Basye v. State

• Decision Date: 18 June 1895
• Citation: 63 N.W. 811,45 Neb. 261
• Parties: BASYE v. STATE.
• Court: Nebraska Supreme Court

45 Neb. 261

63 N.W. 811

BASYE

v.STATE.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. Upon the voir dire examination of a venireman, the trial court should exercise a sound discretion, not only in respect to the pertinency of the questions propounded, but as to the limits, extent, and scope of the examination. In order to constitute prejudicial error, a clear abuse of discretion must be shown.

2. On the examination of a juror on his voir dire, each party has the right, within reasonable limits, to put pertinent questions for the purpose of ascertaining whether or not there exists sufficient grounds for a challenge for cause, and also to enable the party to properly exercise his statutory right of peremptory challenge.

3. During the impaneling of the jury in a prosecution for murder, counsel for the accused propounded to several jurors, who had read newspaper accounts of the killing, this question: “Have you formed any opinion or conclusion in your own mind, as to whether or not the defendant was guilty, or whether or not the crime of murder had been committed?” The county attorney objected, as not a proper voir dire question, which objection was sustained by the trial court. Held error.

4. Under the statutes of this state, the defendant is a competent witness in his own behalf. His interest in the result of the trial may be shown for the purpose of affecting his credibility.

5. In impaneling a jury in a criminal case, it is proper to ask a juror whether the fact that the defendant is charged with a crime would have any weight with the juror, and whether he could give the same credit to the testimony of the accused, should he testify in his own behalf, that he could give to the testimony of any other witness, under the same circumstances.

6. The fact of qualifications of a juror, when challenged for cause, is to be determined by the trial court, from a consideration of his entire examination, and such other evidence and circumstances as tend to throw light upon the subject. The appearance and general demeanor of the juror while being examined may be taken into consideration in determining his competency to serve.

7. The finding of the trial court, in deciding a challenge for cause, will not be set aside by the appellate court, unless it is clearly wrong.

8. Where, upon examination of a juror, it is shown that he has formed a hypothetical opinion, founded solely upon rumor and reading of newspaper reports, and that such opinion will not interfere with his rendering a fair and impartial verdict upon the evidence under the instructions of the court, he is not disqualified to sit in the case.

9. An opinion formed by a juror 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 offense charged.

10. The indorsement of the surname and the initials of the Christian or given name of a witness upon an information is a sufficient compliance with the requirements of the statute, which requires the names of the state's witnesses to be indorsed upon the information prior to the trial.

11. In a prosecution for murder, it is competent for the state to prove the description and location of the wounds inflicted by the defendant upon the deceased, as tending to establish whether or not death resulted therefrom.

12. Dying declarations, in order to be admissible, must have been made under a sense of impending death, and it is competent for the party offering them to prove the physical condition of the deceased at the time they were made.

13. The order in which a party shall introduce his proof is, to a great extent, discretionary with the trial judge, and the action of the court in that regard will not be cause for reversal, when no abuse of discretion is shown.

14. A voluntary confession or admission of guilt made by a prisoner out of court is admissible in evidence against him.

15. Held, that sufficient foundation was laid for the admission of that class of testimony in this case.

16. A communication from a party to an attorney is not privileged, where the relation of attorney and client did not exist between them.

17. While confidential communications between attorney and client are privileged, and neither will the attorney be permitted, nor can the client be compelled, to repeat them, yet, when a client makes statements to his counsel in the presence and hearing of a third party, who stands in no relation of confidence to either the attorney or client, such person may testify to such statements.

18. On a trial for murder, evidence tending to show the defendant's general reputation as a peaceable and quiet man in the community in which he resided prior to the offense charged is competent, but his reputation for honesty and integrity is not admissible.

19. Where, in a criminal prosecution, the defendant introduces evidence of his good character or general reputation, it is not competent for the state in rebuttal to put in evidence particular facts or rumors tending to prove it to be bad.

20. It is permissible, on cross–examination of a witness testifying in reference to character or reputation, to ascertain the extent of his information, the foundation for his opinion, or the data from which he draws his conclusion; and upon such examination he may be asked, with a view to lessen the effect of his testimony as to general reputation, but not for the purpose of establishing the fact to be proved, whether he has not heard certain enumerated reports which tend to contradict the purport and effect of his testimony given on direct examination.

21. In a prosecution for murder, where the circumstances tend to establish self–defense, evidence of the quarrelsome and irritable disposition of the deceased, and of threats recently made by him against the accused, which were communicated to the defendant prior to the killing, are admissible.

Error to district court, Saunders county; Wheeler, Judge.

Charles Basye was convicted of murder in the second degree, and brings error. Reversed.

Good & Good and J. K. Vandemark, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

NORVAL, C. J.

At the January, A. D. 1894, term of the district court of Saunders county, the plaintiff in error was tried upon an information charging him with murder in the first degree, by having on the 14th day of December, 1893, unlawfully, purposely, and feloniously, and of his deliberate and premeditated malice, killed and murdered one William O. Wright. The prisoner was found guilty of murder in the second degree, and thereupon he moved to set aside the verdict, and for a new trial, which motion was overruled, and he was adjudged to be imprisoned in the state penitentiary at hard labor for the term of 20 years, from which judgment and sentence he prosecutes a petition in error to this court.

The evidence contained in the bill of exceptions is quite voluminous, and it is not deemed necessary that we set out or discuss all the details thereof. For a proper understanding of some of the questions presented for review, a brief statement of the facts disclosed by the record may not be out of place. From the evidence on the trial it appears that the plaintiff in error and the deceased resided in the town of Valparaiso, in this state, and at the time of the unfortunate tragedy they lived upon the same block. Basye was a single man, engaged in repairing and painting buggies, and roomed over his shop. On the morning of the 14th of December, 1893, the deceased went to the room of Basye, one D. O. White being present when he entered, but who remained only a short time, but after completing his settlement with Basye he left, leaving deceased and plaintiff in error alone. A few minutes after White left, Basye shot Wright with a shotgun, who died from the effects of the wounds the second night thereafter. Immediately after the shooting, plaintiff in error went upon the street and told the first person he met what he had done. He then went to the law office of C. S. Allen, and soon thereafter he was taken into custody. The killing is admitted. The theory of the prosecution is that it was premeditated by the plaintiff in error. The latter denies this, claiming that he fired the fatal shot in self–defense. The record discloses that, two days prior to the shooting, Wright caused Basye to be arrested for keeping a house of prostitution, but before a hearing was had the case was compromised and the complaint withdrawn, the defendant paying the costs. The state produced as a witness one Dan F. Riley, who testified that, on the evening after the dismissal of the criminal case, Basye, in the presence of the witnesses Denman and Hotchkiss, said, “if he caught Mr. Wright around his place again he would put a load of shot into him.” The plaintiff in error, as well as both Denman and Hotchkiss, upon being interrogated upon the witness stand, testified positively that no threat of any kind was made by Basye concerning the deceased at the time and place stated by Riley, but that the only threats made were of and concerning one Barnes.

It further appears in evidence that the deceased was indebted to the plaintiff in error in the sum of $10, for painting a buggy, and upon the day previous to the shooting the account was presented by Basye's attorney to Wright, and payment thereof demanded, and that the latter, in an angry manner, refused to pay it then, saying, “he was not done with Basye yet, and that he would settle with him tomorrow.” It was shown by the testimony of several witnesses that, within a few days of the tragedy, the deceased had frequently made threats that he would run Basye out of town; also, that the deceased had borrowed a revolver of one Barnes, which fact, together with the threats made by Wright, were communicated to the plaintiff in error the evening preceding the shooting.

The state introduced evidence tending to show that the deceased...