Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1891-02-04

iIciuo y. Commonwealth, q Pa st.,
itS.
state y. rsiy, ~ W.. ~.
Coleman v. State, % Miss, fsl
Whuton's Grim. Ev., s..
This charge also gave the Jury 10 un.
derstand that man was expected ~
commit his hrst offense, aud the jury
may have been led 10 believe from Il
that the oilensc charged might be one
Of those crimes that the defendant
might be expected 10 commit for the
flrst time, and that, NJ n matter Of
course, " the defendant had n good
character and had never been connect.
ed with any crime before, he might
now bc expected 10 he guilty Of this
one; that the time had COME at last for
the defendant b. break over the rule
Of good conduct AMI commit HIS first
oftnse, and that this might properly be
expected from nil men. we think
this was nn error, aud that II Was not
cured by subsequent instruction 10
the Jury at the close Of ease, where
the Court eaid:
"Gentlcmen OF the Jury, I may
have overlooked one important matter.
do not remember now what said
10 you In reference 10 the
character Of the defendant.
The character OF the defendant Il TO
be considered by you in weighing all
the testimony In the case. II his
character, notwithstanding all the
evidence 10 the ease, raises doubt In
your mind as 10 his guilt or innocence,
u reasonable doubt, he IL to have the
benefit Of IT,"
This instruction In no way mobiles
the erroneous instructions first given;
nor does the Court withdraw Ills first
instructions from the consideration Of
the jury, but leaves II 10 stand as the
law In the case, which II Is presumed
the Court did not intend TO do.
When conflicting charges are given,
one OF which Il erroneous, Il IL 10 be
Presumed that the jury may have fol.
lowed that which Is erroneous.
Grand Rapids a Indiana Railway Com.
pany v. Munroo, a. Mich., 152.
Jones v. Talbot, No., 3sj.
Brown v. McAllistnr, 30 Cal, 65i.
Aqulrc v. Alexander. o. Cal, n.
Plnintln V. jameson. 81 Mich, 1853.
Murray v. CommOnw ealth. 10 Pa ST.,
3ii-aoi.
% Iowa, $40.
40 Kan, lt2.
~ Ind, ~.
30 H., asl.
VI H., 90.
IA Kan, IA.
The Court also instructed the Jury
~ follows. "rhc length OF time that
has elapsed since the murder that Il
charged was committed and tho com.
mcnccment OF the prosecution II not
To be considered at all. II II not mn
element 10 determine the guilt Or limo.
cencc OF this party, one way or an.
other. Time does not run against the
murderer or In his favor. No lapse Of
time washes out the stains that blood
shed by the murderer makes"
This chatgc was possibly given under
n mistake Of fact. We think II had a
tendency TO mislcad the Jury, and
that from II they might infer
what the opinion Of the Court was NJ
TO the Identity OF the murderer, the de,
gree Of the oliense and this guilt Of In,
defendant. This homicide was com
mlttcd thirty.two yoarS age, and when
we consider that the witness Ellen
Brown was only i've year. Of age al
that time, aud that other witnesses had
grown old AMI possibly forgeiful with
incfeasing age, We cannot conclude
that the length OF time that has ELAPSED
since the homicide should not he o
strong circumstance TO enter Into th'
consideration OF tho Jury In testing thu
truthiulness, forgetfulne-s, candor Of
bias Of those lett 10 relate the circum
stance Of this alleged murder, aud nj
bcaring upon tho probabilities OF The
guilt or Innocence OF the accused.
Hopt v. People, 40 u. g., sa.
For tho roason stated the verdict and
judgment Of the court below should be
set aside and n new trial granted.
We concur.
ZANE, &. j.,
Anderson, A. j.,