86 Neb. 11 | Neb. | 1910
Lead Opinion
The state prosecuted one Lafe Burnett, hereafter called the defendant, in the district court for Phelps county on the charge of adultery, alleged to have been committed by him with one Anna Wilson, a married woman, the wife of Augustus Wilson. The trial resulted in a verdict of guilty, and the defendant was sentenced to be confined for a term of six months in the county jail of Phelps county. To reverse that judgment the defendant has brought the case here by petition in error. The record contains a great many assignments, but three of which will receive our consideration.
At the trial, the state was permitted to prove, over the objections of the defendant, that at the time he was arrested defendant said: “I suppose I am under arrest.” That in a subsequent conversation with the officer the defendant said: “She is a mighty good looking woman, isn’t she?” That the officer replied “Yes”; and the defendant then said: “Mighty good form, too.” This evidence was not introduced to contradict any statements made by the defendant, but as substantive evidence for the prosecution, and was treated by the state and by the trial court as an admission of guilt. Another witness for the state was also permitted to testify that at the .time and place where the defendant was arrested he said to Mrs. Wilson: “Nobody would hurt her, but it meant the penitentiary for him.” This was also objected to by the
Again, the record sIioavs that the state was permitted to prove, over defendant’s objection, that, after he was arrested and was taken aAvay by the officer, Mrs. Wilson, his alleged paramour, said: “This is a great idea. It is the first time Ave ever did anything of this kind, and have to be caught.” Another witness for the state was permitted to testify that she said, in the absence of the defendant: “You need not laugh, there isn’t a one of you but what would have done the same thing if you had had a chance,” or words to "that effect. These statements made in the absence of the defendant by his alleged paramour, who was not under indictment., who Avas not a codefendant, and 'against whom no prosecution has ever been instituted, were treated by the state and by the court as admissions of his guilt. They were received as evidence in chief, and not for .the purpose of contradicting the statements made by Mrs. Wilson denying the commission
Complaint is also made by the defendant of instruction No. 1 A, given at the request of the state, in which the court attempted to define a reasonable doubt. The instruction reads as folloAAs: “The court instructs the jury: A reasonable doubt, as used in these instructions, to justify an acquittal must be a reasonable one arising from a candid and impartial investigation of all of the evidence in the case. A doubt produced by an undue sensibility in the mind of any juror in vieAV of the consequences of his verdict is not a reasonable doubt, and the juror is not alloAved to create sources of materials of doubt by resorting to trivial or fanciful suspicions and remote conjectures as to a possible state of facts differing from those established by the evidence. You are not at liberty to disbelieve as jurors if, free from all the evidence, you believe as men. Your oath imposes on you no obligation to doubt AA’here no doubt would exist if no oath had been administered. That by reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means some actual doubt having some reason for its basis. A reasonable doubt that entitles to an acquittal is a doubt reasonably arising from all the evidence or want of evidence in this case. The proof is deemed to be beyond a reasonable doubt
Eor the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceeding^.
Reversed.
Dissenting Opinion
dissenting.
I think the instruction as to admissions was not erroneous under all the evidence in the case.