100 Neb. 199 | Neb. | 1916
Lead Opinion
Defendant was convicted in tbe district court for Lincoln county of murder in tbe first degree. Tbe jury fixed tbe penalty at death, and he prosecuted error to this court. He is charged with having killed Vernon Connett on August 2, 1914. Connett was a young farmer whose home was at Bird City, Kansas. Mrs, Connett had not been in robust health, and her physician advised that she live in the open air. Accordingly the Connett family left their home in Kansas and drove across the country, living in a covered wagon, and intending to visit some relatives in this state. They arrived at North Platte July 31, 1914, where, by chance, they met defendant. A friendship appears to have rapidly developed between the two men. Defendant’s mother and her husband, Charles Clayton, were employees on a ranch
The evidence, if true, would relieve Mr. and Mrs. Clayton from suspicion. The defendant’s testimony was that while they were at the ranch an altercation arose between himself and Connett which resulted in Con-nett’s knocking defendant down, and while Connett was continuing his attack and was leaning over defendant attempting to choke him, upon defendant’s cries for help, Clayton rushed to the scene and struck Connett several blows upon the head which caused his death. He says that Clayton first removed the body, and afterAvards he and Clayton planned the disposition of the body and the property of Connett. Defendant disposed of the property, and says that he divided the proceeds with Clayton. He is to some extent corroborated in this. It is shown that he received gold coin for some of Con-nett’s property. Clayton testified that he did not receive any of the property or the proceeds thereof, and also testified that he had not had any gold coin from any source. There was some evidence that soon after Connett’s disappearance Clayton paid a $5 gold coin for liquor at a saloon.
When such a crime as this is committed, so dangerous to the safety of society, it is of the highest importance to ascertain the truth of the case, to establish the real character of the crime, and fix the responsibility upon the guilty party. Unfortunately for the interests of humanity it is not always possible to do this. The greatest criminal is often able to divert attention from himself, and to turn the vengeance of the public against one who may not be free from guilt, but who is lessi guilty than himself. It too often happens that the one .least guilty, or perhaps even entirely innocent of the crime, is made to bear the punishment therefor, and A> satisfy the sense of justice of the community, too readily convinced in the eager and laudable desire to see the crime properly punished. For these reasons, the
The court removed the trial from the court-room to the theater, and stated as a reason therefor: “By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission, and also by reason of there being some question as to the safety of the building crowded to its full capacity as it is, it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where trial proceeded.” The stage was occupied by court, counsel, jury, witnesses, and officers connected with the trial. The theater proper was crowded with curious spectators. Before the trial was completed -it was returned to the court-room and concluded there. At the adjournment of court on one occasion the bailiff announced from the stage: “The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30.” The court manifested no disapproval-' of this announcement. The defendant now insists that such proceedings were pre
The law requires that trials shall be public, but this requirement is satisfied by admitting those who could conveniently be accommodated in the court-room where the law requires such trials to be held (Rev. St. 1913, sec. 1162), without interrupting the calm and orderly course of justice. This young man was already a convict, Did the jury infer from these, arid other'similar transactions, that it was immaterial in what manner the defendant was tried; that it was not necessary to take great pains in weighing the evidence against a convict who by his own admissions had violated the law? It is not clear that the defendant was not prejudiced by these proceedings.
The defendant demanded that the state’s witnesses be separated so as not to hear each other’s testimony. In some jurisdictions this.) is a matter of right. 1 Green-leaf, Evidence (16th ed.) sec. 432, says: “This order, upon the. motion or suggestions, of either party, is rarely withheld.” Binfielcl v. State, 15 Neb. 484. In our state it has been considered to rest in the discretion of the trial court. This court has said that the practice of so separating the witnesses “is a good one, as it tends to elicit the truth and promote the ends of justice.” Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 138, 141. So far as we now recollect, the court has never suggested what would amount to an abuse of discretion in that regard. To have separated these witnesses would seem to have been peculiarly appropriate in this case. It was urged that the witness Johnny Jones was of weak mind and under the influence and control of Clayton, with whom he worked. Clayton testified to a condition which would relieve himself of all guilt and place the awful responsibility for- this crime upon the young man. The boy. Jones reiterates the story of Clayton in all its details, and so the evidence of Roberts is overborne, and it is supposed to be, established beyond a reason
Edward G. Maggi, of the state board of pardons, who is also a member of the bar, was appointed by the court to assist the county attorney in the prosecution. Mr. Maggi was active in obtaining evidence and was an important witness in the case. Ordinarily it is not expected that the attorney in the case will be also a principal witness. Trial lawyers of experience hesitate to act as witnesses and active counsel in the trial unless under unusual circumstances it becomes necessary to identify some writing or supply some formal proof of a matter peculiarly within the knowledge of counsel as such. To discuss in argument the reliability and weight of one’s own evidence is embarrassing to counsel, and sometimes confusing to jurors. In this case, however, the part taken by Mr. Maggi in the trial does not seem to have been inconsistent with his position as a witness or his interest as an officer of the state.
The little girl offered by the defendant as a witness was a little less than seven years of age. The defendant asserts that if she were allowed to testify her evidence would satisfy the jury that Clayton and his» wife, who were first arrested for the crime, were the prin
“Gentlemen, this is a child. ■ She has not reached the age of seven years. - She has not gone to school to exceed three months. We all know that at that immature age children get ideas from suggestion. To the court’s mind it would be cruelty to attempt to force a child of that immature age; she doesn’t know or understand any of the obligations of the oath, and therefore the court will not permit her to be put upon the stand, because of her immature age and because of her inability to understand and knoAV the obligation of an oath. The child is of that immature age that as soon as the suggestion is made that she come upon the stand, even though accompanied by her mother, she breaks down and cries through fear, and this takes place in the court’s presence and hearing.”
A little child is generally supposed to be likely to tell the truth, and the trial court will not usually reject her evidence without first examining her as to her intelligence and understanding. To examine another person, who may have the strongest motive to prevent the child from telling the jury just what took place, and to exclude the child’s evidence because of the say-so of the interested person so examined, is not the usual practice. It is not strange that the child was frightened. She was perhaps not accustomed to taking part in a state performance before a theater full of curious and excited people. If she had been encouraged by the court in the quiet and order of the usual trial court-room, separate and apart from the other witnesses, and free from
After the case had been submitted to the jury, and in' the absence of the judge, and without his order or knowledge, the bailiff permitted some of the jurors to leave the jury-room, and go to the court-room, and there, with the help of the bailiff, they gathered exhibits including as it is alleged, “a certain skull, a jaw-bone, the partial skeleton of a hand or some fingers, several shirts, a hat, cap, two or three pairs of trousers, a pair of shoes, belt, a post card one photograph of the alleged place where the alleged body was supposed to have been found, one white dress and a skirt belonging to Mrs. Clayton, * * * one bed comforter, together with some alleged human hair, and a suit case, and a photograph purporting to be a family photograph of the Connett family,” of which some had been received in evidence, and some had not, and took them to the jury-room, and there discussed the bearing of these promiscuous articles upon the probability of guilt of the defendant. This transaction requires no discussion. It is universally held that such misconduct requires a reversal.
It is also complained that a juror had before the -trial stated his positive opinions as to the guilt of defendant, but denied upon his voir dire examination that he had formed or expressed any such opinion; that one of the jurors in the jury-room stated important matters as facts, and drew a “map” of the locality of the crime, which showed different measurements and distances than those testified to by the witnesses, and otherwise misled his fellow jurors; that the bailiff talked with the jurors while they were considering their verdict. But these, and some other matters complained
Reversed.
Rose, J. I concur in the reversal of the conviction on ‘two grounds: (1) There was prejudicial error in the transferring of the place of trial from the court-house to the opera house and in the resulting conduct at the latter place. (2) Failure of the Trial court to interrogate the child offered as a witness on behalf of defendant and the order preventing her from testifying without a proper inquiry into her capacity to testify require a new trial.
Dissenting Opinion
dissenting.
According to the testimony for the state, defendant and Connett drove away from the ranch about 4 o’clock Sunday afternoon, saying that they were going to the neighborhood of Hershey, where they expected to find work. The following morning defendant drove Con-nett’s team and wagon to - a livery stable in Hershey. He there sold the team and wagon for $250, executed a bill of sale therefor, and signed thereto the name “Vernon Connett.” He received in payment a check made payable to “Vernon Connett.” He wrote the name “Vernon Connett” thereon and cashed the check at a local bank. He then went to the post office and
The defendant, testifying in his own behalf, admitted meeting Connett and family in North Platte, and all the incidents as shown by the state down to Sunday afternoon. His story as given on the trial is that during the afternoon he' and Connett engaged in a quarrel; that Connett knocked him down and was in the act of choking him when he called for help; that his stepfather, Clayton, rushed out j with a hammer, struck Con-nett on the head, felled h:m to the ground, and then struck him two or three blows with the hammer, and that Connett instantly died. He then says that Clayton, Mrs. Clayton, defendant’s mother, and defendant carried the body 75 or 100 yards and hid it in a clump of weeds; that later they carried the body back again, put it in a wagon, and that he drove away with this body, with directions from Clayton to hide it so as to conceal the crime, and to then proceed to Hershey and sell the team and wagon; that, pursuant to these instructions from Clayton, he took the body to the point where it was later found in the river bed; made the sale of the team, wrote the postal card, and went to North Platte, where he divided the proceeds of the team with Clayton.
This entire story is denied by Clayton. It is also denied by Jones. Jones is referred to by counsel for defendant as an idiot, and it is strenuously insisted that his testimony is not worthy of belief. Although 17 years of age, he had never advanced beyond the fourth grade in school, and he seems to be subnormal mentally. Nevertheless he tells a straightforward and convincing story. He was cross-examined at length without his testimony being shaken in the least, and
A number of assignments are directed to the admission of exhibits. These exhibits relate to matters which the defendant later admitted in his own testimony. This was properly a part of the state’s case, and their admission could not have been prejudicial.
During the trial the court, on its own motion, made the following finding: “By reason of the insufficiency of the court-room to seat and accommodate the people applying for admission, and also by reason of there being some question as to the safety of the building crowded to its full capacity as it is, it is by the court ordered that the further trial of this cause be had at the Keith Theater, and thereupon the court was adjourned to Keith Theater, where the trial proceeded” — • and transferred the trial from the Lincoln county courthouse to the Keith Theater in the city of North Platte. There the court, attorneys, witnesses, and jury were seated on the stage, and the body of the house was filled with spectators. Defendant’s counsel objected to the transfer of the trial, and also objected to the seating of the witnesses for the state on the stage, and asked that they be excluded from the room during the trial. His objections and motion were overruled; the court saying that there were no adequate accommodations for the witnesses elsewhere.
During the progress of the trial the court bailiff made the following announcement from the stage of the theater as court was about to take a recess: “The regular show will be tomorrow; matinee in the afternoon and another performance at 8:30. Court is now adjourned until 7:30.” This -announcement of a show did not refer to the trial, but to an exhibition to be given by a troupe of professional actors, and it seems to be conceded that the arrival of this show troupe necessitated the surrender of the theater, and that thereafter the trial was conducted in the courthouse.
In addition to the witnesses who testified for the state, there were present at the ranch on that Sunday afternoon defendant’s mother and his half-sister, Nellie Roberts, a child then just past six years of age. Defendant’s mother was not called as a witness by either side as to what occurred at the ranch, but defendant asked to have the little girl called as a witness. Thereupon the court interrogated the little girl’s mother, but without putting her under oath, and elicited the information that the child had gone to school two or¡ three months, and that she had attended Sunday school “part of the time,” and then, turning to the jury, the court said: “Gentlemen, this is a child. She has not reached the age of seven years. She has not gone to school to exceed three months. We all know that at that immature age children get ideas from suggestion. To the court’s mind it would be cruelty to attempt to force a child of that immature age; she doesn’t know or understand any of the obligations of the oath, and therefore the court will not permit her to be put upon the stand, because of her immature age and because of her inability to understand and know the obligation of an oath. The child is of that immature age that as soon as the suggestion is made that she come upon the stand, even though accompanied by her mother, she breaks down and cries through fear, and this takes place in the court’s presence and hearing.”-
“No fixed rule can be laid down as to the age a child must be to entitle it to testify as a witness in a court of justice. The question of competency of a person to be a witness must be left to the sound legal discretion of the trial judge, leaving to the jury to determine the credit that ought to be given to the testimony.” Davis v. State, 31 Neb. 247, 255.
The court has made a specific finding as to the appearance and conduct of the child, and in the exercise of that sound legal discretion which is vested in the trial judge has excluded the testimony. The mother of the child was present and might have been called to prove the same matters sought to be proved by the child. It nowhere appears that she was unfriendly to the defendant, nor is -.any reason given for not calling her. It was suggested in argument that she might conceal the truth in order to protect her husband, but we can hardly indulge the belief that this woman, who was then living with her third husband, would conceal the truth to protect the husband, when its concealment might send her son to the electric chair.'
Of the court’s refusal to ■ exclude the witnesses, from the stage of the theater, it may be said that the instant case is peculiar in that the major portion of the testimony is undisputed. The usual danger of a witness being influenced by the testimony of another witness where he is permitted to remain in the courtroom and hear the examination was not present., and under the circumstances the court was not
After the jury had been instructed and retired to the jury-room, they called upon the bailiff for exhibits that had been offered in evidence. The bailiff then permitted a number of jurors to go into the court-room proper, where the exhibits had been left, and he, together with these jurors,, gathered up the exhibits and carried them to the jury-room. Among these exhibits was deceased’s skull, and a shirt which was found on the body when it was discovered. In support of a motion for a new trial, defendant set out an affidavit of a juror, in which it was alleged that the jurors, after having procured these exhibits, attempted to fit the shirt over the skull, and so arranged it as to bring a hole in the shirt over a hole or fracture in the skull, and that from their experiments with these exhibits they reached the conclusion that, as deceased was disrobing and had his shirt pulled over his head, he was struck and killed by the defendant, thus disproving his story of the fight at the ranch. The exhibits had been offered and received in evidence. The defendant by his own story had sufficiently identified them. The skull is shown to have been found in the river bed where defendant testified he put the body of deceased. The marks it bore were such as corresponded to his theory of the killing, and the issues had been narrowed down to the point where the jury were left with practically nothing to determine but the time, place, and person who did the killing, was it at the ranch in the afternoon, and were the blows struck by Charles Clayton, or was it some time during the succeeding night, and were the blows struck by the defendant. An examination of the exhibits could not work to his prejudice.
When we consider the numerous conflicting stories told by the defendant, stories which he now admits
Dissenting Opinion
dissenting.
The witness Johnny Jones testified that on Sunday the defendant, Roy Roberts, and the deceased, Vernon Connett, hitched up the team and drove away together. That was the last time that Johnny Jones saw Connett. A peculiar thing about Connett and the defendant going away together is, that the defendant just before they went kissed his mother and little sister good-bye. It looks as if this starting away together was the beginning of the journey of the deceased to his grave. Mrs. Connett appears to have sufficiently identified the body of her husband, who was buried not far from Sutherland, by his clothing and his teeth. The clothing was also identified by R. H. Connett, the brother of the deceased. The defendant appears to have succeeded in getting the deceased to go to the Sund ranch with him. His stepfather and his mother and little sister resided there.
On the 3rd day of August the défendant appears to have executed a bill of sale for the team, harness and wagon. He signed the name “Vernon Connett” to the bill of sale. The bill of sale is made to one W. H. Jenkins. Oliver H. Ireley, a banker residing at Hershey,
On Friday morning at North Platte the defendant first met the deceased, and visited him so industriously that by 2 o’clock in the afternoon they started for the Sund place. There were in the wagon the deceased, Connett, and his wife and baby, and also the defendant. Sund’s place is described as about four or five miles northwest of North Platte. On their way out there a burr dropped off the axle of the wagon. They were unable to find it. With more or less trouble, because the wheel would not stay on, they finally succeeded in driving to the Sund place. That evening the defendant visited with his mother and little sister, but the deceased’s wife cooked supper by a fire that was built near the wagon, and the defendant ate supper with the Connetts. That night the defendant’s mother loaned him some bed clothes and he made,a bed on the ground not far from Connett’s wagon. In the morning the defendant visited with his stepfather a short time, and then spoke to his mother and little sister, but after that he went back to the wagon, and when the Connetts got breakfast ready he ate with them. Defendant stayed continuously with Connett. Mrs. Con-nett borrowed a wash-boiler and wash-board of the de
Another unreasonable thing to this story is that he has Clayton asking him what shall be done, and then Clayton does not go with him and does not in any way participate in burying the body. According to the story, the trouble was Clayton’s trouble, and he should therefore have hauled the body away to hide it. Then the defendant kept the property and got the money for it when he sold it.
In the light that the defendant testified to an unreasonable and improbable story having no discoverable foundation in fact, and resting only upon a basis of fiction, formulated to deceive the jury and to reduce their verdict from murder in the first degree to manslaughter or murder in the second degx’ee,' I see no particular error in the refusal of the court to allow the little girl to testify to a story which was traxxsparent and unreasonable fiction. If the alleged facts concerxxing the killing of the deceased with a hammer by Clayton never happened, then the little girl could not have truthfully told the story related by the defendaxxt, and so the defendant did not suffer when she failed to recite this Munchausen tale. The mother was probably not called as a witxxess to the main facts because the defense knew that there was no truth in the story which it had put up, and did not want to subject her to the daxxgers of a cross-examination.
When Johnny Jones saw Connett and the defendant driving north toward the railroad tracks together, the defendant was taking Connett for his last drive. The
Charles Clayton testified that the defendant had said he wanted Connett’s team; that on a. Sunday afternoon the defendant kissed his mother and little sister goodbye, and Connett shook hands with Mrs. Clayton; that then the defendant and Connett got into the wagon and started for Hershey to work in the hay-field, so they said; that Johnny Jones was there and saw them start; that defendant was sitting on the left side and driving the team, and Connett was on the other side. When defendant came back a week afterwards he told the story that Connett had gone to South Dakota on a teaming job. Defendant • at that time seemed to have plenty of money.
Clayton fixed the time when Roy Roberts and Connett and his wife and baby came to the Sund place as Friday, July 31. He also said that Roberts and Connett were there until the next Sunday afternoon, when they went away together. Clayton did not see Connett after that. When the defendant came back he talked to Clayton in such a way as to induce him to believe that there was something wrong. After that he told Clayton that he had been mighty lucky in getting out of a murder case. While Clayton himself had entered a plea of guilty to cattle, stealing, there seems to be no credible evidence connecting him with the crime, and that defendant sold the team, wagon and harness while he was gone corroborates Clayton and the story of the crime.
There could be no prejudicial error in excluding the testimony of the little girl, defendant’s sister, if the story about to be told was clearly highly colored fiction. The district judge was on the ground and he had the opportunity to examine conditions surrounding this trial and to judge of them. I am unwilling to- condemn what he did in excluding the testimony of the little girl.
While I realize that the opinion of the court presents a criticism of the proceedings not entirely without some foundation, it does not follow that the things complained of are so prejudicial to the rights of the defendant as to justify a reversal of the judgment of the district court and the increased burden and expense of a new trial. While the strictest enforcement of the more technical rules of the criminal law may possibly sustain the present views of this court as set forth in the opinion, there is a growing tendency among the people, the bench and the bar to let well enough alone. In this case I am not quite able to agree with the views of the majority.
The law presumes the defendant to be innocent until his guilt is established by the evidence beyond a reasonable doubt, and this court will not affirm the judgment of the district court based upon a verdict of guilt unless the defendant has had a fair trial, and the inquiry concerning the defendant’s guilt has been conducted without prejudicial error. Unwarranted injury might be done to the defendant by taking the case away from the courthouse to the theater if the theater should be filled with a hostile and demonstrative audience seeking the conviction of the prisoner. Whether the refusal of - the court to let the defendant’s little sister testify was based upon a sufficient reason we may not know as well as Judge Grimes, who saw the little girl cry and who perhaps heard some of her conversation. Besides, Judge Grimes conversed with the mother, and the mother appears to have given certain rea
With this statement contained in the majority opinion, I am unable to see how the discussion of the case contained in this dissent can in any way be prejudicial to the defendant. I am unable to coincide with the views of the law expressed in the majority opinion, and I therefore feel called upon to insist upon this dissent.