People v. Minney

Grant, J.

(after stating the facts). 1. After an examination of the evidence we will not determine that it is insufficient to justify a verdict of guilty. We may remark that the statement of the court that it should not direct a verdict when the evidence is entirely insufficient upon which to base a conviction is not correct. If upon the conceded or undisputed facts there is no ground to sustain a verdict of guilty, the court should direct a verdict. The *537 question then becomes one of law for the court. The statement by the court was made undoubtedly upon the entire evidence in the case, some of which was incompetent, and very damaging. With this incompetent evidence eliminated it is doubtful if there is evidence to justify a conviction. Appellate courts, however, should be very slow to discharge a prisoner convicted upon the entire evidence, where the jury has had no opportunity to pass upon his guilt or innocence with the incompetent testimony eliminated, and the trial court has not passed upon it.

2. Evidence was introduced to show that prior to September, 1907, tongues of horses of some four farmers had been cut out. These offenses were committed several months apart. Among them were two horses owned by one Kirk, living in the vicinity. A reward of $500 was offered for the arrest, and conviction of those guilty of mutilating Kirk’s horses. Suspicion, for some reason pointing towards respondent, the sheriff employed a Chicago detective to work upon that case. This detective obtained work as foreman at the dam on September 9th. On September 12th he induced respondent to go to Chicago with him to assist in buying some horses. They arrived in Chicago about 7 o’clock in the morning, and spent the day in saloons, restaurants, theaters, and shows, returning to St. Joseph by boat the following night. The detective detailed minutely the talk he had with respondent, by which it was arranged that he (the detective) was to see one Tim Talbot and get $200 and pay him (respondent) for cutting the horses of one Johnson. While the detective was attempting to make this arrangement with respondent, he testified that respondent said “hehad done them kind of jobs before,” and said he had done the Kirk job. He also testified that respondent finally refused to do the job. The effect of this kind of testimony upon the jury can well be imagined. This was all the evidence tending to show the commission of a similar offense by respondent. It was proving another separate and distinct *538 offense, which had no tendency to prove motive or intent any more than the commission of one burglarly or one theft had a tendency to prove the commission of another burglary or theft. All this occurred before the mutilation of Mr. Murphy’s horse, and when the detective and officers were seeking to find the perpetrator of another similar crime. Both trial and appellate courts have undoubtedly found much difficulty in determining whether the case falls within the rule prohibiting evidence of other crimes, or within the exception to it. To bring a case within the exception it must appear that there is some logical connection between the crime charged and the other similar crimes which the people seek to establish against the respondent upon trial. This court very thoroughly examined and discussed this subject in People v. Seaman, 107 Mich. 348 , where many authorities are cited, and we deem it unnecessary to fully enter into the subject again. After citing many authorities, this court said, speaking through Chief Justice McGrath :

“Some of these authorities would seem to be border cases, but they illustrate the tendency of the courts to allow the introduction of this class of testimony to repel the inference that the cause was an accidental one, in cases where such an inference might otherwise obtain. Upon principle and authority it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain” — citing many authorities.

In the present case the commission of another like offense was wholly unnecessary to show intent. The act itself is one of those which, when proven, conclusively establishes the malicious intent, if committed by a sane *539 person. Any number of like offenses would not tend to show malicious intent any more than could one. If the evidence established the fact that the respondent committed the deed, he would escape conviction only by a further finding by the jury that he was irresponsible by reason of insanity. People v. Mead, 50 Mich. 228 , is a good illustration of the admissibility of evidence referring to another like crime, but also having the tendency to establish the guilt of the crime charged. The respondent was charged with burglary. Several farm houses in the neighborhood had been entered the same night. At the house of one Mitchell a plate of butter was taken. The prosecution gave evidence showing that respondent, on the day after the burglary, picked up near the road fence the plate on which the butter had been carried from Mitchell’s, claiming that he had just found it there. The court says:

“ It is objected that this evidence, if of any force at all, could only have tended to connect the respondent with the burglary at Mitchell’s, or at least to have raised a suspicion that he was concerned in it. The prosecution concede that if it had no tendency to connect the respondent with the particular offense for which he was on trial, it should not have been received; but their theory of the case was that the several burglaries were all substantially one transaction, and whatever tended to show participation in one was evidence of participation in all. We agree in this view. The proof was not given to show a different and distinct felony, but as tending to prove the very felony then under investigation; and its tendency to that end was for the jury.”

The rule and the exception are ably discussed in State v. Lapage, 57 N. H. 245, a leading case upon the subject. The respondent in that case was charged with the murder of a young girl. It was claimed by the State that the respondent lay in wait near a piece of woods, had committed the crime of rape, and then murdered the girl. It was held competent ‘to show that he had pursued other girls passing in this same locality, and about the same time; *540 that he had secreted himself in the woods, and suddenly appeared as girls walked along the highway, and pursued them; also to show obscene and vulgar language, used by him when he made inquiries about certain girls he saw passing the place at various times. It was held incompetent to show that at another place, and upon another occasion, some time anterior to the offense charged, he had committed rape upon another girl. The court in that case so tersely stated the established rule at page 389 that we quote it:

“ (1) It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character; (3) 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.”

Applying the principle established in the above cases, and those cited therein, to this case, the evidence received was wholly incompetent. People v. Henry, 129 Mich. 100 ; Brown v. State, 26 Ohio St. 176 ; People v. Jacks, 76 Mich. 218 .

For the same reason it was incompetent to show that the detective had induced the respondent to undertake the commission of another like crime, and especially since he finally refused to do it. The entire testimony of this detective should have been excluded. The proposition that a detective may deliberately induce for hire a suspected person to commit one crime for the purpose of showing that he committed another similar one finds no support in common sense, reason, or authority.

3. Error is assigned upon the instruction of the court that “it is not necessary that there be malice towards the *541 owner of the animal in a case like this.” Malice is an essential ingredient of the crime, and under the clear weight of authority, both in England and the United States, the malice required must be toward the owner or custodian of the animal, and not malice toward the animal. The rule to be deduced from the authorities is that it is not essential to show expressed malice, but that the malice required may be shown by the character of, and thó circumstances surrounding, the crime. 19 Am.'& Eng. Enc. Law (2d Ed.), p. 641, and authorities there cited; note to State v. Boies, 68 Kan. 167 (1 Am. & Eng. Ann. Cas. 491); United States v. Gideon, 1 Minn. 292 ; State v. Harris, 11 Iowa, 414 ; Chappell v. State, 35 Ark. 345 ; King v. Pearce, 1 Leach, C. C. 527; State v. Newby, 64 N. C. 23 ; State v. Beekman, 27 N. J. Law, 124; 2 East, P. C. p. 1074. Mr. East says:

“But it does not appear to have been decided that it is necessary to give express evidence of previous malice against the owner in order to bring a case within the act; but, the fact being proved to be done wilfully, which can only proceed from a brutal or malignant mind, it seems a question solely for the consideration of the jury to attribute the real motive to it, to which the transaction itself will most probably furnish a clue.”

The question under this statute does not appear to have arisen before in this State. It has arisen upon two other statutes involving malicious injury to property. The statute (section 9275, 2 How. Stat.) provided:

“If two or more persons shall wilfully and maliciously combine or conspire together to obstruct or impede, by any act, or by means of intimidation, the regular operation and conduct of the business of any railroad company, or any other corporation, firm or individual in this State, or to impede, hinder, or obstruct, except by due process of law, the regular running of any locomotive engine, freight or passenger train, on any railroad, or the labor and business of any such corporation, firm, or individual, such person shall, on conviction thereof, be punished by imprisonment in the county jail for a period not more than *542 three months, or in the State prison for a period not exceeding two years.”

In People v. Petheram, 64 Mich. 252 , the defendant was arrested, charged with conspiring and combining with others to wilfully and maliciously obstruct and impede the regular operation and conduct of the business of a manufacturing company. It was there urged that the intent and malice must be aimed at the business obstructed. The court held, however, that the statute did not require malice to be shown toward the owner or his business or property, but that the malice required to be shown was the general malice of the law of crime, and that the acts shown may, as in other cases, furnish the presumption of malice. In a prosecution under section 11584, 3 Comp. Laws, for maliciously injuring a building, the same rule was followed, citing and approving People v. Petheram. People v. Burkhardt, 72 Mich. 172 . The malice required under the statute now under consideration is not different from the malice required by the statutes in the above cases. To sustain the contention on behalf of the respondent in this case would be to overrule those two cases. They have stood unchallenged for many years, and we see no occasion now to overrule them. See, also, State v. Boies, supra, and Brown v. State, supra.

In view of a new trial we may say that the court should instruct the jury that malice is an essential ingredient of the crime.

Conviction reversed, and new trial ordered.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.