120 Neb. 453 | Neb. | 1930
Upon an information charging defendant with murder in the first degree, ]ie was convicted of murder in the second degree and sentenced to the penitentiary, and now-presents his appeal from said judgment to this court. Defendant was convicted of having murdered his wife by shooting, in the dining room of their home, at a time when1 defendant, his wife and small baby and one Tooley, a lodger, were the only persons in the house. No extended statement of the facts is necessary for the proper understand
The first assignment is that the court erred in overruling defendant’s objections and challenge to the regular panel of jurymen. This involves the construction of sections 5013 and 5014, Comp. St. 1922, which are as follows:
Section 5014: “Whenever any party, his agent or attorney shall make and file with the clerk of the proper court an affidavit stating that he believes the sheriff of .such county will not, by reason of either partiality, prejudice, consanguinity or interest, faithfully perform his •duties in any suit commenced, or about to be commenced, in said court, the clerk shall direct the original or other ;proeess in such suit to the county clerk who shall execute the same in like manner as the sheriff might or ought to 'have done, and if like objections shall be made to the county clerk by either party, the court shall appoint some suitable person to whom such objection does not apply.”
Section 5013: “Every county clerk shall serve and execute process of every kind, and perform all other duties •of the sheriff, when the sheriff shall be a party to the case, or whenever affidavits shall be made and filed as provided in the next succeeding section; and in all such cases he shall exercise the same powers and proceed in the same rmanner as prescribed for the sheriff in the performance •of similar duties.”
On December 14, 1929, prior to the drawing of the jury panel for the January, 1930, term of court at (which defendant was tried, an affidavit by his attorney was filed with the clerk of the district court, the material portion of which is as follows: “This affiant says that Raymond X. Crosson, sheriff of Adams county, Nebraska, is a witness for the state and was such witness at the former trial ' and was a witness on the motion for rehearing; that by reason of partiality and prejudice and interest in the result of this action this affiant believes said Crosson will
It appears from the record that, notwithstanding the filing of such affidavit, the clerk and the sheriff, as required by law, from a box containing- the names of 60 persons selected by the board of county commissioners to act as jurors, drew 24 names of persons to constitute the regular panel for trial of cases at the January term. The writ for summoning these jurors was addressed to the sheriff by the clerk and the sheriff personally served the persons drawn as jurors. The original panel having been exhausted, the court ordered the sheriff and clerk to draw from the box 24 additional jurors, which was done, the sheriff personally serving such additional jurors. The contention of the defendant is that the filing of the affidavit operated of itself to disqualify the sheriff from drawing and serving jurors for the trial of the defendant, and that the jurors so called and served were incompetent for that purpose. The correctness of this proposition depends upon whether the statute above quoted is mandatory or directory; if the former, the objection is well taken, otherwise not.
There would seem to be no question from the terms of the enactment that no discretion is vested in any person or tribunal, but that the provisions are mandatory. Section 5014, Comp. St. 1922, recites that, when the affidavit required is filed with the clerk of the proper court, “the clerk shall direct the original or other process in such suit to the county clerk who shall execute the same in like manner as the sheriff might or ought to have done, and if like objections shall be made to the county clerk by either party, the court shall appoint some suitable person to whom such objection does not apply.” And section 5013, Comp. St. 1922, requires the county clerk to perform the duties of the sheriff in such cases.
In the construction of the statutes, the word “shall” is ordinarily considered as mandatory (Jefferson County Farm Bureau v. Sherman, 208 Ia. 614), and is always so considered when the statute is addressed to public officials. McDunn v. Roundy, 191 Ia. 976. Our attention has been called to and our research has discovered but one .other state having a statute substantially the same as the one under consideration, to wit, Colorado, which is as follows:
“Whenever any party * * * shall make and file with the clerk of the proper court an affidavit stating that he believes that the sheriff of such county will not by reason of either partiality, prejudice, consanguinity or interest, faithfully perform his duties in any suit commenced * * * in said court, the clerk shall direct the original or other process in such suit to the coroner, who shall execute the same in like manner as the sheriff might or ought to have done.” Rev. St. Colo. 1908, sec. 1299. This statute was held to be mandatory and did not authorize the opposing party to file counter affidavits nor authorize the court to
The defendant cites Policky v. State, 113 Neb. 858. In-that case the sections under consideration were quoted, but no affidavit had been filed prior to the drawing of the panel and the objections of the defendant were held in time- because they were made to a special panel, the-court saying: “It will be observed that, when a showing is made conforming to the provisions of the statute above referred to; it is then mandatory that the clerk direct the county clerk to perform the duties of the sheriff. In the case at bar, the defendant had no opportunity to make objections to the sheriff selecting and summoning the special panel until after he had done so.” And the record in that case having shown that the sheriff was the prosecuting witness, and that »a conviction of defendant would turn upon a question of veracity between the sheriff and
\ The state relies upon the case of Noonan v. State, 117 Neb. 520, in which it was held that where the sheriff is mot the prosecuting witness or sole witness in a criminal case, and his testimony is merely corroborative, the fact that he is a witness does not disqualify him from performing the duties of his office; but in that case no affidavit had been filed as required by section 5014, Comp. St. .1922, and moreover, in the present case, the evidence of the sheriff was more than merely corroborative, though we do not place our decision upon that ground.
McCandless v. Commonwealth, 170 Ky. 301, also cited by the state, is not in point for the reason that no statute .similar to ours existed in that state, but the only statute bearing upon the question was section 193 of the Criminal Code of Kentucky providing that the court may for sufficient cause designate some officer or person other than the sheriff to summon petit jurors, thus vesting the court with a discretion in the matter, while the statute under discussion states the conditions upon which the courts shall be. required to act in a certain manner.
As above intimated, we are unable to discover any reason for holding the statute in question other' than mandatory, neither have we been able to find any decision authorizing a contrary conclusion. It was therefore prejudicial error for the district court to overrule defendant’s objections to the array, which was the proper method to raise the question. People v. LeDoux, 155 Cal. 535; State v. Jordan, 19 Idaho, 192. We must not be understood, however, as holding that the sheriff was disqualified from participating with the clerk in the drawing of the panel. Section 5014, Comp. St. 1922, merely disqualifies him from serving process and section 5013, Comp. St. 1922, was evidently not intended to enlarge the disqualifications provided in said section 5014, but merely to authorize the county clerk to act in the matters specified.- Ahd while
While our conclusions upon the above question require a reversal of the judgment in view of the fact that another trial is likely to be had we deem it proper to discuss briefly two other assignments of error, and, first, the refusal to give instruction No. 6 requested by the defendant in the following language:
“You are instructed that evidence has been introduced and received in this case tending to show that some one. else and not the defendant fired the shot from the effects of which the said Sarina Trobough afterwards died. In this connection you are instructed that the defendant is not bound to prove that another fired the shot from which effects the said Sarina Trobough died, but it is enough if from the consideration of all the evidence there is a reasonable doubt in the minds of the jury whether or not another fired the shot, and if after a consideration of all the evidence there is a reasonable doubt in the minds of the jury as to who fired the shot that struck the said Sarina Trobough from which she afterwards died, then it is your duty to acquit the defendant and your verdict should be not guilty.”
The theory of the defendant was that the shot which killed Mrs. Trobough was fired by the lodger Tooley but was intended for the defendant, and there was some evidence tending to prove that Tooley and the defendant had had some difficulty, and that Tooley had made threats against the defendant to a third party, and that it was possible for Tooley to have fired the shot through the space between the door jamb to which the hinges were attached and the door, which there was evidence tending to prove was partially open. We think under these circumstances
The other assignment of error which we will notice is the refusal of the court to give instruction No. 10 requested by the defendant, as follows:
“You are instructed that in order to sustain a conviction for a felony on purely circumstantial evidence the circumstances pointing to the guilt of the accused must be of so conclusive a character as to exclude every other reasonable hypothesis. It is not sufficient that the circumstances when taken together create a probability, although a strong one, of the guilt of the accused, but if the facts can be accounted for or explained upon any other reasonable hypothesis than the guilt of the defendant, then your verdict should be not guilty.”
In Wakeley v. State, 118 Neb. 346, it was held error to refuse a cautionary instruction on the subject of circumstantial evidence where the evidence is wholly circumstantial in its nature. In the present case there were no eyewitnesses as to who fired the fatal shot, but that fact had to be determined by the jury from all the circumstances
For the errors above pointed out the judgment is reversed and the cause is remanded.
Reversed.