Burgo v. State

• Decision Date: 31 May 1889
• Citation: 42 N.W. 701,26 Neb. 639
• Parties: PETER B. BURGO, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

42 N.W. 701

26 Neb. 639

PETER B. BURGO, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 31, 1889

ERROR to the district court for Douglas county. Tried below before GROFF, J.

AFFIRMED.

Offutt & English, for plaintiff in error, cited: Pannell v State, 29 Ga. 681; The King v. D'Eon, 3 Burr. 1514; People v. Vermilyea, 7 Cowen, 388; Brill v. Lord, 14 Johns. 341; Louisville, N. A etc., R. Co. v. Falvey, 3 N.E. 389; Quinn v Higgins, 63 Wis. 664; Cowan v. State, 22 Neb. 525; State v. Jones, 50 N.H. 369.

Wm. Leese, Attorney General, for defendant in error, cited: Maxwell's Crim. Procedure, p. 566; 1 Russell on Crimes, note 1, p. 27, (9th Ed.;) Webb v. State, 9 Texas Appeals, 490; Wharton on Evidence, (3d Ed.,) sec. 451; Carr v. State, 23 Neb. 749.

MAXWELL, J. COBB, J., concur. REESE, CH. J., concurring in part and dissenting in part.

OPINION

MAXWELL, J.

The plaintiff in error was informed against in the district court of Douglas county, for an assault upon his wife with intent to kill her, and on the trial was found guilty as charged, and sentenced to imprisonment in the penitentiary for fifteen years.

1st. The first error assigned is, that the court erred in overruling the motion for a continuance. The offense is alleged to have been committed on the 8th day of April, 1888; and the plaintiff was arrested on the next day. On the 14th of that month he was informed against, and on the 14th of May of the same year he was arraigned and pleaded not guilty. He thereupon filed the following affidavit for a continuance: "The affiant, Peter Benjamin Burgo, says, that he is not ready for trial at this term of the court, because of the absence of the following witnesses, viz.: Adeline Southerland, Lucy Bamberg, Sarah Moore, Henry Burgo, Frank Mackey, Lemuel Foote, Samuel Foote, T. E. Ellsworth, Sut. Scripture, Robert Terry, Charles Gilman, Robert Y. McColloch, Addie Costley, Oscar Seward, Pearly Huggy, Susan Bowles, Edward Bowles, and Gus. Bowles, which said witnesses all live out of this state, and who severally reside at and in the states particularly and specially stated in the affidavit of this affiant's attorney, Charles Offutt, filed herein.

"Affiant says that he can prove by each of the said witnesses that this affiant has suffered from hereditary insanity, to a greater or less extent, all through his life, and that he inherited the same from his mother, who was so insane for more than twenty years next before her death, which occurred five years ago; that she was unable to recognize any person related to or previously known to her; that for many years before the twenty years, at which she became so insane as aforesaid, she was subject to temporary fits of insanity, during which she did not know what she was doing, and did not understand either the legal or moral effects of her acts; that at said time his mother attempted suicide.

"Affiant further says that during all his life, or the greater portion thereof, he has lived outside the state of Nebraska, and has only recently come to live in the city of Omaha; that he knows no one in the city of Omaha who will testify to the aforesaid facts, or any part thereof, and does not know any one in the said city who knows this affiant sufficiently well to be able to state what the true facts are in relation to the mental condition of this affiant. He further says that he believes that he can prove by each of said witnesses that this affiant has been for many years, and that he was at the time of the assault complained of, unable to distinguish right from wrong, and did not know the legal or moral effect or consequences of his acts. He further says that the affidavit is not made for delay, but in order that he may obtain a just and a fair trial."

The above affidavit wholly fails to state facts sufficient to entitle the affiant to a continuance. Leaving out of view the failure to allege that the persons named are intimately acquainted with the affiant, or any fact showing knowledge on their part, there is an entire failure to allege that he cannot prove the same facts by other witnesses in the state. The allegation that he has lived outside of the state the greater portion of his life, and that he knows no one in Omaha by whom he can prove these facts, falls far short of showing that he knows of no other witnesses who would testify to all that it is alleged the witnesses named would testify to. In addition to this, the fact that the affiant's mother was afflicted with insanity, will not justify him in the commission of crime, unless he also, at the time of committing the act complained of, was unable to distinguish right from wrong in regard to that particular act, which is not alleged. There is also an affidavit of one of the attorneys of the plaintiff in error in which he states in substance that he has but recently been called into the case; that he has not had time to correspond with the witnesses named to ascertain to what extent the hereditary taint of insanity affected the plaintiff in error; and that insanity was the only defense he intended to make.

There may be cases where it would be proper to continue a cause in order to obtain proof of hereditary insanity, but this is not one of them, and therefore the question does not arise, as there is no denial that the plaintiff in error could distinguish right from wrong in regard to the particular act complained of, when he committed the same. The court therefore did right in overruling the motion for a continuance.

2d. The second error relied upon is that the court erred in rejecting competent evidence. This refers to certain hypothetical questions propounded to Dr. Tilden. The questions as proposed contained a summary of but a portion of the evidence. "Thereupon the court said, 'Make your question conform to the facts, and then ask it -- the facts admitted or already proved.'" In Morrill v Tegarden, 19 Neb....