Jackson v. State

• Decision Date: 07 January 1938
• Docket Number: 30091
• Citation: 277 N.W. 92,133 Neb. 786
• Parties: ROSS JACKSON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

277 N.W. 92

133 Neb. 786

ROSS JACKSON v. STATE OF NEBRASKA

No. 30091

Supreme Court of Nebraska

January 7, 1938

ERROR to the district court for Keith county: ISAAC J. NISLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Whether in the prosecution of a felony the court should, on application of the county attorney, appoint counsel to assist in the prosecution as provided by section 26904 Comp.St.1929, presents a question addressed to the sound discretion of the trial court, and error cannot be predicated thereon in the absence of a showing that the appointment operated to prejudice rights of the defendant.

2. Remarks of the prosecutor in final summation of the evidence to the jury which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct.

3. The testimony of a witness under oath face to face with defendant in open court at a preliminary hearing with the opportunity given for cross-examination is admissible upon a subsequent trial for the same offense when the personal attendance of the witness at the trial cannot be had.

4. Whether the prosecution has sufficiently established the unavailability of the witness as a foundation for the admission of such testimony is within the sound discretion of the trial court, and error cannot be predicated thereon unless an abuse of discretion is affirmatively shown.

5. If an information charges the crime of murder in the first degree, murder in the second degree and manslaughter are included in the charge; and when the evidence and circumstances of the crime are such that different conclusions may properly be drawn therefrom as to the degree, the trial court is without error in submitting the different degrees under proper instructions to the jury for their determination.

6. Evidence examined and held sufficient to sustain the verdict and not warrant a reduction of the sentence imposed by the trial court.

Error to District Court, Keith County; Nisley, Judge.

Ross Jackson was convicted of manslaughter, and he brings error.

Affirmed.

An information charging crime of first-degree murder includes murder in second degree and manslaughter. Comp.St.1929, §§ 28-401 to 28-403.

W. I. Tillinghast, Beeler, Crosby & Baskins and Robert B. CROSBY, for plaintiff in error.

Richard C. Hunter, Attorney General, and Francis V. Robinson, contra.

Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ., and CHAPPELL, District Judge.

OPINION

CHAPPELL, District Judge.

The plaintiff in error, hereafter called defendant, was informed against in the district court for Keith county, Nebraska, for the crime of murder in the first degree in the fatal shooting of one Charles Beekin on July 2, 1936. Upon trial to a jury he was convicted of manslaughter and sentenced by the trial court to the Nebraska state penitentiary for nine years at hard labor. He prosecutes error to this court.

Defendant claims many errors in the trial of the case, but actually relies upon four, to wit: The appointment of Murl Maupin as special prosecutor to assist the county attorney and his purported misconduct in final summation to the jury; the admission of the testimony of a witness, Alice Du Charme, given under oath at the preliminary hearing in the county court, when she was not present at the trial of the case; insufficiency of the evidence to sustain the verdict; and that the sentence of the trial court is excessive.

Immediately preceding the trial, Murl Maupin of North Platte, Nebraska, was appointed by the court as special prosecutor to assist the county attorney in the trial of defendant. Defendant's counsel objected in open court in the absence of the jury panel to his appointment. Thereupon, Mr. Maupin was promptly sworn and interrogated by the court, the county attorney and attorney for defendant. This evidence discloses that at some time prior to the day of the fatality defendant and his wife had consulted him briefly and informally relative to the custody of a child or children then living with their mother, Alice Du Charme, and the deceased. He was never employed, retained or further consulted in that matter or any other for them or their family or friends, and never had received any compensation from them or any of them. He was not related to any of the parties; had no interest in the case or the result thereof; and had no interested client. On the morning of the shooting he rode with the sheriff and the county attorney to the scene of the shooting at LeMoyne, Nebraska, but never made any further investigation of the facts until called into the case by the county attorney a short time before the trial.

The guiding legal rule governing appointment of special assistants to aid the county attorney in the prosecution of criminal cases under section 26-904, Comp. St. 1929, is enunciated in Barr v. State, 114 Neb. 853, 211 N.W. 188: "Whether, in the prosecution for a felony, the court should, on the application of the county attorney, appoint counsel to assist in the prosecution, presents a question addressed to the sound discretion of the court." Error cannot be predicated thereon in the absence of a showing that the appointment operated to prejudice rights of the defendant. See, also, Dobry v. State, 130 Neb. 51, 263 N.W. 681; Baker v. State, 112 Neb. 654, 200 N.W. 876; Gragg v. State, 112 Neb. 732, 201 N.W. 338. We find nothing in the record showing that Maupin's appointment operated to prejudice the rights of this defendant.

During argument to the jury the assistant prosecutor said "that the jury should go out into the jury room and consider the evidence fairly and extend mercy in that manner, and should extend more mercy to the defendant than Ross Jackson showed to Charley Beekin." Defendant's counsel took exception to this remark and asked that the court "instruct the jury and to warn the attorney against such language and use in such matters." Whereupon the court said in part: "I wish counsel for the prosecution would be careful and stay within the record." In Cooper v. State, 120 Neb. 598, 234 N.W. 406, this court said: "It is the duty of the prosecuting attorney to conduct the trial in such a manner as will be fair and impartial to the rights of the accused, no matter how guilty, in his opinion, defendant may be; and this rule applies to special counsel assisting the prosecuting attorney." We still earnestly adhere to its admonition but cannot conclude that it has application to this case requiring a reversal. Remarks of the prosecutor in final summation of the evidence to the jury which do not mislead and unduly influence the jury and thereby prejudice the rights of the defendant do not constitute misconduct. Mason v. State, 132 Neb. 7, 270 N.W. 661; Dobry v. State, supra; Argabright v. State, 62 Neb. 402, 87 N.W. 146. Like complaint is made of another statement of lesser consequence which we deem it unnecessary to discuss.

During the trial the state offered in evidence, and the trial court received over objections of defendant's counsel, all the testimony both direct and cross-examination of one Alice Du Charme as given by her under oath in the county court at the preliminary hearing for the same offense. Defendant concedes that she appeared in person at the preliminary hearing, gave testimony under oath, and that defendant met her there face to face. It appears from the record that she was there subjected by defendant's counsel to a long and searching cross-examination. No contention is made that her testimony was not accurately taken in shorthand by a reporter employed by defendant, correctly transcribed by her, and a true copy thereof furnished the county attorney. Does this violate section 11, art. I of the Constitution, which provides in part: "In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel * * * and * * * meet the witnesses against him face to face"?

Untrammeled courts of England and America have jealously protected this right of a defendant since Lord Coke, in commenting upon Magna Charta shortly after 1600, said: "That the lords ought to hear no evidence but in the hearing and presence of the prisoner." At the same time they have protected the public by refusal to permit a defendant to abuse this sacred right and thereby destroy the public's lawful protection. As early as 1884, in Hair v. State, 16 Neb. 601, 21 N.W. 464, this court held that the evidence of a deceased witness upon a former trial of the same party for the same offense, being there brought face to face with the accused and cross-examined by him, was competent upon a subsequent trial and not in violation of this constitutional right. In Koenigstein v. State, 103 Neb. 580, 173 N.W. 603, we said that when a witness, now living, has been previously examined in open court with the opportunity for cross-examination, which has been fully availed of, and the witness cannot be produced for examination at the second trial, the evidence so given upon a former trial for the...