Leo v. State

• Decision Date: 06 February 1902
• Citation: 63 Neb. 723,89 N.W. 303
• Parties: LEO v. STATE.
• Court: Nebraska Supreme Court

63 Neb. 723

89 N.W. 303

LEO

v.STATE.

Supreme Court of Nebraska.

Feb. 6, 1902.

Syllabus by the Court.

1. While it is the right of a trial judge to interrogate witnesses, when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged. The common-law rule conferring arbitrary power upon trial judges has been so far modified by the Code as to greatly limit this power, and in case of its abuse a reviewing court would not hesitate to give a new trial to the injured party. Fager v. State, 35 N. W. 195, 22 Neb. 332.

2. Held, as disclosed by the record, there was an abuse of discretion by the trial court in interrogating different witnesses during the trial of the cause, which was prejudicial to the rights of the defendant.

3. While a police officer was on the witness stand in behalf of the prosecution, the assistant prosecutor, after an objection to a question propounded to the witness, stated: “I want to show that he [the witness] has known him [the accused] a long time, and had him under observation for other jobs;” and also, on the cross-examination of the accused, who testified as a witness in his own behalf, asked him: “Have you ever been arrested before?” “Have you ever been convicted of a crime?” “Isn't it a fact, Mr. Leo, that you have served time in the penitentiary in the state of Nebraska?” “Have you ever been convicted of a crime, and sent to the state penitentiary at Lincoln as a punishment for that crime?” “And you never at any time were convicted of a felony and sent to the state penitentiary of the state of Nebraska, at Lincoln?”--there being no competent evidence of any prior conviction of a felony. Held, such action was unwarranted and prejudicial to the defendant's substantial rights, for which a new trial should be granted.

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

James J. Leo was convicted of robbery, and brings error. Reversed.Jefferis & Howell, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Deputy, for the State.

HOLCOMB, J.

A careful perusal of the record of the prosecution of the plaintiff in error (defendant below) leads to the conclusion that the judgment of conviction ought not to be permitted to stand, and this altogether without regard to the merits of the question of guilt or innocence of the accused. To affirm the judgment does violence to well-settled and recognized rules of practice and procedure in criminal prosecutions, and establishes a precedent that would be in violation of our conception of the rights of every individual charged with crime, and safeguards thrown round him in a prosecution for the commission of such crime. The defendant is charged with robbery from the person, by putting in fear and intimidating the person robbed. The offense for which he was prosecuted is commonly called a “hold up”; that is, by threats and the use of deadly weapons money was charged to have been taken from the cash drawer of a saloon in Omaha from and in the presence of the proprietor. Two others, patrons of the saloon, were also in the room at the time of the robbery. The defense interposed was an alibi. No person identified the accused, save the prosecuting witness, the proprietor of the saloon, to whom the accused was a stranger prior to the transaction, but who, after the arrest, was identified by the witness as one of three parties engaged in the robbery. The other two witnesses present were unable to identify him as one of the actors. Otherwise the evidence was circumstantial. The accused took the witness stand in his own behalf, denied that he was at the place where the crime occurred, and testified, with others, that he was at a hotel in South Omaha, some three or four miles distant. Strenuous complaint is made because of the manner in which the prosecution at the trial was carried on; it being argued and assigned as error that the trial court abused its discretion in interrogating the different witnesses during the trial of the cause, and that the assistant prosecuting attorney was guilty of irregularities and misconduct prejudicial to the rights of the defendant, and for the purpose of unduly influencing the jury against him, by asking the accused, while a witness in his own behalf, incompetent and prejudicial questions. It is to these two assignments of error that we address ourselves.

In a bill of exceptions containing the evidence, and covering some 140 pages, on over 30 pages it is disclosed that the examination of the different witnesses by counsel for the state and defendant was interrupted by the trial court for the purpose of permitting the court to interrogate the witness regarding the matter under investigation. At different times the questions thus asked the witnesses by the court were objected to by defendant's counsel, and, it being apparent that the questions were improper, the court sustained the objections on its own questions. Other objections were made by defendant's counsel and overruled. The questions in many instances were entirely proper, and served only the purpose of bringing out the truth, and conducing to a clearer understanding of the testimony of the witness. Their tendency, in the main, was not violative of any of the proprieties which should obtain; were not calculated to prejudice the defendant, or do other than bring about a proper administration of justice. The great number of questions thus asked the different witnesses by the court we regard as in itself immaterial, if the questions were of such character as to make them appear to be essential to the administration of justice, and disclosed no leaning on the part of the presiding judge either in favor of or against the defendant. We see no impropriety in a trial court interrogating witnesses regarding a fact under investigation, when the tendency is only to develop the truth, and is calculated in no wise to influence the jury, save as the testimony will assist them to arrive at a correct conclusion on the questions of fact in issue. Where, however, the questions are of such character as to induce in the minds of the jury a belief that the court is of the opinion the accused is guilty, and the questions are propounded for the purpose of fastening guilt on him, such procedure would be clearly prejudicial to the substantial rights of the defendant, and require a reversal of a judgment of conviction if it should follow. In some few instances in the record before us the questions asked by the court are far more appropriate as coming from a public prosecutor, and had, we are satisfied, an unfavorable influence with the jury against the accused. The discretion resting with the trial court to interrogate witnesses was carried to its full limit and beyond, and its abuse of such discretion was evidently prejudicial to the rights of the defendant, rendering it impossible to say that his guilt has been established fairly, and by a jury uninfluenced by any consideration save the force of the legitimate evidence in the cause presented to them for their consideration. The subject in hand has been heretofore considered by this court in Fager v. State, 22 Neb. 332, 35 N. W. 195, where it is held: “While it is the right of a trial judge to interrogate witnesses when essential to the administration of justice, yet the practice of so doing, except when absolutely necessary, should be discouraged. The common-law rule conferring arbitrary power upon trial judges has been so far modified by the Code as to greatly limit this power, and in case of its abuse a reviewing court would not hesitate to give a new trial to the injured party.” Says Maxwell, C. J., in a concurring opinion: “In my view, our statute has changed the common law so far as to practically prohibit the presiding judge from examining the witnesses in whole or in part in a criminal case.” “A trial cannot be fair and impartial if the judge is permitted, either directly or indirectly, to express an opinion upon the facts. His opinion necessarily would have great weight with the jury, and, as he is not permitted directly to give his views upon the facts, he should not be permitted to do so indirectly, either by his conduct, or the form of questions to witnesses. It may be said that in some cases it would be impossible to convict a party unless the judge should bring his influence to bear upon the jury. Such an argument, instead of being in favor of the practice, is directly opposed to it. Ordinarily, if the facts will justify the jury in finding a verdict of guilty, the probabilities are that they will do so. If the testimony leaves the guilt of the accused in doubt, he is entitled to the benefit of that doubt, and no influence outside of the testimony should be brought to bear upon the jury to induce them to overcome such doubt. Otherwise the accused will be deprived of a constitutional guaranty,--a fair trial,--and perhaps be unjustly convicted.” While the opinion expressed by the...