Binfield v. State

• Decision Date: 29 May 1884
• Citation: 19 N.W. 607,15 Neb. 484
• Parties: STEPHEN BINFIELD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA
• Court: Nebraska Supreme Court

19 N.W. 607

15 Neb. 484

STEPHEN BINFIELD, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Hall county. Indictment for murder in the second degree. Verdict--manslaughter. Sentence--ten years in penitentiary. Trial before NORVAL, J.

AFFIRMED.

Thummel & Platt and T. O. C. Harrison, for plaintiff in error.

Keeping witnesses separate and apart. Comp. Stat., 713. Dying declarations. 1 Greenleaf Ev., § 158. Rakes v People, 2 Neb. 157. Starkey v. People, 17 Ill 17. Montgomery v. State, 11 Ohio 424. People v Phillips, 1 Park. Cr., 306. Uncommunicated threats. Holler v. State, 37 Ind. 57. Horrigan & Thompson Cases on Self Defense, 490. Stokes v. People, 53 N.Y. 164. Evidence. Horne v. State, 1 Kan. 42. State v. Collins, 20 Iowa 85. French v. State, 12 Ind. 670. State v. Waterman, 1 Nev., 543. Variance in name. 1 Wharton, 256-8. Roscoe Cr. Ev., 81. State v. Curran, 18 Mo. 320.

Isaac Powers, Jr., Attorney General, for the State.

Dying declaration. Fitzgerald v. State, 11 Neb. 577. Robbins v. The State, 8 Ohio St. 131. Uncommunicated threats. Powell v. State, 19 Ala. 577. People v. Henderson, 28 Cal. 465. Combs v. State, 75 Ind. 215. Variance. State v. Gardiner, Wright's Rep., 392. Crim. Code, § 483.

OPINION

COBB, CH. J.

The first point made by plaintiff in his brief is, that "the court erred in overruling the motion of plaintiff in error for the exclusion of the witnesses of the state and defendant, and to keep them separate and apart," and he cites sec. 301, p. 713, Comp. Stat. This section provides as follows: "The magistrate, if requested, or if he sees good cause therefor, shall order that the witnesses on both sides shall be examined, each one separate from all the others, and that the witnesses for may be kept separate from the witnesses against the accused during the examination." It can scarcely be seriously contended that the provisions of this section apply to trials in the district court. Its language expressly refers to "the magistrate," and it is one of the sections of a chapter of the criminal code entitled, "Adjournment and examination before a magistrate." Section 248, p. 705, provides that "the term 'magistrate' in this code, when not otherwise expressly stated, is used to mean a justice of the peace, probate judge, mayor of a city or incorporated village, or police judge." So that the above provision applies only to inferior judicial officers holding courts of examination for the purpose of committing offenders, or of holding them to bail, and does not apply to trials in the district court. Our statute, I think, is quite-silent as to the duty of the district court in case of an application of this character.

Upon this subject the law is thus stated by Greenleaf in his work on Evidence, sec. 432: "If the judge deems it essential to the discovery of truth that the witnesses should be examined out of the hearing of each other, he will so order it. This order, upon the motion or suggestion of either party, is rarely withheld; but, by the weight of authority, the party does not seem entitled to it as a matter of right." In this also agree all of the cases which I have been able to find, except in the cases where the matter is regulated by express statute. See State v. Fitzsimmons, 30 Mo. 236. Benaway v. Conyne, 3 Chand. (Wis.), 214. And Errissman v. Erissman, 25 Ill. 136.

The second point is, that "the court erred in admitting the dying declaration of Wendall Tillman to be read in evidence." I quite agree with counsel that "dying declarations to be used in evidence must be made not only in articulo mortis, but under the sense of impending death, and that the party was of such a state of mind that he had a clear understanding of the contents of the document that he is said to have signed, and can only be used when death is the subject of the charge, and the circumstances of the death the subject of the declaration." But I fail to see, nor is it pointed out, in what respect the proof fails to bring this case within the rule as above stated, or as laid down in any of the authorities cited. I have some doubt as to whether a dying declaration should be received, when every fact therein contained has already been testified to by living witnesses, and where there is scarcely any conflict in the testimony as to those facts. But in no other point of view can there be the least doubt as to the admissibility of the declaration of the deceased in this case.

The third point made is, that the court erred in refusing to admit the testimony of William Hohman as to uncommunicated threats made by the deceased against the defendant Binfield.

I understand the cases, where uncommunicated threats have been admitted in evidence, or most of them, to turn upon the question of self-defense. Indeed, the same might be said of evidence of threats generally, whether communicated or uncommunicated. To prove to the jury in a homicide case that the deceased had threatened to take the life of the prisoner, or to inflict great personal injury upon him, is to give them a key for the interpretation of the acts and motives of the prisoner and of the deceased, in cases where such threats had been previously communicated to the prisoner, and of the acts and motives of the deceased whether the threats had been communicated or not. In many cases the appearance of being driven to the wall, of a man who had lately threatened the life of his adversary, might be looked upon with just suspicion, when in the absence of such threats it would not be, and this without regard to whether such threat had been communicated to the party or not. In the case at bar there was no evidence of any act on the part of deceased to be illustrated by evidence of threats on his part towards the prisoner. As I understand the law, it would have been no error on the part of the court to have excluded even the communicated threats in this case, because upon the facts proved, the making of the threats furnished no possible justification or excuse for the homicide, nor tended to illustrate or explain acts of the deceased in such a way as to furnish any justification or excuse therefor.

The fourth point is, that the court erred in refusing to give in charge to the jury the No. 7 of defendant's prayers. Said prayer was in the following words:

"No. 7. That it is incumbent upon the state, in order to sustain the charge, to prove beyond a reasonable doubt that the specific intent there charged actually and in fact existed in the mind of the defendant at the time he committed the act, that it is incumbent upon the state, if it would establish an intent to kill, to prove beyond a reasonable doubt that at the time he committed the act the defendant in fact intended to take life." While I find no fault with the principle set out in the above prayer, I think that its language would be well calculated to mislead a jury. But were there no objection to its language, the refusal to give it cannot be urged as error on the part of the court, because the same principles of law were contained in the charge already given. The charge of the court to the jury is too lengthy to be reproduced here, covering at least twelve pages of legal cap in fine hand. It contains every principle of law necessary to the proper guidance of the jury in the case, and meets our approval.

Under the fifth head are grouped several alleged errors, under the general...