Furst v. State

• Decision Date: 17 February 1891
• Citation: 47 N.W. 1116,31 Neb. 403
• Parties: FURST v. STATE.
• Court: Nebraska Supreme Court

31 Neb. 403

47 N.W. 1116

FURST

v.STATE.

Supreme Court of Nebraska.

Feb. 17, 1891.

Syllabus by the Court.

1. One count of the indictment charged the defendant and one S. with having purposely, and of their deliberate and premeditated malice, killed the deceased. Two other counts charged that the killing was done in an attempt to perpetrate a robbery upon the deceased. Held, they charge the same offense, and it was not necessary for the state to elect which count it would rely upon.

2. Where a prisoner, while under arrest, and without threat, promise, or expectation of hopes or favor, voluntarily makes a confession, the same may be proven on the trial.

3. The jury is not bound to give every part of a confession the same credence, but they can accept one part as true, and reject such portion as they believe from the evidence is untrue,.

4. When insanity is relied upon as a defense, and testimony has been introduced which rebuts the presumption that the defendant was sane, the burden is upon the state to establish by the evidence beyond a reasonable doubt that the accused was sane at the time of committing the act charged.

5. Held, that the instructions fairly presented to the jury the issue of insanity.

Error to district court, Dodge county; MARSHALL, Judge.C. Hollenbeck, for plaintiff in error.

Geo. L. Loomis and Wm. Leese, Atty. Gen., for the State.

NORVAL, J.

The plaintiff in error and Charles Shepherd were jointly indicted for the murder of Carlos True Pulsifer, on the 10th day of December, 1889. The indictment contains three counts. The first count charges that the defendant and Charles Shepherd did purposely, and of their deliberate and premeditated malice, kill the deceased. The second and third counts charge that the killing was done in the attempt to perpetrate a robbery upon the said Pulsifer. The plaintiff in error, at his request, was granted a separate trial. A verdict of murder in the first degree was returned, to reverse which the case is brought to this court.

Upon the trial the counsel for the defendant requested the court to require the county attorney to elect which count of the indictment he would rely upon. The motion was overruled, and the defendant excepted. This ruling of the court is the first error assigned. The indictment was framed under section 3 of the Criminal Code, which provides that, “if any person shall purposely, and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill another; or if any person by willful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction and execution of any innocent person,––every person so offending shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.” Where the killing is done purposely, and with premeditation and deliberation, the crime is murder in the first degree. So, where a person intentionally takes the life of another in the perpetration or attempt to perpetrate a robbery, the statute makes the killing murder in the first degree, although the robbery, and not the killing, was previously planned. Stephens v. State, 42 Ohio St. 150. It is obvious that but one offense is charged in the indictment,––the murder of Pulsifer. Election is only required where separate and distinct offenses, not part of the same transaction, are charged in the same information or indictment. Bailey v. State, 4 Ohio St. 442. The rule which governs the framing of an indictment for the crime of murder is correctly stated by our Brother Maxwell in note 7, on page 53, of his work on Criminal Procedure, thus: “In case of murder it may be charged in separate counts of the indictments that the murder was committed by shooting, stabbing, drowning, etc. This is permitted in order to anticipate any possible variance in the proof. But only one offense is charged,––the murder of the person named; and, if the proof shows the accused to be guilty of committing the act in any of the ways named, it will be the jury's duty to convict.” This is fully sustained by the text–books and decisions. 1 Bish. Crim. Proc. § 422 et seq.; Glover v. State, 109 Ind. 391, 10 N. E. Rep. 282; Andrews v. People, 117 Ill. 195, 7 N. E. Rep. 265; Cox v. People, 80 N. Y. 500. The prosecution was not obliged to elect which count it would rely upon.

Error is alleged in the admission in evidence of the confession of the defendant. The evidence shows that he was arrested on Thursday following the murder, by Jim Booth and several other citizens, about two and a half miles north–west of Crowell. The arrest was made by pointing two or three guns at the defendant, and ordering him to throw up his hands. The accused at the time was somewhat frightened. After his revolver was taken from him, he was taken to Crowell in a two–seated spring wagon, in which C. W. Robinson, Jim Booth, and Tom Arthur were riding. These persons were carrying their guns. After going a short distance, James Goulder got in with them, and went along. On the way Goulder said to the defendant: “Well, Chris, I am surprised you are in this business. Sheppard has told us where we would find you, and told us about it. You might as well confess.” The defendant remained silent a while, then, without any threats or demonstrations of any kind being made by any one, and without the promise of any favor or benefit being held out to the defendant, he confessed that he and Charles Shepherd fired the shots that killed Pulsifer; “that we did not intend killing him, but, as we ordered him to throw up his hands, he reached in his pocket, and we thought he was going to shoot, and we fired.” Several witnesses testify to the same statement of the defendant. It also appears in testimony that at different times and places afterwards the defendant, without any inducement being held out to him, made substantially the same confession, only going into the details more fully. This court, in Heldt v. State, 20 Neb. 496, 30 N. W. Rep. 626, in discussing the rule which governs the admission of confessions, say that “the rule is well settled that a promise of benefit or favor, or a threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducement either of hope or fear. But mere advice to tell the truth, where there is neither...