109 Neb. 335 | Neb. | 1922
In a prosecution by the state in the district court for Cheyenne county, Charles Nichols, defendant, was convicted of murder in the first degree and for that felony was sentenced to suffer the penalty of death. As plaintiff in error he presents for review the record of his- conviction. ■
The first assignment of error challenges the overruling of a plea to discharge defendant on the ground of delay in the filing of the information. A statutory provision authorized a recognizance requiring accused' to appear forthwith before the district court, if in session. Laws 1915, ch. 162. This, however, applied to a bailable offense, and not necessarily to a charge of murder in the first degree. Another statutory provision declares:
“Any person held in jail charged with an indictable offense shall be discharged if he be not indicted at the term of court at which he is held to answer.” Comp. St. 1922, sec. 10044.
This applies to prosecutions by information also. Defendant was not entitled to a discharge. He shot and killed Emma Carow, June 17, 1921.' The complaint charging him with murder in the first degree was filed with the county judge as an examining magistrate June 21, 1921. Defendant was arraigned the same day and
The next assignment of error is based on the overruling of a plea in abatement. It is contended that the prosecution should have been abated on the ground of a Amriance bétAveen the complaint before the examining magistrate and the information filed in the district court. The import of the argument under this head is that the preliminary complaint charged that defendant assaulted Emma Carow Avith the intention of killing himself, while the information on Avhich he was tried accused him of making the assault with intent to murder her; the deduction being that, on the latter' charge, there was no preliminary hearing or waivér thereof, or opportunity to plead thereto before the examining magistrate, and that therefore the plea in abatement should have been sustained. This is a technical point without nietit.' It grows out of an obvious reference in a single place in the
Instead of a short form, charging the felony in simple and direct language without unnecessary details, repetitions or other superfluous matter, the county attorney felt called upon to use a form long sanctioned by the judiciary in attempting to observe portions of the English common law adopted by the legislature of Nebraska. The information, though valid and sanctioned by precedent, is not in a form suited to present conditions. It is as follows:
“In the District Court of Cheyenne County, Nebraska,
“The State of Nebraska,
Plaintiff,
vs. Information.
“Charles Nichols,
Defendant,
“Now, in this October, 1921, regular Term of the District Court, of Cheyenne County, Nebraska, duly convened herein, on the 17 day of October, in the year of our Lord, One Thousand Nine Hundred Twenty-one, comes into Court, Allen E. Warren, the duly elected, qualified and acting County Attorney of Cheyenne County, Nebraska, and for and in behalf of and in the name of the State of Nebraska, gives the Court to understand and be informed, that Charles Nichols, on or about the 17 day of June, 1921, in the County of Cheyenne and the State of Nebraska, aforesaid, then and there being, in and upon one Emma Carow, then and there being, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did make an as*339 sault, with the intent, her, the said Emma Carow, unlawfully, purposely and of his deliberate and premeditated malice, to kill and murder, and that the said Charles Nichols, a certain pistol, commonly called a 'revolver/ then and there loaded and charged with gunpowder and divers leaden bullets, which said pistol, commonly called a 'revolver/ he, the said Charles Nichols, in his hand or hands, then and there had and held, then and there, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did discharge and shoot off, to, at, against and upon, the said Emma Carow and that the said Charles Nichols, with the leaden bullets, aforesaid, out of the pistol, aforesaid, commonly called a 'revolver/ then and there, by force of the gunpowder, aforesaid, by the said Charles Nichols, discharged and shot off, as aforesaid, then and there, unlawfully, purposely, feloniously and of his deliberate and premeditated malice, did strike, penetrate and wound, with intent aforesaid, thereby, then and there giving, to the said Emma Carow, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, with the intent aforesaid, thereby, then and there, to give to her, the said Emma Carow, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, with the leaden bullets, aforesaid, so as aforesaid, discharged and shot out of the pistol, commonly called a 'revolver, •’ aforesaid, by force of the gunpowder, aforesaid, by the said Charles Nichols, in and upon the left side of the body and in and upon the left side of the head, of her, the said Emma Carow, two mortal wounds, each, circular in form, about one-half of an inch in diameter and of the depth of five inches, of which said mortal wounds, she, the •said Emma Carow, instantly died, and so the said Allen E. Warren does say that the said Charles Nichols, her, the said Emma Carow, unlawfully, wilfully, purposely, feloniously and of his deliberate and premeditated malice, did kill and murder, contrary to the. form of the statute,*340 in such casé made and provided and against the peace and dignity of the State of Nebraska.
“Allen E. Warren,
“County Attorney of Cheyenne County, Nebraska.”
“The State of Nebraska,]
f-ss.
Cheyenne County, J
“Allen E. Warren, of lawful age, being first duly sworn, deposes and says, that he is the duly elected, qualified and acting county attorney of Cheyenne County, Nebraska, and that he has made and read the foregoing information and that the offense charged therein, is true, as he verily believes and that the said offense contained and charged in said information, is true, as he verily believes.
“Allen E. Warren.
“Subscribed in my , presence and sworn to before me, this 17 day of October, 1921.
(Seal) “Isola B. Wasson,
“Clerk of the District Court of Cheyenne County, Nebraska.”
It was in attempting to follow this complicated form, giving and repeating unnecessary details, that the complainant before the examining magistrate inadvertently referred in one place to the accused instead of the victim of the homicide. While the charge in the present instance was sufficient notwithstanding the-error, justice is sometimes delayed or defeated by errors in vain and pompous repetitions found in common-law forms. The ancient form used by the county attorney in the present instance is a relic of times when blood-thirsty rulers, religious bigots and political tyrants intentionally inflicted punishments on innocent victims under false charges.' Those abominations have passed away, but some of their forms still remain to embarrass the courts in. the administration of justice under new conditions.
The legislature has made provisions for averting some
“No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected: First. By omission of the words, ‘with force and arms,’ or any words of similar import; or, Second. By omitting to charge any offense to have been contrary to a statute or statutes; or, Third. For the omission of the words, As appears by the record’ nor for omitting to state the time' at which the offense was committed in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of a statement of the value or price of any matter or thing, or the amount of damages, or injury in any case where the value or price, or the amount of damages or injury, is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for an omission to allege that the grand jurors were impaneled, sworn or charged; nor for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Comp. St. 1922, sec. 10074.
Further means of relief are found in a new constitutional provision declaring:
“For the effectual administration of justice and the prompt disposition of judicial proceedings, the supreme court may promulgate rules of practice and procedure for all courts, uniform as to each class of courts, and not in conflict with láws governing such matters.” Const., art. V, sec. 25.
Under the statutory and constitutional provisions now
“In the District Court for Cheyenne County, Nebraska.
“Tfie State of Nebraska,
Plaintiff,
v.
'’ Charles Nichols,
Defendant.
“Allen E. Warren, tfie duly elected, qualified and acting county attorney of Cheyenne county, Nebraska, prosecuting pursuant to law in tfie name of and for tfie state of Nebraska, plaintiff, makes information to tfie district court for Cheyenne county in session October 17, 1921, at tfie regular October term of that year, as follows:
“In Cheyenne county, Nebraska, June 17, 1921, Charles Nichols, defendant, feloniously, purposely and of his deliberate and premeditated malice, shot Emma Carow with a revolver, and as a result thereof she died June 17, 1921. Defendant thus committed murder in the first degree.
“Allen E. Warren,
“County Attorney of Cheyenne County, Nebraska.
*343 “The State of Nebraska,]
f-ss. •
County of Cheyenne, J
“Allen E. Warren, being duly sworn according to law, says the facts stated in his foregoing information are true as he verily believes.
“Allen E. Warren,
“County Attorney of Cheyenne County, Nebraska.
“Subscribed in my presence and sworn to before me October 17, 1921.
(Seal) “Isola B. Wasson,
“Clerk of the District Court for Cheyenne County, Nebraska.”
Many pitfalls will be avoided by omitting unnecessary details, repetitions and other superfluous matter not essential to a proper information or to the protection of accused. Procedure more in harmony with modern conditions will result from reforms which éliminate objectionable technicalities of the common law formerly adopted by the legislature.
Complaint is made of alleged irregularities in selecting the jury. It is insisted that competent veniremen were erroneously excused and disqualified ones accepted. An examination of the record shows that all members of the jury impaneled were qualified according to statutory requirements and established rules of criminal law. Defendant did not exhaust his peremptory challenges and error in impaneling the jury is not shown. This assignment of error is therefore overruled.
An argument of considerable length is directed to the proposition that the trial court erred in permitting a physician to testify to a conversation between himself and defendant in which the latter admitted that he shot both himself and Emma Carow. It is insisted that this testimony was admitted in violation of the statute forbidding the disclosure of confidential communications between physician and patient. Comp. St. 1922, sec.
The principal reason'urged for a reversal is based on the sustaining of an exception "to a question calling for direct testimony by defendant that-ibwas not his intention to shoot- Emma Carow. ' In considering this feature of the trial, details of a- few facts disclosed by the evidence seem. necessary.
Emma Carow,-25 years of' age,' lived' with her' widbived mother, Lena-Carow, on' a farm in Cheyenne county."De
The theory of the defense seems to :be that defendant procured and carried thé revolver for the solé purpose of committing suicide;’ that this’ purpose was formed as a result ■ of Emma’s refusal to marry him according to promises to Avhich he testified'; that his first shot was fired at himself and that he did not know what occurred thereafter. While he was testifying- in his own behalf he was askéd: “Did you entertain in your own mind an intent or thought that you would kill Emma Carow ?” His answer was, “No, sir.” This answer was followed by the sustaining of an -exception to the question itself on the ground that it called for the conclusion of the witness. Assuming the exception should have been overruled under the principle announced in Cummings v,
It is insisted further that the evidence is insufficient to prove the criminal intent, the premeditation and the deliberation essential to murder in the first degree. The point does not seem to be well taken. Defendant testified that for several months he and Emma Carow had been engaged, and that in the meantime on two or three occasions she had declined to be married at the appointed time. He admitted he had been dismissed as a suitor when discharged as a farm-hand. These experiences, if he told the truth, would naturally imply a warning sufficient to prevent surprise or sudden emotion in the event of a new disappointment of the same kind. Some time elapsed between his rejection in the field and the tragedy in the highway. After he learned his. fate as a suitor there was time for reflection before he committed his homicidal acts. In addition, the story of the engagement, though it may be true, is open to suspicion. A sister of Emma Carow testified that the latter had made no preparation for marriage — a circumstance at variance with common experience, if she were engaged. According to the testimony of her mother there was time for conversation after Emma went back to converse with defendant in the highway. When she was a few feet away from him, her mother said, he pointed the revolver at her and fired twice. Two witnesses testified to admissions by him that he first shot her and, distressed by her suffering, shot her again. From all of the evidential facts the jury were at liberty to find a felonious purpose or intention, and deliberation and premeditation beyond a reasonable
In other assignments of error there is criticism of rulings on evidence, of instructions, and of conduct of counsel, jury and judge. These are all found upon examination to be without merit. Reversible error has not been pointed out. The majority, however, express the following views:
■ The penalty of death is intended -by the law to punish a vicious intent carried into effect by accused after forming and deliberating upon a plan to commit murder. The only time for deliberation in the present instance intervened between the act of accused in calling Emma Carow back to him in the highway and the shooting. The stress of the situation was such as to preclude that cool calculation and consideration which the law contemplates in providing for the extreme penalty. The present case is one wherein justice should be seasoned with mercy.
The sentence of death is reduced to imprisonment for life in the state penitentiary and the conviction affirmed.
Affirmed : Sentence reduced.
It seems to me the reasons of the majority for reducing the sentence are not sufficient to justify interference with the penalty fixed by.the jury, and I am authorized to say that Letton, J., and Shepherd, District Judge,, are of the same opinion.