Vol. IV.]

STATE V. LAPAGE.

[No. 9.

building, and was as confident of it as she could be; he had an axe on his shoulder, and turned down the Academy road, and she watched him. as far as she could see him on that road. Next saw him at the jail, and identified him as the man who passed the academy.

Concerning the foregoing evidence the court charged the jury as fol

"You have heard the testimony of Julienne Rousse to the effect that in June, 1871, this prisoner committed a rape upon her. In considering this evidence (if you believe the witness), you will be required to use careful discrimination of the way and manner in which it is to be applied to this case, if it is to be applied at all.

"We have admitted the evidence, not because it is necessarily connected with the issue which you are to try, which is, the guilt or the innocence of the prisoner of the offence with which he is here and now charged, but because it may have a legal bearing upon that issue in the way which I shall endeavor to explain, and to which I invite your most careful attention. It may be your duty to reject the evidence entirely, and put it out of the case, and out of your minds. It may be your duty to consider it. It is a fundamental principle of law, that evidence that a defendant committed one offence cannot be received to

prove that he committed another and distinct offence. This principle we must take care not to violate. And, therefore, you are not to regard the evidence of Julienne Rousse as any proof or evidence that the prisoner killed Josie Langmaid. Therefore, unless you find from other evidence, entirely independent of that of Julienne Rousse, that the prisoner killed and murdered Josie Langmaid, you must reject her evidence altogether.

"The evidence is open to your consideration, if at all, only so far as it may seem to you to bear upon the character of the homicide of Josie Langmaid; only as it may bear upon the question whether she was murdered by the prisoner in perpetrating or attempting to perpetrate rape.

"Our statute declares that All murder committed by poison, starving, torture, or other deliberate and premeditated killing, or committed in attempting to perpetrate arson, rape, robbery, or burglary, is murder of the first degree; and all murder not of the first degree is murder of the second degree.'

"And if the jury shall find any prisoner guilty of murder, they shall by their verdict find also whether it is of the first or second degree.

"If you find, from other evidence in the case than that of Julienne Rousse, that the defendant killed Josie Langmaid deliberately and premeditatedly, or in perpetrating or attempting to perpetrate rape, you may and your duty is to reject her testimony altogether. But if you are not so satisfied by all the other evidence and circumstances of the case, you may consider her evidence. I need hardly say that you must be satisfied upon this point, that the prisoner is the man who committed the rape upon Julienne Rousse.

"The evidence you see, therefore, bears only upon the question of the intention of the prisoner in killing Josie Langmaid, and thus upon the degree of guilt, i. e. whether the offence is murder of the first or second degree.

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STATE . LAPAGE.

[No. 9

"Now, the unlawful intent in a particular case may sometimes be inferred [not necessarily, but it may be inferred] from a similar intent proved to have existed in previous transactions.'

"The principle upon which such evidence is admitted is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible.'

66

If, in this case, you find it necessary to show the commission of, or the attempt to commit, a rape upon Josie Langmaid, in order to find the prisoner guilty of murder in the first degree, and the evidence of the mutilation and concealment of the private parts of her body are not sufficient to satisfy you of that fact, then you may inquire what other motive induced him to kill her.

"Does the testimony of Julienne Rousse, or any other evidence in the case, tend to show the existence in the mind of the prisoner of a motive or passion which would render the commission of, or an attempt to commit, a rape upon Josie Langmaid more probable than it would otherwise seem to you ? Does it or not tend to show that such a lustful intent existed in the heart of the prisoner at the time as would render the commission of a rape more probable? Does this evidence supply a motive for the commission of the offence?

"The crime committed upon Julienne Rousse was four years and more antecedent to the offence under consideration. Since that time a change may have taken place in his mind. There has been time for repentance, and the lustful disposition he bore then may have been eradicated. The more remote the evidence of this mental condition, the less force and weight belong to it.

But in connection with this part of your inquiry, i. e. concerning the present intention, and whether a lustful disposition still remained in the prisoner's heart, you may consider the evidence of Adin G. Fowler, of the prisoner's inquiry on three different occasions concerning Fowler's sister, and where she went to school, and the road she took to get there (within a fortnight of the murder); of young Mahair concerning Sarah Prentice the way she travelled, and the obscene remark concerning her; of Mrs. Watson, her daughter Anna, and Matthias Mercy, concerning his pursuit of Anna, about two weeks before the murder.

"And here it is proper to remark, that if the prisoner killed Josie Langmaid, it is not at all necessary that any lustful desire or any animosity toward her in particular should be shown, provided she became the victim of his lustful and murderous intent. If the intent to commit rape and murder upon some one else, or upon any girl whom by chance he might encounter, was consummated in an attack upon Josie Langmaid, the indictment is sustained."

No exceptions were taken to the charge.

The respondent was convicted of murder in the first degree, and sentenced to be hanged.

The respondent tendered this bill of exceptions, which was allowed;

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STATE V. LAPAGE.

[No. 9.

and, in transferring the same for the consideration of the superior court, the circuit court reserved and transferred all questions as to the exercise of discretion.

Lewis W. Clark, attorney general (with whom were W. W. Flanders &C. P. Sanborn), for the state.

W. T. Norris (with whom were S. B. Page & H. W. Greene), contra. CUSHING, C. J. The testimony of Fowler, Mahair, the Towles, the Watsons, and Mercy, was, I think, properly admitted. It all tended to show that the prisoner, about the time of the murder, was frequenting that neighborhood with a view to the commission of the crime of rape upon the person of some one of the young females whom he knew to have occasion to pass over that road. The obscene and filthy language he is described as using, in connection with his inquiries about one of the young ladies, tends to show what thoughts were in his mind, and what he was meditating. The testimony of the Watsons and Mercy tends to show, not merely an attempt or design to commit the crime on the person of Miss Watson, but also to show generally, in connection with the other testimony, that he was prowling about that place for the purpose of lying in wait for any person whom he might sacrifice to his base and cruel designs. It furnishes an illustration of the doctrine which I shall attempt to illustrate and maintain. The attempt to commit one offence may be put in evidence when attended with circumstances which give it a logical connection with the fact in issue, and not otherwise.

The admission of the testimony of Julienne Rousse gives rise to by far the most important question in the case. That testimony tended to prove that the prisoner, about four years and a half before the trial, at a place beyond the jurisdiction of the United States, committed the crime of rape upon a person other than the deceased; and the question is, whether that bald, naked fact, being put in evidence, had any tendency to prove any matter in issue between the state and the defendant.

These questions in regard to the relevancy of particular items of testimony always depend upon the peculiar circumstances of the case, and must be solved by the application of sound judgment and common sense. It very often happens, as practical men in the profession well know, that facts which in one state of the evidence and one aspect of the case are entirely irrelevant, suddenly, by a slight change in the conditions, become of great importance. Hence the necessity, which so often happens in attempting to take written testimony, of introducing into a deposition so many facts which at first sight seem entirely irrelevant, but which may become admissible and important; hence, too, one reason why, in criminal causes, it is so important that the witnesses should testify in open court, and in the presence of the respondent, in order that all their knowledge should be available to meet all the exigencies of the trial.

It is for this reason that so many reported cases in the law of evidence are valuable, not so much in establishing principles of law, as for the illustration of those principles.

There is a great mass of cases so similar in their circumstances, and which have occurred so often, that they may be taken as evidence of the application of the common sense and cultivated reason of a great many individuals, and so come to have the force and authority of established law.

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STATE U. LAPAGE.

[No. 9.

I think we may assume, in the outset, that it is not the quality of an action, as good or bad, as unlawful or lawful, as criminal or otherwise, which is to determine its relevancy. I take it to be generally true, that any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue. It may be, that in some cases the danger resulting from such indirect bearing might be so great in comparison with its importance in regard to matters on which its bearing was legitimate, that it ought not to be admitted. But I think the general rule is, that no testimony which has a legitimate bearing upon any point in issue can be excluded.

I say legitimate bearing advisedly, because, as already suggested, although undoubtedly the relevancy of testimony is originally a matter of logic and common sense, still there are many instances in which the evidence of particular facts as bearing upon particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and, therefore, the best evidence of what may be properly called common sense, and thus to acquire the authority of law. It is for this reason that the subject of the relevancy of testimony has become, to so great an extent, matter of precedent and authority, and that we may with entire propriety speak of its legal relevancy.

It is proper, however, in the outset, to notice what appears to me to be a fallacy in the very commencement of the able argument for the state. It says: "Under an exceptional charge, and upon other testimony than that of Julienne Rousse, the jury have answered the first question (i. e. Did the defendant kill the deceased?) in the affirmative." If it could be known certainly that the jury did not give any weight to the testimony excepted to in determining whether the prisoner did the act, if it could be certainly known that the evidence of Julienne Rousse did not create in the minds of the jury a prejudice against the prisoner on all the points of his case, the remark might be well founded. But that is just what we do not and cannot know, although what we do know of the constitution and temper of juries creates in us a very strong belief of the contrary.

In this case I understand it to be conceded by the government that the evidence is not relevant for the purpose of showing who killed the deceased, but that it is claimed to be relevant for the purpose of showing the particular act that he was engaged in doing when he committed the murder. For the purpose of showing the offence to be murder in the first degree, it is claimed to be relevant as tending to show that he committed the murder while in the act of committing rape; but as the intent is the mysterious solvent which opens the way for the admission of the testimony, it would not be relevant for the purpose of showing that he had first committed a rape, and then did the murder afterward. Proceeding, then, to consider what has been settled in this matter, I think we may state the law in the following propositions:

1. It is not permitted to the prosecution to attack the character of the

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STATE V. LAPAGE.

[No. 9.

prisoner, unless he first puts that in issue by offering evidence of his good character

2. It is not permitted to show the defendant's bad character by showing particular acts.

3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged.

4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.

It is a maxim of our law, that every man is presumed to be innocent until he is proved to be guilty. It is characteristic of the humanity of all the English speaking peoples, that you cannot blacken the character of a party who is on trial for an alleged crime. Prisoners ordinarily come before the court and the jury under manifest disadvantages. The very fact that a man is charged with a crime is sufficient to create in many minds a belief that he is guilty. It is quite inconsistent with that fairness of trial to which every man is entitled, that the jury should be prejudiced against him by any evidence except what relates to the issue: above all, should it not be permitted to blacken his character, to show that he is worthless; to lighten the sense of responsibility which rests upon the jury, by showing that he is not worthy of painstaking and care; and, in short, that the trial is what the chemists and anatomists call experimentum in corpore vili.

Of course, if the respondent sees fit to put his character in issue by offering evidence tending to show that it is good, it is then permitted to the prosecution to rebut this testimony by showing that it is bad; but I think the weight of authority is to the effect that this must be done by evidence, not of particular facts, but of reputation.

The law in regard to proof of intent is, I apprehend, in no particular different from the law in regard to the proof of other facts, unless it may be in the general principle that a person is ordinarily presumed to intend the natural consequences of his actions. But always the evidence will be subject to the condition, that it legally and logically tends to prove the facts in issue, whether it be the intent or any other fact.

The foregoing positions are illustrated, and I think established, by the following citations:

"Where a defendant has voluntarily put his character in issue, and evidence for the prosecution has been introduced, it has been said the examination may be extended to particular facts, though this has lately been denied by courts of high respectability; and certainly it is very oppressive to a defendant, as well as irrelevant to the real issue, to admit in rebuttal a series of independent facts, forming such a constituent offence." 1 Wharton's Am. Crim. Law, and cases cited, § 637.

"While, however, bad character cannot be put in issue by the prosecution, it is permitted to introduce evidence of prior misconduct, where it is relevant either to prior malice towards an individual, or guilty knowledge." Wharton, § 639, and cases cited.

"But in other criminal cases the prosecutor cannot enter into the de