Brown v. United States (164 U.S. 221)/Dissent Brewer

by David Josiah Brewer

United States Supreme Court

164 U.S. 221

Brown  v.  United States

Mr. Justice BREWER, dissenting.

I dissent: 1. Because after 3 juries (36 jurors) have agreed in finding a defendant guilty of the crime charged, and such finding has each time been approved by the trial judge, the judgment based upon the last verdict ought not to be disturbed unless it is manifest that the verdict is against the truth of the case, or that the court grossly and prejudicially erred on the trial.

2. Because the testimony in this case discloses an outrageous crime, showing that this defendant, in connection with another party (that other party already convicted of one murder, and a fugitive from justice), in the night-time called from their slumbers two officers of the law, and shot them down, without provocation. Justice and the protection of society unite in saying that it is high time such a crime was punished.

3. Because no sufficient exception was taken. The entire charge of the court fills about 37 closely-printed pages of the record. If reprinted here, it would make nearly 75 pages of this volume. With the exception of two or three short instructions at the close, it does not consist of separate instructions, but is one continuous charge. This charge was excepted to, as appears from the record, in this way: 'Defendant John Brown excepts to those parts of the charge of the court to the jury at the time of the delivery thereof, as follows, to wit: First, to that part of the charge relating to what the court says as to evidence that 'cannot be bullied or bribed,' as to the 'fruits of the crime, the taking of the money,' etc.; second, as to the definition and illustrations of 'willfully." And so on through a series of 25 or 30 specifications, covering therewith the entire charge. The seventeenth is as follows: 'Defendant excepts to all the remarks of the court in reference to the impeachment of the witness Sam Manus;' and again, 'also excepts to that part of the charge in regard to the evidence of Sam Manus.' And in this way only was objection made or exception taken to the charge, or any part of it. Now, there is about a page referring to the testimony of Sam Manus. On this page are stated certain rules of law, which it is conceded are correct, and it is only a portion of the language used in reference to the testimony of Sam Manus that the court considers objectionable. I have always understood that the purpose of an objection and exception was to call the attention of the trial court to the particular words or phrases complained of, in order that it might have an opportunity to consider, and, if need be, correct, the alleged error. The decision in this case seems to entirely ignore this purpose, and to make the noting of an objection and exception simply a request to the appellate court to search through the several pages of a charge for any sentence or sentences which its critical eye may disapprove of. For all practical purposes, a single exception might just as well have been taken to the entire charge.

4. Because this part of the charge is, as a whole, unobjectionable. The testimony referred to was admitted, and therefore held to be competent. The rule of law in reference to impeachment was correctly stated, and the objectionable matter was prefaced by a declaration of the court that it gives a matter of admonition. That admonition was just and sound. Reputation is the general judgment of the community in respect to the witness whose reputation is challenged, and is not made up by the flippant talk of a few outlaws.

For these reasons I dissent.

Mr. Justice BROWN and Mr. Justice PECKHAM concur in this dissent.