103 Neb. 325 | Neb. | 1919
Lead Opinion
In the district court for Howard county, Alson B. Cole and Allen Vincent Grammer, defendants, were charged in a single information with murder in the first degree, Cole as principal and Grammer as accessary before the fact. The state’s case may be summarized as follows: Lulu Vogt, a widow having considerable means, was the mother-in-law of Grammer, who was prompted by a desire for an inheritance from her to his wife. He planned the murder and agreed to give Cole $500 for committing it. During the night of July 5, 1917, Cole, pursuant to a previous understanding with Grammer, went to the home of Lulu Vogt, made the false statement that her daughter' had been accidentally injured, enticed Lulu Vogt into an automobile, took her from her home and feloniously shot and
It appears that, at different times and places, each made a confession giving details of the parts played by both. Defendants were arraigned, pleaded not guilty, and went to trial together without any demand by either for a separate trial. After the jury had been impaneled, Cole changed his plea to guilty. The trial court held it was the province of the jury to fix at death or life imprisonment, the punishment for murder in the first degree, and for that purpose proofs showing the details of the homicide were admitted in evidence' against Cole after he had pleaded guilty. Grammer was tried and convicted. The jury fixed the extreme penalty for both defendants, and the trial court imposed upon each the sentence of death. Grammer alone prosecutes error.
In addition to complaints that disqualified jurors were erroneously impaneled, there is an assignment of error in the following form:
“The court erred in failing to instruct the jurors that they must not be prejudiced by the 'voir dire examination of talesmen’
The published confessions of defendants and other reports of their guilt had reached many excused tales-men, some of whom, during the course of the voir dire examination, expressed the opinion that defendants were guilty. Statements of this nature were made in the presence of jurors already selected for the trial. The procedure in this respect, the disqualifications of jurors, and the failure of the trial court to instruct the jury to disregard such expressions of guilt are subjects of extended^ argument. Notwithstanding opinions of guilt based on rumors or reports, each juror qualified himself by his answers on his voir dire examination, and the record fails to show an abuse of discretion on the part of the trial 'court in ruling on the qualification •of jurors. Besides, Grammer did not exhaust his peremptory challenges/ A juror may serve impartially
It is insisted that the failure of the trial judge to order separate trials for Cole and Grammer is a ground for reversal. There was no demand for separate trials, and there was no error, therefore, in the failure to grant them.
Error in overruling objections to questions propounded to witnesses for the state in laying the foundation for the admission of Grammer’s confession is assigned as a ground for reversal. The nature of these questions is indicated by those following: “State whether or not any'force was used to get him to make that statement.” “You may state whether or not any promises were made to him to get him to make that statement.” “You may state whether or not any inducements were held out to Mr. Grammer to get him to make that statement.” The objections are that the questions are leading, suggestive, and call for a conclusion. The circumstances under which the confession was made are disclosed by the evidence. Grammer exercised the privilege of cross-examination. The law applicable has been recently stated as follows:
“It is not error to permit a witness to testify that a confession was voluntary, as being an opinion or conclusion, if the circumstances of the confession are in evidence. Similarly, a question whether any promises, threats, or inducements were made to defendant,
This assignment of error is therefore overruled.
Assigned error in the overruling of objections to the admission of the confession of Grammer is argued at some length. The substance of the objections is -there was no foundation excluding the hypothesis that, the confession was involuntary, it being asserted that the state’s witnesses were erroneously permitted to testify to mere conclusions in' answering incompetent questions. The confession is in writing. . It gives the details of Grammer’s connection with the homicide. It was signed by him in presence of witnesses who testified that it was voluntarily made. There is ample proof that it was obtained without threats or promises to inspire either hope or fear. The foundation, therefore, was sufficient. State v. Kilduff, 160 Ia. 388; Sparf v. United States, 156 U. S. 51, 15 Sup. Ct. Rep. 273; 2 Wharton, Criminal Evidence (10th ed.) sec. 646; 16 C. J. 728, sec. 1494. The trial court properly admitted Grammer’s confession under the following rule:
“A proper predicate for the admission of a confession ’ is laid where the witness to whom it was made testifies that neither he, nor any one else in his presence or hearing, made any promises or threats to defendant.” 16 C. J. 734, sec. 1512.
Testimony inculpating Cole, including his confession, is condemned as prejudicial to Grammer. Ea,ch made a confession in writing. The facts were set out at length. In most essential respects the details were the same. Corroborating circumstances confirmed the truth, of the confessions. Cole was first to confess. "With his confession Grammer was confronted. When Grammer knew its contents, reciting as it did that Cole had been hired by Grammer to commit the murder, Grammer, according to the testimony of one. of the witnesses, said that it was true. If the witness told the truth — a ques
Laughter and applause by auditors during the trial are condemned as grounds for a new trial. Such misconduct should not ' be tolerated; but under a constitution requiring a public trial it is sometimes difficult to prevent all manifestations of feeling on the part of the audience, where the public interest is aroused by a prosecution for a homicide. In the present case the trial judge announced from the bench a rule forbidding any demonstration of feeling on the part of the audience in regard to incidents of the trial. There were no doubt changes among the auditors during the protracted trial and an occasional recurrence of the- offense, attributable perhaps to those who had not heard the admonitions from the bench. The rule, however, was frequently repeated. Misconduct on the part of the audience was severely condemned and the jury were directed to disregard it. At one time the trial judge said:
“Those in the. room must understand absolutely no laughter will be permitted under any circumstances. -You must absolutely remain silent.- Any sallies made by a witness must be received without any applause or laughter. The jury are instructed to disregard any signs of merriment on part of anybody, however given. This must be strictly observed.”
It is argued that the trial judge, in addition, should have punished the offenders, but the record does not show prejudice to Grammer in what occurred. The trial court was vigilant in protecting his rights and in
The following is another assignment: “The court erred in giving oral instructions to the jury during the trial that certain evidence applied to the defendant Grammer.”
In a single information it was charged that Cole feloniously shot and killed Lulu Yogt, and that Grammer hired, aided and abetted Cole. Defendants were tried together. To prevent one from being prejudiced by evidence against the other, the presiding judge, during the introduction of the proofs on part of the state, made a number of oral statements, the nature of which is indicated by the following-:
“Jury instructed that the evidence of the conversation that the witness is about to give, relates only to Cole and does not bear upon Grammer.”
It is argued that these rulings violated the statutes requiring written instructions and forbidding oral modifications' thereof. Rev. St. 1913, secs. 7850, 7854, 9119. Oral expressions like that quoted, when uttered by the trial judge during the examination of a witness, should be considered as limitations of the rulings on evidence. They are not generally classified as- oral instructions within the meaning of the statutes. They are not principles of law applicable to the evidence. They are not erroneous merely because they are oral. Metcalf v. Commonwealth, 27 Ky. Law Rep. 702; State v. Becton, 66 Tenn. 138; State v. Moore, 117 Mo. 395; State v. Good, 132 Mo. 114; Littell v. State, 133 Ind. 577. A recent summary of the controlling principles follows:
“The charge or instruction required by law to be reduced to writing is only that which the court may have to say to the jury in regard to the principles of law applicable ■ to the case and to the evidence; and hence an oral statement or communication by the court to the jury, which is rather in the nature of a caution
One of the assignments of error is based on an instruction to the jury as follows:
“In the case of the defendant Grammer, you can find him guilty or not guilty; and, in the case you find him, guilty, you should then fix his punishment at death or life imprisonment.”
The argument of Grammer is that he was accused of abetting the murder, and that in such a case the jury had no authority to fix the punishment; responsibility in that respect resting on the trial judge. ' The punishment of a guilty accessory whose principal is found guilty of murder in the first degree is prescribed by the Criminal Code as follows:
“If such principal offender would on conviction, be punishable with death, or be imprisoned for life, then such aider, abettor, or procurer shall be punished with death or be imprisoned for life, the same as the principal offender would be.” Rev. St. 1913, sec. 8579.
“The principal offender” having been found guilty of murder in the first degree,' his punishment is determinable under the following provisions of the Criminal Code:
“Whoever shall purposely and of deliberate and premeditated malice or in the perpetration of or attempt to perpetrate any rape, arson, robbery or burglary, or bjr administering poison, or causing the same to be done, kill another; or, whoever by wilful and corrupt perjury or subornation of the same, shall purposely procure the conviction and execution of any innocent person, every person so offending shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death or shall be imprisoned in the penitentiary during life, in the discretion of the jury.” Rev. St. 1913, sec. 8581.
“In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession in open court, the court shall proceed by examination of witnesses in open court, to determine the degree of the crime, and shall pronounce sentence accordingly.” Rev. St. 1913, see. 9130.
These provisions relate to the degree of crime, and not to the fixing of the penalty for murder in the first degree. The decision of the trial court was in harmony with this view of the law.
All of the assignments of error have been considered without finding an error prejudicial to Grammer. In view of what has been said, further discussion of the points argued is unnecessary. The evidence leaves no basis for a reasonable doubt of Grammer’s guilt. There was a fair and impartial trial. There' is no reason to disturb the verdict of the jury. The judgment of the district court is affirmed, and Friday, June 6, 1919, is
Affirmed.
Dissenting Opinion
The following dissent to an order overruling a motion for rehearing was filed September 15, 1919.
dissenting.
Even if defendant was absolutely innocent of planning or designing the death of Mrs. Vogt, his conduct when he heard of her death was unusual and unnatural. When he found that Cole, his comrade and associate, had murdered his wife’s mother, instead of delivering the murderer up to justice, he helped to. prevent his apprehension and punishment. This looks bad for Grammer, and is entirely consistent with his being guilty as charged. I suppose we would not admit that these facts alone would justify his conviction. In order to support his conviction, reliance must be had upon his confession. The state did not put Cole upon the witness-stand. His statements are not sworn to. The only evidence of Grammer’s guilt, then, is Grammer’s confession. The record doesn’t show that Cole now makes a more reasonable statement than the statements in any of his former confessions. It is said that the statements that he now makes exonerate Grammer entirely. I suppose a court cannot consider it in examining this record, and, if we could consider it, I do not know wThat effect the fact that he now does make such statements would have to counteract his former unverified statements.
There are a few important questions presented by this record:
1. Several of the jurors who sat upon the case were objected to on the ground that they had formed and expressed an opinion of the defendant’s guilt, based upon reading his purported confession. In answer to that the state quotes the statute and leaves out the
2. This alleged confession of Grammer’s, upon which alone he is convicted, is very much discussed in the brief upon the motion for rehearing. The officers arrested Cole, told him that Grammer had given him away, and Cole then placed the burden of the crime upon Grammer himself. Cole, under the conditions, was compelled to confess that he had murdered the woman, and he got even with Grammer by his confession. The officers then took Cole in custody in another state, and started to Lincoln, and wired the officers at St. Paul,
3. The syllabus of our opinion says: “Failure to instruct the jury specifically to disregard opinions expressed by rejected talesmen on their voir dire examination will not require a reversal, where the instructions as a whol^ direct the jury to base their verdict alone, on evidence adduced at the trial.” When the jury heard this general instruction that they must base their verdict alone on evidence adduced at the trial, would they suppose that the trial was the matter that took place in court, including the formalities of impaneling the jury and all? If they did, then the statements of these “rejected talesmen” would be, in their thought, a part of the trial. It would be better, if the court had specially warned them against being influenced by the sworn statements of men that were called as jurors, as to their having read the confession and their conclusions of the defendant’s guilt.
4. Instruction No. 21, given by the court, is a new thing in the criminal jurisprudence. The jury were told plainly that they would “be warranted in convicting the defendant,” and then are told further that it would be their duty to convict the defendant if they found certain things. The jury should be instructed that they cannot find the defendant guilty unless they find certain things. But they are told that it would be their duty to convict him if they do find so and so, and are also told that, without regard to such findings, they are warranted in finding the defendant guilty. Unless we felt confident beforehand that the defendant must be guilty, would we justify the giving of such an instruction? If there is any duty that devolves upon a jury in the trial of a capital charge, it is to acquit unless all of the facts necessary to a conviction are proved beyond a reasonable doubt.
6. Under these circumstances, when Cole, in the midst of the trial, withdrew his plea and entered a plea of guilty, the' brief cites authorities to the effect that that works a separation of the defendants. If it was necessary that Cole’s confession should be put in evidence for the purpose of showing the degree of his guilt, and the nature of his punishment, that matter should have been heard by itself, and should not have been allowed to have gone before the jury that were to determine the question of Grammer’s guilt. When Cole’s confession was offered in evidence the court sustained an objection' to it as evidence against Grammer, and gallantly informed the jury that this document prepared by the detectives should not be considered as evidence against Grammer, but only as evidence against Cole. The question is seriously discussed as to whether it was necessary for the jury to hear any evidence against Cole at all, and whether it was not the duty of the court to determine the degree of his punishment. However, that may be, the reading of this so-called confession of Cole was very prejudicial
A good many other questions are discussed in the brief that I will not take time to examine. I suggested the foregoing, and hoped that the judges would give them consideration.