93 Neb. 610 | Neb. | 1913
Lead Opinion
This is the second time this case has been presented to this court. The opinion upon the former hearing is reported in 90 Neb. 390, where the material facts presented by the evidence on the part of the state are quite fully stated, and need not be here repeated. After the cause was remanded to the district court, the venue was changed to Thurston county, where a trial was had, and. the cause submitted to the jury on practically the same evidence on the part of the state as at the former trial. The jury returned a verdict finding plaintiff in error, who will hereafter be referred to as defendant, guilty of manslaughter, when the indeterminate sentence of the law was pronounced against him. He brings error to this court, assigning 290 alleged errors of the district court in connection with the proceedings and trial. The assignments are specific, and many are well founded, but it will be impossible for us to discuss them without extending this opinion tó an unnecessary and unreasonable length. Particular attention can be given to comparatively few of them.
It appears from the record, and, as shown by our former opinion, that the principal witness on the part of the state, one .Albert Eich ten camp, who testified to having-seen defendant kill his sister, Louise Flege, had testified to a different state of facts at the coroner’s inquest, the effect of which was the complete exoneration of defendant. While the witness was never arrested nor charged in any legal proceeding with the commission of the crime, there appears to have arisen a known suspicion on the part of
Error is assigned upon the ruling of the court wherein certain jurors Avere challenged for cause Avhile being examined upon their voir dire as to their competency and qualification as such jurors. John D. Girardot was called as a proposed juror. His examination is of too great length to be set out in full. He testified that he had read of the case from the time of the murder to the time of being called as a juror, and had in the meantime conversed with his family and others about it; that he was “real certain’-’ that he had formed an opinion as to the guilt or innocence of the defendant; that probably it Avas more of
August Linclgrand, another proposed juror, testified that he had read the published testimony of the witnesses who were examined at the former trial “from beginning to the end,” and upon that evidence he formed an opinion as to the guilt or innocence of the defendant; that he had never changed that opinion; that it would take considerable evidence to change it, as it was a fixed opinion; that he would have to have “a pretty good reason” for changing his mind. He was challenged for cause, the challenge overruled, and the juror excused on a peremptory challenge.
J. W. Twyford, another proposed juror, testified that he read the Sioux City Journal, which published daily reports of the evidence and the testimony of .the witnesses at the former trial, which he read, and upon which he formed an opinion of the guilt or innocence of the defendant, and which he would not change until he had some reason for changing it. He Avas challenged for cause by the defendant, the challenge overruled, and the juror excused on defendant’s peremptory challenge.
Wilson W. Waters, upon his examination, testified that he had read the reports of the former trial and the testimony of the witnesses in the Sioux City Journal, on Avhich
Thomas Conley, examined on his voir dire, testified that during the former trial the testimony of the Avitnesses was published in the papers, and that he read the testimony, and upon that he formed an opinion as to the guilt or innocence of the defendant, deciding the case in his own mind; that he had never had any occasion to change his mind since that time, and had that opinion still; that it was a definite opinion to a certain extent; that he could not lay that opinion aside before hearing the evidence; that it would be impossible to divest himself of that opinion without hearing the evidence; that, if accepted as a juror, he would enter upon his duties Avith that opinion in his mind, and it Avould require evidence to remove it. The juror Avas challenged for cause, the challenge overruled, and he was excused on defendant’s peremptory challenge.
Exceptions Avere taken to the ruling in each case. Counsel for the state examined each juror at length, as also did the court, when they testified that they thought they could render a fair and impartial A^erdict without reference to the opinion thus formed. The defendant exhausted all his peremptory challenges, being required to deplete the number to which he was entitled by laAv by challenging the incompetent jurors. The jurors seemed to be candid and conscientious in their answers; but the fact that they so ansAvered Avas not enough to render them competent.
It is provided in section 468 of the criminal code: “The
In Carroll v. State, 5 Neb. 31, we held that, if it appear that the juror has formed an opinion from reading reports of testimony of witnesses, he is incompetent, although he may be willing to swear that, notwithstanding such opinion, he feels able to render an impartial verdict, and the judgment was reversed solely upon the one ground with reference to but one juror,
In Curry v. State, 4 Neb. 545, it is said: “We think it is clear that where the ground of challenge’is the formation, or expression, of an opinion by the juror, before the court can exercise any discretion as to his retention upon the panel, it must be shown by an examination of the juror, on his oath, not only that his opinion was formed
The defendant exhausted his peremptory challenges, and therefore did not waive his constitutional and statutory rights. Thurman v. State, 27 Neb. 628; Kennison v. State, 83 Neb. 391; Brinegar v. State, 82 Neb. 558; State v. Brown, 15 Kan. 400.
During the introduction of the testimony, the state offered in evidence the clothing worn by the decedent at the time of her death, consisting of her dress, chemise, sun-bonnet and apron, in their soiled, burnt and bloody condition. Those exhibits Avere objected to by the defense as incompetent, irrelevant and immaterial, not tending to establish any issue or fact in the case, nor tending to prove defendant’s guilt, but only for the purpose of inflaming the jury. The objection was overruled, the garments, admitted in evidence over defendant’s exceptions, were displayed and'held up before the jury. Error is assigned upon this ruling. There are, no doubt, many in
“You are not to take for granted that the statements contained in the hypothetical questions which have been propounded to the witnesses are true. Upon the contrary, you are to carefully scrutinize the evidence, and from that determine what, if any, of the averments are true, and what, if any, are not true. Should you find from the evidence that some of the material statements therein contained are not true, and that they are of such character as to entirely destroy the reliability of the opinions based upon the hypothesis stated, you may attach no weight whatever to the opinions based thereon. You are to determine from all the evidence what the real facts are, and whether they are correctly or not stated in the hypothetical question or questions. I need hardly remind you that an opinion based upon a hypothesis wholly incorrectly assumed, or incorrect in its material facts, and to such an extent as to impair the value of the opinion, is of little or no weight. Upon the matters stated in these hypothetical questions, and which are involved in this investigation, you are to give the defendant, the benefit of all reasonable doubt, if any there should be, and where there is a reasonable doubt as to the truth of any one of the material facts stated, resolve it in the defendant’s favor.”
As an abstract proposition of law, this instruction may be, in the main, unobjectionable, and might be properly given in a case to which it should be applied, but we are unable to see whére or how it could have any just application to this case. As a general rule the principle involved in this instruction is recognized as applying to the testimony of experts upon questions in which most people have what might be denominated common knowledge, and when such testimony is presented to the jury, or other trier of fact, who may have opinions of their own derived from common experience and observation; and, if an expert gives an opinion which is at variance with that common knowledge or ex
It cannot be denied that the question of post mortem digestion is one upon which the great majority of people have never thought and have no information whátever. This want of knowledge is not confined to laymen. It involves long, careful, patient and persistent investigation, and comparatively few have given the subject sufficient thought .or investigation to enable them to speak with anything like exact knowledge thereon. As said in the quotation above given, there can be no other guide than the knowledge of those who have made the subject a matter of special study. True, the jury may bring to their aid such knowledge and experience as they may have
By the sixteenth instruction the jury are permitted to “accept or reject such opinions, as you may accept as true, or reject as false, any other facts in the case. The jury are instructed that the opinions of the witnesses as experts are merely advisory and are not binding on the jury, and the jury should accord to them such Aveight as they believe, from the facts and circumstances in evidence, the same are entitled to receive.” The testimony of the experts explained to the jury the process of digestion, the combination of gases and acids which entered into the process, the necessity for vital action in order that the fluids be secreted by- the stomach, but which instantly ceased upon death. All this was carefully stated and explained, without contradiction or dispute, and which the very nature of the testimony would naturally convince the minds of the jury of its truth, yet the jury were informed that they might ignore it all, without a syllable of evidence calling it in question, and, necessarily, Avithout any knoAVledge or experience on their part by Avhich it might be compared or tested. The jury evidently took the court at its word and arbitrarily cast the proof aside as not worthy of belief.
In the twenty-third instruction the jury were informed that defendant denies the killing of the decedent, and claims that she Avas not killed until after he left his home on the day of the homicide; “and, if you believe the defendant not guilty, and that he did not shoot and kill the said Louise Elege, as alleged in the information, or in the event that the evidence introduced in the case is so evenly balanced that you cannot tell whether defendant or some
In the twenty-sixth instruction the jury were again informed that “if you find that he did not shoot the said Louise Flege, or entertain a reasonable doubt of- his guilt, you should acquit him.” Here is a repetition of the same vice. It was not necessary that the jury should find that he did not commit the deed. The question to be decided Avas: Has the state proved beyond a reasonable doubt that he did?
A sharp criticism is made against the conduct of counsel for the state in the closing argument to the jury, but, as that attorney will appear no further in the case, the contention need not be further considered. There is also complaint as to the conduct of other counsel for the state.. As it is hardly probable that the objectionable language, Avhich Ave need not specify, will be repeated on another
The judgment of the district court is reversed and the cause remanded.
Reversed.
Dissenting Opinion
dissenting.
The state in employing counsel in criminal cases will be unnecessarily and injuriously hampered by the rules announced. The successful prosecution of a guilty defendant in a contested case depends in a large measure upon the learning, skill and energy of prosecuting attorneys. A county cannot be expected to elect a prosecutor prepared at all times, without assistance, for every legal combat. Many eminent courts hold that the power to employ attorneys to prosecute persons charged with felonies is inherent in sovereignty. 30 Cent. L. J. 344. In the employment of counsel the county attorney, with the consent of the court, acts for the state. The trial judge, who is impartial in the contest, is acquainted with local attorneys and can readily acquaint himself with the character of the services demanded in each particular* case. Accused was defended by gifted lawyers. They are capable of emotional advocacy. They are not strangers to science or philosophy. They brought to their client not only their own zeal and accomplishments, but they searched the
An attorney is not bound by any duty to advocate the punishment of the innocent for the purpose of shielding a guilty client. No lawyer worthy of his profession ever recognized such a tie, either before or after employment. Happily, the thirst of religious bigots and of political tyrants for human blood has not crept into our institutions. The fears formerly inspired by such abominations
I adhere to my dissent from the bloody-garment rule announced in McKay v. State, 90 Neb. 63, 91 Neb. 281, and followed in this case. It attaches too much importance to shadow, and too little to substance. The passions of sensible men who sit on juries play too tragic a part in records for review.
In my opinion the effect of the expert testimony, under all the circumstances of the case, was a question for the jury. It is not conclusively established by the evidence that decedent’s stomach went into the hands of the analyst as nature left it. It had previously been opened and examined. It may fairly be inferred from the evidence that part of the contents was missing. That part analyzed may have been eaten in the forenoon. The report of the analyst, therefore, does not annihilate the direct evidence of defendant’s guilt. If Science is to pronounce the decree
Dissenting Opinion
dissenting.
I cannot agree with the opinion on the following points :
1. The scorched and burned garments directly corroborated the testimony of Eichtencamp, and, therefore, tested by the very rule announced in the opinion, were properly admitted in evidence.
2. As pointed ont by Judge Rose, the expert evidence, under the circumstances in this case, was not conclusive as to the length of time that elapsed after the deceased ate a meal and before her death. While the principle of law quoted from Judge Taft is correct, it is not strictly applicable here.