91 Neb. 520 | Neb. | 1912
Lead Opinion
Plaintiff in error was convicted on the charge of receiving stolen property of the value of $86.' The first error assigned and argued in his behalf is that there was misconduct of the jury. Affidavits of three of the jurors filed in support of the motion for new trial are in substance to the effect that á juror named Hill, after the case was submitted and during its consideration by the jury, stated that he knew Lambert to be a thief and that lie was a bad character, and that he repeated this and similar statements during the whole time the case was under consideration. On the other hand, an affidavit was made by Hill denying that- he ever made a positive assertion that Lambert was a thief, but the affidavit recites that, while he had no acquaintance with Lambert-, an incident that happened during the trial recalled to his memory the fact that he had heard it stated by a brother-in-law of the
It is nest contended that a new trial should be granted for the reason that the verdict was forced by the physical exhaustion of certain jurors. It appears from an affidavit made by certain jurors that the case was submitted to the jury on Wednesday at about 11 o’clock P. M., that the jury were confined from that time until the succeeding Friday morning when the verdict was rendered, that during the two nights there were not furnished sleeping accommodations, that they deliberated during the two nights and a day in which they were kept together, and that they were- physically exhausted to such an extent they could not hold out longer, and they agreed to the verdict for that reason and by reason of being harassed by other jurors who had determined not to yield. Counter affidavits of most-of the other members of the jury were filed by the state to the effect that the jury were placed in a comfortable room with chairs, table and paper, that they received their meals and had plenty to eat and drink, and that no juror was physically overcome. If the evidence in this case left the matter of the guilt of the defendant a close question, we should be very much inclined to set
There is another consideration entering into this case which should, perhaps, be noticed. The evidence of the value of the property alleged to have been received took a wide range, extending from $10 or $15 to $45. The jury found the value to be $36. By an oversight of the legislature, possibly, the receiving of stolen propeidy of any less value than $35 is not a crime. The court was, therefore, compelled to instruct the jury that, in order to find the defendant guilty at all, they would have to find the value of the property to be at least $35. It was then for the jury to find that value or acquit. They went one dollar over the mark fixed by law. It is complained that there was no competent testimony as to the value of the harness. It is shown that it was nearly new and had only been used a few times, that the owner of the harness, whose testimony is particularly complained of, paid
Complaint is also made as to the giving of certain instructions. The imperfections in these instructions have been repeatedly pointed out by this court and they should not have been given, but under the condition of the record we cannot perceive wherein the defendant was prejudiced by their having been given.
A number of other errors assigned have been considered and disposed of by this court in the case of Lukehart v. State, ante, p. 219, a companion case to the facts in this case, and will not be again reviewed.
Finding no prejudicial error in the record, the judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
It is said in the majority opinion: “Complaint is also made as to the giving of certain instructions. The imperfections in these instructions have been repeatedly pointed out by this court and they should not have been given, but under the condition of the record we cannot perceive wherein the defendant was prejudiced by their having been given.” The instructions complained of are as follows:
*525 “No. 35. Tbe rule which clothes every one accused of crime with the presumption of innocence, and imposes upon the state the burden of establishing Ms guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly punished. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to pause, it is (in)sufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.
“No. 16. The court instructs the jury, as a matter of law, that the doubt which a juror is allowed to retain in his mind, and under which he should frame his verdict of not guilty, must always be a reasonable one. A. doubt - produced by undue sensibility in the mind of a juror, in view of the consequence of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources of doubt by resorting to trivial and fanciful suppositions, and remote conjectures, as to a possible state of facts differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes upon you no obligation to donbt where no doubt would exist if no such oath had been administered. You are instructed that if, after a careful, impartial consideration of all the evidence in the case, you can say and feel that you have an abiding-conviction of the guilt of the defendant, and are fully ■satisfied to a moral certainty of the truth of the charge made against him, them you are satisfied beyond a reasonable doubt.”
It is true that the above instructions have been con
In Willis v. State, supra, Judge Ragan, Commissioner, delivered the opinion of the court. A comparison of paragraphs 15 and 16 of the instructions in the instant case shows that the language used is almost identical with the language used in the instructions of the court in the very noted case of Spies v. People, 122 Ill. 1. This is what is known as the anarchist case. It covers pages 1 to 267, inclusive. On page 82 of the report are the two. original instructions from which the above instructions in this case are taken. For the convenience of the reader we reproduce them here :
“12. The court instructs the- jury, as a matter of law, that in considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.
*527 “13. The court further instructs the jury, as a matter of law, that the doubt which the juror is allowed, to retain on his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible states of fact differing from that established by the evidence. You are not at liberty to disbelieve as jurors, if, from the evidence, you believe as men. Your oath imposes on you no obligation to doubt, •where no doubt would exist if no oath had been administered.”
In Barney v. State, 49 Neb. 515, this court follows the instructions above given in the Spies case. The opinion was delivered by Commissioner Irvine, and is unanimous. A comparison of the instruction used in that case with the instruction used in the Spies case will show that the language used is almost identical, except tlmt in the Spies case there were two instructions and in Barney p. State it seems to be all put in one instruction. Judge1 Irvine wrote an elaborate argument justifying the use of the instruction.
What I object to is that, while this court has Anally come around to that point wdiere it condemns the instruction, it does not condemn it in any practical wray so as to do the prisoner any good. What difference does it make to the prisoner if the reviewing court says it condemns the instruction as improper, but refuses to reverse the case and leaves the prisoner in the penitentiary? I am looking for a practical condemnation of the instruction that will reverse a case and give the defendant a new trial :because he has teen prejudiced by the giving of the instruction. This court says the instruction is wrong and it ought not to be given; then, in effect, it says, we cannot reverse a case simply because the trial judge has given
In the hope that this court will exercise the power which is given to it and will proceed to lay down some sort of a rule for the guidance and control of the district judges, I want to briefly discuss the instructions used. I want to say of the instruction in the Spies case that we are beginning to be far enough away from that case to exercise a little of that calm and dispassionate judgment which history will ultimately record. That case originated in Chicago where the people believed that their lives and property were in danger from an organization known as the anarchists. ' The men arrested and tried were- tried
In the case of Bartels v. State, p. 575, post, this court has decided the principal part of the first instruction given in this case to be prejudicially erroneous. The syllabus is: “An instruction in a criminal prosecution that the rule that requires proof of guilt beyond a reasonable doubt ‘is not intended to aid any one who is in fact guilty to escape,’ and. which intimates that an acquittal
In Brown v. State, 88 Neb. 411, the language used in the first paragraph of the second instruction is held to be prejudicially erroneous and the case is reversed, but there is in the syllabus and in the body of the opinion the reservation of the alleged right of this court to apply the evanescent rule that we will when we like and we won’t when we do not want to. In Blue v. State, 86 Neb. 189, this court condemned so much of the language used in the first paragraph of the instructions in the instant case as compels the jury to have a reason for justifying an acquittal or to authorize a verdict of not guilty, and it held the language prejudicial and reversed the case, citing many authorities which condemn the language used in vigorous terms. Judge Sedgwick delivered the opinion of this court in each of the two cases last cited.
In Flege v. State, 90 Neb. 390, this court condemned the instructions on reasonable doubt. The two instructions are quoted. The first paragraph of the second one quoted in the instant case is almost identical with the first paragraph of the twenty-fifth instruction in the Flege case, and the twenty-fourth instruction in the Flege