Jackson v. State
| Citation | 277 N.W. 92,133 Neb. 786 |
| Decision Date | 07 January 1938 |
| Docket Number | No. 30091.,30091. |
| Parties | JACKSON v. STATE. |
| Court | Supreme Court of Nebraska |
JACKSON
v.
STATE.
No. 30091.
Supreme Court of Nebraska.
Jan. 7, 1938.
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
[277 N.W. 93]
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.
Beeler, Crosby & Baskins, of North Platte, W. I. Tillinghast, of Ogallala, and Robt. B. Crosby, of North Platte, for plaintiff in error.
Richard C. Hunter, Atty. Gen., and Francis V. Robinson, Asst. Atty. Gen., for defendant in error.
Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and CHAPPELL, District Judge.
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.
[1][2] 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 a 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...
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