, 1906-07-02

lstructions might have seriously preiu
diced the cause OF the defendant and
substantially impaired his rights and
on these grounds holds for reversal. 1t
is in this last holding that Judge Pot.
ter dissents from the decision of a
majority of the court.
Justice Beard Concurs.
Justice Beard in concurring with the
foregoing opinion holds for reversal up
on practically the same grounds though
the reasoning is Slightly different. He
says in part: "By those instructions
chat is Is and 16), the jurors were
told, in substance, that If they found
from the evidence that the defendant
had made any statements in relation to
the commission of the homicide, that
what he said against himself the law
presumed to be true. Thus
clearly and forcibly giving them to un
derstand that they were bound and
Obliged to accept as true anything he
said against himself. The
right to a trial by jury includes the
right of the accused to have the weight
of the evidence and the truth or falsity
Of any testimony adduced, tested and
determined by the jury"
Given eBneft of Doubt.
The judge then a further that ev-
en- if these instructions are erroneous
still If it appears that the defendant
was not prejudiced thereby the judg.
ment should not be reversed. But de-
cides that upon an examination of all
the evidence it is impossible to say
that the defendant has not been pre-
JUDGED by these instructions as the
jury may have convicted the defendant
relying upon the presumption that they
were true, which presumption the law
does not create of its own accord as err
~roneously stated in these instructions.
Dissenting opinion.
Chief Justice Potter, in dissenting,
holds first, with the other members of
the court, that instructions Is and 16
are erroneous, but does not agree that
under the conditions their effect was in
any way %prejudicial to the interests of
the defendant. He says that 1t was
left to the jury by the trial court to de.
eide whether the statements, Il was
there" and 81 vas in on the play" were
made by the defendant and had refer
ence to the crime charged. And the
jury might reasonably have found these
statements to have been so made.
These instructions did not in any way
take this decision away from the jury.
Now these statements were undisputed
by any testimony in the case and were
consistent with all the other facts and
circumstances shown by the evidence.
The judge then says: 81 cannot con-
ceive, therefore, of any reasonable
ground upon which the jury could have
been persuaded to disbelieve the undis-
puted statement aforesaid of the de
PENDANT, and l am not convinced that
this appellate court should assume that
the jury would or might have found
the defendants statement to be untrue
in disregard of the other uncontradict
ed evidence, and in the absence of any
contradiction OF attempted contra
diction of the truth of the statement it
self, merely because a jury has the le-
gal, though not the moral, right to dis
regard all the evidence, or to disbelieve
any and all of the evidence submitted
to them whether there is a reasonable
ground therefore or not. There are
doubtless decisions of respectable
courts seeming to sustain such a pro-
position, but unless brought within
proper limitations the doctrine may
lead to unreasonable if not absurd re-
suits. 1t occurs to me that to assume
that the jury in the case at bar might
have found that the defendant spoke
falsely in making the statement at
tributed to him, which statement was
neither improbable, nor contradictory
of any other fact in the case, and stood
u~ndisputed, is to that they
might have acted arbitrarily, without
regard to their oaths, or the evidence
in the case. This l am unwilling to
do" For these reasons Judge Potter
dissented.
Does Not Weaken States Case.
This decision, though granting Clay
a new trial does not, it would seem, af,
feet the strength of the states case
against him, as it does not exclude
Burney's testimony or Clay's admis-
sions against himself. 1t simply de,
cides that the law does not presume
these statements to be true but leaves
TO rthe jury to determine whether they
be true or false. But, as pointed out
by the learned chief justice, a jury
would, in all human probability, accept
these statements as true, as they are