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Show most mm TRIAL pin on in trje HanGOG (ase, Associate Justice Miner Delivers the Opinion of the Supremo Court. Piistakes of Facts and Errors of Law Are the Grounds of the Reversal. The Opinion in Full, Containing Contain-ing an Extended Review of the Noted Case. Tiie Supreme Court on Wednesday d i!iMj its opinion in the Geo. I W. Hancock case, tried in this city last February term of Court. The following is tli; opinion iu full; The indictment in tL is case charges this defendant and two others with tl; murder of Henry Jones on the 24tli of April, 1S58. It was found by the grand jury on the Sib day of March, ' ItssK), or thirty-two years after the alleged al-leged crime was committed. Defendant Defend-ant Hancock was tried separately. The record shows that on April 24th, IS-X. the deceased. Henry Jones, was living with his mother, Hannah Jones, !h;s brother John Jones, and little sister. sis-ter. Elien II. Brown, ii a small dugout at Pavs-on. Utah Territory. At this time Ellen was a child of about 5 years of see. At the time of the trial it appeared from Ellen's testimony that at about y or 10 o'clock in the evening of April i 24, 1S")S. she was awakened by a dis-turbam dis-turbam e outside the dugout, caused by thy tiling of guns. She remembers r-eemg her two brothers, Henry, the decked, and John, get up, hurriedly i tliess themelves. take their guns and CO out on the roof through a chimney j hole; ilu.t scon after this live or six I m !i caine into the cabin and wanted I... h- r liioiht-r to tell them somethmi. but '!: they wanted her to tell she could . not remember, it was so long ago. She Sj uo'.s lvmemljHr, Jiovrever, ili3t Iter y'. iii'-tin r was beeginjr and pleading for "' i f"n li.i ot her bos, and that oue of i the men shot and killed her mother. There being no lij;ht in the room, sli was unable to distinguish who was jr;fent. Sho was a stranger thera at Illi is time and did not know the defendant, defen-dant, Hancock. That several weeks after she saw Charles Hancock, the defendant's brother, on the strpet and jt--coj;iii.fJi i i iii as me; ;oau uiai Kiueu j ber luoiher. and that on July 4, li68, tfiit saw lS:e defendant nd recognized him as ona of the nisii vvtio were present pres-ent Wiicn tier motiW was killed, and thai i:e was frightened at sein:; him ami rrfMi .i ;nl loiti iier father, il !h: a. I'Vii, r t i.-ii tins oi'casi.o! i!fen-l i!fen-l ah; il .;..-!: .v:.s a -ontaNe; thl 1 i a a of Indian ir,ji ai1 1 Wei: "llli ilxl:V kej t i.t i"o g-.Vu i--.:i!s; h'Uj :'.;'.-. iiw.n itu Iu- 1. u:su that it .no. : and I'Lii.-ra ' i.if.-vi i.iAr-.s .i id ;.ii..co'.orrd . . sciiPoxo o:i Ui t p,;;t ot Jones and hi S-n'oiiiiT in atf-.ti !: 'isej th.tt ni,;iit an 1 esoapi: Irom tlie sottiemeut, and la ;neei the United S;aten army, ttien not far distant; and that Jonas was in fear of injury from the hands of tha people at this time, which fear induced him to attenpt to leave the country with stolen horses. That in order to frustrate this scheme which had been discovered, watchmen had boen placed at the corral whera the horses were kept at Jones's house, to prevent his escape as well as to tuard against surprises from Indians. That after Jones had escaped from the (dugout he went from place to placa in that vicinity to escape pursuit and was much frightened, and that he was shot jn the arm wiiilo eluding pursuit, or in attacking an antagonist, which was alleged to be the defendant. Jones continued his efforts to escape, and tarly in the miming arrived at a town called Salem, or I'ond Town, some three or four miles from h:s mother's house. Thai the poise, including the defendant, Hancock, and many others, were in hot pursuit and caujht the deceased de-ceased at this latter place, disarmed bim ami took him prisoner. Hancock seemed bo be in command. A guard was placed on each side of the deceased. deceas-ed. Hancock was a little to the rear .and others about and around them. la this position they started with the de- aased to return to Payson with him. This was supposed to be three or four Jioura after the killing of Mrs. Jones. Thus guarded, the party started for l'ayson. What foilowed is a matter of speculation, as the witnesses disagree. It appears, however, from the testimony testi-mony of Wilson (a witness for the prosecution,) whose, testimony was .discredited and impeached in mauF ways, that Hancock directed the posse " fn charge ot Jones to take hirn to Pay- 6on. All were armed except the da-ceased. da-ceased. While walking along in the direction of Payson, and talking about the stealing of horses, etc., Jones remarked re-marked that he didn't want to go witk them; that they had killed his mother and he was noj. irojng with them. etc. ,lbout this time Jones looked up and saw some other parties coming towards them):and remarked: "There come ome more of the d d cusses after a ine!M He then stopped and threw up bis bauds, at which time, the prosecution prose-cution clai-ns that Hancock remarked I to his companions, '"Now slap it to Jijm, boyo;-' gun cracked and than another, ail Jones fell mortally wounded, anu soon afterwards died where he was shot. There was a large party present at. this killing, most of whom have since died. The next day Jones's body was taken by some one other than the defendant, and placed with that of his mother, without washing wash-ing or changing his clothes. The supports sup-ports to the roof of the dugout were taken down and the roof lowered to cover the remains, and they were both jeft thus entombed. It also appears, under objection from defendant's counsel, that a long time I prior td this killing Jones had bean j castrated by parties t,hpn unknown. The defendant is not proved as having I B.ny complicity in that act. I That prior to and after the killing, I Hancock had been a person of good I moral character.' .piffefent and con- i:. ".. tradictorv accounts of the killing of Mrs. Jones and her son, and of the time when the killing took place, appear ap-pear from the testimony, but enough does appear to show that the killing of Mis. Jones was a different transaction from that of the killing ;of SUenry Jones, and whether Hancock was present at her death or notisj.left', in dispute and uncertain. On the trial defendant was convicted. convict-ed. Defendant's counsel assign twelve errors as grounds for a reversal of the verdict and judgment of conviction. con-viction. Among them are the following: fol-lowing: 3. The Court erred in allowing Henry Gardner against the objection I of counsel for defendant, to testify that Henry Jones had been castrated and had no testicles. 7. The Court erred in refusing each one of the several requests asked for the defendant, to-wit, severally, each one of the twenty-one requests appearing appear-ing in the record. 8. The Court erred In charging ths jury as to the effect of good character. Q Thf Pyhii-I- crrnH in r.liori.in. Ik. jury upon the facts as to the belief to be attached to witnesses wno testifled to the exact language thirty-two years after the transaction. 10. The Court erred in charging the jury that time does not run in favor of murder, and in charging that no lapse of time washed out the stains of blood that the murderer makes, and in charging generally upon the facts of the case. The Court erred in charging the jury as to the subject of justification, the defendant not having made or asked for justification, but denying the killing, and the charge of the subject sub-ject of killing wa3 an argument that the defendant wa guilty. We do not consider it necessary to review each assignment separately. In the course f the trial it appears bv thf fpshimnnv of llnnrtr fl;y,1n, under objection from the defendant's counsel, that Henry Jones had be.'n castrated some considerable time before be-fore the alleged homicide. It nowhere appears that the defendant had any hand or complicity in this transaction, or was in any manner chargeabla tfeeie-with, tfeeie-with, or that that fact in any war tends to elucidate the question invoked, in-voked, or throws any light upon tiie question of the guilt or innocence of t iie defendant. The presumption is that this testimony was admitted for the purpose of showing malice "i the part of the defendant, and1rtw.u r;iball; the jfround Upon vuich the learned judge admitted the testimony, if this be so, the prosecution failed in any way to connect tha defendant with the act of castration. This, we think, was error. Tha only object for its admission, if it was admissable at all, would be to show that the defendant defend-ant committed the act, or assisted in its commission, and that he must have had malice against the deceased at mat uine; a mo wiiomi tue prosecution failed to connect the defendant wirh the act, tha testimony becomes wholly incompetent. Its admission, under the circumstances, would naturally tend to awaken a prejudice in the minds of tiie jury against the defendant. defend-ant. Testimony of t.'iis transaction was forrvgi t Vvs issue and snould not !r-v.- b'?n allowed- Err.t: is assigned upon th r.-uusal of the court .'-o instruct the j.iry us foiiou s: iU. in a vvimimii trbd ovideuc-' of tit? good character of a person is of value not on iy in doubtful cases, but also when tha testimony tends very strongly to establish the guilt of the accused. It will of itself sometimss create a doubt, when without it none wool l exist. 17. There ii no case in which the jury may not, in the exercise of a sound judgment, give a person the benefit of a previous good character. Xo matte how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the probabilities, that a person of high character would not be guilty of tha offense charged, that the other evidence in the case is false, or the witness mistaken. The Court refused these requests, but instructed the jury as follows: Proof of the good character of the person charged with the offense is always al-ways allowed in this class of cases.and the weight to be given to it is to be determined by the jury. It is all-Important in doubtful cases. Where the evidence, outside of the presumption of good character, is clear and explicit, on which no doubt can be cast, good character will only cause the jury to hesitate and think about the matter. The juiyvill always remember that a man has to commit his first crime. He cannot commit all the crimes, if he commit any, at once; he has to break over the rules of good conduct and ! good life for the first time, some time I in his life. J We think the requests numbered 18 and 17 should have been uitlter given to the jury or embraced in the charge of the Court, and that the instruction given to the jury on the Court's own motion was erroneous. This charge, as given, limited the effect of good character to douktful cases, and that in cas?s where the evidence was clear such evidence would only have the effect to cause the jury to hesitate and think about tiie matter. In other words, that in clear cases of guilt good character should have no weight, except ex-cept for the jury to stop and think, but in doubtful cases it is all-important. We think the charge was misleading. In doubtful cases the jury should give the defendant the benefit of the doubt, and acquit; and to do so it would not be necessary for the defendant to add proof of good character to the doubt already existing in order to be entitled to an acquittal. It is in clear cases therefore where evidence of good character is of the most avail. There may be cases made out so clear that no irood character charac-ter can make them doubtful; but there may be others in which evidence given against a person without character would amount tp a conviction, in which a high character would produce a reasonable doubt, or in whieh'high character will actually outweigh evidence evi-dence which otherwise might appear conclusive. '"Good character is an important factor with every man; and nevermore so than whea ho is put qn trial charged with mi offense which is rendeied improbable in the last degree by a uniform course of life wholly inconsistent in-consistent with any such crime. There are cases where it becomes a man's sole dependence, and yet may prove iii . linn uinmmnujpiijii m mm i.iiiiiiiii ji mm mi sufficient to outweigh evidence of the most positive character. The most clear and convincing cases aro sometimes some-times satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring cenviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to I put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to." People v. Garbutt, 17 Mich.. 9. People v. Mead, 50 Mich.. 233. Com. v.Miner, 140 Mass., 479. Concemi y. People, 16 X. Y.. 501. Harrington t. State, 19 Ohio S5., 204. 1 Bish. Crim. Prac. 1115-6. 3 Greenl. Ev., 25. People v. Ash, 44 Cal.. 2S8. Kemsen v. People, 43 X. Y., 6. Heine v. Commonwealth, 91 Pa. St.. 145. State v. Daly, 53 Vt, 442. Coleman v. State, 59 Miss.. 4S4. Wharton's Crim. Ev., 6(3. This charge also gave the jury to understand that a man was expected to commit his first offense, and the jury may have been led to believe from it that the offense charged might be one of the crimes that the defendant defend-ant might be expected to commit for the first time, and that, a matter of course; i the defendant had a good I character and had never been connected con-nected with any crime before, he might now be expected to be guiltv of this one; that the time had come at last for the defendant to break over the rule of good conduct r.ud commit his first offense, and that this might properly be expected from all men. We think this was an error, and that it was not cured by a subsequent .Instruction .In-struction to the jurr at the close of a case, where the Court said: "Gentlemen of the jury, I may have oyerlooked one important matter. I do not remember now what I said to you in reference to the character of the defendant. Th? character of the defendant is to be considered by you in weighing all the testimony in tha case. If his character, notwithstand-, in-: a'l the evidence in the case, raisot,'; -t doubt in 3 our mind as to his guilt-i'r innocence, r-- j he instruction in no way raodilies the erroneous instructions first given; nor does the Court withdraw his first instruction from tha consideration of the jury, but leaves it t.i stand r.s tha law in the case, which it is presumed the Court did not intend to do. When conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may hava followed fol-lowed that which is erroneous. Grand Itapids & Indiana Railway Company v. Munroe, 4 Mich., lo2. Jones v. Talbot. 4 Mo.. 335. Crown v. McAllister, 39 Cal., 557. Squire v. Alexander, 58 Cal., 21. Plaintiff v. Jameson, 51 Mich., 153. Murray v. Comnnrnvelth, 79 Pa, it., 311 391. 34 Iowa. 375. 49 Kan., 142. 50Ii.d..42. 95 1!!.. 3S3. 91 63. 14 Km , 1 7 i The t'ouit iis.) i: s;r:ici'el the j iy as f.-.ibiws: . ' The length of time tii,;t has elapsed since the murder that is charged was committed and the commencement com-mencement of the prosecut ion 13 noSto be considered at nil. It is not an element to determine the guilt or innocence in-nocence of this party, one way or another. an-other. Time does not run against the murderer or in his favor. Xo lapse of time washes out the stains that blood shed by the murderer makes." This charge was possibly given under un-der a mistake of fact. We think it had a tendency to mislead the jury, and that from it they might infer-that the opinion of the Court was as to the identity of the murderer, the degree of the offense and the guilt of the defendant. de-fendant. This homicide was committed thirty-two years ago, and when we consider that the witness, Ellen Brown, was only five years of age at that time, and that other witnesses had grown old and possibly forgetful with" increasing ae. we cannot conclude con-clude that the length of time that hs elapsed since the homicide should not be a strong circumstance to enter into the consideration of the jury in testing test-ing the truthfulness, forgetfulness, i candor or bias of those left to relate the circumstance of this alleged murder and us bearing upon the probabilities of the guilt or innocence of the accused. ac-cused. Ilopt v. People, 110 U. S., 574. For the reason stated the verdict and judgment of the Court below should be set aside and a new trial granted. Za.nte, C. J., We concur. Anderson, A. J. |