Argabright v. State

• Citation: 87 N.W. 146,62 Neb. 402
• Parties: ARGABRIGHT v. STATE.
• Decision Date: 10 July 1901
• Court: Supreme Court of Nebraska

62 Neb. 402

87 N.W. 146

ARGABRIGHT

v.STATE.

Supreme Court of Nebraska.

July 10, 1901.

Syllabus by the Court.

1. An application for a change of venue in a criminal prosecution is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed when no abuse of discretion is disclosed. Welsh v. State (Neb.) 82 N. W. 368.

2. It is not error to overrule an application for a change of venue in a criminal trial when, from all the evidence introduced in support and in resistance of the application, there is not shown to exist any reasonable ground for the belief that the defendant cannot have a fair and impartial trial in the county from which a change of venue is applied for.

3. Where, in a criminal prosecution, instructions given the jury are assigned as error, and on appeal such instructions held properly given, and on a subsequent trial the same instructions are given, and again assigned as error, the decision of the question on the first appeal will be held to be the law of the case and followed in reviewing the case on the appeal last taken.

4. It is not error to refuse to give an instruction stating a proposition of law which is substantially covered and included in an instruction already given.

5. Misconduct of counsel for the state in the argument of the case, in order to work prejudicial error, must have been in disregard of the rules of legitimate argument of the evidence, and sufficient to unduly influence the jury and prejudice the rights of the defendant.

6. Where counsel for the state referred in an argument to the jury to facts not in evidence, and, upon objection that the statements were unwarranted by the evidence, the district court instructed the jury to disregard such statements, there was left no ground for complaint, for the reason that the court, when appealed to, granted all relief prayed for. Hoover v. State, 66 N. W. 1117, 48 Neb. 184.

7. Alleged misconduct of assistant counsel for the state examined, and held insufficient to have improperly influenced the jury or prejudiced the rights of the defendant.

8. Record examined, and held no prejudicial error was committed by counsel for state asking questions of witness claimed to have been pregnant with assumptions and insinuations; the objections interposed to such questions having been sustained by the trial court.

9. The refusal of the state to, on a second trial, call certain witnesses whose testimony on a former trial had been impeached, there being many other reliable witnesses by which the same facts could be proven, held not a suppression of evidence, nor prejudicial to the rights of the defendant.

10. The defendant on a former trial was found guilty of murder in the first degree, and on error to this court the evidence was examined and found sufficient to support the verdict. A subsequent trial resulted in a like verdict, and on error it is again urged that the evidence is insufficient to support the verdict. The evidence in the last trial being substantially the same and fully as strong and convincing on the part of the state as in the former, held, that the decision first had on the sufficiency of the evidence has properly become the law of the case, decisive of the question, and to be followed in the subsequent review of the case.

11. Held, further, as an original and undecided question, from an examination of the record, that the evidence is sufficient to support the verdict of guilty of murder in the first degree, as found by the jury.

12. Held, also, from an examination of the record, that the verdict is not the result of passion and prejudice on the part of the jury.

Error to district court, Nemaha county; Letton, Judge.

John W. Argabright was convicted of murder, and brings error. Affirmed.W. H. Kelligar and Frank Martin, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

HOLCOMB, J.

The plaintiff in error was the defendant in a criminal prosecution had in the district court of Nemaha county, in which he was charged with murder in the first degree, for the killing of one William Smelser, in said county, on the night of February 9, 1894. The prosecution resulted in a conviction of guilty of murder in the first degree, the jury fixing the punishment at imprisonment in the state penitentiary for life. Prior to the trial we are now asked to review, the defendant has been twice before tried; the first trial resulting in a verdict of manslaughter, and the second of murder in the first degree. By proceedings in error to obtain a review and reversal of the judgments rendered on the verdicts thus returned, the defendant has in each instance been successful, and the judgments so rendered were reversed by this court, and new trials awarded. The opinions resulting in such reversals, and the reasons therefor, are found in Argabright v. State, 49 Neb. 760, 69 N. W. 102, and under the same title, on the second appeal, in 56 Neb. 363, 76 N. W. 876.

After the case was reversed and remanded the second time, the defendant applied to the trial court for a change of venue, on the grounds that a fair and impartial trial could not be had, and a fair, impartial, and unprejudiced jury could not be obtained, in said county. The specific grounds for the application were, in substance, that, by reason of the defendant's conviction in the two former trials, great notoriety and wide publicity had been given the transaction surrounding the homicide, and that a general sentiment was prevalent that the defendant was guilty as charged, which would prevent a calm and dispassionate inquiry into the merits of the case. It is also claimed that a strong prejudice existed against the defendant, because of the cost of the prosecution of the defendant, which permeated the whole county, and tended to influence the action of a jury to the defendant's prejudice. The application for a change of venue was resisted by the state, and, upon a hearing in which there were filed numerous affidavits in support of the application and in resistance thereof, the trial court overruled the motion, to which the defendant excepted, and now assigns error on the ruling. The defendant filed his own affidavit in support of his motion, in which, with some particularity as to causes set forth in the motion, and also of alleged false reports of his conduct while imprisoned, placing him in the light of being unruly and recalcitrant, he sought to sustain the contention that there existed a deep-seated prejudice against him, extending to all parts of the county, which would prevent a fair and impartial hearing of the charge pending against him. Some eight or ten other affidavits of a general nature, sustaining the grounds stated in the application, were also filed. In opposition there were presented some sixty affidavits of citizens from all parts of the county, the substance of which was that no undue excitement or interest had been created by reason of the former trials; that no prejudice existed against the defendant, and no feeling manifested because of the expense entailed on the county, arising from the prosecution of the defendant. In many of the affidavits it was stated that in many of the localities but little was known of the supposed facts surrounding the homicide, and no unusual interest manifested at any time. In all the affidavits it was stated that a fair and impartial jury could be secured to try the case. Other affidavits, denying specifically some of the statements in support of the motion, were also introduced. The record does not show any abuse of discretion in the ruling complained of. From all the evidence presented in support of the motion, it seems reasonably clear that there existed no reasonable grounds for the belief that the defendant could not have a trial, by a jury free from prejudice and fair and impartial in all respects. The showing we regard as insufficient to establish error in the court's ruling denying the motion. In Welsh v. State (Neb.) 82 N. W. 368, it is held that “an application for change of venue or a continuance is addressed to the sound discretion of the court, and its ruling thereon will not be disturbed where no abuse of discretion is disclosed.” Applying the rule to the case at bar, the defendant's contention must be held not well founded.

Instructions Nos. 4 and 5 given the jury are excepted to, and the giving thereof assigned as error. These instructions are almost identical with instructions Nos. 4 and 13 given on the second trial, and held on review of the case to have been properly given. Argabright v. State, 56 Neb. 366, 367, 76 N. W. 876. The decision there made has become the law of the case, and will be adhered to on this, a subsequent appeal, involving the identical question there passed upon. While there was a slight modification in one of the instructions, as compared with the one first given, and approved by this court, the change was altogether favorable to the defendant, and conformed more nearly to his contention as to the evidence bearing upon his actions immediately preceding the tragedy.

Complaint is made because the trial court refused to give an instruction requested by defendant on the law of self-defense. The requested instruction is as follows: “No. 1. If the jury believe from the evidence that at the time the said defendant is alleged to have shot the deecased the circumstances surrounding the defendant were such as, in sound reason, would justify or induce in his mind an honest belief that he was in danger of receiving from the deceased some great bodily harm, and that the defendant, in doing what he then did, was acting from the instinct of self-preservation, then he is not guilty, although there may have been no real or actual danger.” On its own motion the court gave instruction No. 20 on the same subject: “No. 20. Upon the question of self-defense the court instructs you, when a person is assaulted by another in...