46 Neb. 493 | Neb. | 1895
This is a petition in error by George Pflueger, who seeks the reversal of a judgment of the district court for Cuming county, whereby he was convicted of murder in the second degree, the crime charged being the killing of his wife, Anna Pflueger.
“This exhausts the jurors of the regular panel who are in attendance. As some of the jurors have not reported, defendant asks that the regular panel be exhausted before proceeding further, which request is granted without objection by the plaintiff. Court now takes a recess until 1:30 o’clock P. M. of the same day.
“On the reconvening of court at 1:30 P. M., pursuant to adjournment, it being reported by the sheriff that the remainder of the jurors drawn on the regular panel are unavoidably and excusably absent, the special venire of thirty-six names is resorted to for the purpose of filling the panel. Counsel for the defendant at this time object to the calling of any of the jurors summoned by the special venire in this case, for the reason that the list has not been prepared as required by the Statutes of Nebraska, being section 6093 thereof (sec. 465a, Criminal Code), and for the further reason that said special venire was ordered issued in this case before ever the information upon which the jury is now being impaneled was filed. Objection overruled, to which ruling the defendant excepts.”
As each of said special venire-men was passed for cause
“Counsel for defendant challenges the juror Wilde, on the ground that he is one of the jurors called by the special venire not issued according to law. Counsel for plaintiff objects to the challenge, for the reason that on yesterday afternoon, at about 5 o’clock, C. C. McNish, counsel for defendant, stated to the court that there would not be over eight jurors in the regular panel that would be'competent to sit as jurors, in his opinion, and that it would require a long time to impanel a jury, and that the court then suggested that it would be well that a special venire should issue for thirty-six talesmen to expedite the impaueling of a jury when the regular panel was exhausted; that upon consultation with the court and counsel on both sides, the court ordered the special venire, upon which the juror, to whom the objection is now made, was called by the sheriff. Counsel for defendant objects to the record being made in this form, for the reason that neither this defendant nor his counsel have requested the issuance of a special venire in this case.
. “By the Court: Then let the record read that the special venire was ordered by the court with the knowledge of counsel on both sides and without any objection being made by either side, — with the knowledge of and without any objection of counsel.
“ Counsel for defendant objects for the further reason that that was upon another information, to which the defendant had filed a motion to quash, and in the neighborhood of four hours before this information, upon which the defendant is now upon trial was filed. Objection overruled, to which ruling defendant excepts.”
Our chief* difficulty is in determining the facts rightly, inferable from the foregoing record. If the so-called special venire was merely to assist the sheriff by securing the attendance of competent talesmen, and if the talesmen required were, in fact, called by him in the impaneling of the jury, the error alleged is not apparent, since the accused has been tried by jurors selected by the person and substantially in the manner prescribed by law. The only authority found in the statutes for a special venire is that contained in section 465a, Criminal Code, above mentioned, and which is confined to cases in which one of two or more-persons charged in the same indictment has demanded a separate trial. The court may in such cases order a special venire to be drawn and summoned in the manner therein specified, and no other. Provision is made by section 664, Civil Code, for the calling of juries in certain cases by the sheriff, and for the filling by him of the panel for the term when incomplete, but the selection of talesmen for particular causes, after the regular panel shall have been exhausted, is governed by the rules of the common law. It is by section 282, Civil Code, expressly provided: “The general mode of summoning, impaneling, challenging, and swearing the jury is not changed by this code.” The selection of talesmen -is by the common law entrusted to the discretion of the sheriff (Thompson, Trials, 27; Murfree, Sheriffs, 394), and the right to rely upon that discretion is. a substantial right which, to the accused in a prosecution for a felony, cannot be denied. But we cannot, from the foregoing record, say that there was in this instance any departure from the established practice. All presumptions are in favor of the regularity of the proceedings of the district court, and the record being silent upon the subject, we conclude that there exists no substantial ground of complaint by the accused with respect to the rulings referred to.
Q. Now, in your opinion, did he [the accused] at that time [the day of the homicide] have sufficient mind to tell the difference between right and wrong?
Q,. Did he have sufficient mind to know the difference between right and wrong as to the crime of murder?
A. Yes.
Q,. Now, in your opinion, did he on that day have mental capacity enough to know the difference between right and wrong as to the crime of murder?
A. Yes; I think he knew that day between right and wrong.
Q,. Did you think that on the 20th day of February, 1892 [the day preceding the homicide], he had sufficient mind to know the difference between right and wrong as to the crime of murder?
A. Yes.
The objections, it should be stated, go to the form of the questions only, no exception being taken to the answers on the ground that they are not responsive. This case, on the record quoted, differs from Shults v. State, 37 Neb., 481, relied upon by counsel for the accused. In that case non-expert witnesses were by the district court permitted totes tify that the prisoner did in fact know the difference between right and wrong at the time of the. homicide charged, and on review upon petition in error to this court it was held that for obvious reasons the testimony should have been confined to the opinions of the witnesses, leaving the jurors to draw their own inferences therefrom. The killing being conceded, the vital question is, whether the accused is accountable for his act, and which depends for its solution upon whether he was, or was not, at the time he took the life of the deceased, able to distinguish between right and wrong with respect to the particular act involved. Tested by that rule it would seem that the evidence complained of was rightly admitted. (State v. Lewis, 20 Nev., 333; Carr v. State, 24 Tex. App., 562; United States v. Guiteau, 1 Mack. [D. C.], 498; Rodgers, Expert Testi
Exception is taken to the refusing of certain instructions requested by the accused, but there is no error in the ruling assigned, since the propositions therein stated had been given in the charge of the court.
Affirmed.