony of the defendant and of other wit. uary, 1897, that a jury is authorized, when nesses called by him tended to prove the de. they shall have reached the conclusion that fendant's previous reputation as a peaceful a defendant on trial is guilty of murder, to and law-abiding citizen, and the deceased's qualify their verdict by adding thereto the previous reputation as a quarrelsome and words 'without capital punishment.' violent woman; that she had on previous oc

"Counsel has endeavored to impress upon casions assaulted him, on one occasion throw. th: jury the fact, not only that this righting at him a beer mug, and on another occaexists, but that it is the duty of the jury to sion cutting him with a * penknife; that she(307) so qualify their verdict in every given case; had previously threatened his life, and he that because they have the opportunity of knew of the threat; that immediately before extending mercy, therefore the duty follows the homicide there had been a quarrel be. the right; that because it is your privilege tween them; and that upon his arrest, im. or opportunity to qualify the verdict by add-mediately after the homicide, there was a ing the words 'without capital punishment,' bleeding wound upon his face. The defend. it is your duty so to do. But the law was ant, in his testimony, admitted that he in. not so intended. It was intended to serve Alicted upon the woman the wounds which some useful purpose. There are many shades caused her death; but denied that he had of circumstances that make up the crime of ever threatened her life; and affirmed that murder in different cases. In some in- he inflicted those wounds while under fear of stances, the circumstances might be such as his life, and during the heat and excitement to bring the crime within the definition of of the quarrel, and while suffering pain from murder, and yet those circumstances might a blow by her on his left jaw, where there not indicate that degree of waptonness, wil. was an ulcerated sore at the time he received fulness, and heinousness that the circum- the blow. stances in other cases woulâ indicate. I' At the close of the evidence, the defendant

requested the judge to give certain instruc- ' be no qualification. It must be the unani. tions to the jury, including this cne: “In mous conclusion of the jury. The question case the jury find the prisoner guilty of mur. for you to ask yourself is this: Are the eir. der, they are instructed that they may qual. cumstances in this case such, if you reach the ify their verdict by the words 'without capi. conclusion that the defendant is guilty as tal punishment,' no matter what the evidence indicted, as to require you, upon your oaths, may be.” The judge declined to give that to interfere with the penalty fixed by law ?" instruction, and, after defining murder and . Smith was indicted for the murder with manslaughter, and the right of self-defense, a hatchet on November 15, 1897, of the wife instructed the jury as follows:

of another man. At the trial, the govern"If you should reach the conclusion that ment introduced circumstantial evidence your verdict should be 'guilty as indicted,' it tending to support the indictment; and also is your right, under a recent act of Congress, evidence that the defendant hired a room in passed in January, 1897, to add to this ver- the dwelling house of the husband and wife; dict 'without capital punishment.' The jury *that some time before the homicide, the two(309) have this power in any given case. The court men had a quarrel about her, and both were cannot control your act at all. The court can arrested, convicted, and imprisoned on only advise you as to the law. The charges of assault; that the defendant at one responsibility is entirely with you, and you time threatened to kill her if she ever recan render such verdict as you please. I sumed living with her husband; and that the mean that you have the power to do it. You defendant was quarreling with her just be can render a verdict of not guilty in a case fore her death. where the evidence clearly shows guilt. Of The judge instructed the jury as follows: course such action on the part of the jury “Under a recent statute the jury are author. would be a direct violation of their oaths. I ized, in returning a verdict of guilty of murIf the jury believe a man was guilty, and, der, if the evidence justifies them on their simply out of pity or sympathy or mercy, consciences in so doing, to qualify the verdict rendered a verdict of not guilty, they would by the addition of the words 'without capiviolate their oaths.

tal punishment.' "I have no doubt that this act of Congress "The law inflicting the penalty of death was intended to serve some useful purpose. for murder has not been repealed. That is The penalty for murder has not been dis- the penalty which the law fixes.” “The leg. turbed by this act of Congress; it is fixed islature probably intended that in cases

by law; the jury neither make nor unmake where there were some mitigating or pal(808]it. Doubtless the intention *of the legisla- liating circumstances, where it was apparent

ture was this: that if, in a case in which the from the evidence that the crime was not jury reach the conclusion that the party on the most heinous crime of murder, or where trial is guilty of murder, circumstances are

there was doubt whether the circumstances shown by the evidence that are of a palliat: Livrymicht uplift their verdict by adding shown by the evidence that are of a palliate indicated premeditation, perhaps, that the ing nature, they may give the defendant the jury might qualif benefit of those palliating circumstances, and the words 'without capital punishment.' say in their verdict 'without capital punish. But it was evidently contemplated by Conment.' If, however, the jury believe that gress that there would be cases in which juthere are no palliating circumstances, it is ries would not be justified in so qualifying their duty not to add anything, but to leave their verdicts, and therefore the law remains, the penalty as it stands. It may be that a and unless the verdict is so qualified the penprovision of this kind in the law was in- alty of the law is unchanged.” tended to apply to a case somewhat like that! "If you find that the defendant is guilty, suggested by the district attorney. Suppose you will vindicate the law and uphold it by a man knowing that his wife had been in returning a verdict of 'guilty as indicted.' improper relations with another man, and Whether you qualify it or not is a matter roused to anger by such knowledge, but post. | for you to deterinine. If you conclude to poning from time to time, while he meets qualify it, it must be by the unanimous deci. this man, the execution of his vengeance upon sion of the twelve jurors.” him, he finally concludes to and does kill ' In each case, the defendant excepted to the him, that would be murder, a clear case of instructions of the court concerning the act murder under the law; but those circum- of Congress of January 15, 1897, and, after stances might be such as would convince the verdict of "guilty as indicted," and sentence jury that the extreme penalty of the law of death, appealed to the court of appeals ought not to be inflicted. There may be of the District of Columbia, which affirmed other cases. I simply give that as an illus- the judgment, Justice Shepard dissenting. tration. But the object of this penalty. Writs of certiorari were thereupon granted gentleman of the jury, is to protect society; by this court under the act of Congress of and the jury should not interfere with it in March 3, 1897, chap. 390. 29 Stat. at L. der any circumstances, unless the circum- 692. 171 U. S. 690. stances are such as to satisfy them that this provision should be added to the verdict. Messrs. George Kearney and Charles I. * “If you reach the conclusion of guilt, 'guil. Turner for Charles Winston. ty as indicted,' it is your duty to return that Messrs. Samuel D. Truitt and Tracy L. verdict; and, unless you unanimously agree Jeffords for William M. Strather. that the verdict should be qualified as the Mr. F. S. Key Smith for Edward Smith. statute provides you may qualify it, there can Messrs. Henry E. Davis, Attorney of the


United States in and for the District of Co-for life, at the discretion of the court; and
lumbia, and James E. Boyd, Assistant At- every person guilty of murder in the second
torney General, for the United States. degree shall be imprisoned at hard labor in

the penitentiary for not less than five nor (310) "Mr. Justice Gray, after stating the cases, more than fifteen years.” Compiled Laws of delivered the opinion of the court:

Utah of 1876, 88 1919, 1920, pp. 585, 586. By section 5339 of the Revised Statutes, In the leading case of Hopt v. Útah this re-enacting earlier acts of Congeess, "every court held that evidence that the accused was person who commits murder" "within any in a state of voluntary intoxication at the fort, arsenal, dockyard, magazine, or in any time of the killing (which would not have other place or district of country under the been competent in defense of an indictment exclusive jurisdiction of the United States," for murder at common law) was competent “shall suffer death."

for the consideration of the jury upon the The act of January 15, 1897, chap. 29, en question whether he was in such a condition titled “An Act to Reduce the Cases in which as to be capable of deliberate premeditation, the Penalty of Death May be Inflicted,” constituting murder in the first degree under Provides, in section 1, that in all cases in the statute. 104 U. S. 631 [26: 873]. Upon which the accused is found guilty of the a second trial of the same case, the territorial crime of murder under section 5339 of the court, in charging the jury, having used this Revised Statutes "the jury may qualify their language: "That an atrocious and dastardly verdict hy adding thereto 'without capital murder has been committed by some person punishment;' and whenever the jury sball is *apparent, but in your deliberations you(312) return a verdict qualified as aforesaid the should be careful not to be influenced by any person convicted shall be sentenced to im- feeling,"—the conviction was again reversed prisonment at hard labor for life.” 29 Stat. by this court, saying that this observation at L. 487.

was naturally regarded by the jury as an The question presented and argued in each instruction that the offense, by whomsoever of the three cases now before the court is of committed, was murder in the first degree: the construction and effect of this act of Con. whereas it was for the jury, having been in. gress.

| formed as to what was murder, by the laws The hardship of punishing with death of Utah, to say whether the facts made a every crime coming within the definition of case of murder in the first degree or murder murder at common law, and the reluctance of in the second degree. 110 Ù. S. 582 [26: jurors to concur in a capital conviction, have 266). And in Calton v. Utah, 130 U. S. 83 induced American legislatures, in modern (32: 870], a sentence of death upon a contimes, to allow some cases of murder to be viction of murder in the first degree was repunished by imprisonment, instead of by versed, because the judge had not called the death. That end has been generally attained attention of the jury to their right, under the ir one of two ways:

statute, to recommend imprisonment for life First. In some states and territories, stat. at hard labor in the penitentiary in place of

utes have been passed establishing degrees the punishment of death; and without a rec(311 ]of the crime of murder, requiring *the de-ommendation of the jury to that effect the

gree of murder to be found by the jury, court could impose no other punishment than and providing that the courts shall pass sen death. While those decisions have no direct tence of death in those cases only in which bearing upon the question now in judgment, the jury return a verdict of guilty of mur they are iinportant as illustrating the stead. der in the first degree, and sentence of imprig. fastness with which the full and free exercise onment when the verdict is guilty of murder by the jury of powers newly conferred upon in the lesser degree. See Hopt v. Utah, 104 them by statute in this matter has been upU. S. 631 126:8737, and 110ʻU. S. 574 [28: held and guarded by this court as against the 262); Davis v. Utah, 151 U. 8. 262, 267-269 possible effect of any restriction or omission (38: 153, 156).

in the rulings and instructions of the judge For instance, the statutes of the territory | presiding at the trial. of Utah contained the following provisions: Second. The difficulty of laying down exact “Every murder perpetrated by poison, lying and satisfactory definitions of degrees in the in wait, or any other kind of wilful, deliber-crime of murder, applicable to all possible ate, malicious, and premeditated killing; or circunstances, has led other legislatures to committed in the perpetration of, or attempt prefer the more simple and flexible rule of to perpetrate, any arson, rape, burglary or conferring upon the jury, in every case of robbery; or perpetrated from a premeditated murder, the right of deciding whether it shall design unlawfully and maliciously to effect be punished by death or by imprisonment. the death of any other human being, other This method has been followed by Congress than him who is killed: or perpetrated by in the act of 1897. any act greatly dangerous to the lives of The act of Congress confers this right upon others, and evincing a depraved mind regard the jury in broad and unlimited terms, by enless of human life, is murder in the first de- acting that “in all cases in which the accused gree; and any other homicide, committed un- is found guilty of the crime of murder," the der such circumstances as would have consti-jury may qualify their verdict by adding tuted murder at common law, is murder in the thereto 'without capital punishment;'” and second degree." "Every person guilty of mur- that, “whenever the jury shall return a ver. der in the first degree shall suffer death, or, dict qualified as 'aforesaid,” the sentence shall upon the recommendation of the jury, may be be to imprisonment at hard labor for life. imprisoned at hard labor in the penitentiary' The right to qualify a verdict of guilty, by


(813]adding the words *"without capital punish- ; BELLINGHAM BAY & BRITISH COLUM

ment," is thus conferred upon the jury in all BIA RAILROAD COMPANY, Piff. in
cases of murder. The act does not itself pre-
scribe, nor authorize the court to prescribe,
any rule defining or circumscribing the exer-

cise of this right; but commits the whole
matter of its exercise to the judgment and

(See S. C. Reporter's ed. 314-320.) the consciences of the jury. The authority of the jury to decide that the accused shall Federal question-statutory noticedue not be punished capitally is not limited to

process of law. cases in which the court, or the jury, is of opinion that there are palliating or mitigat

1. An allegation in an answer, that the notice ing circumstances. But it extends to every

of a reassessment was insufficient, and that case in which, upon a view of the whole evi.

by reason thereof defendant's property was

Bought to be taken without due process of dence, the jury is of opinion that it would

law and in conflict with the Federal Constitunot be just or wise to impose capital punish

tion, ralses a Federal question. ment. How far considerations of age, sex, 2. Only in a clear case will a notice authorized ignorance, illness, or intoxication, of human

by the legislature be set aside as wholly inpassion or weakness, of sympathy or clemen effectual on account of the shortness of the cy, or the irrevocableness of an executed sen. | time. tence of death, or an apprehension that ex. 3. A notice of reassessment for a street implanatory facts may exist which have not provement, allowing ten days only for obbeen brought to light, or any other considera jections, is not insufficient for due process of tion whatever, should be allowed weight in law because the time is 'so short, —especially deciding the question whether the accused

in case of a property owner doing business in should or should not be capitally punished,

the city, and when there is nothing to suge is committed by the act of Congress to the

gest any injustice. sound discretion of the jury, and of the jury

[No. 96.) alone. The decisions in the highest courts of the

| Argued December 16, 1898. Decided Janu several states under similar statutes are not

ary 3, 1899. entirely harmonious, but the general current of opinion appears to be in accord with our TN ERROR to the Supreme Court of the conclusion. State v. Shields, 11 La. Ann. 1 State of Washington to review a decree of 395; State v. Melvin, 11 La. Ann. 535; Hill that court affirming the decree of the SupeV. State, 72 Ga. 131; Cyrus v. State (102rior court of Whatcom County in favor of the Ga. 616] 29 S. E. 917; Walton v. State, City of New Whatcom against the Belling. 57 Miss. 533; Spuin v. State, 59 Miss. 19;ham Bay & British Columbia Railroad ComPeople v. Bawden, 90 Cal. 195; People v. pany for the foreclosure of liens created by a Kamaunu, 110 Cal. 609.

reassessment. Affirmed. The instructions of the judge to the jury, See same case below, 16 Wash. 131, in each of the three cases now before this court, clearly gave the jury to understand

Statement by Mr. Justice Brewer: that the act of Congress did not intend or Prior to February 16, 1891, there were in authorize the jury to qualify their verdict the state of Washington two cities known as by the addition of the words “without capi. Whatcom and New Whatcom. On that date tal punishment,” unless mitigating or palliat. they were consolidated in conformity *withp315, ing circumstances were proved.

the general laws of the state, the consoliThis court is of opinion that these instruc-dated city taking the title of the “City of tions were erroneous in matter of law, as un- New Whatcom.” In July, 1890, and prior dertaking to control the discretionary power to the consolidation, New Whatcom ordered vested by Congress in the jury, and as attrib- the improvement of Elk street, between Elk

uting to Congress an intention unwarranted street east and North street. The contract (814]either by the express *words or by the appar. therefor was let in August, 1890. The con

ent purpose of the statute; and therefore tract was completed and the improvement in each of these cases

accepted by the city, and in October, 1890, Judgment must be reversed, and the case an assessment was levied upon the abutting remanded to the Court of Appeals with direc- property. After the consolidation the pres. tions to reverse the judgment of the Supreme ent city of New Whatcom commenced sep. Court of the District of Columbia, and to or eral suits in the superior court of Whatcom der a new trial.

county against various defendants owning

lots abutting on the improvement, and songht Mr. Justice Brewer and Mr. Justice Mo to obtain decrees foreclosing the liens crrated Kenna dissented. ,

by the assessment. On January 13, 1894, 460

172 0. S.

the superior court entered decrees anrulling of land benefited by the improvement on Elk the assessment, and these decrees were af- street, hereinbefore described, and directed firmed by the supreme court of the state on the various officers of the city to take the February 14, 1895. The ground of the deci. steps required by the general ordinance of sion was, as stated by the trial court in its March 18. These steps were all taken in conclusions of law, "that said assessments conformity to such ordinance, and on August were not made or apportioned in accordance 7, 1895, a further ordinance was passed rewith the benefits received by the property, citing what had been done, approving it and but were made upon an arbitrary rule, irre-confirming the reassessment. spective of the benefits." On March 9, 1893, The recital in that ordinance in respect to the legislature passed a general act provid- notice was as follows: ing for the reassessment of the cost of local “Whereas, said city council did on the 8th improvements in case the original assessment | day of July, 1895, order said assessment roll shall have been or may be directly or indi- filed in the office of the city * clerk, and fixed (317) rectly set aside, annulled, or declared void Monday, July 220, 1895, at 7:30 P. M., as a by any court. Laws Wash. 1893, p. 226. time at which they would hear, consider, and

Sections 4, 5, and 8 bear upon the matter determine any and all objections to the reg. of notice, and are as follows:

ularity of the proceedings in making such as"Sec. 4. Upon receiving the said assessment sessments, or to the amount to be assessed roll the clerk of such city or town shall give upon any block, lot, or tract of land for said notice by three (3) successive publications improvements; and in the official newspaper of such city or | “Whereas, notice of such hearing was duly town, that such assessment roll is on file in

published in the official paper of the city of his office, the date of filing same, and New Whatcom, to wit: in the Daily Resaid notice shall state a time at which the veille, in three consecutive issues thereof, the council will hear and consider objections to

same being the issues of July 9th, 10th, and said assessment roll by the parties aggrieved 11th, 1895." by such assessment. The owner or owners of The Bellingham Bay & British Columbia any property which is assessed in such as- Railroad Company was a nrivate cor

Railroad Company was a private corporation sessment roll, whether named or not in such organized under the laws of the state of Cali. roll, may within ten (10) days from the last fornia, but authorized to do business in the publication provided herein, file with the state of Washington, and having its princi. clerk his objections in writing to said as pal office in the city of New Whatcom. It sessment.

was the owner of certain property abutting 6] *"Sec. 5. At the time appointed for hearing upon the Elk street improvement, and which objections to such assessment the council by the proceedings of the city council was shall hear and determine all objections which held benefited by such improvement and have been filed by any party interested, to charged with a portion of the cost. Failing the regularity of the proceedings in making to pay this charge, the city of New Whatsuch reassessment and to the correctness of com instituted suit in the superior court of the amount of such reassessment, or of the Whatcom county to foreclose the liens creatamount levied on any particular lot or par-led by the reassessment. A decree was rencel of land; and the counsel shall have the dered in favor of the city, which, on appeal, power to adjourn such hearing from time was affirmed by the supreme court on Decemto time, and shall have power, in their dis- ber 8, 1896, 16 Wash. 131, whereupon this cretion, to revise, correct, confirm, or set writ of error was sued out. aside, and to order that such assessment be made de novo, and such council shall pass an Messrs. L. T. Michener, W. W. Dudley,

and John B. Allen for plaintiff in error. ceedings and said reassessment as corrected No counsel for defendant in error. by them, and their decision and order shall be a final determination of the regularity, *Mr. Justice Brewer delivered the opin-[317) validity, and correctness of said reassess-ion of the court: ment, to the amount thereof, levied on each By its answer the defendant raised a Fedlot or parcel of land. If the council of any eral question, inasmuch as it alleged that such city consists of two houses the hearing the notice of the reassessment was insuffishall be had before a joint session, but the cient, and specifically that by reason thereof ordinance approving and confirming the re- its property was sought to be taken without assessment shall be passed in the same man- due process of law and in conflict with the der as other ordinances.”

| terms of the Fourteenth Amendment to the “Sec. 8. Any person who has filed objec- Constitution. This court, therefore, has jutions to such new assessment or reassessment, risdiction of the case. as hereinbefore provided, shall have the right "That notice of reassessment was essential(318) to appeal to the superior court of this state is not questioned. (Davidson v. New Or. and county in which such city or town may | leans, 96 U. S. 97, 105 [24: 616, 6201; Hagar be situated.”

v. Reclamation District No. 108, 111 U. S. On March 18, 1895, the city council passed 701, 710 [28: 569, 573]; Cooley, Taxation, an ordinance prescribing the mode of proced-266), and that constructive notice by publi. ure for collecting the cost of a local reas-cation may be sufficient is conceded (Lent v. sessment upon the property benefited there Tillson, 140 U. S. 316, 328 [35: 419, 426] ; by. On.June 10, 1895, it ordered a new as- Paulsen v. Portland, 149 U.S. 30 [37: 6371) : sessment upon the blocks, lots, and parcels' but the contention is that the notice, which

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