Mr. Justice BREWER, dissenting.
I concur in the views expressed in the opinion of the court as to the separate functions of court and jury, and in the judgment of affirmance against Hansen; but I do not concur in holding that the trial court erred in admitting evidence of confessions, or in the judgment of reversal as to Sparf.
The facts, briefly stated, are these: There was a single indictment, charging the defendants jointly with the crime of murder. There was a single case on trial, a case in which the government was the party on one side and the two defendants the party on the other. These two defendants were represented by the same counsel. Three witnesses testified to confessions of Hansen. Counsel for defendants objected to each of these confessions. These objections were in the same form. They purported to be for the defendants jointly, and not separately for each. Two of the confessions were given in the presence of Sparf, and in admitting them it is not pretended that there was any error. One was made in the absence of Sparf, and it is held that the court erred in overruling the objection to it. The objection was that the testimony offered was 'irrelevant, immaterial, and incompetent, and upon the ground that any statement made by Hansen was not, and could not be, voluntary.' It will be noticed that this objection was both general and special; the special ground that which would naturally arrest the attention of the court being that the confession was not voluntary. This ground of objection, it is admitted, was not well taken. If there was any error it was in overruling the general objection that the testimony was irrelevant, immaterial, and incompetent. But it is conceded that this confession was material, relevant, and competent, was properly admitted in evidence on the single trial then pending, and properly heard by the jury. The real burden of complaint is that, when the court admitted the testimony, it ought to have instructed the jury that it was evidence only against Hansen, and not against Sparf. But, in common fairness, ought not the attention of the court to have been called to the difference, and a ruling had upon that difference? Cannot parties present a joint objection to testimony, and rest their case upon such objection? Is it the duty of the court to consider a matter which is not called to its attention, and make a ruling which it is not asked to make? Is it not the duty of the court to be impartial between the government and the defendant, and decide simply the questions which each party presents? Is it its duty to watch over the interests of either party, and to put into the mouth of counsel an objection which he does not make? To my mind, such a doctrine is both novel and dangerous. I do not question the proposition that a confession made by one of two defendants in the absence of the other is to be considered by the jury only as against the one making it, and I admit that, if a separate objection had been made by Sparf, the court would have been called upon to formally sustain such objection, and instruct the jury that such testimony was to be considered by them only as against Hansen. If an instruction had been asked, as is the proper way, the attention of the court would have been directed to the matter, and an adverse ruling would have rightly presented the error which is now relied upon. But I need not refer to the oft-repeated decisions of this court that there is no error in failing to give an instruction which is not asked, unless it be one of those which a statute in terms requires the court to give, and there is no pretense of any such statute. Lewis v. Lee Co., 66 Ala. 480, 489, was decided in accordance with the views which I have expressed. The court in that case say:
So in State v. Brite, 73 N. C. 26, 28, a similar ruling was made, the court saying:
I have been able to find no case laying down a contrary doctrine. In Insurance Co. v. Hillmon, 145 U.S. 285, 12 Sup. Ct. 909, each defendant separately for itself presented the objection, and each, therefore, had the right to avail itself of the ruling made by the court. Indeed, I think this will be found to be the first case in which it has been held that, while the court properly allowed testimony to go to the jury on the trial of a case, the judgment has been reversed because it failed to call the attention of the jury to the bearing of that evidence upon the different parties when such parties never asked the court to so instruct the jury.
I am authorized to say that Mr. Justice BROWN concurs in these views.
(Jan. 21, 1895.)