Gravely v. State

Citation45 Neb. 878,64 N.W. 452
PartiesGRAVELY v. STATE.
Decision Date01 October 1895
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Inasmuch as the statute does not prescribe the order in which peremptory challenges to jurors shall be taken by the accused and state respectively, the order in which the right to challenge shall be exercised is left to the sound discretion of the trial court, and its decision upon that point will not be disturbed, unless it clearly appears that there has been an abuse of discretion prejudicial to the party complaining. Rule applied.

2. Instructions, given or refused, will not be reviewed where no exception is taken in the trial.

3. In a trial for murder it is competent for the state to adduce evidence against the defendant tending to show a motive for the homicide.

4. Held, that the evidence sustains a verdict for manslaughter.

Error to district court, Lancaster county; Strode, Judge.

Green S. Gravely was convicted of manslaughter, and brings error. Affirmed.Cobb & Harvey and W. B. Price, for plaintiff in error.

A. S. Churchill, Atty. Gen., for the State.

NORVAL, C. J.

The plaintiff in error was charged with murder in the first degree, in the district court of Lancaster county. He was convicted of the crime of murder in the second degree, which judgment was reversed by this court at the January, 1894, term, the opinion in the case being reported in 38 Neb. 871, 57 N. W. 751. On the second trial the plaintiff in error was found guilty of manslaughter, and sentenced to a term of nine years in the penitentiary. This last judgment he seeks to reverse by this proceeding. Four grounds are relied upon by the counsel for the prisoner for a new trial, which we will consider in the order presented in the briefs.

The first objection is predicated upon the ruling of the trial court to the effect that by the accused's waiving his eleventh peremptory challenge he thereby waived his remaining challenges. The record before us discloses that the court below, as well as the county attorney and the counsel for the defendant, at the commencement of the selection of the jury in this case entertained the erroneous opinion that the statute gave to the state eight peremptory challenges instead of six. The challenging of the jurors was commenced upon the theory that the defense has sixteen peremptory challenges and the state eight, and under this misapprehension as to the law the state was required to and did exercise one peremptory challenge, followed by two challenges for the defense, and then the state one and the defense two. On this mode five challenges were exhausted by the state and by the accused ten, when it was discovered that the statute only allowed the state six peremptory challenges. Thereupon the trial court directed the defendant to avail himself of his six remaining challenges, if he so desired, giving to the state the last challenge. The defendant then waived his eleventh challenge, and the court held, and so informed counsel in advance, that by so doing he waived his other five challenges. It is for this decision and ruling that a reversal of the judgment is asked. By section 467 of the Criminal Code, on the trial of a person for a crime punishable with death the accused is authorized to peremptorily challenge but sixteen jurors, and the prosecuting attorney six. While the statute prescribes the number of challenges, it contains no provision as to the order in which the right shall be exercised by the state or by the prisoner. This being true, it is clear that the course of proceeding in regard to peremptory challenges is left to the sound discretion of the trial court, and its decision in that regard is no cause for disturbing the verdict, unless it is clearly made to appear that there has been an abuse of discretion. Upon this point the authorities are harmonious, and fully sustain our conclusion. 1 Thomp. Trials, § 94; Com. v. Piper, 120 Mass. 185; Turpin v. State, 2 Cr. Law Mag. 532; State v. Pike, 49 N. H. 399;State v. Pierce, 8 Iowa, 231;Schuffin v. State, 20 Ohio St. 233. While the statute fails to prescribe the order in which challenges to jurors shall be made, manifestly the legislature never contemplated that the state should exhaust all its peremptory challenges before the defense is called upon to challenge, or that the accused should first take all his peremptory challenges. The more fair and equitable rule is the one adopted in this case. The waiver by the plaintiff in error of his eleventh challenge was a waiver of his remaining five challenges, and counts against him as though he had actually made them.

The second ground argued for a reversal is based upon the refusal of the trial court to give the defendant's sixteenth instruction, which reads as follows: (16) The character of the defendant is not in issue in this case, but you are instructed that the law presumes that he has a good character until he himself puts it in issue, and then, and only then, can the state offer evidence of his bad character. Therefore you are instructed that you are to presume that the defendant has a good character, as he has not put it in issue.” We cannot review the foregoing request to charge, for more than one reason. In the first place, no exception in the trial court was taken to the refusal to give this instruction. By a long line of decisions it has been held that such exceptions are indispensable to a review of the action of the trial court upon the giving or refusing of instructions. Heldt v. State, 20 Neb. 499, 30 N. W. 626;Carleton v. State (Neb.) 61 N. W. 699;Warrick v. Rounds, 17 Neb. 415, 22 N. W. 785;Nyce v. Shaffer, 20 Neb. 509, 30 N. W. 943;Levi v. Fred, 38 Neb. 504, 57 N. W. 386;City of Chadron v. Glover, 43 Neb. 732, 62 N. W. 62;Bloedel v. Zimmerman (Neb.) 60 N. W. 6;Barr v. City of Omaha (Neb.) 60 N. W. 591. Again, the assignment of error as to the refusing of this instruction is insufficient. The accused requested 16 instructions, numbered from 1 to 16, inclusive, all of which the court below declined to give to the jury, and such refusal is assigned as error; the assignment in the petition in error, as well as in a motion for a new trial, being that the court erred in not giving the entire 16 instructions asked. That such an assignment is bad, unless each of the instructions in the group was proper, and should have been given, is no longer an open question in this court. Hiatt v. Kinkaid, 40 Neb. 178, 58 N. W. 700;McDonald v. Bowman, 40 Neb. 269, 58 N. W. 704;Jenkins v. Mitchell, 40 Neb. 664, 59 N. W. 90;Murphy v. Gould, 40 Neb....

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