Blue v. State

• Decision Date: 26 February 1910
• Docket Number: 16,407
• Citation: 125 N.W. 136,86 Neb. 189
• Parties: PHIN E. BLUE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

125 N.W. 136

86 Neb. 189

PHIN E. BLUE v. STATE OF NEBRASKA

No. 16,407

Supreme Court of Nebraska

February 26, 1910

ERROR to the district court for Kearney county: HARRY S. DUNGAN JUDGE. Reversed.

REVERSED.

Adams & Adams, for plaintiff in error.

William T. Thompson, Attorney General, and George W. Ayres, contra.

SEDGWICK J. REESE, C. J., not sitting. LETTON, J., ROOT, J concurring. ROSE, J., dissenting.

OPINION

SEDGWICK, J.

The defendant was tried in the district court for Kearney county upon an indictment of the grand jury, under section 208 of the criminal code. The substance of the offense was charged in the indictment in the following words: "From the 15th day of December, A. D. 1907, to the 1st day of September, A. D. 1908, did unlawfully keep one Libbie Peterson, a woman other than his wife, and did wantonly cohabit with the said Libbie Peterson." The jury rendered a verdict against the defendant, who was sentenced accordingly, and he has brought the case here for review. He insists that the evidence is not sufficient to justify his conviction, and that there were several errors upon the trial which call for a reversal of the judgment against him.

1. The first question discussed in the briefs is that the court erred in giving instruction No. 7. In this instruction and instruction No. 6 the court attempted to define at large what is meant by reasonable doubt. It seems to be conceded that instruction No. 6 is substantially a correct definition, but in instruction No. 7 the court told the jury: "A reasonable doubt is such a doubt as you are able to give a reason for." There is some discussion in the brief as to whether the sixth instruction did remedy the vice, if any, of the seventh, but it seems that there is no real ground for this discussion. The jury is told plainly that they must be able to give a reason for any doubt that they had as to defendant's guilt, or otherwise such doubt would not be reasonable, and the question is whether this is such an error as requires a reversal of the judgment. Several of the former decisions of this court are cited as determining this question, but they do not seem to be precisely in point. In Cowan v. State, 22 Neb. 519, 35 N.W. 405, the trial court in defining a reasonable doubt told the jury "it is a doubt for having which the jury can give a reason, based upon the testimony", and this instruction was held to be erroneous, calculated to mislead the jury and require a reversal of the judgment. In Carr v. State, 23 Neb. 749, 37 N.W. 630, an instruction was given in the following language: "It is a doubt having a reason for its basis derived from the testimony, and a doubt for the having of which the jurors can give a reason derived from the testimony." In this latter case the matter is discussed more at large, and the instruction is held to be erroneous and to require a reversal. Several decisions of other courts are cited and quoted from, and among them a decision from the supreme court of Indiana, in which it is said: "It is not the law that in order to justify an acquittal the doubt must arise out of the evidence given, and be such as to cause a prudent man to hesitate. The doubt may arise from the want of evidence." Brown v. State, 105 Ind. 385, 5 N.E. 900. In the later case of Childs v. State, 34 Neb. 236, 51 N.W. 837, the instruction complained of told the jury that a reasonable doubt was a doubt "arising out of the evidence", and such a doubt as "you are able to find a reason in the evidence for." The instruction was held erroneous under the authority of the two cases above cited, but without discussion of the reason of the holding.

These cases then all hold that it is erroneous to tell the jury that a reasonable doubt which would require an acquittal must arise from the evidence, but the precise question presented in this case has not heretofore been determined in this court. The question is: Is it prejudicial error requiring a reversal of the judgment to tell the jury that they must be able to give a reason for any doubt which they entertain of defendant's guilt or such doubt will not be a reasonable one? If a juror, who has doubt of the defendant's guilt, is required by his fellow jurors to give a reason for such doubt, he would feel bound by this instruction to do so or to abandon his convictions. A better rule would require reasons for finding the defendant guilty. To whom must the juror stand ready to give his reasons? Is he to be called upon by the court to formulate a substantial reason for voting for acquittal, or will be required to give his reasons to the public generally, after the trial is over. There can, of course, be no doubt that such an instruction is erroneous, and we think that it would, at least in some cases, be prejudicial to the defendant. Under the evidence in this case there was great danger of prejudice from such an instruction. The expression "reasonable doubt" is difficult of definition. Many attempts at definition have been criticized by the courts in the reported cases. The definition introduced by Judge Gary in the famous anarchists' case has been very generally disapproved, and this court has often condemned it. On the other hand, the language of Mr. Chief Justice Shaw in the famous trial of Professor Webster was quoted with unqualified approval by the present chief justice of this court in the case above cited, Carr v. State, 23 Neb. 749, 37 N.W. 630. In this connection we quote from an opinion of the supreme court of California: "It will perhaps accomplish no useful purpose to suggest generally to nisi prius judges that, in giving their instructions to juries in criminal cases, they should restrict themselves, upon the doctrine of reasonable doubt, to the use, literally, of the language employed by Chief Justice Shaw in his great exposition of that doctrine in the Webster case, supra, and to not undertake to amplify the subject in language of their own. We say that it will perhaps be useless to thus caution trial judges, because the supreme court has so often, in the plainest kind of language, warned such judges of the danger of going beyond the language used in the Webster case in explanation of this doctrine, that it would seem that such warnings would be constantly in the minds of those presiding over the trials of criminal cases, so that they would content themselves with the clear and simple language of Chief Justice Shaw, however strong the temptation may be to make the experiment of determining how far they can wade out into deep water without disappearing beneath the surface. The 'reasonable doubt', as defined by Chief Justice Shaw, is good enough for all the courts of last resort of the country, and, it would seem, ought to be good enough for those judges the records of whose cases must finally be reviewed with a view of determining whether an accused has been tried according to the established forms of law." People v. Del Cerro, 9 Cal.App. 764, 100 P. 887.

The courts of the various states do not appear to be in entire harmony upon the question presented by this instruction. The instruction is generally criticized, but some of the courts have refused to regard the instruction as so prejudicial as to necessarily require a reversal. The supreme court of Minnesota had under consideration a similar instruction in State v. Sauer, 38 Minn. 438, 38 N.W. 355. The instruction contains these words: "This does not mean beyond any doubt, but beyond a doubt for which you can give a reason." The court said that this definition "is not without some authority to support it", and citing Commonwealth v. Harman, 4 Pa. 269, and after remarking, "we are not prepared to say that it contains any error prejudicial," the court proceeded to criticize the instruction quite severely. In Commonwealth v. Harman, supra, the instruction is reported as given upon the trial. It is not the opinion of a reviewing court. It contains many things not in harmony with the practice under our criminal code. It does not contain the language here complained of. We would not have considered it as authority for allowing an instruction such as that now under consideration if it had not apparently been so regarded by the Minnesota court.

The supreme court of Iowa, having under consideration an instruction which contains these words, "a reasonable doubt is such a doubt as the jury are able to give a reason for," held that the instruction was erroneous and prejudicial, requiring reversal. State v. Cohen, 108 Iowa 208, 78 N.W. 857. The opinion is by Judge Ladd, who gives convincing reasons for his conclusions, and cites several authorities, among them our own cases, above cited.

Other courts have held that to instruct the jurors that they must be able to give a reason for their doubts as to the defendant's guilt is erroneous and so prejudicial as of itself to require a reversal. Siberry v. State, 133 Ind. 677, 33 N.E. 681; Abbott v. Territory, 20 Okla. 119, 94 P. 179. We have noticed no decisions in which such an instruction is approved, but there are very many in which it is severely criticized, although not held to be so prejudicial as under all circumstances to require a reversal. Morgan v. State, 48 Ohio St. 371, 27 N.E. 710; State v. Morey, 25 Ore. 241, 35 P. 655; People v. Del Cerro, 9 Cal.App. 764, 100 P. 887; Wallace v. State, 41 Fla. 547, 26 So. 713. In State v. Morey, supra, the court reviewed the authorities somewhat at length, and among them referred to our own decisions. The discussion is an interesting one.

2. The principle ground upon which the defendant asks for a reversal is that the evidence is insufficient to support the conviction. There is no direct testimony tending to support the verdict other than the evidence of the complaining...