61 Neb. 418 | Neb. | 1901
In the district court for Dawson county, to which county the case had been taken on change of venue from Buffalo county, Frank L. Dinsmore was convicted of murder in the first degree and sentenced to be hanged, from which conviction he comes to this court on error. From the evidence of record it appears that for a year or more prior to the homicide defendant had been boarding at the home of one Fred Laue,in the little town of Odessa, in Buffalo county, during which time improper relations commenced between defendant and Mary Laue, wife of said Fred Laue, Avhich relations continued, with more or less regularity, down to the time of the tragedy. After such relations commenced, Dinsmore married and brought his wife to board at Laue’s. While they Avere boarding there he proposed to Mrs. Laue that he kill his wife and Laue, and so arrange their bodies as to make it appear that Laue had murdered Mrs, Dinsmore and had then committed suicide. Mrs. Laue, the principal witness for the state, claims she would not assent to this, but that she did, through fear of Dinsmore, remain silent Avhile Dinsmore accomplished his fell purpose. The details of the act, that of “a fiend in the ordinary display and development of his character,” are not necessary to an understanding of the errors alleged to have been committed by the trial court. On an information charging him with the murder of Laue, Dinsmore was convicted.
The provisions of the Criminal Code which permit prosecutions by either indictment or information are attacked by counsel for defendant as being in violation, among others, of section 19 of article 6 of the constitution, which is as follows: “All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law and the force and effect of the proceedings, judgments, and decrees of such courts, severally, shall be uniform.” It is urged that the statutes which authorize the prosecution of criminals by either information or by indictment, depending on the discreÍ ion conferred upon courts by section 584 of the Criminal < ’ode relating to the calling of a grand jury, violate the rale of uniformity and generality prescribed in said section of the constitution. It is insisted that chapter 54 of the Criminal Code, which permits the filing of informations, is not general, because it admits of the filing of an information in one county and of an indictment in another county, while it should admit of the filing of one or the other in all counties, but not of both. The objection is not well grounded. The law permits the filing of either indictments or informations in any county in the state, and whether a prosecution shall be by indictment or by information depends upon whether a grand jury is or is not in session. The same law applies to every county in the state, and for that reason is general, and in no respect special. It is urged that it is not of uniform operation for this reason, and for the additional one that in the same court it permits an information to be filed in one case against a defendant and an indictment to be filed in another case, and all according to the whim or inclination of the judge. We think nothing depends upon the whim or inclination of the judge, but that it is left to the sound discretion of the court—
It is contended that under section 10, article 1, of the constitution, by virtue of which the legislature is given the power to abolish, change, limit, amend or otherwise regulate the grand jury system, the legislature has power to abolish the grand jury system entirely, or to amend or regulate it, but that it was obliged to make the practice and proceedings uniform; in other words, to abolish it entirely, and have prosecutions by information solely, or to retain it and permit prosecution by indictment only. We do not so understand the fundamental law. If the legislature chooses to permit the prosecution of those charged with crime by either indictment or information, it must make the proceedings and practice uniform in each case, but is not confined to a choice between the two methods of prosecution. The two are very different propositions.
It is further urged that the legislature, by leaving it discretionary with the judges of the various district courts to call a grand jury or not, and thereby determine whether criminal charges shall be preferred by indictment or by information, has violated section 1, article 2, of the constitution, which defines the powers of the co-ordinate branches of the government, and inhibits those persons occupying, one department from exercising any power properly belonging to either of the others, except as shall be in said instrument directed or permitted, in other words, that the legislature has conferred upon the district courts legislative powers, in violation of said section. It is urged that it is the function of the legislature solely to determine the organization, practice and proceedings of the courts, and that it can not delegate that function to a judge or court. The proposition
Then, it is contended that the law is special legislation, in contravention of section 15, article 3, of the constitution, for the reason, for instance, that the legislature can not provide that prosecutions shall be by indictment in Douglas county and by information in Lancaster county. A sufficient answer to the argument would be that the act in question does not so provide. But it is urged that such may be true in fact, if the courts in Douglas county call grand juries, while those in Lancaster county fail to call them. True, but the courts of one county are not inquired to proceed in one way only, and those in the other in the other way. The courts in both counties may proceed in both ways, or in either, as may seem to them best suited to the exigency to be met. There is no feature of special legislation about an act of that kind. So it is argued that under the constitution, and in the nature of things, the power to determine whether proceedings shall be by information or by indictment is legislative.- We do not assent to the proposition as made, or as intended to be applied. The power to prescribe that prosecutions shall be by either information or by indictment, or by both, is legislative; but it is not a legislative act to elect which of two permitted methods shall be adopted in any particular case. That is judicial, and may be executive or administrative. Section-468 of the Code of Criminal Procedure permits the court, under certain circumstances, to either accept or reject a juror who discloses that he has formed an opin
It is claimed there is no warrant in the constitution for electing county attorneys, but that the constitution contemplates the election of district attorneys only, and that the case having been prosecuted by a county attorney, the conviction is void. There is now no such office in this state as that of district attorney. That was not an office called into existence by the constitution, but existed at the time that instrument was framed an'd adopted. General Statutes, ch. 5. The existence of the office of district attorney was recognized by the fundamental law, and the incumbents were, by section 6, article 16, of the constitution, continued in office until the expiration of their respective terms. This section reads: “The district attorneys now in office shall continue during their unexpired terms to hold and exercise the duties of their respective offices in the judicial districts herein created, in which they severally reside. In each' of the remaining districts'one such officer shall be elected at the first general election, and hold his office until the expiration of the terms of those now in office.” The constitution created several new judicial districts, and the section quoted merely provided'for the continuance in office of the incumbents and for the election of district attorneys for the districts so created, and expressly provided that the persons so elected should hold the office until the expiration of the terms of those then holding such office, but no longer. There is no provision of the
It is next urged that a preliminary examination should have been accorded the accused. There is no merit in this, since the record fails to disclose that he was not given a preliminary examination before the filing of the information. It is also said that the defendant could not waive a preliminary hearing. The record fails to show any such waiver. Moreover, the objection was not made in the district court, at least before the plea of not guilty was entered, hence it can not now be urged. Criminal
Without pointing out to the court any particular reason therefor, it is insisted, that a motion for continuance filed in Buffalo county and another in Dawson county should have been granted. We have examined the.motions and evidence in support thereof, and can find no error in the proceedings. The granting or refusing of continuances rests in the discretion of the trial court, and its ruling in that regard will stand, unless an abuse of discretion is established. Welsh v. State, 60 Nebr., 101.
The jury that tried the defendant was drawn under the provisions of section 664 of the Code of Civil Procedure, no jury being in attendance at that term. It is claimed and argued at great length that defendant was entitled to a jury selected under the provisions of sections 658 et seq. We have held contrary to that contention a number of times, and that the court might order the sheriff to summon jurors under section 664 of said Code when there is no panel of petit jurors. Welsh v. State, supra, and cases cited; Carrall v. State, 53 Nebr., 431. It is insisted on that point that section 664 is in contravention of said section 19, article 6, of the constitution; and again we say the rule of uniformity there promulgated does not inhibit the legislature from providing more than one form or method of procedure in any case, provided all such forms or methods are equally applicable to all courts of the same class or grade. We have examined the arguments advanced in support of the illegality of the manner in which the jury was drawn, and are of opinion that none of them is tenable. The jury was drawn in strict accordance with the statutes and within all requirements of the fundamental law.
Several errors are assigned relative to the rulings of the court in impaneling the jury. These alleged errors we will examine in the order presented, prefacing, however, with the remark that there is nothing in the certificate of the trial judge settling the bill of exceptions
Objection is made to the ruling of the court refusing to excuse one W. A. Love on defendant’s challenge for cause. Part of his voir dire examination is as follows:
Q. Now, the opinion you had when you first read this account you have not changed, because you have not since heard anything to the contrary?
A. Nothing since, no, sir.
Q. Now, your opinion, I suppose, will remain unchanged until you hear some evidence in the case?
A. Certainly.
Q. In other words, it will take some evidence to change your present opinion?
A. Yes, sir.
Q. And that opinion is concerning the guilt or innocence of the accused?
A. Certainly.
And in response to questions put by the court, after having been challenged by defendant, he answered, in part, as follows:
Q. Ho you sa,y that at this time you have an opinion concerning the guilt or innocence of the defendant, a well defined opinion in your own mind?
A. No, no I couldn’t form a well defined opinion from what I read, of course I had an impression.
A. Never had anything to contradict it.
Q. Now you say that impression didn’t amount to an opinion?
A. No, sir.
Q. Then you can’t say that you now have an opinion concerning the guilt or innocence of the defendant?
A. Couldn’t say that I had.
And in response to questions put by the court the juror further testified that he believed he could sit as a juror in the case and render a fair and impartial verdict regardless of what he had read, and that he thought he could start into the case with his mind as free from bias or prejudice against defendant as though he had not read these newspaper accounts. The challenge was thereupon overruled, and exception taken. Another juror testified on his examination that he had read an account of the tragedy in the newspapers; that he did not think it had made a great deal of an impression on his mind, but would not say that he had not formed an opinion; that he had no fixed opinion; that he did not think it would require very much evidence to change his opinion or impression; that it might take some. Whereupon he was challenged by the defendant. In answer to interrogatories on the part of the court he said he did not think his impression amounted to a fixed opinion; that he hardly considered it an impression; that the opinion or impression he had would not influence his mind during the trial5 and that he could entirely exclude it from consideration in making up his verdict; whereupon the challenge was overruled. Another juror testified that he had read an account of the homicide in the papers, that from it he had not formed an opinion as to the guilt or innocence of the defendant; that what he read he did not think purported to be a detailed account of the evidence in the case; that the reading made no more impression on Ms mind than an occurrence of that Mnd would gen
Two other jurors were also asked by the state, on their voir dire examination, if they had any objections or conscientious scruples against the infliction of capital punishment, if the evidence warranted it. It is urged that the question was improper, because it tended to exclude from the jury any one who might lean towards the infliction of a lesser penalty. This court has decided adversely to defendant’s contention in Hill v. State, 42 Nebr., 503, and no substantial reason is advanced for receding from the position there announced. The entertaining of conscientious scruples against the infliction of the death penalty is ground for challenge for cause under section 468 of the Criminal Code; hence it follows that it is proper to interrogate a venireman on that subject.
Objections are urged to rulings of the court permitting two physicians, who saw the body of deceased as it lay on the bed where he had met his death, to answer the following questions: “What position would the body necessarily have lain in for the blood to have the course from the wound which you found it had taken?” It is claimed that it was both incompetent and not a matter for expert testimony. This evidence was offered, evidently, to corroborate that of Mary Laue, who testified that Dinsmore, who had come into the kitchen where she was, after having committed the deed, remained there a short time and left, stating that he would go to the chamber where his victim lay and so arrange the body as to lead to the conclusion that he had committed suicide; the answer of the physicians tending to show that the body must have lain in a different position xvhen the blood flowed from the freshly made wound to that in which it lay when first found by witnesses. The evidence was competent, whether it was or was not a matter for expert testimony. The witnesses had seen the body and
It is next urged that the court erred in permitting Mrs. I.-aue, the principal witness for the■ prosecution, to testify as to the fact and time when illicit relations began between her and defendant, on the ground that no foundation for the question was laid, and that it was leading and incompetent. The question, with the objection made, is:
Q. When did improper relations begin between you and him, if they did so begin?
Defendant objects as leading. Objection overruled; defendant excepts.
There was no objection made, other than that it was leading. It is within the sound-legal discretion of the trial court to permit leading questions to be put to witnesses. If this question was leading, the record discloses a sufficient justification to permit it to stand, for this woman Avas by it called to disclose to the world that she had lost the immediate jewel of womanhood, her chastity, and as a rule women do not readily lay bare their shame. The discretion of the trial court was not abused.
It seems that, after the burial of her husband, Mrs. Laue, who up to that time had insisted that her husband had committed suicide, made a confession, signed and sworn to by her, implicating the defendant in the murder of her husband. On cross-examination it was developed that after making this confession she was examined by the county attorney, but not under oath, relative to the facts in the case, and such examination was taken down in shorthand by some person. It further developed that the statement then made by her, if ever reduced to shorthand, was never afterwards read to or seen by her, nor
The confession of witness turned over by the county attorney to counsel for defendant was by him introduced in evidence as defendant’s Exhibit No. 1, and on cross-examination Mrs. Laue was asked referring to the statement made to the county attorney, “In the other statement which you made and which you have testified about, did you recite what was in this statement, Exhibit 1, or do you know?” To this objection was made, as incompetent, irrelevant, immaterial and no foundation laid, which objection was by the court sustained, exception being duly taken. This ruling is alleged as error. As before observed, this statement was not admissible in evidence, and as counsel was not entitled to it, could not be made the "basis of an impeaching question, the only purpose that could have been served by permitting the witness to answmr. The matters relative to these statements were brought out wholly on cross-examination, and we think the lower court did not unduly restrict counsel in such cross-examination.
Another question propounded by counsel for defendant on cross-examination was: “Did you, in any of these
Certain evidence introduced served to prove that Dins-more paid improper attentions to Mrs. Laue prior to the night of the homicide, and for some time prior to the tragedy he more or less neglected his wife. This evidence is claimed to be immaterial and highly prejudicial to defendant. We think it admissible, if for no other purpose than as tending to establish a motive for the crime.
One Overmier was permitted to testify, over objections duly made on behalf of defendant, that he took defendant to the residence of deceased, after the tragedy, and while accused was under arrest, the corpses of Laue and Mrs. Dinsmore being then in the house; and that Dinsmore lifted the covering from one of them and said, “Humph,
Some ten or eleven assignments of error raise questions of alleged improper remarks made by counsel for the state on argument to the jury. The language excepted to is too lengthy to insert in this opinion. In every instance, objections to these remarks made by defendant, or in nearly every instance, were by the court sustained. The court was exceedingly .careful of defendant’s rights in the premises, as an examination of the record will disclose, and in several instances complained of, excluded remarks that were perfectly proper, in summing up the case to the jury. Whenever counsel may have overstepped the bounds of propriety, the court very willingly
Another alleged error is one going to the action of the trial court in refusing a new trial because, it is claimed, one Tussing attempted an assault upon defendant after the trial had ended, and while the jury was deliberating, which fact of attempted assault is insisted was communicated to the jury and by its members discussed during such deliberation. We can not imagine any reason for assuming that an attempt at violence against the person of accused by some third party would influence the jury in its conclusions concerning the guilt or innocence of defendant of the crime charged. But, be that as it may, the evidence relative to the fact of the attempted assault, and of its communication to and discussion by the jury, was merely hearsay, and, therefore, insufficient to establish such fact.
Exception was taken by the defendant on the trial to the giving of the eleventh instruction by the court, on its own motion, which is as follows:
“No. 11. Mrs. Laue has been called by the state and has testified to facts and circumstances, tending to show the guilt of the defendant; and defendant’s counsel, upon the cross-examination of this witness, has shown that at the coroner’s inquest she made other statements concerning the same subject, entirely different from those testified to by her here. As an explanation of this difference in her testimony, she here claims that she, at the time of the inquest, was under the influence and control of the defendant, and made such statements at his request, and by his direction; and she here says, that the statements made at the inquest were untrue. Now, it is for you to determine from all the testimony, facts and circumstances shown, as to whether or not the statements made at the inquest or the statements here given by her or either, are time. If you believe that her statements at the inquest were true, then it will be your duty to entirely disregard
In the first place it is insisted that it was error to give this instruction, for the reason that it singled out by name a witness and discussed her testimony. Mrs. Laue was a witness called on behalf of the state, and it might have urged against this instruction the point now brought forth by defendant, but he is not in position to complain, since she was not his witness, and, moreover, he requested an instruction, which was given by the court, singling out this same witness and her testimony quite as explicitly as the one copied above. Said instruction requested by defendant follows:
“In considering the testimony of Mrs. Laue, it is proper for you to remember that she testified before the coroner’s jury to a different state of facts from that to which she testifies here. You may look to the testimony of other
It is urged that the instruction complained of ga-ve undue prominence to that portion of Mrs. Laue’s testimony explaining how she came to swear falsely, as she says, at the inquest. This objection is not well taken. It did not make prominent her explanation of the discrepancies in her statements, but merely called the attention of the jury thereto, leaving it to them to determine from all the facts and circumstances proven which statement was true and which was false. In fact, the instruction was favorable to the defendant. Another criticism made upon this instruction is that it did not call to the attention of the jury the alleged written confession of Mrs. Laue brought out on her cross-examination and offered by the defendant. A sufficient answer to this contention is that no request to so charge was made by defendant. One can not predicate error upon the failure to charge, unless a proper instruction covering the point has been tendered by him. Housh v. State, 43 Nebr., 163.
It is finally urged that the court erred in giving instruction numbered 16, which we quote:
“You have heard the evidence offered on,both sides of the case. From that evidence, you learn what the facts are. The attorneys have had a wide range of discussion; they have had complete freedom of argument before you, upon all questions of fact. It is their privilege in the argument to criticise the evidence. Those for the state to criticise the conduct of the prisoner; those for him to criticise the conduct of the witnesses against him; to impugn their motives] if the evidence justifies it; to assault the credibility of the witnesses. Counsel for the state
It is urged that the instruction is argumentative and declamatory, and by it the court invaded the province of the jury, and that it was erroneous to inform the jury that the state had a right to criticise the conduct of the prisoner. The instruction was neither argumentative nor declamatory, nor did the giving of it invade the functions of the jury. It was merely a usual cautionary instruction, which the trial court may, in its discretion,
But it is said that it was error to inform the jury that counsel for the state might criticise the conduct of the prisoner, since he was not a witness at the trial. His conduct, as disclosed by the evidence, was a proper subject of discussion, whether he was or was not a witness.
It is urged that it was prejudicial to designate the defendant as the “prisoner.” This objection carries its own refutation upon its face, and deserves no further com: ment. The same may be said of some other criticisms upon the instruction.
It is suggested'that the court erred in informing the jury that they had nothing to do with questions of mercy. Manifestly this is the law, though the statute confers upon the jury the right to fix the penalty. In determining the punishment they have no right to be actuated by considerations of mercy, but should be guided alone by the evidence, the facts and circumstances disclosed by the record, under the instructions of the court. If the evidence reveals a case in which the death penalty should be fixed, the jury have no right to be deterred from discharging their sworn duty through any sympathy for the accused. Mercy lies solely within the province of the executive in his exercise of the pardoning power.
Again it is said the court erred in telling the jury “you would be disloyal to your obligation if you should find the prisoner guilty when the evidence required his acquittal.” This was entirely sound. By it was meant that the defendant should not be convicted upon insufficient evidence. The jury had been previously instructed as to the burden of proof, and that the guilt of the defendant must be established by the state beyond a reasonable doubt. '
We have carefully and faithfully examined the record, and all objections urged against the conviction, and the conclusion is irresistible that the defendant has been ac
Affirmed.
