Caw v. People

3 Neb. 357

• Court: Nebraska Supreme Court
• Decided: July 15, 1874
• Status: Published

Opinion

Lake, Ch. J.

The plaintiff in error was indicted and tried for the crime of murder, found guilty of manslaughter, and sentenced to the penitentiary for the term of eight years.

Several exceptions were taken, on behalf of the plain-tiff in error, during the trial in the district court, to the admission and rejection of certain testimony, but we perceive no just ground for complaint in this respect, as only a very small portion of the testimony was preserved in the bill of exceptions.

The record before us shows that the prisoner offered to prove that the deceased, some time after he received the wound of which he died, but during the same evening, made threats against the prisoner, and declared that “ he could and would clean him out;” and that he made threats to go out and look for the prisoner and fight him. This testimony was rejected on motion of the district attorney, and, as we think, properly It constituted no part of the res gestoe, and could shed no legitimate light on the transaction.

Again, it is objected that the State was permitted to prove that the ground just where the deceased was struck, was covered with stones or pieces of rock, left from building a wall under the house a short time before. This testimony was properly admitted. The character of the wound on the skull of the deceased, certainly indicated that it could hot have been produced with the fist. It was a very important circumstance, and eminently proper to be shown to the jury that there was an article or substance at hand, with which the prisoner could have produced the wound of which the deceased died.

It is urged as ground of error, that the jury were permitted to fix the term of the defendant’s imprisonment. The crime was committed before the taking effect of our present criminal code, under which the trial was conducted. In such cases it is provided that “ no offense committed, and no fine, forfeiture, or penalty incurred under existing laws, previous to the taking effect of this code, shall be affected by the repeal of any such existing laws, but the punishment of such offenses, the recovery of such fines and forfeitures shall take place as if said laws repealed had remained in force; provided, that the manner of procedure for the enforcement or imposition of all such punishments, and the collection of all such fines and forfeitures, shall be in accordance, or as nearly in accordance with the provisions of this code as the nature of the case will admit.” General Statutes, 782. By section 175 of the criminal code in force when this offense was committed, it is provided that “ in all cases' where the punishment shall be by confinement in the penitentiary, the jury shall say in their verdict for what term the offender shall be confined.” Rev. Statutes 1866, page 632.

Under these two provisions it has been the practice, throughout the entire state, to permit the jury, in cases arising under our former code, to fix the term of imprisonment in the penitentiary, and we see no reason for interfering with such practice. Besides, we think this construction is the. proper one, and strictly in conformity to the legislative will on the subject. Mark the language used: “No offense committed * * * or penalty incurred, previous to the taking effect of this code, shall be affected by the repeal, etc., but the punishment of such offenses * * * * shall tahe place as if said laws repealed had remained in force.”

It is true that under a proviso in the same section it is enacted, “ that the manner of procedure for the enforcement or imposition of all such punishments * * * shall be in accordance with the provisions of this code (new code) as the nature of the case will admit.” But this, evidently, was only intended to apply to matters merely formal, such as the organization of juries, mode of producing testimony, etc., in respect of 'which there is marked difference between the two codes.

It is also claimed that the verdict is not supported by the evidence. But this point cannot be considered here. "We have no means of knowing what testimony the jury had before them. It was not preserved by bill of exceptions, which is necessary when the verdict is attacked on this ground. In the absence of a record showing the whole of the testimony submitted to the jury, this court will presume that the verdict was abundantly supported by the evidence. This rule is too well settled to need the citation of authorities in its support.

Several exceptions were also taken to the refusal of the court to give certain instructions to the jury, as requested by the prisoner’s counsel. These instructions were predicated on the assumption, that there was testimony from which the jury might find that the prisoner was first assaulted by the deceased, and in danger of being seriously •beaten by him unless he protected himself by strildng. There is nothing in the testimony before us that warrants this assumption. There is nothing to show, or that even tends to show, that the prisoner had any reasonable apprehension of personal harm to himself at the hands of the deceased. Even his own testimony would not warrant such conclusion, while that of all the other witnesses absolately forbids it. These instructions were rightly refused. It is not error to refuse an instruction upon a question of law which has no application to the case as made by the testimony.

Several instructions appear to have been given to the jury upon abstract propositions of law, to which exceptions were taken by the prisoner’s counsel. It is not claimed that these propositions were not correctly stated, but it is urged that being outside of the case it is error. We do not so understand the law. Many cases are to be found wherein it is held that even an erroneous instruction, on a point entirely outside of the case as made by the evidence, furnishes no just ground for the reversal of a judgment otherwise correct.

In the case of Stewart v. The State, 1 Ohio State, 66, the court says: “It will also be admitted that, in a criminal as well as civil cause, before- a judgment can be reversed for error in the charge to the jury, it must appear that some evidence was given tending to prove a state of case in which the charge would he material. If the charge was upon a mere abstract question of law, that could not arise upon the testimony, and could not influence the jury, its character, however erroneous furnishes no ground to reverse the sentence.” And surely if an erroneous statement of the law, upon an abstract question, furnishes no just ground for the reversal of a judgment, a correct statement ought not to have that effect.

Undoubtedly if the instruction were so _ worded as to lead the jury to infer the existence of a state of facts, entirely at variance with the evidence, it urould furnish a sufficient reason for setting aside the verdict. The court should not mislead the jury by directing their attention to a point upon which there is no testimony. Snyder v. Wilt, 15 Penn. State, 59. American Transportation Company v. Moore, 5 Mich., 368.

Among the several instructions given by the judge on ' his own. motion, we find the following: “ I may now here further charge you as a general rule of law, that the accused is presumed innocent until the contrary be proved. And if the evidence satisfies you, beyond a reasonable doubt, that he is not guñlty of the charge alleged agaánst him in the indictment, it is your duty to acquit

We are satisfied that this instruction was given inadvertently, and although an exception was taken by the prisoners counsel, the attention of the judge could not have been particularly challenged thereto, else it would have been corrected. It doubtless resulted from an oversight.

But the instruction is clearly erroneous and had a direct tendency to prejudice the prisoner. In such case we are not at liberty to say, after a verdict of guilty, that he was not prejudiced, although we may be reasonably well assured that he was not.

Another objection urged upon our attention is, that during the progress of the trial the jury were permitted to separate. From the affidavits of Edwin S. Towle, A. Schoenheit and William Mast, it would appear that during the temporary absence of the judge, the jury did separate and intermingle somewhat with the spectators in and about the court room, and that two of their number held conversations with other persons during such separation.

The prosecution does not deny that the separation actually occurred .at the time mentioned, but it is insisted, and several affidavits are filed to show that the separation was by direct permission of the court; that the jury during such separation were in charge of tbe bailiffs of the court, and that no improper conduct on the part of any one of them was indulged in. The two jurors who are charged with holding conversations, severally make affidavit that nothing at all improper took place, at least so far as they were concerned. They give the subject of the conversations complained of, and show very satisfactorily that it had no relation whatever to the ease on trial, and in this they are supported by the persons with whom the conversations took place.

Our statute permits the separation of jurors, by consent of the court, in all criminal trials, at any time before the final submission of the cause; but it is required in such case “ that they shall be admonished by the court that it is their duty not to converse with, or permit themselves to be addressed by any other person on the subject of the trial, etc.” General Statutes 1873, Sec. 484, page 830.

There is nothing in the record to show that this admonition was not given, and in such case we are bound to presume that the court performed its duty in that regard.

But even if the jury were not admonished by the court on this particular occasion as to their duty in this respect, in view of the very full and satisfactory showing of what actually occurred, and what was said by the two jurors who engaged in conversation with outside parties during, this brief separation, we are of opinion that the verdict should not, for'that reason alone, be disturbed.

In the case of The People v. Douglass, 4 Cowen, 26, Judge Woodworth, in delivering the opinion of the court, said: “We cannot lay down any general rule'for all cases like this which may arise. They will be attended with different circumstances. We do mean to be understood, however, as saying that the mere separation of the jury, without curvy further abuse, is not sufficient ground for setting aside a verdict.”

There are several other objections in this record, which however, we do not care to notice. Save in the erroneous instruction given to the jury upon the law of reasonable doubt, before considered, we find nothing that calls for a reversal of tbe judgment. But, because of tbat instruction, a new trial must be awarded to tbe plaintiff in error.

Judgment accordingly.

Mr. Justice Maxwell concurring.