Flege v. State
| Decision Date | 17 May 1913 |
| Docket Number | 17,608 |
| Citation | 142 N.W. 276,93 Neb. 610 |
| Parties | WILHELM FLEGE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Thurston county: GUY T. GRAVES JUDGE. Reversed.
REVERSED.
J. J McCarthy and Berry & Berry, for plaintiff in error.
Grant G. Martin, Attorney General, Frank E. Edgerton and C. A Kingsbury, contra.
OPINION
This is the second time this case has been presented to this court. The opinion upon the former hearing is reported in 90 Neb. 390, where the material facts presented by the evidence on the part of the state are quite fully stated, and need not be here repeated. After the cause was remanded to the district court, the venue was changed to Thurston county, where a trial was had, and the cause submitted to the jury on practically the same evidence on the part of the state as at the former trial. The jury returned a verdict finding plaintiff in error, who will hereafter be referred to as defendant, guilty of manslaughter, when the indeterminate sentence of the law was pronounced against him. He brings error to this court, assigning 290 alleged errors of the district court in connection with the proceedings and trial. The assignments are specific, and many are well founded, but it will be impossible for us to discuss them without extending this opinion to an unnecessary and unreasonable length. Particular attention can be given to comparatively few of them.
It appears from the record, and, as shown by our former opinion, that the principal witness on the part of the state, one Albert Eichtencamp, who testified to having seen defendant kill his sister, Louise Flege, had testified to a different state of facts at the coroner's inquest, the effect of which was the complete exoneration of defendant. While the witness was never arrested nor charged in any legal proceeding with the commission of the crime, there appears to have arisen a known suspicion on the part of some that he might be the guilty party. He and his relatives employed an attorney to assist in the prosecution of defendant at the preliminary trial and upon the former trial in the district court, evidently under the belief that the conviction of defendant would remove all suspicion from Eichtencamp. The attorney appeared and took an active part in the prosecution at the two trials, and was paid for his services by Eichtencamp and his relatives. After the cause was removed to Thurston county, the state was represented by the county attorney of Dixon county and the county attorney of Thurston county, when application was made to the court for the appointment of Eichtencamp's former attorney to assist the two county attorneys in the prosecution of the case in the approaching trial. The application was resisted upon the ground that the attorney's former employment as a private prosecutor, employed by Eichtencamp, rendered him an improper person to have charge, or any part, in the prosecution, the purpose of which was for the protection of Eichtencamp. The attorney was called to the stand, and candidly stated his relations with Eichtencamp, which continued up to the close of the former trial, which resulted in the conviction of defendant. The objection of defendant was overruled, the appointment made, and the attorney entered upon and took an active part throughout the trial, making, to say the least, a vigorous argument to the jury, which in some respects we cannot approve. While we intend no personal reflections upon the attorney, yet we do not hesitate to say that the appointment should not have been made, and that it was prejudicial error to make it. It is impossible to conceive of an attorney, after having served Eichtencamp as he had, and for the purpose for which he had been employed, to enter upon the trial with the single purpose of impartially seeking to know the truth, protecting the rights of defendant, and seeing that they were maintained, if need be, at all hazards. Not only this court, but all courts, have so clearly stated the judicial duties of a public prosecutor as to leave no room for doubt as to the entire impartial attitude of a prosecutor, so as to leave no room for question upon this point. In Liniger v. State, 85 Neb. 98, 122 N.W. 705, we said: "Public prosecutors and peace officers owe no greater obligation to the public than to a defendant charged with crime, and they should as zealously protect the one as the other." This being true and maintained by all courts, it must appear to the mind at once that the appointment of a partisan special prosecutor was not in the interest of the fair and impartial trial guaranteed by the constitution. The obligation of an attorney to his client, when once employed in a particular case or matter, can never be shaken off. It is a perpetual obligation which abides to the end of life, unless, in a proper case, waived by the client. With this obligation resting upon the memory of a conscientious lawyer, as the appointee, no doubt, was and is, it would be impossible for him to forget his sworn duty to his former client, and there would be a constant inclination to ask of himself, We are forced to the conclusion that no honest and conscientious attorney could be able, nor should he, if he could, withstand such an appeal.
Error is assigned upon the ruling of the court wherein certain jurors were challenged for cause while being examined upon their voir dire as to their competency and qualification as such jurors. John D. Girardot was called as a proposed juror. His examination is of too great length to be set out in full. He testified that he had read of the case from the time of the murder to the time of being called as a juror, and had in the meantime conversed with his family and others about it; that he was "real certain" that he had formed an opinion as to the guilt or innocence of the defendant; that probably it was more of an impression than an opinion; that, if selected as a juror, he would try to give the defendant a fair and impartial trial; that the reports which he read in the newspapers published the testimony of the witnesses, all of which he read, consisting of a couple of columns each day, and upon which he formed an opinion, which he yet retained, and which would take strong evidence to remove; that he could not lay aside that opinion without some reason for it and evidence to cause the change; that he was afraid he could not lay that opinion aside until he had some evidence to change it. " The juror was challenged for cause, the challenge overruled, and the juror excused on defendant's peremptory challenge.
August Lindgrand, another proposed juror, testified that he had read the published testimony of the witnesses who were examined at the former trial "from beginning to the end," and upon that evidence he formed an opinion as to the guilt or innocence of the defendant; that he had never changed that opinion; that it would take considerable evidence to change it, as it was a fixed opinion; that he would have to have "a pretty good reason" for changing his mind. He was challenged for cause, the challenge overruled, and the juror excused on a peremptory challenge.
J. W. Twyford, another proposed juror, testified that he read the Sioux City Journal, which published daily reports of the evidence and the testimony of the witnesses at the former trial, which he read, and upon which he formed an opinion of the guilt or innocence of the defendant, and which he would not change until he had some reason for changing it. He was challenged for cause by the defendant, the challenge overruled, and the juror excused on defendant's peremptory challenge.
Wilson W. Waters, upon his examination, testified that he had read the reports of the former trial and the testimony of the witnesses in the Sioux City Journal, on which he formed an opinion as to the guilt or innocence of the defendant; that he retained that opinion, could not change it without having some reason to change it, certainly would not; that in his present state of mind, if retained as a juror, if no evidence was introduced his verdict would be guilty, resting upon the opinion which he then had, and would continue to believe him guilty until he had sufficient evidence to change his mind, which he could not do until he had evidence to cause the change. The defendant's challenge for cause was overruled, the juror retained, and he signed the verdict of the jury as foreman.
Thomas Conley, examined on his voir dire, testified that during the former trial the testimony of the witnesses was published in the papers, and that he read the testimony, and upon that he formed an opinion as to the guilt or innocence of the defendant, deciding the case in his own mind; that he had never had any occasion to change his mind since that time, and had that opinion still; that it was a definite opinion to a certain extent; that he could not lay that opinion aside before hearing the evidence; that it would be impossible to divest himself of that opinion without hearing the evidence; that, if accepted as a juror, he would enter upon his duties with that opinion in his mind, and it would require evidence to remove it. The juror was challenged for cause, the challenge overruled, and he was excused on defendant's peremptory challenge.
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