Hicks v. United States/Dissent Brewer
Mr. Justice BREWER dissenting.

I dissent from the opinion and judgment of the court in this case. It seems to me that the opinion proceeds in disregard of rules long ago established in regard to the conditions under which an appeallate court will review the instructions given on the trial. Take the first matter referred to in the opinion. A page or so of the court's charge is excepted to, and the exception is taken in this way: 'To the giving of which charge to the jury the defendant at the time excepted.' No particular sentence or proposition on this page is excepted to. No ground of objection is noted. The attention of the trial court is not directed to any matter, whether of statement or omission, which the defendant claims is objectionalbe, and so no opportunity given to correct the alleged mistake.

I understand the rule of law to be well settled that the attention of the trial court must be called to the specific matter which is claimed to be objectionable, and so called that an opportunity is given to make a correction. Non constat but that, if the attention of the court is thus called to the particular matter, it will correct, and thus remedy, any supposed error. Now, as stated, this whole page is objected to, and no grounds of objection given,-no particular matter pointed out as erroneous; and yet there can be no doubt that much of what is said, and some, at least, of the propositions found in this portion of the charge, are unobjectionable. What is there wrong, for instance, in these declarations of law:

'We go to the first proposition where the crime of murder has been committed, which asserts that he who, with his own hand, did the act which produced the result, is guilty. The second proposition is that if, at the time that Andrey J. Colvard was shot by Stand Rowe, the defendant was present at that time, and at the place of the shooting, that, of course, would not alone make him guilty,-the mere fact that he was present.' 'Yet it is an element that we are to take into consideration, to see whether his connection with the act of killing was such that he is guilty of the crime, because he could not be guilty unless present, actually or constructively.' 'Then we are to see whether he was present at the place of the killing. That does not mean that he had to be right at the man who was shot,-right by the side of Stand Rowe, but that he was so near to that place as that he could in some way contribute to the result that was produced by some act done by him, or some words spoken by him.' The decision of this court is that in the latter part of the charge, on this page, there was an omission of certain matter which was necessary to make the statement of the law full and accurate. What is that omission? Simply this: that when the court spoke of aiding or abetting 'by word, or by advising or encouraging,' it did not add that 'the acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting.' Can a party 'advise' another to kill, without intending to encourage the killing? Does not the word 'abet' imply an intent that the party shall do that which he is abetted to do? Bouvier (volume 1, p. 39) says: 'To abet another to commit a murder is to command, procure, or counsel him to commit it.' We are not dealing with the mock scenes and shows of the stage, but with real life; and, in that, who does not understand that the significance of the word 'abet' is as Bouvier defines it, and carries with it the intent that the party shall do that which he is commanded, counseled, or encouraged to do? But, whatever of technical criticism may be placed upon this language, can there be any doubt that 12 ordinary men, sitting as jurors, would understand that there was implied the intent on the part of the defendant to bring about the homicide by the use of the words? If the counsel for defendant thought there was any possibility of the jury being misled, or that any juror would understand the court as meaning to tell them that a party who, with no thought of murder, makes some casual remark, upon the hearing of which a third person is prompted to shoot and kill, was also guilty of murder from the mere fact of this accidental remark, all that would have been necessary would have been to call the attention of the court to the matter, and, to avoid the possibility of misunderstanding, a correction would unquestionably have been made. It seems to me that great injustice is being done to the government, and wrong to the public, when verdicts of guilty are set aside by reason of an omission from the charge which probably did not mislead the jury; which would unquestionably have been corrected, if called to the attention of the court; which was not specially excepted to; which affects but one proposition among many, all of which were challenged by only a single exception running to them as an entirety; which was not noticed in the motion for a new trial, or in the assignment of errors, and is evidently an afterthought of counsel, with the record before them, studying up some ground for a reversal.

With regard to the second error said by the court to exist in this page of the charge, it is found, as clearly appears from the opinion, only in the last sentence, and as an independent proposition. No separate exception was filed to that proposition. Could anything more clearly emphasize the fact that by this opinion the court is reversing the rule heretofore laid down as law in the quotations presently to be made, than thus picking out a single sentence containing an independent proposition, not especially excepted to, and declaring that a general exception to an entire page brings this error up for review? And that, too, when it is conceded that the objectionable words stated a proposition of law correctly applicable to some cases, though, as claimed, not to the facts of this. And here it is well to note the language of rule 4 of this court, (3 Sup. Ct. v.:) 'The judges of the circuit and district courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts, and those matters of law, and those only, shall be inserted in the bill of exceptions, and allowed by the court.'

What matter of law was distinctly stated in the bill of exceptions? I understand the court to concede that the rule is substantially as I have claimed, but hold that it is inapplicable here, and that, in order to present a just view of the error complained of, it was necessary, or at least useful, to cite the entire passage of the charge that covered it. The law is good, but it ought not to be enforced. When, as here, the entire charge is preserved in the record, it is not necessary to extend an exception to a whole page, in order to see the bearing of the particular matter of alleged error. Even if the entire charge was not preserved, and we had only this page before us, and the consideration of the entire charge was necessary to disclose the bearing of the particular sentence or proposition claimed to be erroneous,-conceding all this,-it does not obviate the difficulty that the specific error now complained of was not called to the attention of the trial court. And, after all, the rule is as shown in the quotations following,-that an objection must be made in such a way that the trial court knows what it is that is objected to, and has an opportunity to make a correction. Nothing of that kind is possible, when a party excepts to a whole page of the charge, and in the appellate court, for the first time, calls attention to the specific matter in a portion of that page which is said to be objectionable.

The suggestion that, because the learned judge below was satisfied with the shape in which the exceptions were presented to him, this court must consider them as sufficient for any matter which the ingenuity of counsel may, since the trial, have discovered, has certainly the merit of novelty. No one can say from this record that the questions which have been argued, and upon which the reversal is ordered, were ever suggested to the trial court at the time the instructions were given, or on the motion for a new trial, and they are not named in the assignments of error; and yet, because the trial judge did not direct that the exceptions be prepared in some other way, this court holds that they are sufficient to bring all the matters involved in this page of the charge before this court.

In the case of Carver v. Jackson, 4 Pet. 1-81, the entire charge was placed in the record, with a general exception to each and every part thereof. This practice was strongly condemned, and in the opinion Mr. Justice Story uses this language, quoted approvingly by Chief Justice Marshall in Ex parte Crane, 5 Pet. 191-198:

'If, indeed, in the summing up, the court should mistake the law, that would justly furnish a ground for an exception. But the exception should be strictly confined to that misstatement, and, by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or quality it in such a manner as to make it wholly unexceptionable, or perfectly distinct.'

In the case of Society v. Faulkner, 91 U.S. 415-423, this court said:

'Two or three passages of the charge, it must be admitted, are quite indefinite, and somewhat obscure; but they are not more so than the exceptions of the defendants, which are addressed to nearly a page of the remarks of the judge, without any attempt to specify any particular paragraph or passage as the subject of complaint; nor does the assignment of errors have much tendency to remove the ambiguity.

'Instructions given by the court to the jury are entitled to a reasonable interpretation; and they are not, as a general rule, to be regarded as the subject of error on account of omissions not pointed out by the excepting party.'

In Railroad Co. v. Varnell, 98 U.S. 479, 482, a similar matter was presented to the court, and disposed of in these words:

'Three exceptions are embraced in the first assignment of error, and the complaint is that the court erred in failing to give the defendants the full benefit of their evidence as to the contributory negligence of the plaintiff.

'Turning to the record, it appears that the first exception to the charge of the court is addressed to nearly a page of the remarks of the presiding justice, with nothing to aid the inquirer in determining what the complaint is, beyond what may be derived from the exception, which is in the following words: 'To which instruction the counsel for the defendants then and there excepted.'

'Much less difficulty would arise if the assignment of error contained any designation of the precise matter of complaint, but nothing of the kind can be obtained from that source. Certain portions of those remarks appear to be unobjectionable, as, for example, the judge told the jury that they must first determine whether the plaintiff was a passenger on the railroad of the defendants, and he called their attention to the testimony of the conductor that the plaintiff was not in the car in which it seems he claimed that he had been riding just before he received the injury.' In Railway Co. v. Jurey, 111 U.S. 584, 596, 4 Sup. Ct. 566, the rule is thus stated:

'Conceding that the charge in respect to the rate of interest was erroneous, the judgment should not be reversed on account of the error. The charge contained at least two propositions-First, that the measure of damages was the value of the cotton in New Orleans, with interest from the time when the cotton should have been delivered; second, that the rate of interest should be eight per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was therefore ineffectual. It should have pointed out to the court the precise part of the charge that was objected to. 'The rule is that the matter of exception shall be so brought to the attention of the court, before the retirement of the jury to make up their verdict, as to enable the judge to correct any error, if there be any, in his instructions to them."

See, also, Bogk v. Gassert, 149 U.S. 17, 26, 13 Sup. Ct. 738.

And this, I understand, is the rule in all appellate courts. I think it should be strictly adhered to, and that this court should not notice an exception which runs to a page of the court's charge, which points out no sentence or clause which is objected to, and specifies no ground of objection.

Again, in that portion of the charge calling attention to the weight to be given to the testimony of the defendant, I think the court committed no error. The statute makes the defendant a competent witness. It affirms nothing as to his credibility. I understand the rule to be that a court is always at liberty to refer to any matters, interest, impeachment, contradiction, feeling, or otherwise, that bear upon the question of the credibility of any witness. When the defendant becomes a witness, he subjects himself to the same liability to criticism. Stress is laid upon these words, 'the other witnesses who are telling the truth,' and it is said that there is an assumption that the witnesses who contradict the defendant are telling the truth. If the first 'the' had been omitted, and the language been 'other witnesses,' etc., no such implication would arise. Is not this a refinement of criticism which offends common sense? Does any one suppose that the jury understood the court to instruct them that the witnesses for the government were telling the truth, and that the defendant was lying when he testified differently? Is it not clear that they would understand simply that their attention was called to the effect on his credibility of a contradiction between his testimony and that of disinterested witnesses? Has it come to this: that the use of the 'definite article' in a charge is sufficient to set aside a verdict, and overthrow a trial? It is undisputable that, where the government calls an accomplice, it is the right, if not the duty, of the court to call the attention of the jury to his relationship to the case, and the bearing which such relationship has upon his credibility. If it may and ought to do that to protect the defendant against the danger of perjury on the part of witnesses of the government, may it not, and ought it not, to do the same to protect the government against the at least equal danger of perjury on the defendant's part? It is the duty of the trial court to hold the scales even between the government and the defendant, and, generally speaking, what it may and ought to do on the one side it may and ought to do on the other. For these reasons, I dissent.

I am authorized to say that Mr. Justice BROWN concurs with me in this dissent. 

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