Christiancy v. State

• Decision Date: 14 October 1921
• Docket Number: 21830
• Citation: 184 N.W. 948,106 Neb. 822
• Parties: WALTER CHRISTIANCY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

184 N.W. 948

106 Neb. 822

WALTER CHRISTIANCY v. STATE OF NEBRASKA

No. 21830

Supreme Court of Nebraska

October 14, 1921

ERROR to the district court for Fillmore county: RALPH D. BROWN JUDGE. Affirmed: Sentence reduced.

AFFIRMED.

Charles H. Sloan, Frank W. Sloan and Thomas J. Keenan, for plaintiff in error.

Clarence A. Davis, Attorney General, John Barsby, Robert B. Waring and C. L. Dort, contra.

Heard before MORRISSEY, C.J., ROSE, ALDRICH and FLANSBURG, JJ ALLEN and REDICK, District Judges.

OPINION

ALLEN, District Judge.

The plaintiff in error was convicted by a jury in the district court for Fillmore county of the crime of statutory rape, and from a judgment of guilty thereon and the sentence to seven years' imprisonment in the penitentiary, he has brought the case to this court for review. For convenience, the parties will remain classified as they were in the district court.

The information contains two counts, in the first of which it is charged that on September 18, 1920, the defendant, in Fillmore county, committed a statutory rape on the person of Gladys Dyer, and in the second count that at the same time and place he committed an assault upon her with intent to commit rape.

The defendant moved the court for an order requiring the state to elect on which count of the information it would proceed, (1) because "said counts contain different and repugnant charges," and (2) because "said charges contained in said counts are based upon fundamentally different statutes, which statutes severally denounce fundamentally different acts." This motion was denied, and the defendant assigns the ruling of the court as error. The second count was superfluous, as the defendant could have been convicted of an assault with intent to commit rape under the first count. Hubert v. State, 74 Neb. 220, 104 N.W. 276; Baxter v. State, 80 Neb. 840, 115 N.W. 534. However, the county attorney dismissed the second count before the case was submitted and there was no error in the ruling.

It is contended that the court erred in overruling the defendant's challenge to a proposed juror, Charles Norton. Mr. Norton on his voir dire examination said that he had read quite an extended account of the transaction in the Nebraska Signal, which gave the nature of the charge and purported to state some facts connected with it, and he supposed he did, at the time, form a natural mental conclusion as to the guilt or innocence of the defendant from what he had read. He had talked with no one who claimed to know the facts and had heard or read nothing to change his opinion, and had the opinion yet, and supposed that it would take some evidence to remove it. He stated on cross-examination that he could give the defendant the benefit of the presumption of innocence until he was proved guilty, if that was the law, and if the court instructed the jury that it was necessary to prove the defendant guilty beyond a reasonable doubt before he could be convicted, he could give him the benefit of it, and that his present opinion would in no wise control his verdict. A careful examination by the court disclosed that he had no opinion and was, within the rule recognized in Whitcomb v. State, 102 Neb. 236, 166 N.W. 553, qualified to act. But the record shows that the jury was composed of Wm. McNamara, Chas. Rocole, Carl Sandburg, M. L. Schelkopf, F. H. Sauer, John McCabe, Loren Teter, Frank Yetman, Lou Schafer, Arno Gunderman, Frank Hrdy, and Mel Martin, and that Mr. Norton did not serve. It does not appear whether he was excused peremptorily by one of the parties, or by direction of the court, and it is sufficient to say that, as he did not serve, the defendant was not prejudiced.

As to the ruling of the court in sustaining the state's challenge to the proposed juror Stuckey, we think it was without error. Each party was entitled to an "impartial jury," and it was quite evident that Mr. Stuckey was so closely connected with counsel for the defendant in business and in another case that his ability to act impartially was open to question. He had a case pending in court, and the defendant's counsel were his attorneys in that case. See section 8158, Rev. St. 1913. A competent juror, who was not challenged, took his place and was retained. The defendant was not entitled to a specific juror. If the members of the panel possessed the requisite qualifications and constituted an "impartial jury," that was all he could ask.

It is urged that there was misconduct on the part of the prosecuting attorney resulting in prejudice to the defendant. The trial is said to have lasted more than five days, and the verdict was returned within an hour and twenty minutes after the case was submitted. "Prominent among the acts of the assistant prosecutor complained of," it is said, "was his asking the defendant upon cross-examination: 'Did you ever tell John Cromwell that the sheriff was looking for you from Colorado?'" On cross-examination, the county attorney asked the defendant this question: "Q. Did you ever tell John Cromwell that the sheriff was looking for you from Colorado?" The defendant promptly objected and the court sustained him. "Q. In the presence of John Cromwell, did you ever make the statement to John Cromwell, that you had gotten into a similar scrape like this out in Colorado?" The defendant's objection was promptly sustained, and at his request the court informed the jury: "The objection will be sustained, and that form of cross-examination is improper and should not be pursued further, and the jury should not in any way give any consideration to anything that might be inferred from the question, the objection to which has been sustained. Exception." And the following colloquy took place:

"By Mr. Waring: Your honor, I want to get straightened out here, I am trying to perform my duty as well as I know how. Do I understand the court's ruling that if I should bring admissions of this court, of the defendant--not saying that I have them--to the effect indicated in my question, does the court mean to say that I am unable to introduce those admissions?

"By Mr. Sloan: Defendant objects distinctly and emphatically to the inquiry submitted to the court at this time under the circumstances, as being especially improper and prejudicial to this defendant under the circumstances, and should not, under any circumstances, be mentioned by the prosecutor; it is another and entirely different offense, if anything of that kind occurred, and I think that the court should render proper rebuke for the inquiry being submitted in the presence of the jury.

"By the court: The court means to say, Mr. Waring, that you are not entitled to make any inquiry on cross-examination with respect to any offense except the one on trial in this case, and nothing with respect to anything else, if there should be anything of the kind, should be considered by the jury in any manner, and any matter of inquiry relating to the character of the defendant is not admissible until something of that character has been offered by the defendant himself.

"By Mr. Waring: If that is the ruling of the court, I will respectfully adhere to it. I had a different idea."

Not being satisfied with the court's statement, the defendant requested and the court gave the jury the following instruction: "The jury are especially cautioned against giving any consideration or weight whatever to the question propounded by counsel for the state, relative to a purported statement made by defendant to one Cromwell concerning another alleged charge against defendant. Whether the assumption was true or false, the question should not have been propounded in your presence, and you should not permit the same to in any wise influence, bias, or prejudice you in the formation of a verdict."

And the court further instructed the jury on his own motion: "You are cautioned against giving any consideration or weight whatever to the question propounded by counsel for the state, relative to a purported statement made by defendant to one Cromwell concerning another alleged charge against defendant. Whether the assumption was true or false, the question should not have been propounded in your presence, and you should not permit the same to in any wise influence, bias, or prejudice you in the formation of a verdict."

Subordinate courts are not gifted with prescience and cannot, in the midst of a heated trial, foresee what moment an improper question may be propounded to a witness. But where, as in this case, an objection is promptly made thereto and sustained, and the court fully instructs the jury that the question was improper and should not be considered by them we think the defendant was not prejudiced. See City of Shawnee v. Sparks, 26 Okla. 665, 110 P. 884, L. R. A. 1918D, 1, and...