67 Neb. 555 | Neb. | 1903
Section 16 of the Criminal Code is as follows: “If any person shall maliciously shoot, stab, cut, or shoot at any other person, with intent to kill, wound, or maim such person, every person so offending shall be imprisoned in the penitentiary not more than twenty years nor less than one year.” Upon an information charging a violation of this section the defendant, Parker, was tried, found guilty, and sentenced to imprisonment in the penitentiary for a term of ten years.
The grounds upon which he claims a reversal of the judgment are (1) that the evidence is insufficient to sustain the verdict; (2) misconduct of the county attorney in addressing the jury; and (3) that the sentence is excessive.
The alleged misconduct of the prosecuting attorney consisted of an appeal for conviction in which the duty of the jury to the state, to society in general, and particularly to the people of Boyd county, was pointed out in forcible and impressive language. It seems probable from affidavits filed by some of the jurors that counsel based his claim for conviction altogether upon the evidence, and that he did not at all exceed the limits of legitimate discussion. But, in any view of the matter, it is certain that he committed no such serious fault as to make it the duty of the court to set aside the verdict. No objection was interposed by counsel for defendant at the time the remarks were made, and they were therefore neither approved nor condemned by the trial court. This being so, the following extract from the opinion in Chicago, B. & Q. R. Co. v. Kellogg, 55 Nebr., 748, is pertinent: “In this case there was no formal objection, and consequently no ruling, or contumacious refusal to rule, which Ave are authorized to review. Had the court, in response to a proper objection, vigorously condemned the remarks of counsel, Ave think they would have left no prejudicial impression on the minds of the jury. By prompt action the defendant's counsel might have obtained an effective antidote for the poison in Shafer’s speech; but he failed to act, and is, therefore, not in an attitude to have his complaint noAV considered. We do not, however, wish to be understood as holding that a rebuke from the court, or even a complete
The judgment is
Affirmed.