116 Neb. 493 | Neb. | 1928
The defendant was charged with the murder of Arthur Carrico with a revolver on June 30, 1926, in Madison county. On December 7, 1926, the jury found him guilty of murder in the first degree and fixed the punishment at life imprisonment. On December 15, 1926, he was sentenced to be imprisoned for life in the state penitentiary. He brought proceedings in error here.
The evidence given at the trial shows beyond dispute that the defendant did the killing at the time and place and in the manner charged. Witnesses who were present at the time of the killing testified that Carrico was shot by the defendant in a garage in Tilden and that three shots were fired by him.
The defendant was a witness in his own behalf and told his grievances of years against Carrico and of the exasperating attitude of the latter toward defendant and in respect of Carrico’s debauching of defendant’s wife. He testified that, on the day of the shooting, he took a revolver from the cushions of his car and walked into the garage. He detailed a conversation with deceased in which deceased called defendant’s wife an opprobrious name and then testified that he could recall nothing more after that. This conversation between the two immediately preceded the fatal shooting.
Self-defense, which is an adequate defense in proper cases, is not indicated by the evidence in this case. So far as any defense was interposed, it was the. defense of insanity or amnesia or loss of memory because the deceased had violated the sanctity of his home by the seduction of defendant’s wife and had thereby caused the defendant to brood over his marital wrongs and to become so mentally unbalanced as not to be criminally responsible for his act
The first assignment of error argued in the brief is that the court erred in admitting in evidence, over objection, exhibit 15, which is a letter written by defendant to the wife of a third party, whose name may well be omitted, because we find nothing in the evidence to show that she invited the contents of the letter. The letter was inadmissible and ought not to have been produced. But the record shows that, when this exhibit was offered in evidence, one of counsel for defendant who was in active charge of the trial at the time remarked, “It is all right,” and the reporter indicated that the exhibit was received. This waived any right to predicate error upon the admission of the letter in evidence.
Another error assigned and argued is that the prosecutor was guilty of prejudicial misconduct with relation to certain letters probably written by defendant and his own wife. None of these were admitted in evidence, nor are we advised how they came into the possession of the state. No inkling of their actual contents is given us in the briefs, nor do we find any such references in the record. Only one is pointed out as offered in evidence. It is exhibit 14 (and its envelope, exhibit 9, which latter the defendant. without objection, had admitted he wrote). The defendant objected that this was a privileged communica
The next assignment of error is that the court erred in admitting the testimony of Dr. G. E. Charleton, superintendent of the state hospital for the insane at Norfolk, who made a physical and mental examination of the accused, and, in rebuttal, expressed at the trial an opinion therefrom that the defendant was sane. The testimony was objected to because the examination was not made under an order of the court and because accused’s counsel was not present and because the examination was ex parte. The objection may be treated as referring back to that part of section 12 of the bill of rights of our state Constitution which says: . “No person shall be compelled, in any criminal case, to give evidence against himself.” • The testimony shows that the witness informed the accused that he had been requested by the county attorney to make the examination, that the doctor told him he did .not have to answer any question, and that the defendant submitted without objection to the physical' and mental tests. We 'find no case in our court where this question has been decided; none is cited in the briefs. There are numerous authorities to the effect that, where an order of court has first been obtained for an examination of the defendant by physicians, their testimony as to what they discovered, and their opinion as to the sanity of the prisoner, is admissible and does not contravene a similar constitu
While defendant was under cross-examination by the prosecutor, he was subjected, to questions, and required to answer them, relating to his own violations of the conventions of the marriage relations. He was required to answer that, before he was married, he had sexual intercourse with a woman and begat a son while the son’s mother was the wife of another, that he was sued by the man whose wife and home he had thus violated and was charged with breaking up this man’s home and alienating the affections of the man’s wife, whom witness married later. The only purpose of this line of questions, as stated by the prosecution during the examination, was that it was “a question of the effect of these things on his mind.” We are aware that, when a defendant takes the stand as a witness in his own behalf, considerable discretion is committed to the trial court as to the latitude to be allowed in cross-examination of such a witness. But it should be the disposition of the prosecutor, as it is the office of the judge presiding over such a trial, to see that the witness is so protected that, as a defendant in the case, his rights to a fair trial are not invaded by the introduction of prejudicial evidence.- There was only the remotest connection be
The judgment of the district court is reversed and the cause is remanded for a new trial.'
Reversed.
Note — See Criminal Law, 16 C. J. 568 n. 11, 588 n. 6; 62 L. R. A. 194; 8 R. C. L. 201: 2 R. C. L. Supp. 574; 4 R. C. L. Supp. 455; 6 R. C. L. Supp. 493.
