Hoover v. State

• Decision Date: 21 April 1896
• Citation: 66 N.W. 1117,48 Neb. 184
• Parties: HOOVER v. STATE.
• Court: Nebraska Supreme Court

48 Neb. 184

66 N.W. 1117

HOOVER

v.STATE.

Supreme Court of Nebraska.

April 21, 1896.

Syllabus by the Court.

1. There must, to show prejudicial error, be made to appear something more than that, within three weeks after a homicide had been committed, there was a conviction of the accused, in respect to such homicide, of the crime of murder. Irvine and Ragan, CC., dissenting.

2. There is necessarily vested in the district court a considerable discretion as to overruling an application for a continuance in a criminal case, and, to a reversal of the ruling in denial of such an application, such application must contain something more than the affidavits of the prisoner and his counsel, in general terms, that there exists, in the county wherein the trial must take place, a great deal of excitement.

3. From the mere fact that the word “purposely” was interlined with a pen in a typewritten information upon which a preliminary examination was had, it is not a necessary inference that the interlineation was made after or during the preliminary examination, and a plea in abatement sustained only by such assumption was properly overruled in the district court.

4. Nonexpert witnesses can be permitted to express an opinion as to the sanity or insanity of a person, only when they have shown other sufficient qualifications, and have stated the facts and circumstances upon which their opinion of such mental condition is based.

5. There is no presumption that the district judge, without sufficient justification, required witnesses, though relations of the prisoner, to leave the immediate vicinity of the accused during the progress of the trial; neither does the mere fact that this was done in an unusual manner justify the assumption that thereby prejudice resulted.

6. Where a prosecuting attorney referred to facts not in evidence, and, upon objection that the statements were unwarranted by the evidence, the district court instructed the jury to disregard such statements, there was left no ground for complaint, for the reason that the court, when appealed to, granted all the relief prayed for.

7. The verdict is sustained by ample evidence, which was uncontradicted, and the judgment of the district court thereon is affirmed.

Error to district court, Douglas county; Scott, Judge.

Claude H. Hoover was convicted of murder, and brings error. Affirmed.James A. Powers and M. C. Acheson, for plaintiff in error.

A. S. Churchill, Atty. Gen., and George A. Day, Dep. Atty. Gen., for the State.

RYAN, C.

Plaintiff in error was convicted of murder in the first degree in the district court of Douglas county. The information was filed December 24, 1895, and charged, in appropriate language, that the plaintiff in error, on December 13, 1895, had murdered Samuel Du Bois in said county. A plea in abatement was overruled on December 26, 1895, and on the same day there was an arraignment, and a plea of not guilty. On the day following, the trial began, was continued on the 28th, and on the 29th there was a verdict, as above indicated. A motion for a new trial was overruled on December 30th, and on January 3, 1896, sentence was pronounced that Claude H. Hoover, on April 17, 1896, suffer death by hanging.

Just before his death, the business of Samuel Du Bois was repairing elevators. In his employ were Kate Brophy, and Claude H. Hoover. In her testimony, Miss Brophy describes herself as a half-sister of Hoover and a half-sister of the widow of Samuel Du Bois. In the record the relationship of the parties is not stated with more fullness, and, indeed, no more definite information is necessary, for this enables us to understand why Hoover should feel authorized to talk as he did to Miss Brophy. Between the hours of 1 and 2 o'clock on the afternoon of December 13, 1895, Miss Brophy was in the office of Mr. Du Bois. Plaintiff in error came in, and said to Miss Brophy: “I don't want you to go with that girl any more, because she ain't the kind of girl you ought to go with.” In the discussion of this suggestion there seems to have arisen considerable feeling, so much so that when, very soon afterwards, Mr. Du Bois came into the office, he observed there was something wrong. When the nature of the trouble had been explained to him, Mr. Du Bois said he knew Miss Brophy would not go with any one who wasn't right, for she had always done right. To Mr. Hoover, Mr. Du Bois said that he should go out of the office, and at the same time he seems to have taken hold of Hoover, and led him towards the door. While this was being done Hoover suggested that he would go out if Du Bois would pay him the wages due him. This was agreed to, and very soon done, and Mr. Hoover, upon receiving his pay, said to Mr. Du Bois that he was obliged to him, and was told by Mr. Du Bois that he was welcome. The deceased and the accused seem not to have met again until just before the commission of the homicide hereinafter described. About 15 minutes before 2 o'clock Hoover, by telephone, arranged with Miss Brophy to meet him, and soon afterwards, from across the street, beckoned her to come to him. Upon compliance he asked her the address of Mr. Colby at Kansas City, saying that he was that night going to that city. In this interview he spoke of Du Bois and said that Du Bois had no business striking him, and that if he (Hoover) would do right, he would shoot Du Bois. He was probably considerably intoxicated at this time, shed tears, and sent his farewells to other members of the family. It is not clear, from the evidence, whether this interview was before or after the purchase of the pistol with which he afterwards killed Du Bois. It was, at any rate, about the same time in the afternoon; that is to say, about 2 or 3 o'clock. About half past 5 o'clock, Mr. Hoover went to the shop of Mr. Saalfield, a shoemaker. There were then in the shop some other parties, and Mr. Hoover sat down and talked with them, and, among other things, remarked that he would give a quarter if Sam Du Bois would show up. His companions did not notice that he was much intoxicated, if, indeed, he was at all, at this time. Within 15 minutes after Hoover had become an inmate of the shop Samuel Du Bois entered, saying, “Good evening, gentlemen,” and was instantly confronted by Hoover, who said, “I've got you where I want you, you son of a bitch.” The persons in the shop at the time were able to state, in their testimony, nothing that immediately followed this remark, except that they saw two flashes of a pistol in Hoover's hand, and heard Du Bois say: “I am shot.” It seems, however, that Du Bois must instantly have closed with his assailant; for the earliest resumption of the narrative of any eyewitness begins with the description of the manner in which Du Bois was holding Hoover powerless to do him further harm. Finally, Du Bois, unassisted, wrenched the pistol from Hoover's grasp, and, having turned from Hoover, said: “Somebody take this gun. He shot me, but I don't want to shoot him.” Mr. Fenton took the pistol from Mr. Du Bois, who immediately took off his coat, and as soon as some garments could be spread upon the floor lay down. Before Du Bois had lain down, Hoover said to him, “I always told you I would shoot you.” Afterwards, however, he seemed sorry for what he had done. Du Bois, within 15 hours, died of the wounds inflicted by Hoover. We are able thus confidently to state the above facts, for there was, in respect to them, no conflict in the evidence. The matters upon which the plaintiff in error relies for a reversal of the judgment of the district court will now be considered in their order of presentation in the brief of his counsel.

It is first urged that the application for a continuance should have been sustained, in view of the showing thereby of the excited condition of the people of Douglas county, and that there was prejudicial error in hastening the trial, as was done in this case. A considerable discretion is necessarily lodged with the district courts with reference to applications for continuance in criminal cases. If the rule was otherwise, it would be almost impossible to bring to trial persons accused of grave crimes. The court in this case was certainly very expeditious, having performed the last of its duties on January 3, 1896, just 10 days after the filing of the information, and three weeks after the commission of the homicide. There is no showing that there was sacrificed any right of the accused; neither does it appear that, if more time had been given him to prepare for trial, he would have been able to procure evidence of any kind to his advantage; and, so far as the existence of excitement was concerned, it was only shown by affidavits of the accused and his counsel, couched in very general terms. While haste, if it was shown to have attended the various proceedings, might predispose a reviewing court to a favorable consideration of the proofs indicating that thereby the accused had actually suffered prejudice, this predisposition should not entirely excuse the absence of such proof.

By the information upon preliminary examination it was charged that Claude H. Hoover did unlawfully, feloniously, purposely, and “of his deliberate and premeditated malice, kill and murder,” etc. This information was typewritten, except that the word “purposely” was interlined with a pen. In the district court the...