Johnson v. State

• Decision Date: 28 February 1911
• Docket Number: 16,699
• Citation: 130 N.W. 282,88 Neb. 565
• Parties: THOMAS JOHNSON v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

130 N.W. 282

88 Neb. 565

THOMAS JOHNSON v. STATE OF NEBRASKA

No. 16,699

Supreme Court of Nebraska

February 28, 1911

ERROR to the district court for Douglas county: ABRAHAM L. SUTTON JUDGE. Affirmed.

AFFIRMED.

J. L Kaley and H. G. Meyer, for plaintiff in error.

Arthur F. Mullen, Attorney General, and George W. Ayres, contra.

BARNES J. REESE, C. J., dissenting.

OPINION

BARNES, J.

Thomas Johnson was charged in the district court for Douglas county with the killing of one Henry R. Frankland, while perpetrating or attempting to perpetrate a robbery. In short, the information sufficiently charged a violation of the provisions of section 3 of the criminal code. To this information the defendant entered a plea of not guilty, and a trial resulted in his conviction. By their verdict the jury fixed the death penalty as his punishment, and he has brought the case here for review by a petition in error.

1. Defendant contends that the district court erred in overruling his objections to certain of the jurors. Defendant was a colored man, and it appears that one George Mangold was called as a juror, and on his voir dire examination stated, in substance, that he had a feeling of prejudice against the colored race. But, on further inquiry, it fully appeared that he had no prejudice against the defendant, and his so-called prejudice against the race was simply a feeling or belief that the colored race was inferior to the white race, and that such feeling or belief would in no manner affect his verdict. The defendant's challenge for cause was overruled, for which he now assigns error. The only argument advanced by counsel for the defendant in support of this assignment is a statement contained in his brief that "this court must see that this juror was absolutely prejudiced and biased against the defendant, and was an incompetent juror to sit in the case." This statement is neither persuasive nor convincing. Without doubt many white men have the same feeling as did juror Mangold, but this alone has never been considered sufficient to disqualify them from acting as jurors in cases where colored men have been tried for criminal offenses. The record discloses that the juror was a fair and conscientious man, and possessed all of the necessary qualifications; that he was competent there is no doubt. It also appears that defendant waived a number of his peremptory challenges, and had ample opportunity to excuse this juror if he had desired to do so, therefore the challenge for cause was properly overruled. It is also contended that one Dumont was improperly excused from jury service in this case. But it appears from an examination of the record that he testified "that he would not, under any circumstances, join in a verdict with the death penalty." This was a sufficient reason for sustaining the state's challenge for cause. Criminal code, sec. 467; St. Louis v. State, 8 Neb. 405, 1 N.W. 371; Bradshaw v. State, 17 Neb. 147, 22 N.W. 361; Johnson v. State, 34 Neb. 257, 51 N.W. 835; Rhea v. State, 63 Neb. 461, 88 N.W. 789. Complaint is also made because the district court, in arranging the order of peremptory challenges, accorded the prosecuting attorney the right of the last challenge. It is claimed that, after the state exercised this challenge, J. J. Lynch and W. A. Rourke were called into the jury-box for examination, and that they were most objectionable jurors for the defense. It is argued that juror Lynch was acquainted with most of the witnesses, and belonged to the same society that they and the prosecuting attorney belonged to; that he had talked with a number of people about the case, and had read newspaper comments, and it was error for the court to retain him upon the jury. The record is a sufficient refutation of those statements. It discloses that neither of these jurors knew anything about the case at all. Rourke testified that he had never heard of it until he was called into the jury-box for examination; while Lynch testified that he had heard very little about it; that he had neither formed nor expressed any opinion as to the guilt or innocence of the defendant; and he appeared, in all respects, to be a competent juror.

2. It is further contended that the court erred in admitting in evidence exhibit 10. This exhibit appears to be a statement made by the defendant to the county attorney, which was by him reduced to writing, and was signed by the defendant in the presence of two disinterested persons. It is argued that the defendant was thus compelled to testify against himself; that the statement had been obtained from the defendant against his will and by coercion on the part of the officers, in whose custody he was at the time it was made. The record does not bear out the statement of counsel. The exhibit in question does not purport to be a confession, but was a voluntary statement of the defendant as to where he went and what he did at and immediately after the time the murder was committed, and it was introduced for the sole purpose of contradicting his later statements upon that question. We are of opinion that the court did not err in admitting the exhibit in evidence. Taylor v. State, 37 Neb. 788, 56 N.W. 623.

3. It appears that upon the trial one Captain Moyston, who saw the defendant and made an examination of his garments on the next day after the murder was committed, was permitted to testify that he found what he thought were blood stains upon the defendant's shirt sleeves and upon his coat; that the coat was still damp at that time as though an attempt had been made to wash out such blood stains. It is insisted that this was reversible error, and in support of his contention the defendant cites State v. Alton, 105 Minn. 410, 117 N.W. 617. That decision does not justify the defendant's claim. It was there said: "The single fact that a stain upon defendant's shirt sleeve was blood, it not being shown to be human blood, and it appearing that it may have been deposited there for six months or a year, was too remote and of no probative force in establishing the identity of defendant as the guilty party." In the case at bar the defendant was apprehended, was placed under arrest, and his garments examined on the day immediately following the evening when the crime was committed. It is sufficiently shown that Frankland was murdered at or about 9 o'clock on the evening of the 13th day of October, 1909; that the defendant was immediately suspected because of his having been seen in the company of the deceased at just about that time; that he was arrested and his clothing examined about noon on the following day. We are therefore of opinion that the testimony was competent, and that it was for the jury to say how much weight, if any, should be given to it.

4. Complaint is made of a number of the instructions given to the jury. It is contended that the court erred in giving the fourth instruction, which treats of the question of reasonable doubt. That instruction reads as follows: "You are instructed that by the words 'reasonable doubt' used in this charge, is meant an actual, substantial doubt of guilt arising in your minds from the evidence or want of evidence in the case. If, after a careful and impartial consideration of all the evidence, the jury have an abiding conviction of the guilt of the defendant and are fully satisfied to a moral certainty of the truth of the charge made against him, then you are satisfied beyond a reasonable doubt." The language and substance of this instruction was approved in Wheeler v. State, 79 Neb. 491, 113 N.W. 253, and Maxfield v. State, 54 Neb. 44, 74 N.W. 401. As was said in Wheeler v. State, supra: "Such an instruction is more favorable to the defendant than to the state."

Instruction number 6, given by the district court on his own motion, is assailed as erroneous. By that instruction the court informed the jury, in substance, that every sane person is presumed to intend the natural and probable consequences of his voluntary acts; that if they found the defendant did the cutting and did it purposely then he did it intentionally; that intent was an essential element in the case, and was required to be established by the evidence the same as any other material element beyond a reasonable doubt. They were also informed that a knife is a deadly weapon, and were told that, if the defendant did strike at the body of the deceased, Henry R. Frankland, with such a weapon, then the presumption would be that the defendant intended the natural and probable consequences of his act. The particular complaints lodged against this instruction are that the jury were informed that, if the cutting was done purposely, then they were at liberty to find that it was intentionally done, and that a knife was a deadly weapon.

Viewing these instructions in the light of the evidence, we are of opinion that they were correct, and that the defendant's criticisms are without merit.

5. Instruction 12 is strenuously assailed because the jury were told, in substance, that they were not required to believe the testimony of the defendant absolutely, and that they had a right to consider the interest of the defendant in the prosecution. The instruction reads as follows "You are instructed that you have no right to disregard the testimony of the defendant on the ground alone that he is defendant and stands charged with the commission of a crime, nor are you required to receive the testimony of the defendant as true, but you are to fully and fairly consider whether it is true, and for this purpose you have a right to consider the interest of the defendant in this prosecution. The law presumes the defendant to be innocent until he is proven guilty by the evidence beyond a reasonable doubt, and the law...