86 Neb. 105 | Neb. | 1910
An information was filed in the district court charging plaintiff in error with the -crime of murder in the first degree in the killing of Edward Lowry, a police officer of the city of South Omaha, on the 19th day of February, 1909. A trial was had, beginning on the 21th day of May of the same year, which resulted in a verdict finding the accused guilty of murder in the first degree, and fixing the penalty at death. A motion for a new trial was filed' and overruled, and sentence of death was -pronounced against him. ITe brings the case to this court by proceedings in error. A number of alleged errors are presented, but, as another trial must be had in which the same causes for complaint will probably not arise, they, with the exception of the one error hereinafter discussed, will not be noticed. It was contended upon the trial, and is here insisted upon, that the evidence submitted to the jury is not sufficient to sustain the verdict, but it is not deemed necessary, or even proper, that we express any opinion upon that subject.
As leading up to the question to be considered, certain conceded facts may, with propriety, be stated. Plaintiff in error is of foreign birth and nationality, having at the time of the tragedy been in this country but about two
On the re-examination of the witness by the county attorney the following is shown to have occurred: “Q. Calling your attention to the statement you have identified as having- been made by you immediately following this shooting, to the language, ‘Just before I heard the first two shots I was not far from the Greek, and immediately before these shots were fired I saw him (referring to the Greek) turn toward the north and partially face the officer. It was after that, and when the officer came up closer, I saw the officer take out- his gun.’ How do you explain that language in the statement?” Plaintiff in error’s counsel: “Objected to as incompetent, irrelevant and immaterial; no foundation laid, and not the best evidence; an attempt to impeach his own witness, and hearsay.” County attorney: “I offer as part of the examination of this witness the statement that has been, identified, and I pursue this examination upon what is apparent from the examination of this witness, that she .is hostile to the state, and has come upon the stand here as a state’s witness, and, according to our theory, has given testimony in variance with her statements to the county officials and statements made at the coroner’s inquest.” Plaintiff in error’s counsel: “The defendant objects to the question as incompetent, immaterial, irrelevant; no foundation laid; not the best evidence; an attempt to impeach his own witness, and cross-examination of his own wit-,
.While other portions of the examination of this Avitness show similar proceedings by the court and counsel, it - is not deemed necessary to make further quotations in order to present the question involved. The Avhole of the written statement was offered in evidence by the state, and over the objections and exceptions of plaintiff in error’s counsel Avas read to the jury. This, avc think, Avas clearly AA'rong and highly prejudicial to plaintiff in error. It is to be observed that upon a careful reading of the testimony of the Avitness we are persuaded that she was not hostile to the state, but that her examination exhibited a candid and honest desire to tell the truth as she understood it. The statement in the writing, if incorrect, Avould naturally fail to attract the attention of one not familiar Avith detailed expressions and Avritings, and might be passed unnoticed, and the correction upon the Avitness stand would leave no just ground for the aspersions cast upon her in the presence of the jury. As we have seen, she had been incarcerated in the jail during the Avhole time from the date of 'the tragedy until called upon the Avitness stand. Enough appears to show that she had been under close surveillance during the whole time. Over the objection of the county attorney, she was, after the second effort of plaintiff in error’s counsel, permitted to state that she had never conversed with them, and, in fact, had never seen either one of them until called upon as a Avitness upon the trial. She had never before been called upon to pass through such an experience; had never been in court as a witness; was to some extent,• ¿t least, unfamiliar
The judgment of the district court is reversed and the cause is remanded for further proceedings in accordance with law.
Reversed.