101 Neb. 834 | Neb. | 1917
In a prosecution by the state in the district court for Douglas county, Arthur Hauser, defendant, was convicted of murder in the first degree and was sentenced to the penitentiary for life. As plaintiff in error, he presents for review the record of his trial.
One of the assignments of error challenges the overruling of a motion for a change of venue. It is contended that the public mind was inflamed against defendant by reports that he was guilty and that he had committed other
The insufficiency of the evidence to sustain the verdict is also urged as a reason for reversing the judgment. The failure of proof, according to the defense, is the lack of identification of accused as the person guilty of the felony charged. The point does not seem to be well taken. Near the intersection of Thirty-first and Dodge streets in Omaha, William H. Smith was feloniously shot and killed about 10 o’clock at night October 16, 1915. It had been raining and the night was dark. When shot Smith was walking with Grace Slater, who was on her way to her home. The victim was left where he fell. Following the homicide, for an hour perhaps, Grace Slater was involuntarily in the company of the person who did the shooting. During most of .that time she was compelled to walk ahead of the felon
The final assignment of error argued is the overruling of the motion for a new trial. The chief proposition under this head is that a judge who does not preside at the trial is without authority to pass on the motion for a new trial. The judge before whom the present case was tried died before passing on the motion for a new trial and it was overruled by another judge. It is argued that the trial judge is a part of the tribunal to try the issues of fact, and that lie hears the testimony, observes the witnesses and takes note of all that affects the rights of accused while in court. Defendant insists that he lost the advantages which personal observation gave to the presiding judge. There is force in this argument, and the advantages which the presiding judge obtains by his presence in court should be seriously considered in the deliberations on each case where necessity requires another judge to act on a motion for a new trial. While the courts are not in harmony in their answers to the question here presented, this court has taken a view at variance with the contention of defendant herein. State v. Gaslin, 32 Neb. 291; Lauder v. State, 50 Neb. 140; Goos v. Krug Brewing Co., 60 Neb. 783. Adherence to the rule announced in these cases results in the overruling of this assignment of error, an abuse of discretion in denying a new trial not having been shown.
Affirmed.