Hill v. State

• Decision Date: 08 November 1894
• Citation: 42 Neb. 503,60 N.W. 916
• Parties: HILL v. STATE.
• Court: Nebraska Supreme Court

42 Neb. 503

60 N.W. 916

HILL

v.STATE.

Supreme Court of Nebraska.

Nov. 8, 1894.

Syllabus by the Court.

1. In one count of the information for murder the accused was charged with having purposely and of his deliberate and premeditated malice killed the deceased, and in two other counts the killing is alleged to have been done in an attempt to rob the deceased. Held to charge but one offense, and a motion to require the state to elect between the several counts of the information was properly overruled. Furst v. State, 47 N. W. 1116, 31 Neb. 403.

2. The law does not distinguish between principals of the first and second degree; hence all persons who, being present, aid, assist, or abet in the commission of a felony may be prosecuted as principals.

3. Objection by an accused on the ground that there has been no preliminary examination for the crime charged should be by a plea in abatement. Cowan v. State, 35 N. W. 405, 22 Neb. 519.

4. Complaint upon which the accused was committed examined, and held to state the crime charged in the information filed in the district court.

5. In reviewing the rulings of the trial court receiving and rejecting evidence, this court will confine its examination to the objections made at the trial. Schlencker v. State, 1 N. W. 857, 9 Neb. 241.

6. The provision of the Criminal Code making conscientious scruples of a juror against capital punishment ground of challenge for cause in prosecutions for murder was not repealed by the amendment of 1893, conferring upon the jury discretion to fix the punishment upon conviction for murder in the first degree at imprisonment for life, instead of the death penalty.

7. Affidavits after verdict contradicting the answers of a juror on his voir dire examination, for the purpose of providing disqualification on account of prejudice against the unsuccessful party, should be received with caution, and when contradicted an order denying a new trial will not be reversed on appeal.

8. Proof of voluntary intoxication is admissible in prosecutions for murder in the first degree, not to excuse the crime charged, but as a circumstance tending to show that the killing was not the deliberate and premeditated act of the prisoner. Where, however, continued drunkenness has produced such a condition of insanity or imbecility as would relieve from responsibility for criminal acts if produced by any other cause, such condition may be shown as a defense, and the fact that it was caused by voluntary drunkenness is immaterial.

9. The limits within which cross-examination will be allowed respecting the past life of a witness other than the defendant in a criminal prosecution, for the purpose of affecting his credibility, rests in the discretion of the trial court. Accordingly, held not error to permit a witness for the defendant to be asked on cross-examination if he had been arrested for vagrancy, drunkenness, and other misdemeanors.

10. A judgment will not be reversed because the trial court in a prosecution for murder has, in charging the jury, assumed material facts as proved, where it is clearly shown by the record that they were admitted by the prisoner at the trial or treated by him as proved.

11. The trial court should avoid the giving of undue prominence to a particular proposition by frequent repetitions thereof in charging the jury. But a violation of that rule in a criminal prosecution is not of itself reversible error, where it is apparent that there was no controversy respecting the proposition stated, and where it is clear that it did not have the effect to exclude from the consideration of the jury other propositions stated by the court.

12. Where, in a criminal case, the trial court has correctly charged upon all of the questions presented at the trial, the fact that a single proposition might have been stated with greater precision in a single paragraph is no ground for reversal, particularly where the instructions given are a substantial compliance with the requests presented by the prisoner.

13. It is not essential to the crime of robbery that the property be taken from the body of the person robbed. It is sufficient if taken from his personal presence or personal protection.

14. Abuse of privilege by counsel in addressing the jury, to be available on appeal, must be excepted to at the time. McLain v. State, 24 N. W. 720, 18 Neb. 154.

15. But that rule has no application to the trial court. It is the duty of the presiding judge, whether so requested or not, to protect the court by an enforcement of the rules essential to an orderly and impartial administration of the law. And should an attorney persist in attempting to influence the jury by reference to facts not in evidence, or appeals to prejudice unwarranted by the proofs, the court should not hesitate on motion to set aside a verdict in his favor, although no objection may have been interposed when the offense was committed.

16. Evidence examined, and held to sustain the verdict of murder in the first degree, and to warrant the extreme penalty imposed by the jury.

Error to district court, Cass county; Chapman, Judge.

Harry Hill was convicted of murder in the first degree, and brings error. Affirmed.Matthew Gering, for plaintiff in error.

H. D. Travis and Geo. H. Hastings, Atty. Gen., for the State.

POST, J.

The plaintiff in error was at the December, 1893, term of the district court for Cass county convicted of murder in the first degree, the penalty fixed by the jury being death by execution, and which he now seeks to reverse by means of a petition in error addressed to this court.

1. In the first count of the information the plaintiff in error and one Benwell were jointly charged with killing the deceased, Mat Akeson, purposely, and of their deliberate and premeditated malice. In the second count the plaintiff in error is charged with murder while engaged with Benwell, his codefendant, in an attempt to rob the deceased. And in a third count both defendants are charged with murder while attempting to rob the deceased. The plaintiff in error moved to quash the information, assigning as grounds therefor in his motion: First. That the information charges two distinct and separate causes under the laws of this state. Second. Because said information charges separate and distinct offenses under the laws of this state. Third. Because such information charges the defendant with the crime of aiding and abetting in the commission of a murder in the first degree, and that no such offense is known to the laws of this state, and that the defendant was not given a preliminary hearing upon the charge contained in the information. Fourth. That the information is not verified, as required by law. Fifth. That the information charges different crimes than set out in the complaint. The motion to quash having been overruled, an exception was taken by the plaintiff in error, and which is the ruling first complained of. The first and second reasons assigned in the motion are substantially the same, and will be considered together. The offense charged in the several counts of the information is evidently the same, viz. the felonious killing of the deceased, Mat Akeson. It is in such cases permissible for the state to charge the offense in different forms, in order to anticipate any variance between the allegations and the proofs. That question was fully considered by this court in Furst v. State, 31 Neb. 403, 47 N. W. 1116, and the conclusion therein reached must be regarded as decisive in this case.

2. To the third ground of objection to the information, a sufficient answer is that the plaintiff in error is not charged as an accessory. It is in each count alleged that he was present at the time of the assault, and personally inflicted upon the deceased a mortal wound, from which the deceased “then and there died.” Section 1 of our Criminal Code is declaratory merely of the common-law rule by which an accessory before the fact is defined as one who aids, abets, procures, or commands another to commit a felony in his absence. 1 Russ. Crimes, *p. 49; Steph. Dig. Crim. Law, 24. Those who, being present, aided and abetted in the commission of a felony, were principals in the second degree. Walrath v. State, 8 Neb. 80. We cannot construe the information as charging the plaintiff in error with the mere aiding and abetting in the killing of Akeson. But, granting such to have been the intention of the pleader, the effect is the same, since the law does not distinguish between principals in the first and second degree. 2 Bish. Crim. Proc. 3.

3. The next ground relied upon is that the crime charged in the information is not the one named in the complaint, and for which the plaintiff in error was held to answer. That question, it was said in Cowan v. State, 22 Neb. 519, 35 N. W. 405, should be raised by a plea in abatement, and not by motion to quash. But in view of the gravity of the issues here presented, we have examined the record of the magistrate, and find that two complaints were lodged with him, in one of which both defendants are charged as principals, and in the other each is charged as principal, with the other as present, aiding and assisting, and evidently referring to the crime charged in the information. It follows that no sufficient ground was alleged for the quashing of the information, and that the court did not err in overruling the motion.

4. It is next claimed that the court erred in refusing to require the state to elect between the several counts of the information. That claim is, however, without merit, since, as we have seen, there is but one crime charged. It is only when separate and distinct offenses growing out of different transactions are charged in the same indictment that the state will be required to elect. Furst v. State, supra; Alderman v. State, 24 Neb. 97, 38 N. W. 36;Aiken v. State (Neb.) 59 N. W. 888.

5. At the request of the plaintiff in error, he was allowed a...