75 Neb. 11 | Neb. | 1905
The defendant was tried in the district court for Phelps county upon an information charging him with murder in the first degree. The jury having by their verdict found him. guilty as charged, he was sentenced to imprisonment for life, and brings the proceedings to this court for review upon petition in error.
I. The defendant made an application for a change of venue. The application is supported by a large number of affidavits. These affidavits are mostly in substantially the same or a similar form, and, with few exceptions, it is stated in each affidavit that the affiant has heard a great deal of talk concerning the alleged offense with which the defendant is charged, and that the matter has been generally talked about and thoroughly canvassed in the community where the affiant resides; that affiant knows that there is a strong prejudice against the defendant, and believes that the prejudice is so strong and so universal that it would be impossible for the defendant to have a. fair and impartial trial before any jury of citizens of the county. These affidavits are from residents of various townships in the county, and in some of them the affiant
2. An application was made by the defendant for a continuance. It is insisted that the court erred in overruling this application. To determine this question, it is necessary to bear in mind the issues of fact that were being-contested by the parties. The defendant was charged with murder in the first degree. The homicide was adr mitted, and the defendant attempted to show that the killing was done in self-defense. The continuance was applied for upon the ground of the absence of two witnesses , whose evidence, it was claimed, was material upon the question of self-defense. In the affidavits .filed for the defendant it is shown that both of these witnesses, if present at the trial, would testify that the deceased immediately before the homicide had made threats against the defendant; that the deceased stated to the witnesses that the defendant owed him money and refused to pay it, and that
3. The objection to the competency of some of the jurors is a more serious one. Section 11 of article I of the constitution is in these Avords: “In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of accusation and to have a copy thereof; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy
“A juror, who upon his voir clire discloses that he is biased or prejudiced, or who has a fixed and settled conviction or opinion as to the guilt or innocence of the defendant based upon mere rumor, or the reading of the public press, or founded upon conversations with witnesses of the transaction, is incompetent to serve, and should be rejected, even though he may upon his examination state that he feels able To render an impartial verdict upon-the law and the evidence/ This is the true test of disqualification Avithin the meaning of the statute. If upon the*17 whole examination of the juror it is manifest that the opinion formed by him from reading newspaper accounts of the alleged crime or upon rumor is merely hypothetical, or conditional on the truth of the rumor or the newspaper reports read; that he has no settled opinion as to the guilt or innocence of the accused, and that he can render a fair and impartial verdict upon the evidence adduced on the trial, under the instructions of the court, the juror is competent.”
The examination of the juror made by the court should be with the view of ascertaining the condition of his mind, and whether in reality he is an impartial juror. To so frame the questions as to lead the juror to say that he is disinterested, and that he can and Avill render a fair and impartial verdict upon the evidence under the law, as stated in the instructions of the case, is not enough. It Avould frequently happen that a juror, Avho is himself conscious of being prejudiced against the defendant, or of having a settled conviction of the guilt or innocence of the defendant, may be so questioned by the court as to lead him to make formal statements, which, if taken by themselves alone, appear upon their face to justify his retention.
August L. .Johnson, who Avas one of the jurors, is now alleged to have been incompetent. Upon his direct examination by the attorney who was prosecuting in behalf of the state, he answered £hat he had resided in Bertrand for 22 years; that he Ayas not acquainted with either the deceased or the defendant; that he was not present at the preliminary examination, and had not talked with any one Avho kneAv or claimed to be a witness in the case. The prosecuting attorney then asked him: “Do you know of any reason why you could not sit as a fair and impartial juror in this case?” and he answered: “Well, I have heard considerable.” “Q. That has been from newspapers and talk? A. Yes; and talk-and things in general.” He was then asked whether he believed that, notwithstanding what he had heard, he could sit in the case and render a ver
When the juror had upon examination of the defendant shown himself to be clearly incompetent, the court proceeds with the juror in language rather in the nature of positive statements than of interrogatories for the purpose of ascertaining' the candid opinion of the juror, and determining from the whole evidence whether the juror was disqualified. Such a mode of questioning a juror was not calculated to bring out evidence upon which the court might fully determine whether or not there Avas a.n abiding prejudice in the mind of the juror against the accused, or whether there was, in fact, a conviction in the mind of the juror as to the guilt of the accused which would, in some part at least, neutralize the circumstances that might be brought before him tending to justify the accused. The apparent object of such an examination .is to obtain from the juror a statement that he is impartial. The juror himself probably so understood it, and human nature is such that very'few jurors would fail to declare themselves impartial if they were aware that it AAras the desire of the court that they should so declare; but, as before seen, such a declaration on the part of the juror is not enough. He must be able at least to so declare, but such declaration by him is not decisive of the question. The implication of the statute is that the juror AVho makes such declaration may himself be mistaken, and may not express the true conclusion to be derived from the whole evidence. If he has an opinion as to the guilt or innocence of the accused, it must affirmatively appear from the whole examination that he is impartial, or he cannot be received as a juror.. We think upon the AArhole evidence of this juror it is manifest that the court had no sufficient evidence before it from which to be legally satisfied that'the juror was impartia V'in the sense intended in the constitution. When the juror testifies that he has an opinion as to the guilt or innocence of the
4. Another question presented by the defendant is as to the sufficiency of the evidence to support the verdict. As before stated, the homicide was admitted, and it was sought to excuse it on the ground of necessary self-defense. There were several eye-witnesses to the transaction, and there are very few material discrepancies in their evidence. One of these witnesses to the transaction was examined in behalf of the state, and the others, as far as practicable, were called by the defendant. The deceased had been in the employ of the defendant for several months during the summer and early fall of 1904. Some difficulty had arisen between them in the settlement for these services. The defendant paid the deceased the amount that he admitted that he owed him and, as the defendant says, $10 in addition. The deceased insisted that he still owed him $30. He placed his claim against the defendant in the hands of an attorney for collection, hut this claim seems to have been withdrawn without any action being taken thereon. The deceased was very vindictive against the defendant, and frequently made the most violent threats against him. There were several witnesses to these threats, some of whom testified that the deceased told them that the defendant had not paid him as much- as he owed him, and that he would “take it out of his hide.” Others testified that the deceased told them that he would kill the defendant unless he paid him the balance that he owed
Several Avitnesses Avere watching the transaction. None
It is contended by the state that the defendant did not, in good faith, believe himself to be in danger; tbat he had endeavored from time to time to aggravate the deceased, and to lead him on to such rashness as to afford the defendant an opportunity to take his life. The jury must have taken this view of the case. The question is whether the evidence establishes the view so taken beyond a reasonable doubt. The law does not allow a jury to reach such a conclusion from conjecture, or from considering that it may have been so. It was not incumbent upon the defendant to prove that he did not act from a malicious motive, that he did not desire to take the life of the deceased, but was compelled to do so. On the other hand,
Several instructions to the jury are objected to, but the conclusion which we have reached renders their discussion unnecessary.
The judgment of the district court is reversed and the cause remanded.
Reversed.