17 Neb. 147 | Neb. | 1885
The plaintiff in error was indicted by the grand jury of 'Gage county for. the murder of Henry C. "Vooriiees. Upon trial he was found guilty of murder in the second degree,, and was sentenced to the penitentiary for life. He alleges error, and seeks to reverse the judgment of the district court. The questions presented by his brief and the record will be noticed in the order in which they are presented.
Complaint is made of the decision of the district court in overruling a motion made by plaintiff in error for a change of the place of trial. The motion is based upon the alleged bias and prejudice of the citizens of the county in which the cause was pending, to such an extent that a
The foregoing observations will also apply to the second point of error assigned, which is, that the district court erred in overruling the motion of plaintiff in error for a continuance. We observe an “explanation” following the motion, and which was doubtless intended for the clerk tq sign, to the effect that the affidavits referred to by the motion “are copied and appear next before said motion;” but the clerk’s signature does not appear. It is not signed. But this would not have been sufficient. All such affidavits must be incorporated into the record by a bill of exceptions. The mere certificate of the clerk is not enough.
Complaint is made of the rulings of the district court in ■sustaining and overruling challenges made to jurors while impaneling the trial jury. We have read that part of the record, and find that four challenges to jurors, for cause, made by the state were sustained, and to which plaintiff in error excepted. Mr. Deny was called as a juror. In answer to questions propounded by the district attorney, he stated that he had conscientious scruples against the death penalty in case of murder, and that he did not believe in
Mr. Mundel was called as a juror, and in answer to the question of the district attoimey stated that he had conscientious convictions upon the subject of the infliction of the death penalty; that he did not believe in it in any case. The court then asked him the following question: “Are your opinions such as to preclude you from bringing in a verdict of guilty where the defendant was charged with an offense the penalty of which was death?” The juror answered frankly, “Yes, sir.”
J. E. Bryant was called and interrogated by the district attorney. He stated unequivocally that he was not in favor of inflicting the death penalty. The court then propounded to him this question: “Are your opinions such as preclude your bringing in a verdict of guilty in a case where the defendant is charged with an offense the penalty of which is death ?” Answer, “ They are.”
Mr. Bartley, on being examined as to his qualifications, stated that if the evidence was positive and direct he would have no such opinions as would prevent him from returning a verdict of guilty, but that in a case of circumstantial evidence he would not do it. At the close of his examination, when asked by the court whether he could or could not, he answered as follows: “ That I could not in circumstantial evidence convict a man of murder in the first degree.”
These jurors were challenged for cause by the district attorney, and the challenge being sustained by the court they were excused. In this there was no error. The law prescribes but one punishment for murder in the first degree, and that is death. If a person is called to act as a
It is next urged that the court erred in permitting W. H. Ashby, an attorney of the Gage county bar, to assist the district attorney in the prosecution of plaintiff in error. The record shows that before any evidence was introduced the district attorney stated to the court that he desired the assistance of Mr. Ashby in the trial of the cause on account of the magnitude of the case, that he had before that time requested his aid, etc. Plaintiff in error objected by his counsel, and stated that the attorney was not a disinterested attorney, and was employed by the friends of the deceased. The court overruled the objection, and allowed Mr. Ashby to assist in the prosecution. In this there was no error. Polin v. The State, 14 Neb., 540.
The fifth and sixth assignments of error are to the effect that the trial court erred in its rulings upon the admissibility of testimony offered by the state and by plaintiff in error during the trial. These assignments are too general. If it is desired to have the rulings of the lower court reviewed by this court such rulings as are thought to be objectionable should be designated or pointed out. We have examined the evidence throughout, and are unable to find such prejudicial error as would call for a reversal of the case.
The next question presented is, that “ the district court erred in permitting the district attorney to make misstatements of the evidence, and statements not warranted by the evidence, prejudicial to the accused in the argument of
The eighth point presented by the brief of plaintiff in error is, that “ the court erred in refusing to give the seventh paragraph of instructions asked by defendant.” The instruction referred to is as follows: “The jury are instructed that the law makes the defendant in this case a competent witness, and that the jury have no right to d sregard his testimony on the ground alone that he is the defendant and stands charged with the commission of a crime. The law presumes the defendant to be innocent until' he is proven guilty, and the law allows him to testify in his own behalf, and the jury should fairly and impartially consider his testimony, together with all the other evidence in the ease; and if from all the evidence the jury have any reasonable doubt as to whether the defendant committed the crime in manner and form as charged in the indictment, you should give the defendant the benefit of the doubt and acquit him.”
Viewing this instruction as an abstract statement of the law of the land as applicable to a proper case, we might not differ with the counsel for plaintiff in error. But we are left wholly in the dark as to its applicability to the case at bar. We have carefully read all the testimony introduced upon the trial, and have again carefully gone through the record, which is quite voluminous, and we are unable to find any word of testimony given by the accused in his own behalf. There is no record of his having been sworn as a witness. The instruction did not apply to the case and was rightfully refused. Instructions must be based upon the evidence. Meredith v. Kennard, 1 Neb.,
The trial court refused to give the fifteenth instruction asked by plaintiff in error. This instruction was a literal copy of section 27, page 165 of the Compiled Statutes of this state, defining the boundaries of Gage county, following with the charge that unless it was proven by the evidence that the offense charged in the indictment was committed within the boundaries of said county it was the duty of the jury to acquit. This instruction had already been substantially given to the jury in the twelfth instruction given upon the motion of plaintiff in error, a part of which was as follows: “It is necessary for the state, in order to secure a conviction in this'case, to prove beyond a reasonable doubt that the crime was committed in Gage county, Nebraska.” This was sufficient upon that point.' If an instruction has already been substantially given one similar to it may be refused. Olive v. State, 11 Neb., 30. Binfield v. State, 15 Neb., 489. Kerkow v. Bauer, Id., 167.
The next assignment of error contained in the brief of plaintiff in error is, that “the court erred in giving the tenth, twelfth, thirteenth, fifteenth, and seventeenth paragraphs of instructions given by the court on its own motion.” No suggestion is made as to how or in what particular the court erred in giving these instructions, and nothing further concerning them is contained in the brief. As the next assignment of error includes in the same general way all the other instructions (except the first) given to the jury, otherwise than at the request of plaintiff in error, we will dispose of all, except the eighth, by saying we have examined them and see no good ground for criticism.
The eighth instruction, being specially pointed out as objectionable, will be noticed with more particularity. It is as follows: “The court further instructs the jury that
It is insisted that as this case depended upon circumstantial evidence this instruction must have had great weight with the jury, and might have misled them to the prejudice of plaintiff in error if it was considered by them at all in their deliberations. As was intimated in Marion v. The State, 16 Neb., 349, decided by this court during the last term, this instruction standing alone might mislead a jury. In such a case, it seems to us, it should be looked upon with disfavor. Unexplained by other instructions it might be misunderstood. As we understand the rule in cases of circumstantial evidence it is necessary, in cases of this kind, for the state to prove beyond a reasonable doubt every circumstance which is essential to the conclusion. Starkie on Evidence, 855. Burrill on Circumstantial Evidence, 136.
An alleged circumstance may, in the language of the instruction, be “relied upon” in the chain of circumstances by which the guilt of an accused is sought to be established or the conclusion reached, and yet not be essential to that conclusion. A circumstance may be “relied upon” by the prosecution as tending to prove facts from which the inference of guilt is to be drawn, and yet it may not, in the language of Starkie, be one of the “ circumstances from which the conclusion is drawn.” The ultimate conclusion of guilt is drawn from certain essential facts, from the existence of which the mind is logically and irresistibly forced to infer the main fact to be proved. If one of these essential facta
A man is accused of the murder of his wife by the administration of a deadly poison. All the circumstances ■of the case point with almost absolute certainty to his guilt. The jury are satisfied of it beyond a reasonable doubt. He is proven to be devoid of affection for her, has been seen to cruelly maltreat her. His conduct toward another woman establishes the fact that she has supplanted his wife in his affections. The poison has been found within the body of deceased in a sufficient quantity to produce death. He is shown to have recently purchased the same kind of poison for the alleged purpose of destroying a family dog which has been permanently injured but which he wishes to kill without pain. It is shown he had no dog, and none
By an examination of the other instructions given to the jury it is very apparent that the language used in this eighth instruction was used in the sense above indicated? and could not, in connection with the others, mislead the jury. “The true meaning and effect of instructions are not to be determined by the selection of detached parts thereof, but by considering all that is said upon each particular subject or branch of the case.” St. Louis v. The State, 8 Neb., 405. The instructions given to the jury were full and elaborate. The law of circumstantial evidence was fully explained, and the jury were thoroughly informed that all the inculpatory facts necessary to establish the guilt of plaintiff in error should be fully proved; and that they must be such facts and circumstances as were absolutely incompatible with the innocence of plaintiff in error and incapable of explanation upon any reasonable hypothesis other than that of his guilt. In The State v. Hayden, 45 Iowa, 11, the trial court was requested to. charge the jury as follows: “As the evidence in the case
In Sumner v. The State, 5 Blackf., 579, the following instruction was asked by the defendant, who was on trial for the murder of his wife: “Every circumstance material to this case must also be proved beyond a rational doubt, or it is the duty of the jury to discard such circumstance in making up their verdict.” This instruction was refused, and the refusal held to be error. Blockford, J., in writing the opinion of the court, says: “We think that if the jury, in making up their minds from circumstantial evidence, have a rational doubt as to the existence of any of the material circumstances attempted to be proved, that circumstance ought not to have any influence with them in forming their opinion respecting the guilt or innocence of the defendant; or, in the language of the instruction asked, the jury ought in such case ‘to discard such circumstance in making up their verdict.’ ” Applying this rule to the case at bar it was not only correct for the court to instruct the
The next and last proposition contained in the brief of plaintiff in error is, that “the evidence was not sufficient to sustain the verdict of the jury.” It is impracticable in this opinion to discuss the evidence at any great length. The trial was a long one, the record is voluminous. The circumstances pointing toward plaintiff in error are numerous, and are such as to convince the mind of his guilt. The evidence shows that the deceased was a young unmarried mán living with his father in Schuyler county, Missouri. That plaintiff in error lived a short distance away, and was above middle age, his hair and beard being quite gray. Deceased was the owner of a span of mules, wagon, and harness, and about one hundred dollars in money, besides some personal property in the way of farming implements. By reason of certain representations plaintiff in error induced young Voorhees to accompany him, with the property, to Nebraska, leaving home on the twenty-eighth of November, 1878. These representations consisted in a flattering description of the beauties of Nebraska, with the further suggestion that plaintiff in error was the owner, of a farm in this state on which a crop of corn was standing, which would furnish plenty of feed for the team of deceased, and which would be at-his- service. They did not leave the home of deceased together, but agreed to meet at a point a short distance on the way. Plaintiff in error was a larger man than deceased. Deceased took with him a quantity of under-clothing and other articles of property, which were placed in an ordinary boot box and put into the wagon. Among the articles taken by deceased was an “S” wrench, for use
The identity of the dead body found in Gage county in the early spring of 1879 as the body of Henry Voorhees is beyond any question. A “tattoo” mark, “ H. C. V.” upon his arm, as well as a correct photographic likeness of the dead body, which was identified by his father and others, place the question of identity beyond any question. It is also shown that he came to his death by external violence, and, by wagon tracks in the prairie grass, it is shown that the body was placed where it was found by some one seeking to conceal it.
The evidence, only a part of which is here reviewed, is sufficient to sustain the verdict. From a full examination of the case, such as its great importance requires, we are satisfied that justice so long delayed has been done, and that there is no such error in the record as to require a reversal of the judgment. It is therefore affirmed.
Judgment affirmed.