11 Neb. 1 | Neb. | 1881
Lead Opinion
The first point made, by counsel for the prisoners in their brief, and the first arising in the order of steps taken in the prosecution of the case is, that the affidavit
The supposed authority for making this affidavit, and that for the subsequent action of the judge and court based thereon, is the act of February 24th, 1879 (Session Laws 62), in the first section of which it is enacted, “ That it shall be lawful for the judge of any judicial court within the state of Nebraska, when it has been made to appear to him that a crime has been committed, amounting to felony, within any unorganized county, or territory, or in any county where no terms of the district court of this state are held, attached to or in his said district for judicial or other purposes, to designate the county in his district wherein the alleged offense may be inquired into by the grand jury, and in case an indictment found, the person or persons so indicted tried.” It is contended on behalf of the prisoners that this is a void act, and conferred no power whatever upon either the judge, or court, to take cognizance of the case.
That portion of-the section which we have quoted— and it is all of it that need be here noticed — is but a re-enactment of a prior statute on the same subject, which, in so far as it pertains to unorganized counties in a district, was before this court in the case of Dodge v. The People, 4 Neb., 220, and held not to be in conflict with any provision of our former constitution. But, in view of the words, “ or in any county where no terms of the district court of this state are held,” we were then careful, in asserting the constitutionality of the act, to go no further than was necessary in disposing
But, without at all questioning the soundness of that decision, it is now here contended that, by force of our present constitution, this entire statutory provision must fall. The section of the constitution for which this effect is claimed, is the eleventh of the “Bill of Rights,” wherein it is declared that, “ In all criminal trials the accused shall have the right to, * * * * a speedy public trial, by an impartial jury of the county or district in which the offense is alleged to have been committed.” This provision of the fundamental law is peculiar to the constitution of 1875, there being nothing similar to it in that of 1866, and this is the first time we have had occasion to consider it. Its language, however, is too simple, and its meaning too obvious to admit of any serious doubt as to the right thereby intended to be secured to persons charged with crime, under the laws of this state. Of the words employed, “district” is the only one as to the full purpose of which there can be, in the minds of any, even the shadow of a doubt. But this, like the word “county” in the same sentence, is used in a restrictive sense, to limit and control the exercise of both legislative and judicial power in the punishment of criminal offenders.
In its ordinary meaning the word district is commonly and properly used to designate any one of the various divisions or subdivisions into which the state is divided for political or other purposes, and may refer either to a congressional, judicial, senatorial, representative, school or road district, depending always upon
It is doubtless a legitimate inference from this use of the word “ district,” without in terms affixing to it any definite territorial limits, that the legislature may, in their discretion, by a general law create trial districts which shall include more territory than a single county. But to’be effective under this provision of the constitution such law must be accompanied by one under which jurors can be called from the whole body, and not from a portion merely, of such district. In other words, the trial district and the jury district must be the same.
The grand design of this provision of the fundamental law seems to be to secure to the accused a trial by a jury from the vicinage where the crime is supposed to have been committed, so that he may have the benefit of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the wit
It was doubtless intended to show, by this recital, that the case was one of those contemplated by the aforesaid statute, and also the reason why the court, while sitting in Adams county, was exercising jurisdiction of a crime laid in Custer county. But even if it were conceded that this statute is in all respects a valid act, the alleged Svant of county organization in Custer is insufficient to bring thé case within it. No such thing is contemplated by this act as a county unorganized “for judicial purposes.” Where a county is once organized for local government under the law providing how that may be accomplished, as Custer county confessedly was at and long before that time, and of which all courts were bound to take notice, it is organized for all the known purposes of civil administration — judicial as well as other — just as completely as is the oldest county in the state. It is clear that the act itself makes no such distinction as is here sought to
There is, however, a more radical objection to be noticed. At the adoption of the constitution of 1875, the territory now known as Ouster county was wholly unorganized, a portion of it being in the fifth and a portion in the sixth judicial district, as formed by that instrument. Sec. 10, Art. VI. In defining these districts, the constitution names several counties, together with “the unoi'ganized territory lying west thereof,” as the portion of the state to be embraced by each; and by the second clause of the same section, these districts were to so remain “ until otherwise provided by law,” that is by act of the legislature.
The boundaries of Custer county were defined by an act of the legislature, approved February 17th, 1877. In July of that year the first election of county and precinct officers was held, the county seat located, and all the machinery of a complete county organization put in motion, as the statute directs. This done, that which the legislature had set apart as Custer county, became detached.from the “unorganized territory” of the.constitution and united with the organized portion of the state. To it, thenceforward, the term “unorganized territory” was no longer applicable, nor could it be legally treated as such any more than could Douglas or Lancaster county.
The position taken by counsel for the state, that at the time of the alleged murder the portion of territory set apart and organized as Ouster county bore, and still bears, the same relation to the fifth and sixth districts as at their creation in 1875 — a part being in each —cannot be sustained. The constitution, by an arbitrary line drawn from east to west, divided the “ unorganized territory” — by which is to be understood that
To show perhaps more clearly how this matter stands, suppose that in the judicial division of the state by the constitution, one of the counties — Douglas, for instance — had been overlooked, or that hereafter in a reorganization of the judicial districts by the legislature under the power given in the constitution the same thing should happen, would any one for a moment contend that by reason of such omission that county could be regarded as “unorganized territory,” or that any one of the district judges could lawfully assume jurisdiction over offenses committed therein
Such being our views of the political status of Custer county, add of the rights of the accused, we have no hesitation in deciding that the district court in Adams county was without jurisdiction, and that the entire proceedings, resulting in the conviction and sentence of the prisoners, are erroneous for that reason.
Having reached this conclusion on the question of jurisdiction, it is really unnecessary to examine the numerous other questions raised on the trial and presented to us by the record; but as they are liable to be renewed in the further prosecution of the accused, we will briefly notice some of the more important of them. And the first in order is the application of the prisoners for a change of the place of trial. Under our statute on this subject, such application is addressed to the sound discretion of the trial court, and unless an abuse of such discretion be clearly shown, this court will not interfere. But here no abuse of discretion appears, and the comparative ease with which competent jurors were obtained, under the circumstances surrounding
A large number' of persons called to serve as jurors were challenged on behalf of the' prisoners, on the ground of their having formed opinions as to the guilt of the accused. But we shall refer only to the eases of those to which our attention 'has been expressly called by counsel.
The first of these is John Forner, who, after an examination on the part of the state tending only to show him competent, was cross-examined by Mr. Laird for the prisoners, and in answer to a question as to whether he had any opinion as to their guilt, answered, “I read the newspaper accounts, and did not know anything to the contrary, and in such a case I take it for what it is worth.” His estimate of what these newspaper accounts were “worth,” “in such a case,” is shown by a further examination:
Q. Can you now presume these men, Olive and Fisher, to be innocent?
A. Well, no,'I can’t. Or, yes, I think there is a possibility of their being innocent.
The juror was then challenged, when the judge made this further examination:
Q. You stated you had formed or expressed no opinion as to the guilt or innocence of the defendants here, Olivé and Fisher ?
A. I said so.
Q. Never read any reports of the evidence?
A. No, sir.
A. No, sir.
Q. Ever hear any witness testify in court about the matter?
A No, sir.
Q. Have you any bias or prejudice for or against the accused?
A. I have not.
And thereupon the challenge was overruled, to which an exception was duly taken.
In all criminal trials the presumption of law, in the absence of evidence to the contrary, is that the accused is innocent. Or, as expressed by another, “ Innocence, as being the most natural and usual state, is always presumed till rebutted.” 1 Phillips on Ev., 4th Am. Ed., 604, note 8. Garrison v. The People, 6 Neb., 285. But how can this right, mercifully'‘vouchsafed by the law, be enjoyed, if those accused shall be required to submit their cases to the decision of jurors who are either unable or unwilling to extend it? The answer of this juror, showing as it does that his mind was so impressed by what he had read or heard that he could not presume the prisoners to be innocent, but only tbe "possibility” of their being so, is not at all modified by his further examination, which we have given. In that state of mind he could not stand indifferent between the state and the accused — an indispensable requisite to qualification when insisted upon. We are of opinion, therefore, that the challenge to this juror ought to have been allowed.
The jurors Snyder and Richardson, under the rule observed by this court in several cases brought here for review, were also disqualified. Their respective examinations elicited substantially the same state of facts as to each, and we think show very conclusively that
Q. You said you had an opinion from reading the newspapers ?
A. Yes, sir.
Q. Ever changed that opinion ?
A. No, sir.
Q. Would it require testimony to remove it?
A. Certainly it would.
Q. The opinion which you now have, and which would require testimony to remove, is in regard to the guilt or innocence of the accused?
A. Yes, sir.
Q. And for the crime charged here?
A. All I know about it is what I have read.
Q. But it is in regard to the indictment for which they are on trial ?
A. If they are guilty they ought to suffer the consequences.
Q, Have you an opinion as to the crime charged that would require testimony to remove?
A. I have that opinion yet.
Q. Is it in regard to the guilt or innocence of the accused ?
A. Yes, sir.
Thereupon several questions were put by the court as to the basis of the juror’s opinion, but bringing out nothing new, followed by this one:
A. Tes, sir.
And from the examination of Richardson.
Q. You say you have an opinion?
A. Yes, sir.
Q. With respect to the guilt or innocence of the accused here, and for the crime charged?
A. I have from reports I have read or heard.
Q. Would it take evidence to remove that opinion?
A. It would.
Q. By reason of what you have heard, then, can you say whether you have any bias oí prejudice against the defendants ?
A. Not in the least.
Q. But you have an opinion as to their guilt or in - nocence which it would require evidence to remove ?
A. I have.
Q. State if, in your opinion, the opinion you have formed will be liable to influence your verdict?
A. Not in the least. I have only made up my mind from reports in different journals I have read.
Q. But it would' take testimony to remove it ?
A. Yes, sir, it would.
Q. If there should not be enough, you would still "have that opinion ?
A. Yes, sir, I think I should.
Q. In your present condition of mind you want evidence ?
A. Yes, sin
By the court:
Q. Notwithstanding any opinion you have formed, can you sit on the trial of this cause as a juror, and hear the evidence, and render just as fair and impartial a verdict as though you never formed any opinion ?
Bias is that which sways' the mind toward one opinion rather than another. Therefore a jury is biased when from any cause or influence he is inclined toward one party to the action rather than the other; or when, in a criminal case, he is inclined to convict rather than to acquit, or vice versa. And in the case of one charged with crime, if a juror’s bias be so strong in favor of guilt that he cannot rid himself of. it without he have evidence of innocence, his retention on the panel would certainly put the accused to a disadvantage at the outset of the trial, which in a doubtful case might be the real cause of conviction, whether justly or unjustly.
“In all criminal prosecutions” the constitution guarantees to the accused a “trial by an impartial jury,” that is, a jury unbiased — -just; a jury that will give him the benefit of all his rights, including that of the presumption of his entire innocence of crime until proven guilty. Curry v. The State, 4 Neb., 545. Carroll v. The State, 5 Id., 31. And it is the duty of the courts to see to it that this guaranty is enforced. We are of opinion that the challenges to these two jurors ought to have been allowed.
Several exceptions to rulings of the court on the admission of evidence are preserved, of which we will notice the more important. One of the witnesses for the prosecution, McNamar, was asked on cross-examination if he were not acting as one of the attorneys for the state, and answered that he was. This was proper, as tending to show interest on his part. He was then asked whether he were paid by the state, which, on objection on the ground of immateriality, was excluded, and we think properly. This was followed by questions as to whether he were not interested in a case against the prisoner Olive, brought by the
Where it is fully understood by the presiding judge that these are among the purposes of a cross-examination, he should be more inclined to enlarge than to narrow the limits to which it may be carried. Prejudicial errors in cross-examination, it will be observed, occur most frequently by restricting too much the field of inquiry!
During his examination in chief this witness also testified, that on the evening before the murder, while following the party who were taking Mitchell and
It is also assigned for error that, generally, throughout the trial the court refused to hear counsel in argument upon the admissibility of testimony. But we are aware of no rule making it error, per se, for a judge to refuse advice from counsel on a question of this sort. If he rule correctly, nothwithstahding his refusal to accept the proffered information, no harm is done, and there is no error to correct.
Another and quite novel error assigned is, that the court refused to permit Mr. Laird, one of the attorneys for the prisoners, to cross-examine the witness Bion Brown, called by the prosecution, on the ground that another attorney, Mr. Hamar, had conducted the case for the defense during the direct examination. If the court so decided, it was error. The record, how
A court may doubtless make- reasonable rules for the regulation of the examination of witnesses, and go so far even as to require the attorney who begins either the examination-in-chief or the cross-examination to complete it. To this, however, there must necessarily be some exceptions, as where, during an examination, the attorney from any cause is disabled to proceed; in such case it may of course be concluded by another. But no rule can be upheld that arbitrarily dictates which of several attorneys in a case— there being no disagreement between them — shall examine or cross-examine a witness, or that requires the same attorney who took part in the examination-in-chief to conduct the cross-examination. A- rule of this sort could serve no good purpose, and would unwarrantably interfere with the constitutional right of a party to select his own counsel to represent him in the
On behalf of the prisoner Olive a witness was called who testified that he had the reputation of being a peaceable, law-abiding citizen. On cross-examination this witness was asked, against objection, if he had not heard of Olive having on a certain occasion drawn a revolver on some one, to which he gave an affirmative answer. On re-examination counsel for the accused proposed to show by this witness the circumstances under which, on the occasion referred to, the revolver was used. This the court would not permit, and ruled the proposed testimony from the jury.
In Commonwealth v. O’Brien, 119 Mass., 342, it was held to be the rule, when a person accused of a crime introduces evidence of his good reputation, that “ it is not competent for the government, in reply, to put in evidence of particular facts,” tending to show it to be. bad. And in 1 Phillips on Evidence, 4 Am. Ed., 765, it is laid down that “ evidence will not be admitted on the part of the prosecution to show the bad character of the accused person, unless he has called witnesses in support of his character; and even then the prosecution cannot examine as to particular facts, the general character of the accused not being put in issue, but coming in collaterally.”
The admission of the particular fact of using a revolver, against the prisoner’s objection, therefore was error; but it having been done, the error was much aggravated by refusing to permit him to show the circumstances under which he used it. And even if the prisoner had n,ot objected to the fact thus called out
Although the accused has the right in all criminal cases, no matter how heinous the offense charged may be, to give evidence of his previous good character if he can, yet when it is so strongly marked by deliberation and atrocity, as in the one under considertion, if the jury are convinced that the accused participated in it, good character should be of no avail, even to mitigate the degree of criminality. Whar. Am. Crim. Law, Secs. 648, 644.
In the first instruction to the jury this language is found, and was duly excepted to by the defendants: ‘‘ You,” the jury, “must therefore bear in mind that it is a settled, inviolable principle that, anterior to contrary proof, the accused shall be considered as legally innocent, and that their case shall receive the same dispassionate and impartial consideration as if they were really so. Again, you must bear in mind every consideration of truth, justice, and prudence requires that if the guilt of the accused is not incontrovertibly established, however suspicious judged by you, and construed, not by arbitrary assumption alone, but by the application of the principles of experience in relation to the immutable laws of human nature and conduct.”
By the first paragraph of this quotation, if we rightly understand it, the jury were in effect told that until contrary proof had been made to them the accused, though guilty of the crime charged, should be consid
Another instruction seriously complained of is as follows: “Every man is presumed in law to have a good character until the contrary is proved. The indictment in this case having been found and the prisoners put on trial, their characters thereby have a stain or imputation cast upon the original presumption. To remove this stain or imputation, and restore their characters to its former presumption, they have introduced witnesses to prove their good character among their neighbors and in the community in which they live, for peaceableness, quietness, and as law-abiding citizens, * * * * ”
This instruction is faulty; first, in its statement that by the facts of indictment found and the placing of the accused on trial a stain or imputation rested on their characters; and second, in limiting the object of this evidence to the restoration of their characters to their former condition. Wharton says: “ The general object for which such evidence is introduced is to disprove guilt.” And that, even if the accused “ offer no evidence of his good character, no legal inference can arise from such omission that he is guilty of the offense charged, or that his character is bad.” Whar. Am. Crim.
Another instruction complained of is one as to the effect that might be given to the testimony of an accomplice in the alleged crime. The jury were told that while it was unsafe to convict upon such testimony alone, they were at liberty to do so if, on due consideration, they deemed it sufficient. In this there was no error. “ The preponderance of authority in this country is, that a jury may convict a prisoner on the testimony of an accomplice alone; though a court may, in its discretion, advise them to acquit, unless such testimony is corroborated on material points.” Whar. Am. Crim. Law, sec. 783. “ The degree of credit which ought to be given to the testimony of an accomplice is a matter- exclusively within the province of the jury. It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence; and, without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice, without any confirmation of his statement.” 1 G-raenleaf on Ev., sec. 380. This instruction contained a proper caution to the jury in receiving such testimony, and we think laid the law down correctly.
Errors are also assigned to the refusal of the court to give to the jury several of the instructions tendered on behalf of the prisoners, but not having been particularly relied on in argument, we shall not take time in this opinion to refer specially to them. On looking them over, however, we find those that would have been proper related generally to matters already sufficiently charged upon, and that they might have been and probably were refused for that reason. One clear,
The only remaining point we shall notice concerns the verdict. The prisoners were found guilty as charged in the sixth count of the indictment, which charged the killing to have been done “by means to the jurors unknown.” It is contended that while there was some evidence of the deceased having been killed by shooting, hanging, or burning, there was none to justify the conclusion which the jury reached. The practice has come to be quite common in framing indictments, especially in cases where there can be a possible doubt as to the instrument or means employed to destroy life, to add a count charging it to have been done with some instrument or by some means to the jurors unknown. And in cases like the one before us, this course is not only entirely proper, but the failure to observe it would be censurable negligence in the pleader.
It not unfrequently happens in cases of homicide that the condition of the remains of the deceased' is such that it is absolutely impossible to know with reasonable certainty by which 'of several means life was taken, while there is no doubt whatever as to who was the guilty party. In such case a count of the description of the one now under consideration enables the jury to find a verdict, when if it required them to agree upon the particular instrument or means used by the slayer, they might be unable to do so.
"While in our opinion the-evidence would support a finding that death was caused either by hanging or shooting, it is not so clear by which mode as to war
Such being our views, it follows that the judgment of the district court must be reversed, the indictment quashed, and the prisoners handed over to the proper authorities of Custer county to be proceeded against according to law.
Reversed.
Dissenting Opinion
dissenting.
To that part of the opinion of the majority of the court holding that the court below had no jurisdiction, I cannot give my assent. It may be conceded that a district for the trial of a person accused of crime cannot be formed after the commission of the alleged offense. And in my opinion that has not been done in this case. The act approved Feb; 25, 1875, provided that “it shall be lawful for the judge of any judicial district within the State of Nebraska, when it is made to appear to him that a crime has been committed, amounting to a felony, within any unorganized county or territory, or in any county where no terms of the district court are held, attached to or in his said district for judicial or other purposes, to designate a county in his district wherein the alleged offense may be inquired into by the grand jury, and in case an indictment is found, the person or persons so indicted tried,” etc. Laws 1875, 81.
This act was held 'valid as to an offense committed in an unorganized county, in Dodge v. The People, 4 Neb., 220. That act was superseded by one containing the same powers, passed in 1879, after the murder with which these parties are charged was committed. Laws 1879, 62. This act, therefore, was merely a continuation of the act of 1875— that is, it was merely
Was Custer county unorganized during the years 1878, 1879?
Section one of an act “to define the boundaries of Custer and Wheeler counties,” approved Eeb. 17,1877, provides “that all that portion of the State of Nebraska commencing at the south-east corner of township 13 north, of range 17 west of the sixth principal meridian, thence north to the north-east corner of township 20 north, of range 17 west, thence west to the north-west corner of township 20 north, of range 25 west, thence south to the south-west corner of township 13 north, of range 25 west, thence east to the place of beginning, be and the same shall constitute the county of Custer.” Laws 1877, 211.
This act of itself would be sufficient to form the county, were it not for the provisions of the constitution prohibiting the formation of a county in two judicial districts.
Section 10 of Art. VI of the constitution provides that “the state shall be divided into six judicial districts, in each of which shall be elected by the electors thereof, one judge, who shall be judge of the district court therein, and whose term of office shall be four years. Until otherwise provided by law said districts shall be as follows :***** Fifth District. The counties of Buffalo, Adams, Webster, Franklin, Harlan, Kearney, Phelps, Gosper, Furnas, Hitchcock, Dundy, Chase, Cheyenne, Keith, Lincoln, Dawson, Sherman, Red Willow, Frontier, and the unorganized territory west of said district. Sixth District. The counties of Cuming, Dakota, Dixon,
“ Section 11. The legislature, whenever two-thirds of the members elected to each house shall concur therein, may, in or after the year one thousand eight hundred and eighty, and not oftener than once in every four years, increase the number of judges of the district courts and the judicial districts of the state. Such districts shall be formed of compact territory, and bounded by county lines; and such increase or any change in the boundaries of a district shall not vacate the office of any judge.”
If we construe the words “ until otherwise provided by law” by themselves, without reference to other portions of the instrument, the legislature would have undoubted authority to change the boundaries of a judicial district at any time. But such is not the rule of construction.
Kent says of contracts: “ But if the intention be doubtful, it is to be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction and according to the subject matter and motive. * * The whole instrument is to be viewed and compared in all its parts, so that every part may be made consistent and effectual.” 2 Kent Com., 555. The People v. Gosper, 3 Neb., 309. And the same rule applies in construing statutes.
Kent says: “It is an established rule in the exposition of statutes that the intention of the law-giver is to be deduced from a view of the whole, and every part of the statute taken and compared together.” 1 Kent’s Com., 462. Section eleven therefore provides the time and mode by which the boundaries of judicial districts are to be changed, and the words “until otherwise provided by law ” must be construed with reference to
But suppose the legislature had authority to organize the county and attach it to one of the judicial districts, it has not done so. Section 11, Art. VI, provides that “ such districts shall be formed of compact territory, and bounded by county lines ” etc. — that is, that an entire county shall be in one judicial district. If the legislature is prohibited from placing a county in two or more judicial districts, is it not prohibited from forming one in that manner? Of this there can be no doubt. And if the action of the legislature in placing a county in two or more judicial districts would be in excess of its power, and a nullity, it is equally so if it form a new county in two or more such districts. The reason is plain. No courts could be held in such a county. The property of a citizen might be taken, his rights trampled upon, he be restrained of his liberty upon an accusation of felony, yet he could have no re
It is very strenuously insisted that under our present constitution, the jury must be drawn “from the county or district where the offense is alleged to have been committed.” Sec. 11, Art. I, Const. The section referred to is based on the presumption that the county is settled, organized, and that courts are held therein, and when applied to the organized counties of the state is undoubtedly the law. This section is copied in substance from section six of the amendments to the constitution of the United States. But the existence of such a provision in the constitution of the United States does not prevent the United States courts from punishing crimes committed on the high seas, without the- district, and perhaps thousands oí miles from the place of trial. The reason is that the national authority must punish such crimes, or they could be committed .with impunity. Neither may the accused select the place of trial. So a crime committed in unorganized territory in one of the judicial dis
