N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. groans and other exclamations, were heard in the apartments of the deceased, but, from the character of the place and the habits of the inmates, this was not an infrequent occurrence, and had little or no significance. There was absolutely no proof on the part of the People that the body, when examined, had upon it any of the marks or indications that the hanging was after death by violence, which science could have detected, if such was the fact. Whatever proof of that character there was came from the defense and, so far as it had any weight at all, was against the theory of the People. There is, indeed, some proof in the case which might furnish a motive on the part of the defendants to take the life of the deceased, and that is that the relations of the defendants were such as should not exist between the wife of the deceased and an inmate of the house, boarding or living in some way with the deceased and his wife. There were many other persons in the house, either as boarders or tenants, who had equal opportunities to commit the crime, if one was committed, but it is said that they had no motive, while the defendants had. The proof on this point is, at best, very slight. There was nothing to show that they cohabited together, or that any lewd relations existed between them. The standard of propriety that existed among these people was not high, and their habits of life were peculiar and exceptional, indicating a somewhat low state of civilization. The conduct of such people in the familiar intercourse of life is not to be judged by the rules that prevail among people of a higher order of refinement. The freedom of intercourse that prevailed among them, the drinking, carousing and singing in the night, if practiced in other communities, would, doubtless, indicate marital infidelity, but in a neighborhood peopled with foreign laborers it may be largely due to custom and to ignorance of what we might call the refinements and proprieties of life, and yet there can be no doubt that this evidence, weak and inconclusive as it was, gave an unfavorable color to the case in the minds of the court and jury. The marriage of the parties so soon after the death may have given weight and Opinion of the Court, per O'BRIEN, J. [Vol. 153. force to suspicions that otherwise would have no secure foundation upon which to rest. But the existence of a motive is of little or no importance in a case where there is no proof of the commission of a crime. When circumstances point to guilt a motive to commit the crime may turn the scale against the accused. Motive alone can never prove guilt, though it may strengthen circumstantial proof of guilt derived from other sources. It is quite unnecessary to consider at greater length what is called the circumstantial proof in the case, since the learned trial judge told the jury, in substance, that it was wholly insufficient without the direct proof in the case, which was given by the young boy, the son of the deceased and the defendant Annie. In this he was clearly correct, and it remains only to take a glance at the testimony of this boy, which certainly constitutes the most remarkable feature of the case. He was evidently a weak, ignorant boy brought up under very unfavorable surroundings, thinking in and speaking a foreign tongue, at the age of twelve, as to things that transpired more than four years before. He was called by the People and on his direct examination swore positively that he was in the house on the night of his father's death, which was caused by his own act in hanging himself. That he was in fact at home that night and had the opportunity to know whereof he spoke there is no doubt. He was then asked if, upon the trial of another person for the homicide, which it seems was had some time before, he did not testify that his father was strangled or choked to death by the defendants, and if he did not also give like testimony before the grand jury when the indictment in this case was found. He admitted that he did so testify, but on both occasions it was false and that the truth was that his father hung himself. The district attorney continued the examination and at last, by means of questions which the boy subsequently stated he understood as threats, the witness testified that he saw the defendants and the other person referred to, on the night of the death, choking and strangling his father, and that what N. Y. Rep.] Opinion of the Court, per O'BRIEN, J. he had before testified to, on this trial, was not true. On the cross-examination by the defense the witness withdrew all he had just said implicating the defendants, and again testified that the truth was that his father committed suicide, and substantially that all he had said implicating the defendants was untrue. Here the People rested the case and the defense proceeded to give evidence. It was shown by proof which is not contradicted that the deceased was addicted to intoxication; that on the night of his death he, with several others, were together drinking beer in large quantities; that he had repeatedly threatened to commit suicide, and on one occasion at least attempted to execute the threat at a railroad crossing. At this stage of the trial the district attorney interrupted the defense and stated to the court that he had been engaged in conversation with the boy, who spoke English sufficiently well to make himself understood, and that he now desired to change his testimony and asked permission to recall him. The request was granted under defendants' objection and exception. The witness then, under a line of questions quite leading and suggestive, did change his version of the transaction and gave evidence tending to sustain the People's case. On cross-examination, however, these statements were again withdrawn and his original testimony again replaced. This ended the examination of the boy and the defense pro ceeded with the case. The defendant Annie was sworn as a witness and she denied all participation by the defendants in the death and gave proof tending to show that her former husband had committed suicide, and the proceedings and findings at the coroner's inquest were offered and received. The learned judge told the jury that the testimony of the boy, which was the only direct proof in the case, was involved in "hopeless contradictions," as it certainly was, but left it to them to find whether, on the whole, what he had testified to, implicating the defendants, was worthy of belief or not. It should also be added that upon the motion for a new trial on the ground of newly-discovered evidence, the learned trial Opinion of the Court, per O'BRIEN, J. [Vol. 153. judge reviewed the whole case in an elaborate opinion in which it is said that he had great hesitation in submitting the testimony of the boy to the jury. This condition of mind is suggestive of reasonable doubt as to the truth of his story, so far as it tended to connect the defendants with the homicide. The prosecution gave in evidence two papers, each signed by one of the defendants in the presence of several witnesses, which were statements made by them to a police officer at the time of the arrest. It is difficult to understand for what purpose these papers were put into the case. They are quite clear and circumstantial in the statement of facts tending to show that the defendants had no guilty agency in the death, and also equally clear in support of the theory that it was the result of suicide. While it is true that the statements of the accused in any form in their own favor cannot conclude the People, yet, when they are not in any way discredited, they must be regarded as some proof at least of the facts which they contain. I am not aware of any principle of law that would permit the People to put into the case a written statement of the facts by the accused, wholly in his own favor, without being in some measure, at least, bound thereby. Hence the crucial question is whether, as matter of law, the legal presumption of innocence has been or ever can be removed by such proof and guilt established beyond a reasonable doubt. Can a jury be permitted to convict of murder on such proof? Does it come up to the standard prescribed by the statute? We think not. Guilt in such a case cannot be established beyond a reasonable doubt by the testimony of such a witness, who is, evidently, either from moral or mental defects, irresponsible. The maxim, fulsus in uno, falsus in omnibus, must still be given some force as a legal principle. Whatever qualifications may have been attached to it in modern times, we think this is a case for its practical application. To hold that this verdict and judgment, based as they are upon testimony conceded to be involved in "hopeless contradictions," are beyond review in this court, would be a reproach N. Y. Rep.] Dissenting opinion, per GRAY, J. to the administration of justice. The defendants were, under the plain provisions of the statute, entitled to have the jury directed by the court to acquit. The request was made in substance, and the refusal of the court to grant it was error. The judgment of conviction should be reversed and a new trial granted. GRAY, J., dissents upon the grounds, first, that the motion was to dismiss the indictment and we have but recently held that the court had no authority to give such a direction, (People v. Schooley, 149 N. Y. 99), and, second, because, if we concede that this motion to dismiss the indictment might be liberally regarded as the equivalent of a motion to direct an acquittal, nevertheless, the case presented a question of fact upon the evidence and, however unsatisfactory that evidence may be, it cannot be said as matter of law that proof was lacking of the elements necessary to constitute the crime charged. I think that it is only legal error to refuse to direct an acquittal in a case of defective proof and, as was said in People v. Bennett, (49 N. Y. 137), "it is not the province of the court to take the case from the consideration of the jury, although it may be of the opinion that it is not sufficient to convict." Our duty in such a case as this is altogether other than when the judgment appealed from is one of death. All concur with O'BRIEN, J., for reversal, except GRAY, J., who reads memorandum of dissent. Judgment reversed. |