Hoover v. State
| Decision Date | 21 April 1896 |
| Docket Number | 8285 |
| Parties | CLAUDE H. HOOVER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SCOTT, J.
AFFIRMED.
James A. Powers and M. C. Acheson, for plaintiff in error:
The plea in abatement was based on the fact that in the original complaint, which was type-written and upon which Hoover was bound over to the district court, the word "purposely" was interlined in some person's handwriting. An evident alteration of an instrument is generally presumed to have been made after the execution thereof. (Parsons, Contracts [7th ed.], sec. 722.)
If the alteration is noted, or if it appears in the same handwriting and ink as the body of the instrument, it may suffice to relieve against suspicion. (2 Greenleaf, Evidence [14th ed.] 564; Master v. Miller, Smith's Leading Cases [Am. ed.] part 2, 1315; Lewis v. State, 15 Neb. 90.)
A magistrate has no right to alter an information without consent. The word "purposely" was not properly a part of the complaint. The complaint being the foundation of the information, the county attorney could not insert in the latter the word "purposely." Accused cannot be tried for a higher offense than that charged in the complaint, and on which he has had a preliminary hearing. (Wright v. State, 45 Neb. 45; White v State, 28 Neb. 341; Alderman v. State, 24 Neb. 101.)
When the complaint differs from the information, a plea in abatement is proper instead of a motion to quash. (Cowan v. State, 22 Neb. 519; Hill v. State, 42 Neb 511; Coffield v. State, 44 Neb. 421; Agnew v. Dubois, 8 W. N. C. [Pa.], 406; Gesser v. Braunfeld, 13 W. N. C. [Pa.], 209; Commissioners v. Desmartean, 16 Gray [Mass.], 16; Commonwealth v. Fagan, 15 Gray [Mass.], 194; Wharton, Criminal Pleading & Practice, 277.)
Upon the type-written complaint the accused could only be held for manslaughter. (Simmerman v. State, 14 Neb. 568.)
An essential word to raise the grade to murder is interlined, and the presumption is that the interlineation was unauthorized. (Lawson, Presumptive Evidence [ed. 1886], 390.)
The motion for a continuance should have been granted. It was based on affidavit that accused could not have a fair and impartial trial, owing to the recent date the crime was alleged to have been committed and on account of the exaggerated and sensational articles which appeared in the newspapers and inflamed the prejudices against accused.
Non-expert witnesses may give opinions as to sanity or insanity. (Schlencker v. State, 9 Neb. 251; Clark v. State, 12 O., 483; Pflueger v. State, 46 Neb. 493; Polin v. State, 14 Neb. 546; Connecticut Mutual Ins. Co. v. Lathrop, 111 U.S. 620; Burgo v. State, 26 Neb. 643; State v. Klinger, 46 Mo. 224.)
The action of the trial court in requiring witnesses--the sister and half-sister of the defendant--to remove from accused's side, by saying in a loud voice, in the presence of the jury, was misconduct of the court, and prejudicial to the rights of the accused. (Bowman v. State, 19 Neb. 526; Carr v. State, 23 Neb. 764; Wheeler v. Wallace, 53 Mich. 357; Cronkhite v. Dickerson, 51 Mich. 177; Skelly v. Boland, 78 Ill. 438; Hair v. Little, 28 Ala. 249; McDuff v. Detroit Evening Journal, 47 N.W. [Mich.], 671.)
It was error to permit argument to be made while the judge was absent from the court room. (Gravely v. State, 38 Neb. 871.)
The want of an exception does not necessarily deprive the prisoner of his right to a new trial for errors prejudicial to him. (Thompson v. People, 4 Neb. 524; Schlencker v. State, 9 Neb. 302.)
It was prejudicial error for the county attorney to go outside the record in his argument to the jury.
A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, for the state:
The crime of murder in the first degree can be charged without using the statutory language in the information. An act is done purposely when it is the direct result of the action of the will. If one, therefore, is charged intentionally, designedly, or willfully with the commission of some act, he is charged the same as though the act had been purposely done. For definition of the word "purposely," see Standard Dictionary; Anderson's Law Dictionary; Fahnestock v. State, 23 Ind. 262; Whitman v. State, 17 Neb. 224; Haunstine v. State, 31 Neb. 112.
The information, as well as the complaint, charged the crime of murder in the first degree without the use of the word "purposely." Section 309 of the Code of Criminal Procedure authorizes the magistrate to bind a prisoner to the district court for a higher offense than that charged where it appears to the magistrate that a higher offense has been committed.
The motion for a continuance was addressed to the sound discretion of the trial court, and there is no showing that such discretion was abused. (Smith v. State, 4 Neb. 286; Burrell v. State, 25 Neb. 581; Williams v. State, 6 Neb. 335; State v. Thatch, 5 Neb. 94; Stoppert v. Nierle, 45 Neb. 106; Clark v. Carey, 41 Neb. 780; Home Fire Ins. Co. v. Murray, 40 Neb. 601; Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 282; McDonald v. McAllister, 32 Neb. 514; Ingalls v. Nobles, 14 Neb. 272; Singer Mfg. Co. v. McAllister, 22 Neb. 359; Billings v. McCoy, 5 Neb. 187.)
Public excitement is usually deemed an insufficient ground for continuance where the statute authorizes a preliminary examination of and challenge to the jury, or where a change of venue is allowed by statute. (4 Encyclopedia, Pleading & Practice, 832; Ballard v. State, 31 Fla. 267.)
All facts necessary to show a clear abuse of discretion of the court to the injury of the accused must be presented, and where the record is silent or uncertain the presumptions are in favor of the correctness of the ruling. (Barber v. State, 13 Fla. 675; McNealy v. State, 17 Fla. 198; Newberry v. State, 26 Fla. 334; Garner v. State, 28 Fla. 113; Joyce v. Commonwealth, 78 Va. 287; Baw v. State, 24 S.W. [Tex.], 293; State v. Hawkins, 18 Ore., 476; Poole v. State, 18 Ga. 567; Thompson v. State, 24 Ga. 303; Johnson v. State, 48 Ga. 118; Stevens v. State, 93 Ga. 307; John v. State, 1 Head [Tenn.], 49; Porter v. State, 3 Lee [Tenn.], 496; King v. State, 91 Tenn. 617.)
Before a non-expert witness is permitted to give an opinion upon the question of sanity or insanity, he must first state the facts upon which such opinion is founded; otherwise it would be a mere substitution of non-expert opinion for facts. Tested by this rule, the testimony offered was incompetent. We have gone into this subject at some length because this court has, as in the recent case of Pflueger v. State, 46 Neb. 493, cited with apparent approval the case of State v. Lewis, 22 P. [Nev.], 241, in which the doctrine is announced that "witnesses who are not experts may testify to their belief as to the sanity or insanity of the accused without giving the facts upon which their belief is based."
Where a question is propounded to a witness to which an objection is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced and have it made a part of the record. (Mordhorst v. Nebraska Telephone Co., 28 Neb. 610; Mathews v. State, 19 Neb. 330; Fosbinder v. Svitak, 16 Neb. 499; Masters v. Marsh, 19 Neb. 458; Yates v. Kinney, 25 Neb. 120; Hamilton v. Ross, 23 Neb. 630; Sellars v. Foster, 27 Neb. 119; Burns v. City of Fairmont, 28 Neb. 866; German Ins. Co. v. Hyman, 34 Neb. 704; Roach v. Hawkinson, 34 Neb. 658; Berneker v. State, 40 Neb. 810; Omaha Fire Ins. Co. v. Berg, 44 Neb. 522; Alter v. Covey, 45 Neb. 508.)
There is a presumption that jurors are men of sufficient intelligence to understand that their verdict must be based on the evidence adduced on the trial and the law as given in the instructions of the court. (State v. Jackson, 17 S.E. [N. Car.], 149; State v. Dusenberry, 20 S.W. [Mo.], 461.)
The alleged irregularity relating to the removal of witnesses was one of the incidents of the trial in preserving proper order in court. (Debney v. State, 45 Neb. 856; McMahon v. State, 46 Neb. 166; Lindsay v. State, 46 Neb. 177.)
The contention based on the absence of the judge during a portion of the argument cannot be examined. Assignments of error, to be considered by the supreme court, must have been presented to and overruled by the trial court. (Tecumseh Town Site Case, 3 Neb. 267; Thurman v. State, 32 Neb. 224; Coombs v....
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