Bradshaw v. State
| Decision Date | 03 February 1885 |
| Parties | BRADSHAW v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Gage county.
Colby, Hazlett & Bates, for plaintiff.
The Attorney General, for defendant.
The plaintiff in error was indicted by the grand jury of Gage county for the murder of Harry C. Voorhees. Upon trial he was found guilty of murder in the second degree, and he was sentenced to the penitentiary for life. He alleges error, and seeks to reverse the judgment of the district court. The questions presented by his brief and the record will be noticed in the order in which they are presented. Complaint is made of the decision of the district court in overruling a motion, made by plaintiff in error, for a change of the place of trial. The motion is based upon the alleged bias and prejudice of the citizens of the county in which the cause was pending, to such an extent that a fair and impartial trial could not be had in that county. We find quite a number of affidavits attached to the record, which seem to have been taken upon the issue presented by this motion, and if they were all presented to the trial court, there is no error in its ruling, for we think there was sufficient to warrant it in finding that such bias and prejudice did not exist. But these affidavits are in no way certified to by the court, are not embodied in any bill of exceptions, and, as has been repeatedly held by this court, cannot be here considered. If it is desired to review the decision of a district court upon any question of fact, the proof submitted to that court must be preserved by a proper bill of exceptions. Affidavits come directly within this rule, and must be preserved by bill of exceptions, and made a part of the record, in order to be considered. Tessier v. Crowley, 16 Neb. 369, S. C. 20 N. W. REP. 264, and cases there cited.
The foregoing observations must apply to the second point of error assigned, which is that the district court erred in overruling the motion of plaintiff in error for a continuance. We observe an “explanation” following the motion, and which was, doubtless, intended for the clerk to sign, to the effect that the affidavits referred to by the motion “are copied, and appear next before said motion;” but the clerk's signature does not appear. It is not signed. But this would not have been sufficient. All such affidavits must be incorporated into the record by a bill of exceptions. The mere certificate of the clerk is not enough. Complaint is made of the rulings of the district court in sustaining and overruling challenges made to jurors while impaneling the trial jury. We have read that part of the record, and find that four challenges to jurors, for cause made by the state, were sustained, and to which plaintiff in error excepted. Mr. Deny was called as a juror. In answer to questions propounded by the district attorney, he stated that he had conscientious scruples against the death penalty in case of murder, and that he did not believe in inflicting such penalty. The court then asked him if his opinions were such as would preclude his bringing in a verdict of guilty, where the prisoner was charged with an offense, the penalty of which was death? His answer was: “Well, I should be opposed to bringing in a verdict of that kind, because I am opposed to the death penalty.”
Mr. Mundel was called as a juror, and, in answer to the question of the district attorney, stated that he had conscientious convictions upon the subject of the infliction of the death penalty; that he did not believe in it in any case. The court then asked him the following question: “Are your opinions such as to preclude you from bringing in a verdict of guilty where the defendant was charged with an offense, the penalty of which was death?” The juror answered frankly, “Yes, sir.” J. E. Bryant was called and interrogated by the district attorney. He stated unequivocally that he was not in favor of inflicting the death penalty. The court then propounded to him this question: “Are your opinions such as preclude your bringing in a verdict of guilty in a case where the defendant is charged with an offense, the penalty of which is death?” Answer, “They are.” Mr. Bartlery, on being examined as to his qualifications, stated that if the evidence was positive and direct he would have no such opinions as would prevent him from returning a verdict of guilty, but that in a case of circumstantial evidence he would not do it. At the close of his examination, when asked by the court whether he could or not, he answered as follows: “That I could not in circumstantial evidence convict a man of murder in the first degree.” These jurors were challenged for cause by the district attorney, and, the challenge being sustained by the court, they were excused. In this there was no error. The law prescribed but one punishment for murder in the first degree, and that is death. If a person is called to act as a juror who states in the outset that he so thoroughly abhors that mode of punishment that he would not in any case assent to its administration, it would be a mockery to retain him on the jury. If he believes it to be essentially wrong to inflict the penalty, he, of course, could not assent to it. The same may be said as to the juror who would not convict upon circumstantial evidence. The questions here presented have already been passed upon by this court in St. Louis v. State, 8 Neb. 405;S. C. 1 N. W. REP. 371. We have failed to find any case where a challenge for cause, made by plaintiff in error, was overruled.
It is next urged that the court erred in permitting W. H. Ashby, an attorney of the Gage county bar, to assist the district attorney in the prosecution of plaintiff in error. The record shows that before any evidence was introduced, the district attorney stated to the court that he desired the assistance of Mr. Ashby in the trial of the cause, on account of the magnitude of the case; that he had before that time requested his aid, etc. Plaintiff in error objected by his counsel, and stated that the attorney was not a disinterested attorney, and was employed by the friends of the deceased. The court overruled the objection, and allowed Mr. Ashby to assist in the prosecution. In this there was no error. Polin v. State, 14 Neb. 540;S. C. 16 N. W. REP. 898. The fifth and sixth assignments of error are to the effect that the trial court erred in its rulings upon the admissibility of testimony offered by the state and by plaintiff in error during the trial. These assignments are too general. If it is desired to have the rulings of the lower court reviewed by this court, such rulings as are thought to be objectionable should be designated or pointed out. We have examined the evidence throughout, and are unable to find such prejudicial error as would call for a reversal of the case.
The next question presented is that “the district court erred in permitting the district attorney to make misstatements of the evidence, and statements not warranted by the evidence, prejudicial to the accused, in the argument of the case to the jury.” By an examination of the bill of exceptions, we find the facts stated or recited therein, that in the argument of the case to the jury the district attorney made use of certain language there quoted which it is said was objected to, and the language “taken down at the request of counsel for defendant.” But nowhere is it shown that the ruling of the court upon the objection was adverse to plaintiff in error, or that any ruling thereon was requested. The supreme court, in the exercise of its appellate jurisdiction in cases of this kind, is limited to the correction of the errors of the district court. Before a case can be reversed and a new trial ordered, it must appear that the court before whom the accused was tried, erred, and that such error was prejudicial to the party on trial. The practice in this state is now settled in this respect, and, before this court can review questions of this kind, the attention of the trial court must be challenged by a proper objection to the language, and a ruling had upon the objection. If the language is approved by the court, and the attorney is allowed to pursue the objectionable line of argument, an exception to the decision can be noted. By a bill of exceptions showing the language used, the objection, ruling of the court, and exception to the question can be presented to this court for decision. If the court sustains the objection, and thus condemns the language, and requires the attorney to desist and confine himself to the evidence in the case, no injury is suffered by the accused. Cropsey v. Averill, 8 Neb. 160.
A large number of authorities are cited by plaintiff in error for the purpose of showing that a new trial will be granted where it appears that the attorney for the prevailing party has abused the privileges of counsel in an argument to the jury. It is quite probable that where such abuse is apparent, and to the prejudice of the unsuccessful party, it should be done. But it must be upon a proper record showing a refusal of the district court to correct the wrong if any be done. In Cleveland Paper Co. v. Banks, 15 Neb. 20, S. C. 16 N. W. REP. 833, a new trial was granted for what, doubtless, seemed to the court to be a flagrant abuse of the privilege of the attorney for the prevailing party. But it is not noticeable that the question of practice was not involved, and was not decided in that case, except in so far as it affected the conduct of the successful party in the district court.
The eighth point presented by the brief of plaintiff in error is that “the court erred in refusing to give the seventh paragraph of instructions asked by defendant.” The instruction referred to is as follows:
...
To continue reading
Request your trial