Furst v. State

• Decision Date: 17 February 1891
• Parties: CHRISTIAN FURST v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

47 N.W. 1116

31 Neb. 403

CHRISTIAN FURST v. STATE OF NEBRASKA

Supreme Court of Nebraska

February 17, 1891

ERROR to the district court for Dodge county. Tried below before MARSHALL, J.

AFFIRMED.

C Hollenbeck, for plaintiff in error, cited, as to the confessions: Roscoe, Crim. Ev. [6th Am. Ed.], 39, 41-2, and cases cited; People v. Barric, 49 Cal. 342; State v. Fredericks, 85 Mo. 145; 3 Russell, Crimes [9th Am. Ed.], 376; Reg. v. Parker, L. & C. [Eng.], 42; People v. Wolcott, 51 Mich. 612; Morehead v State, 9 Humph. [Tenn.,] 635; Ulrich v. People, 39 Mich. 245; 3 Am. & Eng. Ency. Law, 464; Beggarly v State, 8 Baxt. [Tenn.], 520; Lacy v. State, 58 Ala. 385; Flagg v. People, 40 Mich. 706; Byrd v. State, 68 Ga. 661; Newman v. State, 49 Ala. 9; Owen v. State, 78 Id., 425. As to the defense of insanity: Wright v. People, 4 Neb. 408.

Wm. Leese, Attorney General, and Geo. L. Loomis, contra, cited, as to the form of the indictment: Bailey v. State, 4 Ohio St. 442; 1 Bishop, Crim. Proc. [3d Ed.], sec. 422; Glover v. State, 109 Ind. 391; Andrews v. People, 117 Ill. 195; Cox v. State, 80 N.Y. 500; Com. v. Hill, 10 Cush. [Mass.], 530; Com. v. Sullivan, 104 Mass. 552; 1 Bishop, Crim. Proc., sec. 454. As to the confessions: Rex. v. Harris, 1 Cox, C. C. [Eng. ], 106; Rex. v. Drew, 8 C. & P. [Eng.], 140; Rex. v. Morton, 2 M. & R. [Eng.], 514; Reg. v. Reeves, 5 Jur. N. S. [Eng.], 179; Reg. v. Baldry, 5 Cox C. C., 523; U. S. v. Stone, 8 F. 232, 256; Reg. v. Reason, 12 Cox, C. C. [Eng.], 228; State v. Staley, 14 Minn. 105, 113; Wharton, Crim. Law, secs. 651, 686, 687; Com. v. Whittemore, 11 Gray, 201; Com. v. Howe, 2 Allen [Mass.], 153: People v. Deacons, 109 N.Y. 374; People v. McCallam, 103 N.Y. 587; State v. Correck, 16 Nev. 120; State v. Patterson, 73 Mo. 695; Com. v. Morey, 1 Gray, [Mass.], 461, 462; Ulrich v. People, 39 Mich. 245; Rex. v. Green, 6 C. & P. [Eng.], 655; Fife v. Com., 29 Pa. 429, 437; Cady v. State, 44 Miss. 332, 341; Young v. State, 68 Ala. 575; State v. Patterson, 73 Mo. 696; State v. Branhan, 13 S. Car., 389; Runnels v. State, 28 Ark. 121; Squires v. State, 48 N. H., 364; Long v. State, 5 So. Rep., 443, 448; Brister v. State, 26 Ala. 107, 128; Com. v. Knapp, 9 Pick. [Mass.], 496, 511. As to the twenty-first paragraph of the instructions: Griswold v. State, 24 Wis. 144; Kelsey v. Bush, 2 Hill, 441; 3 Am. & Eng. Ency. Law, 491; Roberts v. Gee, 15 Barb. [N. Y.], 449; Rex. v. Jones, 2 C. & P. [Eng.], 629. As to the instruction asked on the question of insanity: Wright v. People, 4 Neb. 407, 409; Hawe v. State, 11 Id., 537; Hart v. State, 14 Id., 572, 577; Anderson. v. State, 25 Neb. 550; Hopps v. People, 31 Ill. 385.

OPINION

NORVAL, J.

The plaintiff in error and Charles Shepherd were jointly indicted for the murder of Carlos True Pulsifer on the 10th day of December, 1889.

The indictment contains three counts. The first count charges that the defendant and Charles Shepherd did purposely and of their deliberate and premeditated malice kill the deceased. The second and third counts charge that the killing was done in the attempt to perpetrate a robbery upon the said Pulsifer.

The plaintiff in error at his request was granted a separate trial. A verdict of murder in the first degree was returned, to reverse which the case is brought to this court.

Upon the trial the counsel for the defendant requested the court to require the county attorney to elect which count of the indictment he would rely upon. The motion was overruled and the defendant excepted. This ruling of the court is the first error assigned.

The indictment was framed under section 3 of the Criminal Code, which provides that "If any person shall purposely and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kill another; or, if any person, by willful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction and execution of any innocent person, every person so offending shall be deemed guilty of murder in the first degree and upon conviction thereof shall suffer death."

Where the killing is done purposely and with premeditation and deliberation, the crime is murder in the first degree. So where a person intentionally takes the life of another in the perpetration or attempt to perpetrate a robbery the statute makes the killing murder in the first degree, although the robbery and not the killing was previously planned. ( Stephens v. State, 42 Ohio St. 150.) It is obvious that but one offense is charged in the indictment, the murder of Pulsifer. Election is only required where separate and distinct offenses, not part of the same transaction, are charged in the same information or indictment. (Bailey v. State, 4 Ohio St. 440.)

The rule which governs the framing of an indictment for the crime of murder is correctly stated by our brother Maxwell in note 7, on page 53 of his work on Criminal Procedure, thus: "In case of murder it may be charged in separate counts of the indictment, that the murder was committed by shooting, stabbing, drowning, etc. This is permitted in order to anticipate any possible variance in the proof. But one offense is charged, the murder of the person named, and if the proof shows the accused to be guilty of committing the act in any of the ways named, it will be the jury's duty to convict." This rule is fully sustained by the text-books and decisions. (1 Bishop, Crim. Proc., sec. 422 et seq.; Glover v. State, 109 Ind. 391, 10 N.E. 282; Andrews v. People, 117 Ill. 195, 7 N.E. 265; Cox v. State, 80 N.Y. 500.) The prosecution was not obliged to elect which count it would rely upon.

Error is alleged in the admission in evidence of the confessions of the defendant. The evidence shows that he was arrested on Thursday following the murder, by Jim Booth and several other citizens, about two and a half miles northwest of Crowell. The arrest was made by pointing two or three guns at the defendant and ordering him to throw up his hands. The accused at the time was somewhat frightened. After his revolver was taken from him he was taken to Crowell in a two-seated spring wagon, in which C. W. Robinson, Jim Booth, and Tom Arthur were riding. These persons were carrying their guns. After going a short distance, James Goulder got in with them and went along. On the way Goulder said to the defendant, "Well, Chris, I am surprised you are in this business. Shepherd has told us where we would find you and told us about it. You might as well confess." The defendant remained silent a while, then without any threats or demonstrations of any kind being made by any one, and without the promise of any favor or benefit being held out to the defendant, he confessed that he and Charles Shepherd fired the shots that killed Pulsifer; that "we did not intend killing him, but as we ordered him to throw up his hands he reached in his pocket and we thought he was going to shoot, and we fired." Several witnesses testify to the same statement of the defendant. It also appears in testimony that at different times and places afterward the defendant, without any inducement being held out to him, made substantially the same confession, only going into the details more fully.

This court in Heldt v. State, 20 Neb. 492, 30 N.W. 626, in discussing the rule which governs the admission of confessions, says that "The rule is well settled that a promise of benefit or favor, or a threat or intimation of disfavor connected with the subject of the charge, held out by a person having authority in the matter will be sufficient to exclude a confession made in consequence of such inducement, either of hope or fear. * * * But mere advice to tell the truth, where there is neither a threat or an inducement, is not sufficient to render the confession inadmissible. To be admissible, however, it must appear that the confession was entirely voluntary."

Tested by the above rule, the confessions were properly admitted. Goulder did not assist in making the arrest. He was an acquaintance of the accused. The defendant was not prompted to make the statements he did by any threat, promise, or expectation of hopes or favor. No inducement was held out to him to make an untrue statement. The defendant, with minuteness and particularity, told the route he and Shepherd traveled in going to the place where Pulsifer was killed, the manner of the killing, the number of shots fired, the robbing of the body of the deceased, the direction the two went after the tragedy, and the places at which they stopped until arrested. His statements in most respects are in harmony and consistent with the other testimony introduced by the state.

Objection is made to the twenty-first paragraph of the instructions, which reads: "The jury are instructed that if from the evidence they believe that the defendant made the confession given in evidence in this case, the jury should treat and consider such confession precisely as they would any other evidence or testimony, and hence if the jury believe the whole confession to be true, they should act upon the whole as true. But the jury may believe part of the confession and reject the balance, if they see sufficient grounds in the evidence for so doing; the jury are at liberty to judge of it, like other evidence, in view of the circumstances of the case as disclosed by the evidence."

The court also refused to give the following instruction requested by the defendant: "The state having put in evidence the confessions of the defendant, such confessions become a part of the evidence on the part of the state and every part of such confessions is entitled to equal credence and it is your duty to treat...