People v. Geiger
Before: Crockett
Synopsis
Appeal in Cbiminal Case.—Upon an appeal in a criminal case being taken, the Clerk of the Court with whom the notice of appeal is filed, must, within ten days after the same is filed, without charge, transmit to the Clerk of the appellate Court, a copy of the notice of appeal and of the record, and of all bills of exceptions, instructions, and endorsement thereon.
Declabations as Evidence.—If two are jointly indicted for murder, and are tried separately, and on the trial of one there is testimony tending to show a conspiracy between them, the declarations of the one not on trial, made before the killing, may be received in evidence.
Idem.—When such declarations have been admitted in evidence, it is proper for the Court to instruct the jury to disregard them, unless the conspiracy is satisfactorily proved.
Evidence of Conspiracy in Criminal Case.—If two are jointly indicted for murder, and one is tried separately, and there is evidence of a conspiracy, an instruction to the jury that if there was a conspiracy, and the deceased was murdered by either of the conspirators in pursuance of the conspiracy, the verdict should be guilty, is not erroneous. If the instruction is not sufficiently explicit about preponderating evidence on the question of conspiracy, the defendant should ask the Court to make it more specific.
Declabations of Conspirator.—The conspiracy to commit a crime being proved on the separate trial of one of the conspirators, the jury arc to give the same weight to the declarations of the co-conspirator not on trial, as they would give to them if made by the one on trial.
Challenge to Grand Juey.—If a person is charged with the commission of a crime in a sworn complaint, and is arrested on a warrant issued by a magistrate on the complaint, and is under arrest when the grand jury meets, but, before an examination before the magistrate, is taken before the grand jury about to be empaneled and informed by the Judge that he may interpose a challenge to the panel or to an individual juror, and declines to interpose a challenge, he waives the right to interpose such challenge after he is indicted.
By the Court, Crockett, J.: The transcript as originally certified by the Clerk of the Court below and filed here in November last, was defective in that it did not show that an appeal had been taken. No [649]notice of appeal being found in the record, the case could not be proceeded with here until the defect in this particular had been supplied. In this connection it may not be inappropriate to again call attention to the provisions of the Penal Code regulating appeals in criminal cases: “Sec. 1246. Upon the appeal being taken, the Clerk with whom the notice of appeal is filed must, within ten days thereafter, without charge, transmit to the Clerk of the Appellate Court a copy of the notice of appeal, and of the record, and of all bills of exceptions, instructions and indorsements thereon,” etc.
The cumbrous system of criminal procedure prescribed by the statute, even when pursued with all possible diligence, too often necessitates much delay in the administration of criminal justice, and it is important that this should not be needlessly increased by a failure to observe the plain requirements of the statute in preparing transcripts upon appeal to the Court.
We think there was sufficient evidence of the conspiracy between Alexander and the defendant to justify the Court in admitting in evidence the declarations of the former, made previous to the alleged killing. The question of conspiracy was then submitted to the jury, with instruction to disregard the declarations of Alexander, unless the conspiracy was satisfactorily proved. This was the proper practice.
The objection made to the seventh instruction given on the request of the prosecution is hypercritical. The instruction does not intimate that on the question of conspiracy the jury may act on preponderating evidence; and, if the defendant desired to have it made more specific on this point, he should have called the attention of the Court to it, and requested a modification.
The eighth instruction was to the effect that if Alexander and the defendant ha'd conspired to perpetrate an act of violence upon Mrs. Strong, the jury might consider the declarations made by Alexander in respect thereto, and “draw the same conclusion from them as if made by Geiger.” In other words, the conspiracy to commit the act of violence [650]
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