Fisher v. State

• Decision Date: 12 April 1951
• Docket Number: No. 32875,32875
• Citation: 154 Neb. 166,47 N.W.2d 349
• Parties: FISHER v. STATE.
• Court: Nebraska Supreme Court

Page 349

47 N.W.2d 349

154 Neb. 166

FISHER v. STATE.

No. 32875.

Supreme Court of Nebraska.

April 12, 1951.

Syllabus by the Court.

1. Opportunity for prejudice or disqualification of jurors is not sufficient to raise a presumption that they exist.

2. Errors, occurring during the trial of a criminal case, cannot be reviewed in this court unless they have been assigned in and presented to the trial court by a motion for new trial.

3. The rule that if a person is employed to produce evidence against the

accused and he testifies against the accused, the defendant is entitled to an instruction to the jury that in weighing the testimony of the witness greater care and closer scrutiny should be exercised than in considering the testimony of witnesses who are disinterested, is generally not applicable to public officers who are witnesses.

4. It is not obligatory upon the court, in the absence of a request, to give a cautionary instruction.

5. It is not error to refuse a requested instruction when the substance of it is included by the court in its charge to the jury.

6. Evidence of good character of the defendant in a criminal case should be considered by the jury not by itself but in connection with all the evidence in the case.

7. The inclusion in an instruction on that subject of a statement that when, after giving evidence of good character due weight, the proof still shows the accused to be guilty beyond a reasonable doubt, such evidence of good character is unavailing, is proper.

8. The law recognizes no form of insanity or uncontrolled impulse, even though the mental faculties are disordered or deranged, which provides immunity from punishment for a criminal act, if the person committing the act has capacity to know what he is doing and to understand that his act is wrong.

9. Admission of defendant of facts tending to establish a criminal charge against him is generally considered direct and not circumstantial evidence.

10. Absence of any direct, incriminatory evidence is ordinarily made the test of the obligation of the trial court to instruct as to the probative value and manner of considering circumstantial evidence in a criminal case, and, if there is direct incriminatory evidence of the principal facts essential to guilt, the failure to instruct in this regard is not error.

11. Extrajudicial admissions or a voluntary confession is insufficient to prove that a crime has been committed, but either or both are competent evidence of the fact and may, with corroborative evidence or circumstances, establish the corpus delicti and guilty participation of the defendant.

12. An unintentional killing of a person without malice by an unlawful assault and battery that in itself is not of a character or intended to cause death may result in the assailant being guilty of manslaughter.

13. A parent is not liable criminally for moderately or reasonably correcting a child, but it is otherwise if the correction is immoderate and unreasonable.

14. The credibility of witnesses and the weight of their testimony are for the jury to determine in a criminal case, and the conclusion of the jury cannot be disturbed unless it is clearly wrong.

Edward E. Carr, North Platte, for plaintiff in error.

C. S. Beck, Atty. Gen., Dean G. Kratz, Asst. Atty. Gen., for defendant in error.

Before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Plaintiff in error was charged with, tried for, and convicted of the crime of manslaughter. She was adjudged to be confined in the State Reformatory for Women. A motion for a new trial was denied and she has brought the record of her conviction and sentence to this court for review.

The information alleges that Gertrude Irene Fisher, defendant and plaintiff in error, frequently and unlawfully from about February 1, 1949, to and including February 4, 1950, struck and whipped Hilbert Eugene Fisher with a wood ruler and stick and thereby caused his death on February 8, 1950.

It is said that there was error in not sustaining a motion of defendant made before the commencement of the trial to quash the jury panel. The basis of the motion was that after the members of the jury panel were in North Platte attending court and shortly before the commencement of the trial there was published in a daily paper of that city a statement made by the county attorney of the county and read by the jurors when they knew the trial of the case was about to begin to the effect that: 'A coroner's jury * * * rendered the decision that 'Hilbert Eugene Fisher came to his death as the result of most inhuman beating administered by his mother, Bertrude (Gertrude) I. Fisher, during the past several months, hastened by malnutrition''; that a similar statement was published in an Omaha daily paper circulated in North Platte the day before the trial began; that there were many other partly untrue, misleading, inflaming, sensational, and prejudicial statements published in a North Platte daily paper and circulated throughout Lincoln County during more than a month before the trial; and that they contained statements said to be facts indicating the guilt of the defendant of causing the death of her child by inhuman beating and starvation. Many of the publications complained of were offered in support of the motion and appear in the record.

There is no proof that any juror read, knew the contents of, was influenced by, or prejudiced against the defendant because of any of these publications. The claim of error is predicated on an assumption that the jurors read the matters published and were influenced, prejudiced, and disqualified thereby. This assignment is wholly unsupported. Opportunity for prejudice or disqualification is not sufficient to raise a presumption that they exist. Sec. 29-2006, R.R.S.1943; Ringer v. State, 114 Neb. 404, 207 N.W. 928; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021.

The reception in evidence against objection of defendant of pictures of the body of the deceased taken after death and their reproduction on a screen during the trial in the presence of the jury are discussed in the brief of defendant as reason for reversal of her conviction. It is claimed they had no tendency to establish guilt or innocence, and that they were unusually ghastly and gruesome and were effective only to incite the emotions and inflame the passions of the jury to the prejudice of the defendant. This contention cannot be examined and determined because of the absence of objection to the ruling of the trial court in this regard in either the motion for a new trial, the petition in error, or the assignments of error in the brief of defendant. Luster v. State, 142 Neb. 253, 5 N.W.2d 705; Scavio v. State, 144 Neb. 881, 15 N.W.2d 50; Green v. State, 116 Neb. 635, 218 N.W. 432.

The sheriff and the deputy sheriff of Lincoln County and a member of the Nebraska Safety Patrol testified on the trial as witnesses for the State. Defendant complains that the court did not inform the jury of the rule of law that when any person employed to procure evidence against the accused testifies for the State, the jury should be instructed that in weighing the testimony of such witness it should exercise greater care and subject his testimony to closer scrutiny than in a case of a witness who is wholly disinterested. Sandage v. State, 61 Neb. 240, 85 N.W. 35, 87 Am.St.Rep. 457. Public officers are not generally within the class of persons to whom this rule is applicable. Barnes v. State, 124 Neb. 826, 248 N.W. 381. Defendant did not request such an instruction. It is not obligatory upon the court, in the absence of a request, to give a cautionary instruction of this character. Clark v. State, 151 Neb. 348, 37 N.W.2d 601.

Defendant put in issue her character by evidence of witnesses examined on her behalf that she was and had been a person of good reputation. The State did not attempt to dispute the proof in this particular. An instruction on this subject tendered by defendant was refused by the court, but the substance thereof, to the extent it was a correct statement of law, was included in the charge to the jury. This was permissible procedure. Smith v. State, 153 Neb. 308, 44 N.W.2d 497. The part of the instruction earnestly condemned by counsel for defendant is the following: '* * * when, after giving evidence of good character due weight, the proof still shows the accused to be guilty beyond a reasonable doubt, such evidence of good character is unavailing.' The instruction of the court in reference to the consideration the jury should give to evidence of good character of the defendant has been in all essential respects approved by this court (McDougal v. State, 105 Neb. 553, 181 N.W. 519) and by the courts of many other jurisdictions. Annotation, 68 A.L.R. 1068. A fault of the tendered instruction was the singling out and over-emphasis of the evidence of good character and the implication that it might, when considered by itself, be sufficient to create a reasonable doubt that would not otherwise exist. Evidence of good character should be considered by the jury, not by itself, but in connection with all the evidence in the case. Sweet v. State, 75 Neb. 263, 106 N.W. 31; State v. Dowell, 47 Idaho 457, 276 P. 39, 68 A.L.R. 1061. The court did not err in refusing the requested instruction. It properly instructed the jury in this regard.

Complaint is made of the failure of the trial court to instruct the jury as to the mental status of the defendant to the effect that if at the time of the act charged against her she was suffering an aberration of mind of a nature and to a degree that she was not conscious of her act and because thereof was unable to know whether the act charged against her was right or wrong, the jury should find her not guilty. It is said in her brief that it is not contended she was insane.

The law recognizes no form of insanity or...