69 Neb. 402 | Neb. | 1903
The defendant is charged with the crime of robbery from the person, accomplished by violence and by putting in bodily fear the victim of the assault. A trial to the court and jury resulted in a verdict of guilty as charged in the information. A motion for a new trial having been overruled, the judgment of the court was pronounced sentencing the defendant to imprisonment in the penitentiary for a period of twelve years. The defendant prosecutes error in this court for the purpose of having a review of the record of his trial and obtaining a reversal of the judgment of conviction.
On the trial of the case some evidence was introduced
“The jury are instructed that an attempt to escape is no evidence of guilt.”
Refusal to give the instruction is assigned as error. The ruling of the court on the requested instruction was in harmony with the prior decisions of this court, and in conformity with the generally accepted rule as to the admissibility of such evidence, as wre understand the question. The attempt to escape, if one was made, was an inculpatory circumstance properly to be considered by the jury and to be given such weight as it seemed fairly entitled to with the other evidence introduced, in determining the question of the guilt or innocence of the accused. Says Mr. Bishop in his new Criminal Procedure (vol. 1, sec. 1250) :
“Proof is admissible that after the supposed commission of the crime, the defendant fled or concealed himself, as though to elude justice; or endeavored to avoid arrest . or after arrest, attempted or effected his escape, or gave straw bail and forfeited his recognizance. The weight of this evidence is for the jury; sometimes it is slight, it is always open to explanation by the defendant, and is often greatly modified by the special circumstances.”
See, also, Matthews v. State, 19 Neb. 330; George v. State, 61 Neb. 669, 675.
But it is contended that even if the instruction tendered does not correctly state the law, still it was the duty of the court to have instructed the jury on that point, as it was a material issue and the failure to do so is reversible error. Whether the defendant attempted to escape or not, was not a material issue such as required a finding of its existence or nonexistence before a verdict responding to the general issue could be returned. It was not an essential element necessary to constitute the crime charged.
“Gentlemen of the jury, if you agree on a verdict within a reasonable time the court will receive the same. You can not in this case bring in a sealed verdict.’’
One of the jurors asked what was meant by a “reasonable time,” and the court responded orally:
“By a reasonable time I mean not later than 10 o’clock.”
It is said this transaction as it occurred constitutes error calling for a reversal of the judgment, because the language used by the court amounted to the giving of oral instructions contrary to the statute and the rule requiring all instructions to be in writing, and that the instructions thus given also amounted to a coercion of the jury in that it required them to return a verdict within the time stated or subject themselves to the displeasure of the court or a prolonged confinement in the jury room, without an opportunity of returning a verdict when they should agree upon one. We do not think either objection is tenable,
Affirmed.