Carr v. State

• Decision Date: 05 April 1888
• Citation: 23 Neb. 749,37 N.W. 630
• Parties: CARR v. STATE.
• Court: Nebraska Supreme Court

23 Neb. 749

37 N.W. 630

CARR

v.STATE.

Supreme Court of Nebraska.

April 5, 1888.

Syllabus by the Court.

On a trial for murder a witness for the state stated in detail the circumstances surrounding the tragedy immediately after the killing; that the deceased was lying upon the ground, and the accused standing near by with a gun in his hand; and that he very soon walked away, carrying the gun. He was then asked by the prosecuting attorney why he did not arrest, or assist in arresting, the accused. Over the objection of the accused, the witness stated that the reason why he did not attempt the arrest was that he did not think it safe to follow him. Held error.

As a general rule, threats made by the defendant, prior to the murder, to kill or injure some other person than the deceased, are not admissible as evidence against him.

It is not error for the court to refuse to repeat an instruction to the jury already substantially given.

The guilt of an accused is proven beyond a reasonable doubt when, upon the entire comparison and consideration of all the evidence, the minds of the jurors are in that condition that they can say from the evidence they have and feel an abiding conviction to a moral certainty of the truth of the charge. A reasonable doubt does not consist of possible or conjectural doubts not growing out of the evidence, but is one which, when considering the evidence alone, leads the juror to hesitate, and upon which he would refuse to act in the important concerns of life. It is error to charge the jury that it is a doubt for the having of which the juror can give a reason derived from the testimony. ¹

Where a defendant is on trial upon an indictment charging him with murder in the first degree, the county attorney having made the opening argument to the jury after the testimony is adduced, whether the counsel for the accused can cut off further argument by refusing to address the jury, quœre.

Every person accused of the commission of a crime is guarantied a fair and impartial trial by the constitution. This right should be carefully protected by trial courts, and conduct of attorneys and all others which prevents such a trial should not be permitted by the court in which such trial is had.

Malice--“A clear, concise, and comprehensive definition of legal ‘malice,’ though often attempted, has not been fully achieved. Approximately it is that condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which condition is inferred from acts done or words spoken.” Harris v. State, 8 Tex. App. 91.

Error to district court, Boone county; TIFFANY, Judge.

Indictment of Ed. Carr for the murder of Warren Long. Upon trial, the jury returned a verdict of guilty, and a motion for a new trial having been overruled, the defendant brings error.J. S. Armstrong and W. M. Robertson, for plaintiff in error.

The Attorney General, for defendant in error.

REESE, C. J.

Plaintiff in error was indicted at the May, 1887, term of the district court of Boone county, for the murder of Warren Long, on the 5th day of April of the same year. On the 21st of June he was placed upon trial, and on the 25th day of the same month the jury returned a verdict by which he was found guilty of murder in the first degree. On the 12th of July a motion for a new trial was overruled, and sentence of death was pronounced against him.

A number of assignments of error are made in the motion for a new trial and petition in error, but that need not all be noticed, as upon the case being called in this court the attorney general declined to file a brief, stating that the judgment would have to be reversed on account of an erroneous instruction having been given to the jury by the trial court. It is presumed that many of the questions presented by this record will not arise upon a subsequent trial, and in addition to the instruction referred to we will notice a part only of the questions presented by the brief of the plaintiff in error. The instruction referred to is as follows: “ Instruction No. 4: You are instructed that by a reasonable doubt is meant such a doubt as naturally arises in the mind of a juror, from a consideration of the testimony, as would cause him to pause and hesitate before acting in the most important affairs of life. It is a doubt, having a reason for its basis derived from the testimony, and a doubt for the having of which the juror can give a reason derived from the testimony. To be convinced beyond a reasonable doubt is to have the judgment, the reason, and the understanding satisfied of the truth of the facts, so that an ordinarily reasonable and cautious man would unhesitatingly act by the proof in the most vital and important affairs of human life. And unless in this case your judgment and reason and understanding is so convinced by the testimony of every fact necessary to constitute any of the degrees of the crime as defined in these instructions, you must acquit the defendant.” While not couched in exactly the same language, this instruction is in substance the same as the third instruction given to the jury and referred to in Cowan v. State, 35 N. W. Rep. 405. The clause contained in the instruction in that case which induced this court to reverse the judgment was: “It is a doubt for having which the jury can give a reason based upon the testimony.” In the case at bar the language is: “It is a doubt having a reason for its basis, derived from the testimony, and a doubt for the having of which the jury can give a reason derived from the testimony.” We have again examined the question, and are satisfied with the holding in Cowan v. State. It is true that the instruction is not entirely without support, and may be found substantially in Sackett, Instructions to Juries, 482, but upon an examination of the authorities cited by the author, we do not think they support the text. We have not at hand the edition of Greenleaf's work on Evidence referred to, but upon an examination of the 14th edition, we are satisfied section 29, note 2, of that edition is the one referred to by the author. In the text Greenleaf says: “But in criminal trials the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. It is therefore a rule of criminal law that the guilt of the accused must be fully proved. Neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate a full belief of the fact to the exclusion of all reasonable doubt.” The note consists in part of an extract from the very able charge of Chief Justice SHAW, given to the jury on the trial in the case of Com. v. Webster, 5 Cush. 320, 52 Amer. Dec. 711, as well as a number of extracts from decisions in other cases. The quotation from the instruction is as follows: “Then what is a reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The burden of proof is upon the prosecutor. All the presumption of law, independent of evidence, are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If, upon such proof, there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal; for it is not sufficient to establish a probability, though a strong one, arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary, but the evidence must establish the truth of the fact to a reasonable and moral certainty,--a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond a reasonable doubt; because if the law, which mostly depends upon considerations of a moral nature, should go further than this, and require absolute certainty, it would exclude circumstantial evidence altogether.” While the rule stated by Chief Justice SHAW was applied to a case depending upon circumstantial evidence, yet in the main we think it is applicable to all cases where the issue of the guilt or innocence of the accused is presented. The reasonable doubt is “that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” All presumptions of law, independent of evidence, are in favor of innocence. Every person is presumed to be innocent until he is proved guilty. The burden of proof is upon the prosecution, not only to remove this presumption, but to satisfy the minds and consciences of the jurors, beyond all reasonable doubt, of the guilt of the accused, upon the whole case. They must feel satisfied to a moral certainty of his guilt, or they must acquit, at least of the degree wherein this want of certainty exists.

An instruction substantially like the one given in the case at bar was given by Judge SPEER in U. S. v. Jones, 31 Fed. Rep. 718, and in U. S. v. Jackson, 29 Fed. Rep. 503, but we do not believe they correctly state the law. In People v. Steubenvoll, 28 N. W. Rep. 881, the supreme court of Michigan seems to concede that the language of an instruction similar to the one under consideration was not strictly accurate, but held that it produced no practical consequence in the case. In Brown v. State, 5 N. E. Rep. 900, ...