The Court's Charge
Gentlemen of the Jury:
You are the exclusive judges of the facts in this case. You must accept the instructions which I give you upon the law of the case, and you must obey these instructions. So far as the facts of the case are concerned, they are within your exclusive jurisdiction to determine; but, as to the law of the case, you must accept and abide by the instructions which I give you.
The defendant is charged by the indictment with the commission of the crime known to the law as sodomy. I will read you the definition of that crime as it is given by the statute, using so much of the section of the statute as is applicable to the case on trial:
"A person who carnally knows any male person by the anus, or by or with the mouth, or voluntarily submits to such carnal knowledge, is guilty of sodomy."
You will, I am sure, appreciate the clearness as well as the brevity of that provision of law; and I am, also, sure that you can easily comprehend its meaning and carry it in your memory during your consultation regarding the case.
The prosecution claims to have proven, by the evidence submitted to you, that the defendant voluntarily submitted to an act of carnal knowledge, committed by a person named George Galbert, and the act described by the witnesses for the prosecution consisted in the insertion by Galbert of his person into the anus of the defendant.
It is further claimed by the prosecution that, immediately succeeding that transaction between these two men, and as part of the relationship between them, the defendant performed another act of carnal knowledge upon the person of Galbert. You are entitled, as jurors and judges of the facts, to know all that took place there, so far as it may be within the knowledge of the witnesses for the prosecution to narrate.
The defendant is not indicted or on trial for doing the act that the witnesses described, upon the person of Galbert. That constitutes a different act. He is indicted and tried for voluntarily submitting to an act of carnal intercourse between Galbert and himself. I do not intend to, and I am sure that you do not require, in any form or shape, I should give further attention, or make further reference to the disagreeable details of the testimony. They are, no doubt, fresh in your recollection.
It is a matter to be very much regretted that a Court and jury are compelled to listen to the revolting details that have been laid bare here before you. But the law, in its wisdom, found it necessary to condemn such practices and to characterize such practices as crimes. It therefore becomes our duty to hear such testimony, and to pass upon the testimony as to the guilt or innocence of the person accused.
It cannot be denied but that the character of the offense charged against this man on trial is of a revolting nature; and I now caution you that you must be careful not to allow the revolting and disgusting character of the charge against the defendant to prejudice you against him to an extent that would interfere with your fair and impartial determination of the question of his guilt or innocent upon the evidence submitted to you.
He denies the charge made against him; he denied that he did the act, or submitted to the act narrated by the witnesses for the prosecution. So that there is presented to you a clear conflict of testimony between the witnesses for the prosecution and the defendant himself; and you are the judges to determine upon that conflict, where the truth lies. You are called upon to pass upon all the testimony, and included in that testimony, necessarily, is the testimony of the witnesses of the prosecution.
Two witnesses have sworn that they saw the act committed upon the body of the defendant. Another witness has sworn that the saw the defendant there, in certain rooms and in certain positions, and under certain conditions.
Two other witnesses, who were attendants in this bath, have sworn that the defendant was a visitor there, more or less frequently. Now, gentlemen, your good judgement, your fairness and sense of justice are called upon to express, by your verdict, whether the charge against the defendant is false or true. Can you say, upon this evidence, that those witnesses have sworn to what is false?
In weighing and analyzing their testimony, you have a right to consider whether or not they have concocted this whole story, without any foundation in fact or in truth. Can you say, from the testimony given by those witnesses, from their manner and their appearance, and the way in which they gave their testimony on the witness stand, that they deliberately and wilfully conceived the making of this charge against the defendant, without any justification or foundation in fact?
Is there anything in the testimony that you can perceive that would justify you in coming to the conclusion that those witnesses were actuated by any motive to testify falsely against the defendant? Has it been shown that they were actuated by any spirit of revenge, or animosity against the defendant; or by any hope of gain or reward, or by any other motive or impulse that would move them to take this witness chair, and, in your presence and hearing, deliberately and wilfully swear to a falsehood? Can you, as judges of the facts in this case, so find, upon this evidence? If you come to the conclusion that the witnesses for the prosecution have sworn to the truth, that they actually saw the acts which they narrate performed; that they, as officers, in the discharge of their duties, have simply performed their duty in telling to you truthfully and honestly what they saw in those baths; and you believe that they have done so, then it would be your bounden duty to declare the defendant guilty of the crime of sodomy.
There is no middle ground, gentlemen; for the defendant either did the act against him, or he did not. If he did not, he should be acquitted; if he did, he should be convicted.
Testimony has been given, on the part of the defendant, as to his good character, as to his being a decent and respectable man. It is proper that such testimony should be given to and considered by the jury. Testimony of good character may, of itself, sometimes create a reasonable doubt, where otherwise it would not exist. If you find that such testimony creates a reasonable doubt as to the defendant's guilt, it is your duty to give him the benefit of that reasonable doubt, and to acquit him.
But the quality and the value of such testimony, like all other testimony, is to be judged and determined by you. You are to say how much value you will attach to it. You are to judge of the quality of the testimony as well as of its value, of the persons who gave the testimony, their reliability, their opportunities for knowing the defendant's character, their opportunities for advantages for being able to give a truthful description and account of how the defendant was regarded.
The mere fact that a witness swears to the good character and reputation of a person on trial does not conclude the jury on that question; not any more than they are concluded by the testimony of any other witness upon any other subject. It is within your power to say what value you will attach to such testimony, whether it is truthful, or, even if truthful, whether it is mistaken, or whether the person giving it has had a reasonable and fair opportunity to know, in fact, the character of the defendant. All these questions are for your consideration.
The defendant is entitled to the benefit of a reasonable doubt on every important and material question in the case, upon the whole evidence or the lack of evidence in the case.
I am sure, gentlemen, that it is not necessary for me to give you any further definition of what a reasonable doubt is than the meaning created by the phrase itself. You are intelligent men, and you must know that a reasonable doubt is a reasonable doubt, and nothing else. It is not a guess, or a speculation, or a pretense, for the purpose of enabling a man to avoid doing what may be an unpleasant duty. It is a reasonable doubt, springing from the evidence in the case, and from no other cause or source.
If you entertain such a reasonable doubt, give the defendant the beneift of it and acquit him. But if, on the whole case, after fairly and impartially weighing the testimony of each and every witness, you come to the conclusion that the defendant did the act charged against him, and that conclusion is beyond a reasonable doubt, then you are in duty bound to declare your conviction by delivering a verdict pronouncing the defendant guilty of the crime charged against him.
I deem it almost unnecessary, gentlemen, to remind you that, while you sti in that jury box, while you consult as jurors in this case, you are judges of the facts; and, as such judges, you should be unmoved by any emotion of sympathy or prejudice, either for or against the defendant; and that you should simply deal with the evidence before you in a cold, unimpassioned way, and, whatever the conviction be that has been produced in your mind by that evidence, you owe it, not only to your own selves, to your own consciences, but to the solemn duty imposed upon you by the obligation resting on you as jurors, to declare, by your verdict, what your conviction is. The requests to charge handed up by the defendant I decline to charge in the language requested; and for the further reason that I have substantially charged the requests in my main charge.
Gentleman, I submit this case to your consideration. Your verdict will be either guilty or not guilty.
You may retire.
The jury retired at 12 o'clock, noon.
The jury returned to the Court-room at 1:20 pm.
The Court: Gentleman, I have received a communication from you, in which you state as follows:
"Kindly let us have the evidence relative to the identification of the Police Court".
I have caused the stenographer to carefully examine the transcript of his minutes, and he will read to you from that transcript such evidence as has been given upon that question. Read, Mr. Stenographer:
The Stenographer then read as follows from the cross-examination of Thomas F. Phelan.
By Mr. Greenthal:
Q. And you were in this Police Court?
A. Yes, sir.
Q. And you went to this pen, with the other officers in the case; did you not?
A. Yes, sir, on the following day.
Q. For the purpose of identifying your prisoner?
A. No, sir.
Q. Did you go there with Officer Fitzsimmons?
A. Yes, sir.
Q. And Officer McCutcheon?
A. Yes, sir.
Q. Did you, then and there, have a dispute with Fitzsimmons and McCutcheon as to who your prisoner was?
A. No, sir.
Q. You did not?
A. No, sir; positively not."
The stenographer also read form the cross-examination of Norman J. Fitzsimmons, as follows:
Q. Now, we will get down to the day before the examination?
A. Oh, I was down in the pen to bring the prison up.
Q. Yes. You were down there with Officer Phelan?
A. To bring the prisoner up.
Q. (Question repeated).
A. I don't remember; I don't think so. I think I was alone.
Q. Did you, at that time, have a dispute with Officer Phelan, or any other officer, as to who was your prisoner?
A. No, sir.
Q. Did you have any difficulty in identifying the defendant and a person named Lawrence?
A. No, sir.
Q. Do you know a person by the name of Lawrence?
A. Yes, sir.
Q. Was he in the pen at the time?
A. Yes, sir.
The Court: Have you read all the testimony on that point, Mr. Stenographer?
Stenographer: Yes, sir.
The Court: That being all the testimony on that point, gentlemen, you may retire.
The jury returned to the Court room at 1:30 pm, saying that they found the defendant guilty of Sodomy.
The Court: I will remand the defendant until Friday morning.