Binkley v. State

• Decision Date: 11 June 1892
• Citation: 52 N.W. 708,34 Neb. 757
• Parties: BINKLEY ET AL. v. STATE.
• Court: Nebraska Supreme Court

34 Neb. 757

52 N.W. 708

BINKLEY ET AL.

v.STATE.

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

1. In a prosecution for felony, after the witness had been sworn, the prosecuting attorney asked and obtained leave to make a correction in the name of such witness by changing the initials of the Christian name from C. A. to H. C. Held, that the prosecuting attorney should be required to show that he was not aware of the mistake until that time, and that, if the accused should make it appear that he was misled, the court should continue the case to a later day in the term.

2. To authorize a jury to find a verdict of guilty in a criminal case the evidence must point to the accused as the party who committed the offense, and mere conjecture or suspicion, however strong, will not warrant a verdict of guilty.

Error to district court, Washington county; DOANE, Judge.

Prosecution against William Binkley and Daniel Binkley for an assault with intent to kill. On a judgment of conviction they bring error. Reversed and remanded.Jesse T. Davis, for plaintiffs in error.

Geo. H. Hastings, Atty. Gen., for the State.

MAXWELL, C. J.

At the adjourned February term of the district court of Washington county the plaintiffs in error were informed against by the county attorney for the offense of an assault with intent to kill and murder one C. A. Alderman, and on the trial were found guilty and sentenced to imprisonment in the penitentiary for one year.

The first error assigned is in permitting the county attorney to change the name of a witness on the information, after such witness had been sworn, from C. A. Alderman to H. C. Alderman. The record upon this point is as follows: “Question. Give your full name. Answer. Hercules Campbell Alderman. (The defendants' attorney here objects to the witness testifying, on the ground that the name does not appear on the information.) Q. Who is C. A. Alderman? A. That is intended for me, but they got the initial wrong. Q. What is the full name? A. Hercules C. Alderman. By the Court: You may amend the name on the information if that is the person intended. To which the defendants except.” The names of witnesses upon the information should be correctly given. A party accused of crime should be advised in advance of the witnesses who will testify against him, so that he may be prepared to meet their testimony as he may suppose it will be. The reason for this rule is very clearly stated by Judge COBB in Parks v. State, 20 Neb. 517, 518, 31 N. W. Rep. 5, as follows: “It is an innovation which had been often suggested before it was adopted. With its undoubted advantages, it has been objected to as placing too much power in the hands of the prosecutor. Probably foreseeing this objection, the framers of the law sought to throw around the rights of the accused, under this method of prosecution, every reasonable protection. Under the system of prosecution by indictment, the grand jury was in a sense the accuser of every person brought to trial for a crime. So here, when the services of a grand jury are dispensed with, while the responsibility of the prosecution rests in some sense upon the shoulders of the prosecuting attorney, there is certainly some reason why there should be open to the accused some source of information as to the identity of the persons upon whose oath his conviction and punishment is about to be claimed at the bar of justice.” The prosecuting attorney at least should have been required to show that he had been misinformed as to the name, and that he was not aware of the mistake until that time. Courts cannot be too careful in guarding the rights of the accused in this regard, and where the accused has been misled, and a showing to that effect is made, a continuance to a later day in the term should be granted. The testimony tends to show that on the 16th day of February, 1891, about 6 P. M., the plaintiffs in error, with John Binkley, a brother of the plaintiffs in error, and Alderman, were at the depot in the village of Washington; that they had a jug which contained half a gallon of whisky; that they were in the freight department of the depot, and each of them was weighed on the scales therein; that each of them drank from the jug; that they tested the strength of each other by two at a time sitting down on the floor of the depot, face to face, the feet of one braced against the feet of his associate, and each taking hold of a stick and pulling so as, if possible, to lift his opponent; that after each trial of strength in this manner the jug was called into requisition, and each of the four took a drink. This was kept up for some time, probably half an hour or more. By that time the entire party was considerably intoxicated, and Alderman, according to the testimony of some of the witnesses, was drunk. In pulling, the parties had used a broken axe handle on which was a dull axe. The theory of the prosecution is that the plaintiffs in error struck Alderman on the head with the axe, and caused the injury which will presently be stated. It also appears that the axe was in the depot,--so far as appears, belonged there,--and was left in the depot; that while the parties were in the depot they were good-natured, and, so far as we can judge, on friendly terms. Between 6 and 7 P. M. all of the parties went out on the platform, and the agent closed the door, and fastened it on the inside. The Binkleys were going to shell corn on the following day, and load it on a car, and John Binkley went into the office to speak to the agent. He was gone but a short time. When he returned his brothers were gone, and he found Alderman a short distance from the depot, lying on his face on the ice and snow. His direct testimony on that point is as follows: “Mr. Ginter and I went out the way I came in. He locked the door and went into his house, and I walked around the other way, and started for home. Question. What did you see when you got round the door that you came out of? Answer. I came right around the way I came out of the freight room. Q. What did you see there when you got around on the platform? A. I saw Mr. Alderman there. I thought it was one of my brothers when I first saw him. Q. Where was Alderman at that time? A. He was lying there on the ice. Q. About how far from the platform? A. Well, I should say about 3 or 4 feet, or something like that. I could not say positively. I just jumped right over him,--jumped right off, and jumped right over him. Q. After you jumped over him, what did you do? A. I picked him up. Q. Did he have his cap on at that time? A. No, sir; his cap was lying right by the side of him. I put his cap on his head, and picked him up. Q. Then what did you do with him? A. I started him for home, to take him over to his home. Q. Did you see your brothers...