86 Neb. 539 | Neb. | 1910
In a prosecution by the state in the district court for Cass county, Fred Ossenkop, defendant, was contacted of manslaughter and sentenced to serve a term of ten years in the penitentiary. As plaintiff in error he now presents for review the record of his conviction.
1. The first ruling challenged as erroneous permitted the county attorney to indorse on the information the names of a number of Avitnesses without granting a continuance. The information Avas filed November 23, 1908, and at the time bore the names of 19 Avitnesses for the state. With permission of the court, the names of additional AAitnesses AAnre indorsed on the information as folloAvs: January 19, 1909, five; January 25, 1909, six; February 2, 1909, three. The case was called for trial February 1, 1909. Defendant does not seriously complain because the state Avas permitted to indorse on the information the names Of the additional witnesses, but insists the time to investigate- their character and their knoAvledge of the facts Avas Avholly insufficient. He contends further that he did not have time enough to prepare for the trial or to meet their proofs Avith testimony in his OAvn behalf, and that his sole counsel Avas too busy in other cases to make the necessary investígation or to inquire into th'e antecedents of the state’s Avitnesses. The statute requiring names of Avitnesses to be indorsed on the information is as follows: “All informations shall be filed during term,
In the manner stated in this Iuav, defendant is entitled to Iuioav the names of the Avitnesses AAdio are to testify against him, and the giving of this information is the main purpose of the statute. Reed v. State, 75 Neb. 509. Of course, a trial court cannot deprive accused of the benefit of this statutory right by an abuse of discretion Avhicli prevents a reasonable postponement to enable him to meet material testimony of Avitnesses Avhose names Avere indorsed on the information immediately preceding the trial. Rauschkolb v. State, 46 Neb. 658. In the present case, Avas there an abuse of discretion in refusing to grant a continuance? The- witnesses whose names Avere indorsed on the information February 2, 1909, did not testify when the state was making its case in chief, nor until the trial had been postponed for 21 days. Rebuttal testimony on behalf of the state may be given by Avitnesses whose names Avere not indorsed on the information. Clements v. State, 80 Neb. 313. Whether they testified in rebuttal is therefore not material to this inquiry. For these reasons, the indorsement of three names two days before the time set for trial did not make the order denying the continuance prejudicially erroneous. It appears from facts already stated that after the indorsement of six names, January 25, 1909, defendant had until February 4, 1909, for investigation and preparation. It is not affirmatively sliOAvn that the time Avas too short, or that the court in refusing to grant an extension or to postpone the trial abused its discretion. The skill and vigor of the defense, Avhen considered with the entire record, refute
2. Complaint is also made because the district court, four days after the commencement of the trial, • refused to continue the case until the next term of court. The motion for the continuance was based on the ground that four of defendant’s witnesses, on account of smallpox, were quarantined at the time by the state board of health. Defendant’s motion was in the alternative form, and contained a request for a continuance until the next term of court or for a postponement until the release of the quarantine. The court denied the continuance until the next term of court, but formally sustained the motion to postpone the case until the release of the quarantine, or until March 2, 1909, a period of 21 days. This order was not made, however, until a physician, under authority of the court, had reported the existence of smallpox and expressed the opinion it would be unsafe to release the quarantine in less than ten days. The record does not show when the quarantine was released, but does show that the trial proceeded at the appointed time, and that three of the quarantined witnesses-testified on behalf of defendant. For the purpose of showing error, it will not be presumed that the court forced defendant into the trial when his witnesses were detained by quarantine, or proceeded Avhen the quarantine Avas in force. Error must affirmatively appear on the face of the record. Presumptions are in favor of the regularity of judicial proceedings. The postponement having been granted in substantial compliance with the terms of the motion made by defendant, he cannot make the order the basis of a reversal on a record which fails to show that the trial was resumed before the quarantine was released, or that there was reason for further postponement.
3. In response to a subpoena, Wesley Knight appeared
4. The next assignment is: A motion by defendant for a change of venue was erroneously overruled. He argues that it was impossible to have a fair and impartial trial in Cass county for the following reasons: Four murders had been committed therein within a period of 'four months
5. The homicide occurred at the town of Eagle, September 16, 1908, in the evening, after a picnic at that place.
6. At the beginning of the trial the sheriff was directed to keep the jury together; but after the state had made its case in chief the trial court allowed them to separate for a period of 21 days, and this is the ruling most vehemently assailed. That the court had power to change its ruling for a sufficient reason is too plain for argument. The authority of the court to permit a jury to separate during the trial in a criminal case is recognized by the following provisions of the criminal code: “If the jury are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person on the subject of the trial, or to listen to any conversation on the subject, and that'it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.” Criminal code, sec. 484. Notwithstanding this statute, it is insisted error is shown by the separation alone, and that prejudice should be presumed from the fact that the jurors were permitted to mingle with their neighbors for a period of 21 days, when the public mind was inflamed by the reports of other homicides. The statute recognizing the authority of the trial court to permit the jury to separate has been the subject of discussion by this court in a number of cases. In St. Louis v. State, 8 Neb. 405, 413, Judge Lake used the following language: “While it is the usual and perhaps the better practice in most capital cases thus to keep the jury together, there is no provision of our criminal code requiring it to be done. On the contrary, section 484 expressly provides for such separations up to the time when the case is finally submitted; and whether they shall
A conviction may be set aside, however, where there has been an abuse of discretion, or where the record.shows that defendant has been prejudiced. Does the record present either of these contingencies? In the midst of the trial, some of defendant’s witnesses were quarantined on account of smallpox. A physician appointed by the court reported that it would be unsafe to release the quarantine in less than ten days. It would naturally occur to the court that free communication with the quarantined witnesses for a few days more might be important to defendant. A proper regard for defendant’s rights would suggest a reasonable postponement, and the 'time was fixed at 21 days. To keep the jury together during all that time would be a hardship which could only be justified by necessity. Whether the occasion for that course existed was a question for the determination of the trial court. Prom the bench it was stated that some of defendant’s witnesses had been quarantined on account of smallpox, and the jury were permitted to separate after having been admonished as follows: “Upon this ground a necessity has arisen for a continuance of the case, or rather a postponement for about 20 days'until the quarantine can be removed. You appreciate the gravity of the situation. You have been kept together until now, but under the circumstances of the case the court deems it best to allow you to separate. It is the duty of the court to admonish you as to your duty upon separation. As I have heretofore said, you are not to discuss the matter
7. Complaint is also made because a witness for the state was permitted to testify that a brother of defendant exclaimed: “Now give it to him.” The information contained the charge that defendant killed Byrnes by striknig and kicking him. The version of the state’s witnesses is, in substance, as follows: Defendant was the aggressor. He and Byrnes clinched on a sidewalk 2^ feet above the ground, struggled for a moment, went off the sidewalk together, lit on their feet, and immediately fell with Byrnes underneáth. When they were on the ground defendant struck Byrnes in the face two or three times,
8. Another argument is directed to the proposition that the trial court erred in permitting a physician to testify on behalf of the state to facts obtained by him Avhen in the employ of defendant in a professional and confidential capacity. After the homicide defendant employed the physician to examine the body of the deceased person and to report the result. Later the same physician Avas selected by the state to make a post mortem examination. He performed the service, and testified at the trial to the conditions disclosed. Defendant contends that knoAvledge of all of the facts to which the physician testified was obtained as a result of confidential communications properly entrusted to him by defendant. The point is that the physician’s testimony Avas admitted in evidence in violation of the folloAving provision of statute: “No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination shall be alloAved, in giving testimony, to disclose any confidential communication, properly entrusted to him in his professional ca
9. Referring to Byrnes, the victim of the homicide, a witness for defendant Avas asked: “When under the influence of liquor, what was his disposition as to being
10. A lengthy instruction containing the following language is criticised as erroneous: “You may also deduce the purpose or design of the defendant from his declarations, if any he made, at the time of the killing of said Byrnes, but in considering the declarations of the defendant, made at the time of the alleged killing of Byrnes detailed by the witnesses on the stand, you should sift the evidence carefully, and critically examine the circumstances under which they were uttered and heard and detailed. The declarations made by the defendant at the time, when aggravated by passion and excitement, if they were, may or may not have much weight attached to them.” Defendant criticises this instruction because he made no declarations, and because it submitted to the jury an issue on which there was no evidence. The criticism is unmerited. A witness, after describing defendant’s acts of violence, testified to his having said: “You got enough?” or, “Have you got enough?” The instruction was favorable to defendant, and its tendency was to caution the jury against giving too much weight to such declarations.
Other instructions are also criticised, but attention has not been directed to any prejudicial error therein. All questions presented by the brief of defendant or argued by his counsel at the bar have been considered. The result is that he has been unable to point out any error requiring a-reversal, and the judgment against him is
Affirmed.