Barker v. State
| Decision Date | 20 December 1905 |
| Citation | 106 N.W. 450,75 Neb. 289 |
| Parties | BARKER v. STATE. |
| Court | Nebraska Supreme Court |
Under the law prior to the act of 1901, the district court of the county of the conviction and sentence of death of a person charged with a capital offense had jurisdiction, independent of statute, to investigate the question of the sanity of such convict; but that jurisdiction has by the statute been transferred to the judge of the district court of the county in which the penitentiary is situated.
Under section 6, c. 105, p. 507, Laws 1901, it is the duty of the warden, if a convict confined in the penitentiary under sentence of death appears to be insane, to give notice thereof to a judge of the district court of the county in which the penitentiary is situated, and, if such notice is given, a jury must be summoned “to inquire into such insanity.”
The jurisdiction of the judge of the district court of Lancaster county to inquire as to the sanity of a convict confined in the penitentiary under sentence of death does not depend upon the giving of the notice by the warden. If it is alleged in a proper application to the judge, under oath, that the convict is insane, and that the warden unjustifiably refuses to give the statutory notice, it is the duty of the judge to make such investigation as will satisfy him whether there are such appearances of insanity as will justify summoning a jury to try the question.
If the judge, upon such investigation, is satisfied that the warden was justified in his refusal to give the notice, and that there are no substantial appearances of insanity, the application will be dismissed.
If, upon investigation of the application, the judge finds that the convict appears to be insane, a jury should be impaneled to try the question of insanity.
Error to District Court, Lancaster County; Holmes, Judge.
Frank Barker was convicted of murder, and the conviction was affirmed. 103 N. W. 71. Application for an examination as to insanity, made in the district court, was denied, and accused brings error. Reversed.Francis G. Homer, for plaintiff in error.
Norris Brown, Atty. Gen., and W. T. Thompson, Deputy Atty. Gen., for the State.
The plaintiff in error was convicted in the district court of Webster county of the crime of murder in the first degree and sentenced to be executed by hanging. Afterwards, upon proceedings in error brought in this court, the judgment of the district court was affirmed, and the date of the execution was fixed for the 16th day of June, 1905. A few days before the day fixed for the execution the defendant, by his attorney, applied to one of the judges of the district court of Lancaster county for an examination as to the insanity of the defendant. It was alleged in the application that the defendant appeared to be and was insane, with the other necessary allegations of the application, except that the application alleged that the warden of the penitentiary refused to notify the judge of the district court of Lancaster county and that the defendant appeared to be insane, and that therefore the application was made by the defendant's attorney. The application was denied upon the sole ground that the court was without jurisdiction to entertain it because of the want of such notice by the warden. This court held that the failure of the warden to give notice to the judge of the district court did not deprive the district court of jurisdiction to investigate the matter, and the order of the district court was reversed. It is necessary that the reasons for this holding should be stated.
In 1901 there was an act of the Legislature entitled “An act to provide for the carrying into effect of the death penalty and to repeal [certain sections] of the Criminal Code.” The principal object of this act was to provide for executions at the penitentiary, instead of in the respective counties as the law before provided. Sections 553 and 554 of the Criminal Code were substantially re-enacted as sections 6 and 7 of the new act, and, as re-enacted, are as follows:
“Sec. 6. If any convict under sentence of death shall appear to be insane, the warden shall forthwith give notice thereof to a judge of the district court of the county in which the penitentiary is situated, and shall summon a jury of twelve impartial electors of the county, to inquire into...
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