87 Neb. 638 | Neb. | 1910
Plaintiff in error was convicted of the crime of murder in the first degree, and, his punishment having been fixed
The information under which he was put upon trial charged him with the crime of murder in the perpetration of a robbery. The person alleged to have been killed was Jacob Davis, Junior, and the crime was alleged to have been committed at Ainsworth, in Brown county. There seems to be no doubt but that Davis was brutally murdered near his own door on the night of December 27,1909, in the city of Ainsworth, and that he was robbed at the same time, the indications supporting this latter theory being the fact that, when he was discovered a short time before his death, no money was found on his person, and one of his pockets, the one in which he usually carried his money, was turned or drawn out as though it had been hastily rifled of its contents. He was never restored to consciousness and no evidence could be obtained from him as to the facts of the assault upon Mm, nor who was the guilty party. He died within three or four hours after receiving his injuries. An examination of his body before and after death showed that he had been struck on the head with some instrument by which his forehead and scalp were severely injured and the skull fractured, and also showed a gunshot wound passing through the head from the right to the left side, the ball entering on the right side a little above and back of the ear and lodging against the scalp upon the opposite side. The crime was committed between 11 and 12 o’clock at night as deceased was returning home from his place of business, the night being a bright moonlight night, the ground covered with snow. The fact of the commission of the crime by some; one is not questioned. There was no direct evidence of the guilt of plaintiff in error, and the question of his connection with the commission of the offense depends upon circumstantial evidence alone. It is not our purpose to discuss the evidence with regard to its convincing quality, as, according to our view, a new trial must be had, and
The first contention of plaintiff in error is that the district court erred in permitting the indorsement of the names of ten additional witnesses upon the information. The record shows that the information was filed on the •31st day of January, 1910. On the 1st day of February, following, plaintiff in error was arraigned, and entered his plea of “not guilty” to the information. The cause was set for trial on the 14th day of the same month, when court adjourned to that day at the hour of 10 o’clock A. M. On that day, “after 9:30 o’clock A. M.,” notice was served upon counsel, who had been appointed to defend plaintiff in error, of the pendency of the motion for leave to indorse the ten additional names upon the information. When court convened and the trial was about to proceed, and “one juror had been called by the clerk and had taken his seat in the jury box,” the county attorney x>resented his application for leave to indorse the names, and the “juror thus called was informed by the court he would not be needed, and requested to vacate the jury box, which he did,” and permission was given to make the indorsement. The showing made by the county attorney was to the effect that the ten persons, naming them, were material witnesses for the state; that at the time of the filing of the information it was not known to the county attorney or to llie other attorneys for the prosecution (there being two others assisting the county attorney) that the persons named would be material witnesses; and that “the same was not known by affiant (the county attorney) until after the adjournment of court on February 1, 1910.” Formal objection was made to the granting of the order. The court granted the leave asked, and “advised the defendant and his counsel that the court w'ould on its own motion continue said cause for 24 hours,” when counsel “consented to waive said time and proceed with the trial, * * renewing, however, his objections to the indorsement of additional names on the information.”
The next contention is that the court erred in overruling certain challenges of jurors for cause, and that, the defendant having exhausted his peremptory challenges, such error should demand the reversal of the judgment. It is unnecessary for us to repeat what is provided by our constitution, and so often declared by all the courts of the land, including this one, that in all criminal cases an accused is entitled to a fair and impartial trial by an impartial jury, and that it is the sworn duty of the courts to see that that right is scrupulously maintained.
A juror by the name of Woorley was called, and, upon being examined by one of the attorneys for the prosecution as to his competency as a juror, testified that he had neither formed nor expressed an opinion as to the guilt or innocence of the accused, and that he could enter upon the trial of the case with his mind free from any opinion upon that subject. Upon being examined by counsel for the defense, he stated that he resided some 30 miles from Ainsworth, had formerly lived in that city, was well acquainted with the deceased, that he was in the city the night of the tragedy, spent the night at the hotel where the accused was boarding, was in the city the 28th, knew of
Upon a consideration of all the answers of this juror, we are unanimously of the opinion that the circumstances detailed by him required, that the challenge be sustained and that he be excused from the panel. The statement made by him that he had formed an opinion as to the guilt or innocence of the accused, which it would require evidence to remove, when taken in connection with his acquaintance with the deceased, his presence at the home of the deceased, his visit to the spot where the tragedy
The juror Cunningham, when interrogated by counsel for the state, answered questions as follows: “Q. Prom what you have heard or read, have you formed or expressed an opinion as to the guilt or innocence of the defendant? A. Well, I have to a certain extent; yes, sir. Q. Do you still have that opinion? A. Well, I believe I do. Q. How is that? A.' I believe I have; yes, sir. Q. Is that opinion such as it would require evidence to remove if you were selected as a juror in this case? A. Yes, sir; I think it would take some.” When interrogated by counsel for the defense, the same state of mind of the juror was clearly shown. He was challenged for cause. The court propounded, a number of questions, many of which were quite leading in character, and by the answers to which the former statements of the juror were modified. The challenge of the defense was overruled. Counsel for the accused then said: “ ‘I would like to ask him another question.’ By the court: ‘Request denied.’ Defendant excepts.” Just why the request was denied is not shown by the record, and indeed we doubt if any good reason could be given. There was no objection made by counsel for the state, and we are unable to perceive why or how any could have been properly made. In the case of Basye v. State, 45 Neb. 261, the subject of the right of a party to propound questions to a jury within reasonable limits is discussed at considerable length, and that right is fully established. This juror was retained and served in the trial of the case, the accused having exhausted his peremptory challenges.
William Renziehausen of Port Meade, South Dakota, a lieutenant in the United States army, was called as a witness, and, in answer to questions, stated in response that
These observations apply with equal force to the cross-examination of the accused, who took the witness stand in his own behalf, lie was 23 years of age, and, judging by his answers and language used, is not as well qualified to sustain himself under such an examination as older and more experienced persons might be. The ordinary and well-established rules of cross-examination appear to have been forgotten or ignored, and many of the minute details of his domestic life were dragged into public view over the objections of his counsel. At one point in his examination in chief he sought to show that prior to his coming to Ainsworth he liad something of a sum of money, some of which at times was deposited in a bank in South Dakota. Whether his statements and claims in this regard were true or not, botli his examination' in chief and cross-examination demonstrated that he was not entirely clear in his testimony, and that his business capacity was limited. His deposits in the bank were of comparatively small amounts. His cross-examination proceeded as follows: “Q. Then all the money you had in the bank was what you had in the Commercial National Bank in July? A. I think so. Q. And your account with that bank was closed at that time, wasn’t it? A. I think so. Q. What is the fact about the matter? A. I wouldn’t say what month it was.” By the court: “Q. Was your banking business so extensive you couldn’t tell that? A. I couldn’t tell the month I drew the last money out of there; no, sir.” The cross-examination by counsel for the state then proceeded upon the same subject. When we consider the great length of the cross-examination, the length of- time the accused had been upon the stand, the small amount of deposit which it was claimed had been made, the persistence with which the cross-examining counsel had pressed the subject, in substance, if not in form, repeating his inquiries, and the natural embarrassments under which the witness must have labored, even if he were trying to
It is insisted with considerable earnestness that the court erred in the admission of evidence over the objections of the accused; that there was error in the instructions, both given and refused; and that the verdict is not sustained by sufficient evidence. Since there will have to be a new trial, these questions will not be examined, as they may not arise in the further progress of the case.
Our constitution provides that in all criminal prosecutions the accused shall have his trial by an impartial jury. This provision necessarily carries with it the assurance of a fair and impartial trial. Without any suggestion on our- part as .to either the quantity or quality of the evidence we are convinced that neither of these constitutional guaranties has been extended to the accused in this case. Every judicial officer in this state has been sworn to support and protect this constitutional right, and the obligation should be observed at all hazards. None of them can evade it. As emphasizing what we have said and indicating the intense feeling and bitterness of the prosecution, we need but refer to a portion of the argument of one of the state’s counsel to the jury. We here copy that portion shown by the record: “If this jury finds this defendant guilty and do not bring in a verdict
The judgment of the district court must be reversed and the case remanded for further proceedings, which is done.
Reversed.