Jahnke v. State

94 N.W. 158, 68 Neb. 154, 1903 Neb. LEXIS 169

• Court: Nebraska Supreme Court
• Decided: March 18, 1903
• Docket: No. 12,979
• Status: Published

Opinions

Holcomb, J.

The defendant, August Jahnke, was tried and convicted in the district court of Box Butte county upon an information filed by the county attorney charging him with murder in the first degree. In the verdict returned by the jury, imprisonment in the penitentiary for life was fixed as the punishment to be inflicted for the crime of which he was found guilty. The homicide Avas committed by shooting one Michael Sirck in the right side and back with a loaded shotgun, the shot from which penetrated his lungs, causing death within four to six hours thereafter. The gun at the time the load was discharged, was in the hands of one Oliver Olson. The prosecution by the state was' conducted upon the theory that the homicide Avas committed by shooting as above stated by Olson, who fired the shot with felonious intent and in pursuance of á prearranged plan between the defendant and Olson; the defendant at the time being present, aiding, abetting, as-, sisting, and procuring the commission of the crime, and by reason thereof was a principal in the transaction. The motive actuating the par-ties was to procure insurance in the sum of $4,000, which prior thereto had been procured on tire life of the deceased, payable to his estate; the defendant Jahnke being the sole beneficiary under a will executed in his favor by the deceased at the time of procuring the life insurance policy, and as a part of the same transaction. The life insurance money, according to the testimony of Olson, Avas to be divided equally between the defendant and himself after the doctor’s bill and funeral expenses had been paid. As a part of the prearranged plan, according to Olson’s version of the affair, the shooting of the deceased and his death by that means was to be accomplished, and thereafter be reported and treated as having been occasioned by an accidental discharge of the shotgun. The defense of Jahnke Avas conducted on the theory that the shooting was in fact accidental, and that Olson’s testimony to the contrary was manufactured by reason of influences and inducements exerted on and held out to him by the county attorney and the sheriff of the county and in the hope of receiving immunity for his participation in the crime. After the defendant’s conviction, Olson pleaded guilty to murder in the second degree, which was accepted by the county attorney, and a sentence imposed by the court of twenty years’ imprisonment in the penitentiary. The testimony of Olson disclosed that several prior attempts had been made to take the life of the deceased, all of which had proved unsuccessful, and that thereupon it was agreed between them that a shotgun should be procured and his death accomplished by shooting under the pretense that it was the result of an accident. The uncontradicted evidence goes to show that while the deceased, who was a bachelor, living alone, was sitting at the breakfast table at his home, the defendant being seated on the opposite side of the table talking to him, Olson came from an adjoining room through a partition door immediately to the right and to the rear of where the deceased wms sitting, and that just as he passed through the door the charge in the gun wms exploded, the shot striking the deceased in the right side or back near the spinal column, penetrating his Jungs, from which his death soon resulted. The deceased at the time lived in the country some twelve miles from Alliance, the county seat of Box Butte county. The defendant and Olson had frequently stopped wdth him for meals and overnight when in that vicinity. The defendant, at the time of the homicide, was living at Alliance, but within a year or two prior thereto had lived on another farm or ranch in the neighborhood where deceased was living. Olson is a brother-in-law of the defendant. The morning preceding the homicide defendant, with his son, who was about eighteen years old, and Olson, drove from Alliance to the home of the deceased, where they remained over night. It was testified by Olson that the plan was to shoot the deceased on the same evening they ar^ rived at his home, but because of the presence of a relative who visited him during the evening, these plans miscarried. During the night, says Olson, while he and the defendant were occupying the same bed in a room by themselves, it was agreed between them that they would undertake to accomplish their object on the following morning, and that the shooting at the time and in the manner narrated was the final consummation of the conspiracy they were engaged in.

The record which is presented for review by defendant is quite voluminous, and the petition in error contains near three hundred assignments of alleged errors, of which only those which are argued in brief of counsel will be considered. Some, even, of the assignments of error which are argued are not deemed of sufficient importance to be noticed and considered more than in a very brief way.

When called upon to answer the information filed against him, the defendant interposed a plea in abatement on the ground that there had been no preliminary examination of the offense of which he was informed against, such as is by law required. In the plea in abatement was set out in full all the proceedings had before the examining magistrate, including the testimony which had been introduced at such hearing. The. county attorney filed a demurrer to this plea, which, upon consideration, was sustained by the court. The ruling on the demurrer is now assigned as error. The contention of the defendant is that while there was in form a preliminary inquiry to a limited degree, it was not such as is required by law, and that the evidence upon which the examining magistrate acted failed altogether to show that any crime had been committed; that the order of commitment on the evidence adduced was entirely unwarranted and without legal justification; and the district court therefore erred in holding, as it did in effect, that the defendant had been accorded a preliminary examination within the meaning of the law. The question directly presented to us, is what shall be the standard by which to determine whether a preliminary examination has been had such as will authorize a county attorney to proceed in the trial of a person accused of a felony, when such an examination has not been waived, and where at least a form of examination has been had, some evidence introduced, and a finding by the. magistrate that a crime has been committed, and also that there is probable cause to believe the person charged guilty of its commission? It has frequently been held in this and in other jurisdictions that where prosecutions by information are allowed in the absence of a waiver by a defendant accused of crime of his right to a preliminary examination, he can not be put upon trial for the crime charged over his objections until such preliminary hearing has been accorded him and he held to await a trial in the district court, and that a plea in abatement is the proper method of determining whether or not such hearing has in fact been had or waived: White v. State, 28 Neb. 341; Coffield v. State, 44 Neb. 417; Latimer v. State, 55 Neb. 609, 70 Am. St. Rep. 403. In the case last cited it is said that the object of a preliminary examination before an examining magistrate is to ascertain whether the crime charged has been committed, and if it is found to have been, then whether there is probable cause to believe the accused committed it, and if such is found to be the case, to insure his appearance in the district court to answer the complaint by recognizing him to appear thereat, or, in default of recognizance, to commit the accused to jail until an information may be presented against him and he be required to answer for the crime charged. What the statute evidently contemplates is that when a person is charged with the commission of a felony, before he can be proceeded against by information he must be brought before an examining magistrate on such charge, and that the magistrate shall proceed to hear the complaint and examine such witnesses as are produced in support thereof or to controvert the same, and then exercise judgment or discretion of a judicial character, with which he is invested, in determining whether from the evidence adduced, the accused should be held to appear for trial in the district court or should be discharged for want of probable cause, or because it is not made to appear that a crime has been committed. It was not, we apprehend, ■the intention of the statute that by a plea in abatement errors in the judgment of the examining magistrate should be corrected, or that the evidence introduced should be weighed for the purpose of determining its sufficiency, as might be the case by a reviewing court when the questions involved are those solely of guilt or innocence of the accused.

When the quantity or sufficiency of the evidence to justify the holding of a person to answer for a crime is called in question, as in the case at bar, by a plea in abatement, the only question to be considered is with reference to the powers of the magistrate which are called into action in the determination of what shall be the result of such hearing. If he is compelled to act judicially, and to determine as a judicial question the matters over which he has jurisdiction, and does determine such questions upon competent evidence, then an error in judgment as to the result reached can not be determined by a plea in abatement. It is only where there is in fact no preliminary examination, either in form or substance, that advantage can be taken of by such a plea. It is the rule in this jurisdiction that while the question of the sufficiency of the evidence introduced at a preliminary examination to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings, yet where it appears that the court had jurisdiction, that an offense had been committed, and there is testimony tending to show that the accused committed the offense, the court will not weigh the evidence further to see whether it was sufficient to hold the accused on the ground of probable cause. It is not necessary in such cases that the evidence should be sufficient to support a verdict of guilty, or show guilt beyond a reasonable doubt. In re Balcom, 12 Neb. 316; State v. Banks, 24 Neb. 322, 326; Rhea v. State, 61 Neb. 15. We feel quite certain that when the same question is raised on a plea in abatement that the inquiry can go no further nor be entered into to any greater extent in the determination of such a plea, nor do we say that the sufficiency of the evidence may be inquired into to the same extent upon such plea as it can in proceedings under a Avrit of habeas corpus. We are disposed to the view that the true test should be whether in fact there was a hearing as to the crime charged in form and substance as contemplated by the statute, and whether the evidence introduced at such hearing is such as to invoke an honest exercise of judicial discretion, a bona-fide judgment or determination on the part of the examining magistrate by weighing and considering such evidence in arriving at a conclusion as to the order .or judgment to be entered; and if such is the case, then it can not be said that a preliminary examination, within the meaning of the statute, Avhich will support the filing of an information in the district court, has not been had. If, after the filing of a complaint charging a felony, the magistrate proceeds to inquire into the complaint by an examination of the witnesses offered by the state and the accused, and from the evidence thus adduced he is required to determine therefrom whether a crime has been committed, and whether there is probable cause to believe the accused guilty of its commission, and does so determine upon evidence sufficient in quantity to necessitate consideration and deliberation judicial in character in reaching a fair legal deduction and to justify an inference of probable guilt, when the party is held to ansAver the charge, the statute is satisfied, and a preliminary examination such as the accused is entitled to, in the absence of a waiver, has been accorded him. In the case at bar, as shown by the record of the preliminary hearing of the defendant before the county judge acting as an examining magistrate, two witnesses were sworn and testified for the state. The defendants offered no testimony, and were content, under advice of counsel, to rest on a motion to discharge them for want of sufficient evidence to hold them to answer in the district court, which was presented after the state had introduced all the evidence offered in its behalf. The evidence introduced disclosed without doubt the commission of a homicide. The only question for determination by the magistrate in reaching a conclusion was whether or not the killing was excusable as the result of an accident. There was proof of the nature of the wound which produced death, the place where inflicted on the body of the deceased, and that the shooting was done while the gun was carried by Oliver Olson in the presence of the defendant. It developed at the hearing that the parties accused had stated that the shooting was accidental. The evidence showed that the parties accused had removed the clothing from the deceased when the physician, the first one who saw him after he Avas shot, arrived at his house. The course of the shot producing the injury was described, and the position of the parties at the time the shot was fired. It appeared that the clothing Avorn by the deceased at the time had been burned, evidently as a result of the explosion of the powder, and that Avhen the gun was fired the person holding it Avas standing not to exceed four feet from the deceased; that from the relative positions of the parties, Olson, as he passed through the door, was immediately to the right of and quite close to the deceased, who was sitting in a chair at the table, and that when the gun was discharged the shot struck his body on the back and right side, ranging slightly dowmvard and inward from his spinal column. From the whole of the evidence, the relative position of the parties, the way the gun must have been held, and the direction in which pointed, we think it manifest that legal deductions are fairly warrant-able wholly inconsistent with the theory of an accidental discharge of the gun unaccompanied by any explanation other than the naked statement that the shooting was accidental. If the evidence made a prima-facie shoAving of the commission of a felony, or warranted a legal deduction that one had been committed, then the probable guilt of the defendant followed as a logical and necessary sequence. Nothing is disclosed by the record of the preliminary examination as to any explanation offered concerning the details of the alleged accidental killing. All that appears is that defendants stated that the deceased was shot accidentally while Olson was carrying the gun as he came through a door near where deceased was sitting. We think that it is obvious that the evidence offered by the state was of such a nature as to call for an honest judgment on the part of the examining magistrate in determining what should be the result of the preliminary examination, and that his conclusion, reached from a consideration thereof, can not be said to be the result of an arbitrary order. unsupported by evidence, or that no preliminary examination was in fact held. The examination, we have said, is for the benefit of the accused. It is not only to advise him of the exact nature of the crime with which hé is charged, and ascertain whether there is probable cause to believe that he committed it, but also affords him an opportunity to relieve himself of an accusation, and dispel all probabilities of guilt by offering-evidence in his own behalf. The defendant offered nothing to disprove the state’s evidence, nor made any objection to the order of commitment save to move the examining magistrate to discharge him for want of sufficient evidence. He is not now, in our judgment, under the record, in a position to say that no examination has been had, or that he has been denied any right which is accorded him by the statute before he may be required to answer to the information of the county attorney charging him with the commission of the crime for which he was tried and convicted, and the ruling of the district court on the demurrer to the plea in abatement is, therefore, without error.

It is also argued that the court erred in refusing to grant a change, of venue on the application of the defendant. In support of the motion there were filed the affidavits of the defendant, his son, who at the time stood jointly charged with him with the commission of the same offense, and four of the citizens of Box Butte county. The affidavits of all save those of the attorneys for the defendant in support of the motion were of a generdl character, alleging, in substance, that the defendants could not have a fair and impartial trial on account Of strong prejudice and bias of the citizens of the county generally. The affidavits, filed by the two counsel for the accused narrated what a number of citizens, and especially those residing in Alliance, are purported to have said, to the effect that the defendants could not get a fair trial because there was a strong prejudice existing ¿gainst them and a deep feeling that they were guilty of the crime charged; that such parties would not sign affidavits in support of the motion for personal and business reasons, — and that the defendants could not, as the affiants believed, have a fair trial in Box Butte county. Much is-set out in detail in the affidavits of counsel as to what different persons had said to those making the affidavits, and of the connection of the insurance company (a local organization) and its principal officers with the transaction preceding the homicide, and of their influence and standing in the county, and of the feeling of defendants’ guilt prevailing generally, occasioned by rumors which had been set afloat in all parts of the county. There was also narrated the purported expressions of a number of citizens of a positive and emphatic character concerning the defendants’ guilt, and of the impossibility of securing a fair, unbiased and impartial jury to try them in that county. The counter affidavits offered by the state were signed by over a half hundred of the citizens of the county, and were to the effect that there has been no unusual feeling exhibited in the case, or interest taken in the prosecution of the defendants; that a large majority of the people knew nothing of the merits, and, when the subject was mentioned, it was uncoupled with any feeling of prejudice or resentment, and that but few of the citizens were acquainted with the defendants or the deceased; and that more than seventy-five per cent, of the voters were absolutely free from bias, prejudice or opinion in regard to the guilt or innocence of the accused, and could serve as fair and impartial jurors, and that a fair and impartial trial by an unprejudiced jury could be secured in the county. In the counter affidavits of the state appear the names of several who, by the affidavits in support of the motion, it is said had expressed the opinion that-a fair and impartial trial could not be had. As to all such there was a direct conflict between the affidavits made by themselves and what by the affidavits in support of the motion they are represented as saying. While the affidavits in support of the motion appear formidable, we think they must be reconciled with counter affidavits on the theory that counsel in their zeal and earnestness for their client have magnified every expression more or less unfavorable to their client’s interest, which very probably found vent here and there, into- a widespread sentiment and deep-seated conviction hostile to their client; and that the expressions of opinion of guilt from what had been heard or read in the neAvspapers Avhich came to the ears of counsel Avere accepted as unmistakable evidence of bias and prejudice prevailing generally throughout the county, which would result in a conviction of their client in any event, who, to them, was guiltless of crime or Avrongdoing. The motion was addressed to the sound discretion of the trial court, and its ruling thereon Avill not be held erroneous unless an abuse of discretion is shown. Smith v. State, 4 Neb. 277; Stoppert v. Nierle, 45 Neb. 105, 110; Olive v. State, 11 Neb. 1; Lindsay v. State, 46 Neb. 177, 181; Welsh v. State, 60 Neb. 101. The motion, we think, is without any merit, save by reason of the fact that the county of Box Butte is sparsely populated, and that by far the larger number of its citizens reside in Alliance, where an inquest was held over the body of the deceased, and Avhere the preliminary examination Avas conducted, Avhich necessarily must have resulted in giving quite general currency in that particular locality to the supposed facts and circumstances attending the homicide and in relation thereto. There is altogether a lack of evidence showing unusual excitement, heated discussion or violent remarks by the citizens generally concerning the matter. Public feeling and sentiment apparently did not run high by reason of the homicide, but continued to flow in its accustomed channels. Those who became acquainted with what purported to be the facts doubtless formed opinions of a more or less fixed character, and probably some may have expressed themselves in strong language concerning the apparent atrocity of the crime and the venality exhibited in its perpetration. The citizens generally, however, did not allow the tragedy to ruffle their feelings nor disturb their minds to an extent beyond that which might reasonably be expected by reason of the happening of such an event in any peaceable and well-disposed community. Upon the whole the showing does not impress us as warranting the conclusion that there exist reasonable grounds on which to found the belief that the defendant could not have a just trial in that county by a fair, unbiased and impartial jury, and, such being the case, the court’s denial of the motion for a change of venue can not be said to be erroneous. Argabright v. State, 62 Neb. 402; Goldsberry v. State, 66 Neb. 312.

Error is sought to be predicated upon the trial court’s rulings on challenges for cause to certain of the jurors impaneled and sworn to try the defendant. The grounds of challenge in each and every instance relate solely to the qualifications of the several jurors objected to by reason of their having formed or expressed an opinion concerning the guilt or innocence of the defendant, based either on newspaper reports, or rumors, or hearsay concerning the occurrence. In no instance does it appear that any of the jurors to which challenges for cause were interposed by the defendant had talked with Avitnesses or others who purported to be acquainted with the facts nor to have been present at a coroner’s inquest held over the body of the deceased, or the preliminary hearing before the examining magistrate, or to have heard of or read the testimony taken at such, hearings. Such an opinion as was held to or entertained by these several jurors arose exclusively from common talk or rumor circulating through the county, or by reading a newspaper account of the affair. An epitome of the voir dire examination of one of the jurors thus accepted over defendant’s objection is here produced, which is a very fair illustration as to the qualifications of all those selected over defendant’s objection, and which we regard as favorable to the views entertained by defendant’s counsel as any that could be selected. In his vow-dire examination on behalf of the state, juror Lorence stated that he had heard about the case; that what he had heard was just the common talk, none of the particulars; that he had never heard what purported to be facts from any person who claimed to know them; that he had read a newspaper account of Hie matter in the Alliance Herald, and that his opinion was based solely on what he had read and the common talk. On the examination on behalf of the defendant the juror stated that he was not acquainted with the defendant nor the deceased; that he thought he heard about the matter the next day; that he knew nothing about the coroner’s inquest, and never talked with any one who claimed to know the facts concerning the case; that he heard what purported to be the motive for the killing, which caused him to form an opinion; that what he heard did not prejudice him against the accused; that the opinion he formed after he heard of the alleged motive was with respect to whether the defendants were guilty, and that he had the opinion at the time of the examination, and would believe that way until he had heard somehing different; that it would remain with him during the trial till he heard something that would change it, and that he could not go into the case with the same free mind that he would if he had never heard anything about it; that hé had no prejudice, but had an opinion about the case; that it was such an abiding and fixed opinion as would stay with him during the trial of the case till he heard something to change it. When interrogated by the court, the juror stated that all he had heard was from rumors and reading about the case in the newspapers, and that it was from these sources of information that he had made up his mind concerning the merits of .the case, which would remain with him till he had heard something different as to what was the motive of it; that he knew nothing of the truth of the rumors, and that the opinion which he had he did not think would influence him in finding a verdict should he be retained as a juror; that he did not think it would influence him in any degree whatever; that he thought he could wholly disregard everything he had heard and read and render a verdict solely upon the evidence introduced at the trial and the instructions of the court, and that he would do so if selected as a juror. Thereupon the chal-, lenge was overruled, to which the defendant excepted. Other jurors, whose qualifications were in all respects substantially the same as the one whose evidence we have spoken of, were likewise accepted over the defendant’s objection. By section 468 of the Criminal Code it is provided: “That if a juror shall state that he has formed, or expressed, an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine, on oath, such juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor, or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and the juror shall say, on oath, that he feels able notwithstanding such opinion to render an impartial verdict upon the law and the evidence, the court, if satisfied that said juror is impartial, and will render such verdict, may, in its discretion, admit such juror as competent to serve in such case.” This section has been frequently construed, and the rule now seems to be that if, upon the whole examination of a juror, it appears that notwithstanding what he has heard upon rumor or hearsay, or what he has read in the newspapers, he appears to be wholly free from any such preconceived opinion or bias as would interfere with his determination of the question of the guilt or innocence of the accused solely from the evidence at the trial and the court’s instructions, that he is a competent and qualified juror and it would not be an abuse of discretion to overrule a challenge for cause on that ground. In Curry v. State, 4 Neb. 545, 548, it is said that if a juror expresses any doubt of his ability to render an impartial verdict upon the law and the evidence, he should not, in the face of a challenge for cause, be retained; and that even where by his formal answers a juror brings himself within the letter of the statutory qualification, if the court should discover the least symptom of prejudice, or unfairness, or an evident desire to sit in the case, in justice both to the state and the accused the juror should be rejected. This rule was quoted approvingly in Cowan v. State, 22 Neb. 519, 523. In Basye v. State, 45 Neb. 261, it is held that the trial court should exercise a sound discretion in respect to. the examination of jurors as to their qualification, and that in order to constitute prejudicial error a clear abuse of discretion must be shown. This rule has been reaffirmed in Rhea v. State, 63 Neb. 461, where it is held that greater latitude will be given in rejecting than in retaining a. juror whose qualification to try the cause is challenged. In the late case of Dinsmore v. State, 61 Neb. 418, where the grounds of challenge were very similar to those in the case at bar, it is held that an opinion formed by one called as a juror in a criminal cause does not affect his competency, or afford cause for challenge unless it is unqualified as to the guilt or innocence of the accused of the crime charged, and that an opinion formed solely on rumor and newspaper reports will not disqualify a juror where it is shown that the opinion is merely hypothetical, and such as will not prevent his returning a fair and impartial verdict upon evidence adduced on the trial under the instructions of the court. We are disposed to the view that the qualifications of the jurors in the case at bar who were retained notwithstanding the exceptions of the defendant are not open to question under the rule last announced, and that there was no abuse of discretion such as would work a reversal of the judgment in the rulings of the trial court on the challenges for cause made by the defendant. A full consideration of the vow dire examination of each of the jurors accepted who were challenged renders it manifest that the opinion which at the time was entertained was founded upon the supposed facts of the case, knowledge of which was gained by rumor or hearsay or by reading newspaper accounts of the affair, and was not of such a character as to interfere with a fair and impartial consideration of the evidence adduced at the trial, and reaching a verdict therefrom solely by a consideration of the same under the court’s instruction uninfluenced by anything which had been heard or read prior to the trial. In this day and age of rapid and widespread dissemination of information concerning all current events of any public interest it would be unfortunate, indeed, if the formation of an opinion based solely on such knowledge and information were to disqualify every person who had acquired the information and formed a qualified opinion from serving as jurors to try questions regarding which information had thus been disseminated generally throughout an entire county. The effect would be to discount intelligence and place a premium on ignorance. The tendency would be to have the most important questions of fact involving life and property placed in the hands of those least capable of reaching correct conclusions. It was to avoid this very condition of affairs that led to legislative recognition of the fact that an intelligent juror, even though he had read of or heard spoken what purported to be a narration of facts concerning a transaction afterwards becoming the subject of litigation, was as well or better qualified to decide the questions of fact involved than one who, because of ignorance or indolence, had received no knowledge concerning the matter. While scrupulous care should be exercised vigilantly for the purpose of having every question of fact determined by an absolutely fair and impartial jury, we can. not believe it conducive to the desired end to exclude those who read the newspapers and are sensible of the rumors and common talk that gain currency upon the happening of any event of general public interest. As to one juror who was sworn to try the defendant, it was disclosed on his voir dire examination that he held a policy of insurance in the same company which issued the policy on the life of the deceased. This fact was made a ground of challenge for cause, the overruling of which is assigned as error. No reason is given in support of this contention, nor is our attention called to any rule of law by which it can be said a legal disqualification existed because of the fact mentioned, nor do we perceive any from an examination of the statutes with reference to the qualification of jurors’ to sit in the trial of a cause where a felony is charged. The information elicited was very proper for the purpose of enlightening the defendant regarding matters which he had a right to know for the purpose of advising him more intelligently in exercising his right to peremptory challenges; but the fact that the juror was a policy holder in the insurance company was no legal ground of disqualification. .The rulings of the trial court regarding the qualification of the jurors who tried the cause must, we think, be held to be not prejudicially erroneous.

It is likewise contended that the court erred to the defendant’s prejudice in overruling several challenges for-cause to proposed jurors thereafter excused on peremptory challenges. To the writer it seems that these several rulings and the consideration thereof are entirely eliminated because the jurors did not sit in the trial of the cause. The ultimate question for our determination is whether the defendant was tried by a fair and impartial jury, such as is guaranteed him by the constitution; and such determination can be correctly reached by a consideration alone of the qualification of the jurors who were finally impaneled and sworn to try the issue presented by a plea of not guilty. Loggins v. State, 12 Tex. App. 65. The authorities, however, are quite evenly divided on the question, and this court, so far as it has committed itself, is committed to the contrary doctrine. Thurman v. State, 27 Neb. 628. It is there held that where a challenge for cause is erroneously overruled, the fact that the juror was peremptorily challenged thereafter by the defendant would not cure the error. We are enabled in the present case to dispose of the exceptions now under consideration to our satisfaction without further passing on the question as to the waiver of error, if any there be, by excusing the jurors in the exercise of the right of peremptory challenges. What has been said as to the jurors who sat in the trial of the case applies with equal force to the rulings of challenges for cause to those who were afterwards excused, by peremptorily challenging them. There may be some slight differences as to the grounds of challenge for cause, but in the main they are substantially the same. We have examined with some care the testimony elicited in the vow-dire examination of these several proposed jurors, and do not hesitate to say that with scarcely an exception the court was clearly right in overruling the challenge for cause. But suppose it should appear, which it does not, that error was committed in one or two instances in passing on the challenges for cause as to these jurors after-wards excused by peremptory challenges, we can not say in the state of the record as we find it, that the exceptions were well taken, and were preserved so as to entitle the defendant- to a review thereof -in this court. The bill of exceptions discloses that nineteen peremptory challenges were availed of, three by the state and sixteen by the defendant. As to the individual jurors excused by the exercise of these several peremptory challenges the record is entirely silent. It will not be seriously argued, we apprehend, that, even though an error might be committed by a ruling on a challenge for cause, if the proposed juror was aJfterwards excused by the state in the exercise of its peremptory challenges that the defendant could predicate error on the court’s ruling. If the state has excused the juror, then by no possible view of the question can it be said the defendant is prejudiced by the ruling of the court. Error, it is frequently said, must affirmatively appear, and .all presumptions of regularity will be indulged in until the contrary is shown. It is thus made manifest that in no event can the defendant predicate error on the trial court’s ruling, unless we can determine from the record not only that he exhausted all of his peremptory challenges, but that he did so in order to relieve himself of a juror who should have been excused by the court on his challenge for cause We find no error in the rulings complained of.

Numerous assignments of error relate to the admission and rejection of evidence offered during the trial. Many of these assignments are of the most general character, and no effort is put forth by counsel to point out to us the principles of the law of evidence which it is claimed are violated, or by argument assist us in reaching a correct conclusion in respect thereof. Several pages of defendant’s brief are devoted to an abstract statement of the evidence, interspersed here and there with suggestions that the evidence received or rejected was certainly erroneous, or highly prejudicial; no reason being given or argument made in support of the error thus alleged. We probably would be warranted in disposing of all these objections in the same summary manner by simply saying we observe no prejudicial error in the rulings complained of. We have, however, examined the evidence with some care, and are impressed with the view that the rights of the defendant were at all times respected and fully protected by the trial court, and that no just ground of complaint exists to its ruling regarding the admission and rejection of evidence.

It is contended that the court erred in permitting the witness Olson to testify as to prior attempts which had been made to take the life of the deceased, as this was permitting proof of the commission of other and independent crimes to establish guilt in the one on trial. The objection is untenable. According to tbe testimony of this witness, he and the defendant had conspired together to take the life of the deceased. To accomplish this object they made three separate attemptSr — one by causing him to fall into a well, one by poison, and one by shooting at him with a revolver under the pretense that the shooting was accidental. All of this testimony was pertinent, and related to the ultimate fact sought to be established, to wit, the intentional killing of the deceased. It was material for the purpose of proving an intent to commit the act, and of the plan and design adopted and resorted to for its accomplishment. It possessed probative value in establishing the truth of the matters as raised by the issues, and, if believed by the jury, tended to establish with greater certainty and stronger probability the felonious homicide charged as finally committed. Reinoehl v. State, 62 Neb. 619, and authorities there cited.

It is also contended that the court erred in not permitting counsel for the defendant to cross-examine the witness Olson as to certain statements alleged to have been made by the witness to the defendant’s counsel while he, Avith the defendant and his son, Avere under arrest, charged with the intentional killing of the deceased. The proposed testimony Avas excluded on the ground that it Avas a privileged communication, made to counsel while the relation of attorney and client existed. We are satisfied the court Avas eminently correct in its ruling. It is manifest that the relation did in fact exist, and that the witness did not Avaive the privilege which he was entitled to under the law. While it is argued that counsel were retained only by the defendant Jahnke, and that Avhat Olson said was in the capacity of a witness, or a third party in no wise related to counsel, we think it is entirely clear from the record that both the witness and the defendant were at the time jointly accused of the crime, and were then acting in conjunction in preparing for their defense; that Jahnke was acting as spokesman and leader in the employment of counsel, yet the employment was in behalf of all the defendants charged with the crime, and the communications and conversations thereafter engaged in between the counsel and the witness Olson — especially the one sought to he elicited by the cross-examination objected, to — were those of a client communicating with his attorney, and therefore he was entitled to the protection of the statute. While it is true that later on Olson declined to join with Jahnke in a defense to the accusation, or to further counsel with the attorneys he first counseled with, and who continued to act for Jahnke, it is too plain for argument that at the time of the statements sought to be elicited the relation of attorney and client in every sense of the word existed, and it would “have Loen a gross violation of the rights of Olson to permit anything that was said between him and his attorney during such time to be given in evidence over his objection. Spaulding v. State, 61 Neb. 289; Farley v. Peebles, 50 Neb. 723, 729; Nelson v. Becker, 32 Neb. 99; Romberg v. Hughes, 18 Neb. 579.

Another complaint that is made is that the court erred in instructing the jury that if they found from the evidence beyond a reasonable doubt that the defendant Jahnke was at the time of the killing present, aiding, abetting, procuring, and assisting Oliver Olson in the commission of the crime, and that the killing was done with felonious intent, and with deliberate and premeditated malice, then tire defendant Jahnke would be guilty as a principal in the transaction. It is contended that, in the absence of evidence showing some overt act at the very time of the killing on the part of Jahnke, he can not be held as a principal in the transaction; in other words it is said that, if guilty at all, it is as a principal in the second degree, or an accessory before the fact, neither of which offenses were properly charged in the information or supported by the evidence. The'propositions contended for are unsound. Under the criminal jurisprudence of this state there exists no distinction. between what is termed a principal in the first and second degree. If the defendant is guilty at all, it is as a principal.

He was never charged nor tried as an accessory. If he were present at the time of the commission of the homicide, as he indubitably was, and was aiding, abetting, and assisting or counseling and procuring its commission, and the killing was done purposely, with deliberate and premeditated malice, then he is guilty in the same degree and to the same extent as though he had fired the fatal shot. Hill v. State, 42 Neb. 503; Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517; Brennan v. People, 15 Ill. 511; Williams v. State, 47 Ind. 568; State v. Shenkle, 36 Kan. 43.

It is also argued that the court erred in instructing the jury only as to the law of murder in the first degree, and gave no instructions regarding the lesser degrees. Under the evidence it is obvious that if we give it a strict legal* construction and application, the defendant was guilty of murder in the highest degree, and a verdict should be so returned, or he was entitled to an acquittal. It was the theory of the prosecution that the crime was committed purposely, and of deliberate and premeditated malice, and the evidence tended to establish such a theory, and all the essential ingredients of the crime of murder in the first degree, and none other. The defense was that the killing was purely accidental ,and therefore excusable. This was the issue submitted to the jury by the instructions of the trial court. No instructions defining murder in the second degree and manslaughter were requested at the time, and it is apparent from the evidence that such instructions would have been inappropriate.

It has been repeatedly urged in this court that instructions defining the lesser degrees of homicide when by the evidence the highest degree of the crime has been coiximitted or the accused is guiltless, are prejudicially erroneous, and should not have been given; but the rule is established that such instructions are not prejudicial to the defendant, and he has no just cause of complaint because found guilty of a lesser degree of crime than the evidence warrants. Kastner v. State, 58 Neb. 767; Russell v. State, 66 Neb. 497. The noninstruction by the trial court iu the case at bar on the lesser degrees of the crime charged against the defendant was warranted by the evidence or the lack thereof, and on principle comes within a rule in this state which is firmly settled and which we see no good reason for departing from. In Strong v. State, 63 Neb. 440, it is held: “The court, in charging the jury, is only required to state the law applicable to the facts proved and those which the evidence tends to prove. So, where it is conclusively shown that the defendant either committed the crime charged or is entirely innocent, the failure to instruct with respect to other crimes, or inferior degrees of the crime, embraced within the facts alleged in the information, is not error.” See, also, Vollmer v. State, 24 Neb. 838; Botsch v. State, 43 Neb. 501; Fager v. State, 49 Neb. 439.

Other instructions given are excepted to, as well as exceptions being taken to some requested by the defendant and refused, which we find upon examination were properly given and refused, which we pass without further notice.

It is also complained of that the defendant’s rights were seriously prejudiced because of the time the jury were kept together deliberating on the evidence before finally reaching a verdict. It appears the jury retired to deliberate at noon on the 28th of May, and did not reach a verdict until five minutes before 9 o’clock P. M. on the 3d day of June. To accentuate the cause of complaint in this regard, it is alleged in the affidavits in support of a motion for a new trial that the jury, after deliberating for forty-five hours returned into the court and reported that they had agreed to disagree, to which the trial court responded that such a report was no verdict, and that the jury were really in contempt of court. After a statement by a juror to the effect that the report was only meant to express an inability to agree, and the court responding the jury probably did not understand or know what a verdict such as was returned meant, the jury again retired for deliberation, arriving at a verdict of guilty at the time stated. The affidavits in support of the motion for a new trial because of the unusual length of time the jury were deliberating are grounded on allegations to the effect that the jury were intimidated by the incident just mentioned, and were afraid to return into court and report their inability to agree, and were improperly brought within hearing of angry crowds assembled on the streets, and were intimidated by threats of violence to return a verdict of guilty; and further that scandalous and infamous reports of the trial were published in the papers, which unduly influenced the jury during their deliberation. Counter affidavits were filed by the state. The trial court found — and, as we think, rightly — that there existed no substantial cause for charges of fear or intimidation or undue influences on the jury in any way. The evidence satisfies us, as it did the trial court, that the deliberations of the jury were free from baneful influences of any kind, and that the verdict was reached as the result of deliberation and consideration of the evidence uninfluenced by extraneous matters. In fact, there does not appear to have been any undue excitement or any inflammatory reports or comment in the newspapers, as contended for, during the deliberations of the jury, or that they were brought within the sphere of any such influences had they existed. The more serious objection, we think, and one which seems not to be urged or relied on by counsel, is the fact that the jury were held together for such an unusual length of time, which suggests a possibility that the verdict arrived at Avas not the result of perfect freedom of action, and was not reached voluntarily by each member of the jury from a consideration alone of the evidence and the instructions of the court. The thought is suggested that the conclusion reached may possibly have resulted from weariness, exhaustion, and the overcoming of opposition and differences of opinion by force of numbers, and sheer physical and mental inability of a few to mthstand the arguments and importunities of a majority of the jurors for such a long period of time. If such were true, then the action taken results in a species of coercion rather than free action and voluntary agreement on a verdict by each individual juror. Such a condition could not be tolerated, and, if made to appear, would vitiate a verdict returned under such circumstances. On the contrary, if the jury were provided with suitable quarters, were able to sleep Avhen nature required it, and were laboring under such surroundings and circumstances as permitted them to proceed leisurely and comfortably in their deliberations, and did in fact deliberate among themselves in an effort to agree until a final verdict was reached, which was the result of free and voluntary action on the part of all the jurors, the verdict could not be successfully attacked as being the result of coercion or undue restriction of freedom of action on the part of each and every individual juror composing the panel. The time which jurors shall be kept together before they .are finally discharged because of inability to agree on a verdict rests largely in the discretion of the trial court, but this is a legal discretion, and if legal rules and principles governing and underlying the jury system are transgressed the action can not be upheld. There has been a time when jurors were treated as prisoners, and kept in confinement as are offenders against the law until a verdict has been reached; but present-day civilization does not comport with such methods. The functions of a jury are .as important as those to be discharged by the court, and anything tending to restrain perfect freedom of action and voluntary agreement should not receive judicial sanction. If the verdict is the deliberate and voluntary act of the jurors, it will not be disturbed. Russell v. State, 66 Neb. 497. Errors must affirmatively appear, and we can not say from the record in the case at bar that the verdict was not an expression of the deliberate judgment of each member of the panel of jurors, unaffected by any undue restraint or unwarranted restriction of liberty of action on the part of each and all of them, There being nothing in the record inconsistent with the view that the jury reached the verdict returned voluntarily, after due deliberation on the evidence, unaffected by anything in thé nature of coercion or by fatigue or exhaustion, it should be left undisturbed.

1. Murder: Evidence of Motive: Error. If upon trial of a charge of " murder evidence is introduced by the state tending to prove that the life of deceased was insured in favor of defendant as showing a motive for the alleged crime, it is error to exclude evidence tending to show that the policy of insurance was of very little, if any, value and that the defendant was aware of that fact.

It is argued that the evidence is not sufficient to support the verdict. The argument is based on the alleged improbability of the testimony of Olson, an accomplice, and the part taken by the defendant Jahnke in the commission of the alleged crime. We .are of the opinion the evidence is sufficient to support the verdict. There is little doubt but that if defendant’s contention of an accidental shooting is. to be rejected, then his guilty participation is such as to stamp him the greater criminal of the two. It was his brain that conceived, planned and directed the execution of the heinous offense. It was his stronger will and vicious bent of mind that caused the commission of the crime. Olson was but as clay in the hands of the potter, used as an instrument to execute the plan of the other defendant. The jury determined the question of. the guilt of the defendant as one of fact which was peculiarly within its province to decide, and having found that the homicide was in fact committed in the manner and by the means contended for by the state, and there being, in our opinion, sufficient competent evidence to support the finding, we can not rightfully disturb it.

Numerous other errors are assigned, which have been examined, and are found to furnish no sufficient basis for a reversal of the judgment, and the same is accordingly

Affirmed.