Lambert v. State

• Citation: 136 N.W. 720,91 Neb. 520
• Decision Date: 29 May 1912
• Docket Number: 17,443
• Parties: CHARLES LAMBERT v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

136 N.W. 720

91 Neb. 520

CHARLES LAMBERT v. STATE OF NEBRASKA

No. 17,443

Supreme Court of Nebraska

May 29, 1912

ERROR to the district court for Thurston county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Thomas L. Sloan and Herman Freese, for plaintiff in error.

Grant G. Martin, Attorney General, Frank E. Edgerton and Howard Saxton, contra.

LETTON J. HAMER, J., dissenting.

OPINION

LETTON, J.

Plaintiff in error was convicted on the charge of receiving stolen property of the value of $ 36. The first error assigned and argued in his behalf is that there was misconduct of the jury. Affidavits of three of the jurors filed in support of the motion for new trial are in substance to the effect that a juror named Hill, after the case was submitted and during its consideration by the jury, stated that he knew Lambert to be a thief and that he was a bad character, and that he repeated this and similar statements during the whole time the case was under consideration. On the other hand, an affidavit was made by Hill denying that he ever made a positive assertion that Lambert was a thief, but the affidavit recites that, while he had no acquaintance with Lambert, an incident that happened during the trial recalled to his memory the fact that he had heard it stated by a brother-in-law of the accused at a time seven years before the trial that he had heard a rumor that Lambert was a thief. Hill's affidavit further averred that when he made this statement he was reprimanded by another juror for making the same and that he did not repeat it. The affidavits of other jurors are to the effect that the remark made by Hill, which was heard by all of them, made no impression upon their minds and that the verdict was based upon the evidence submitted. Plaintiff in error does not contend that the affidavits of the jurors produced by him may be used to impeach the verdict, but says that he complains only of the misconduct of the juror Hill. The trial court determined that the statement made by Hill was not prejudicial to the accused. We are of the same opinion. The statement was improper and should not have been made, but, under the evidence, we are unable to perceive whereby this misconduct could or did affect the verdict.

It is next contended that a new trial should be granted for the reason that the verdict was forced by the physical exhaustion of certain jurors. It appears from an affidavit made by certain jurors. It appears from an affidavit made by certain jurors that the case was submitted to the jury on Wednesday at about 11 o'clock P. M., that the jury were confined from that time until the succeeding Friday morning when the verdict was rendered, that during the two nights there were not furnished sleeping accommodations, that they deliberated during the two nights and a day in which they were kept together, and that they were physically exhausted to such an extent they could not hold out longer, and they agreed to the verdict for that reason and by reason of being harassed by other jurors who had determined not to yield. Counter affidavits of most of the other members of the jury were filed by the state to the effect that the jury were placed in a comfortable room with chairs, table and paper, that they received their meals and had plenty to eat and drink, and that no juror was physically overcome. If the evidence in this case left the matter of the guilt of the defendant a close question, we should be very much inclined to set aside the verdict and grant a new trial on account of this treatment of the jury. It is high time that the barbarities of the common law should be done away with, and that verdicts should be reached as a result of thought and deliberation, and not as a result of physical compulsion. There is no more reason for subjecting jurors to confinement in a small room for two nights and a day without opportunity for rest or repose than there would be for subjecting the judge himself or the other officers of the court to like privations. The strength of memory and the capacity for sound judgment usually found in persons in elderly life, as a number of these jurors were, is apt to be impaired if they are deprived of sleep for 48 hours. Moreover, under such conditions the man who is physically stronger may by force of that very fact prevail over the judgment of his brother juror who may be stronger mentally, but physically weaker. We criticize the practice unfavorably in the hope that it may not be repeated, but in this case we are of opinion that the evidence sustains the finding that the verdict was not produced as a result of the exhaustion of the jurors who made the affidavit.

There is another consideration entering into this case which should, perhaps, be noticed. The evidence of the value of the property alleged to have been received took a wide range, extending from $ 10 or $ 15 to $ 45. The jury found the value to be $ 36. By an oversight of the legislature, possibly, the receiving of stolen property of any less value than $ 35 is not a crime. The court was, therefore, compelled to instruct the jury that, in order to find the defendant guilty at all, they would have to find the value of the property to be at least $ 35. It was then for the jury to find that value or acquit. They went one dollar over the mark fixed by law. It is complained that there was no competent testimony as to the value of the harness. It is shown that it was nearly new and had only been used a few times, that the owner of the harness, whose testimony is particularly complained of, paid $ 52 for it, and that a small part of it was missing. The principal objection urged is as to the competency of the testimony of the owner as to the price he paid and the amount of wear of the harness, and to his opinion of the value based thereon. We think that the amount that the harness cost when purchased in the regular course of trade a short time previous to the theft and the amount of wear that it had received were proper elements to be considered by the jury in fixing the value. It is shown that the opinion of the witness was based upon these elements. Having before it the facts upon which the witnesses' estimate of value was based, we cannot see wherein the accused was prejudiced in this regard. A number of other witnesses were examined upon both sides of this question, and we think there is no prejudicial error in this regard.

Complaint is also made as to the giving of certain instructions. The imperfections in these instructions have been repeatedly pointed out by this court and they should not have been given, but under the condition of the record we cannot perceive wherein the defendant was prejudiced by their having been given.

A number of other errors assigned have been considered and disposed of by this court in the case of Lukehart v. State, ante, p. 219, a companion case to the facts in this case, and will not be again reviewed.

Finding no prejudicial error in the record, the judgment of the district court is

AFFIRMED.

DISSENT BY: HAMER

HAMER J., dissenting.

It is said in the majority opinion: "Complaint is also made as to the giving of certain instructions. The imperfections in these instructions have been repeatedly pointed out by this court and they should not have been given, but under the condition of the record we cannot perceive wherein the defendant was prejudiced by their having been given." The instructions complained of are as follows:

"No. 15. The rule which clothes every one accused of crime with the presumption of innocence, and imposes upon the state the burden of establishing his guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty to escape, but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly punished. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case; and unless it is such that, were the same kind of a doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to pause, it is (in) sufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.

"No. 16. The court instructs the jury, as a matter of law, that the doubt which a juror is allowed to retain in his mind, and under which he should frame his verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of a juror, in view of the consequence of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources of doubt by resorting to trivial and fanciful suppositions, and remote conjectures, as to a possible state of facts differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes upon you no obligation to doubt where no doubt would exist if no such oath had been administered. You are instructed that if, after a careful, impartial consideration of all the evidence in the case, you can say and feel that you 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."

It is true that the above instructions have been condemned by this court, but this condemnation has been very tardy in coming, and it does not seem to the writer to be in active operation yet. As late as Leisenberg v. State, 60 Neb. 628, 84 N.W. 6, delivered at the September term, 1900 this court...