79 Neb. 361 | Neb. | 1907
The record shows that upon evidence before the judge of the district court he found that the defendant appears to be insane, and thereupon ordered ■ that the question of his sanity be submitted to a jury pursuant to sections 454, 551 and succeeding sections of the criminal code. Under these statutes the inquiry as to the sanity of the convict is committed largely to the discretion of the judge of the district court of the county in which the penitentiary is located and to whom the application is made. In his discretion he has power to stay the execution of the sentence, when the proper investigation as to the sanity of the convict makes such stay absolutely necessary, and must by proper order at the hearing, if the convict is found to be sane, fix the precise limits of such stay of execution.
The order of the district court complained of is therefore
Affirmed.
The defendant Barker is confined in the penitentiary under sentence of death for a capital offense. Tlie reprieve granted by the governor being about to expire, the defendant’s attorney applied to one of the judges of the district court for Lancaster county for an investigation as to defendant’s sanity. The judge ordered an investigation, and that a jury be called for that purpose, and therefore on the application of defendant’s attorney continued the hearing to a day beyond the day fixed for execution, and ordered the execution to be stayed until further order. Upon the hearing in this court the jurisdiction and power of the judge to stay the execution was the principal question discussed, and the action of the judge in (hat regard was sustained. We will confine this discussion to a statement of thé ground of this holding, without considering the method by Which the proceedings were brought to this court, or other questions of practice which-may be supposed to be presented by this record.
In a former appeal to this court by the defendant (Barker v. State, 75 Neb. 289), it was said that “the judge should, upon proper information of that fact, and a prima facie showing that the convict is insane, investigate the matter for himself so far as to determine whether the convict appears to be insane, and, if he finds that he does so appear, then it would be his duty to impanel a jury to try the question of insanity.” The rule of the common law was quoted as stated by Mr. Chitty. This rule has been substantially enacted in section 454 of our criminal code, which was cited in Walker v. State, 46 Neb. 25. In that case it was pointed out that these proceedings are not applicable' when “the alleged insanity or lunacy is claimed to have been in existence before trial upon information is
For these reasons, we declined to interfere with the proceedings before the judge of the district court.