Lillie v. State

• Citation: 100 N.W. 316,72 Neb. 228
• Parties: LILLIE v. STATE.
• Decision Date: 30 June 1904
• Court: Supreme Court of Nebraska

72 Neb. 228

100 N.W. 316

LILLIE

v.STATE.

Supreme Court of Nebraska.

June 30, 1904.

Syllabus by the Court.

1. In criminal trials the question of the qualification of a juryman is one of fact, for the determination of the trial court, and, unless it appears to be against the weight of the evidence, it will not be overruled by this court.

2. In capital cases a new trial should not be allowed on account of newly discovered evidence unless its introduction on the trial might have been beneficial to the defendant, and might have led to a different result.

3. Proof of a motive to commit the crime charged is always competent in murder trials. The fact that the alleged motive is out of proportion to the crime committed does not require that evidence of such motive be excluded. The supposed danger that the jury may give too much weight to the offered evidence is not a legal ground for excluding it.

4. When a witness testifies positively to a conversation with an acquaintance over the telephone, an objection to the evidence on the ground that the witness has not sufficiently identified the person with whom the conversation was held should not be sustained; the witness' knowledge of such identity not having been tested by cross-examination or otherwise. The force of the evidence is a question for the jury.

5. In the trial of a defendant charged with the crime of murder with firearms, it is not error to permit evidence that the defendant has for many years been familiar with the use of such firearms.

6. Under some circumstances, it is in the discretion of the trial court to permit evidence of experiments to illustrate transactions that have been testified to; and, under the circumstances in this case, the court did not abuse its discretion in permitting such evidence.

7. If, in a criminal trial, evidence is received that is not from its nature necessarily injurious to the defendant, and the receiving of such evidence is not objected to when the same is offered, nor complained of in the petition in error in this court, the error, if any, will be considered to be without prejudice.

8. In a trial of an information for murder, it is proper to prove the physical conditions existing in the vicinity of the murder at the time the crime was committed. This applies to evidence of finding of unusual articles, as pepper and matches, upon the floors of the living rooms of the house where the crime was committed.

9. In murder trials, it is competent to prove the conduct, appearance, and actions of the accused immediately after the crime was committed, as well as subsequent statements of the accused tending to show her connection with the transaction being investigated.

10. In criminal trials, the previous good character of the defendant has great weight, as tending to show the improbability of guilt. The weight to be given such evidence is for the jury to determine. The court is not required to tell the jury that, if the other evidence is sufficient to satisfy the jury of the defendant's guilt, they must still consider whether previous good character, when weighed with all the other facts and circumstances in the case, raises a reasonable doubt of guilt.

11. It is not error to instruct the jury that the defendant is under no obligations to testify in her own behalf, and that the statute expressly declares that her neglect to testify shall not create any presumption against her.

12. It is not indispensable in criminal trials that a motive be shown for the commission of the crime charged. If the evidence shows beyond a reasonable doubt that the defendant committed the crime, the prosecution does not necessarily fail because the real motive for the act cannot be discovered and shown to the jury.

13. An instruction that “a doubt produced by an undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt, and the juror is not allowed to create sources of materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from those established by the evidence. You are not at liberty to disbelieve as jurors, if, from all the evidence, you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered”--is not to be commended in all cases, but in view of the former decision of this court in Barney v. State, 68 N. W. 636, 49 Neb. 515, we cannot reverse the judgment in this case solely on the ground of giving this instruction.

14. When the evidence relied upon to establish the guilt of the defendant is circumstantial, the facts proven beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendant. When the minds of reasonable men might fairly differ as to whether there is any reasonable doubt of the defendant's guilt, the responsibility must be left where the law places it--with the jury. The evidence in this case, under this rule, supports the verdict and judgment.

15. In a prosecution for murder committed with firearms, evidence that the defendant had access to a weapon of that nature, with which to commit the crime, is important; but, if it appears that there was opportunity to conceal such weapon after the crime was committed, such evidence is not indispensable.

Error to District Court, Butler County; Good, Judge.

Lena M. Lillie was convicted of murder, and brings error. Affirmed.

Matt Miller, C. H. Aldrich, and Hamer & Hamer, for plaintiff in error.

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

SEDGWICK, J.

In the early morning of the 24th day of October, 1902, Harvey Lillie was killed at his home, in David City. The circumstances were such that all parties agree that he was willfully murdered. Lena Margaret Lillie, who was his wife, was charged with the crime, and, upon her trial in the district court of Butler county, was convicted of murder in the first degree, and sentenced to imprisonment for life. She has brought the record of her conviction to this court for review upon petition in error, and urges that the judgment against her should be reversed because the evidence was circumstantial and was insufficient to justify her conviction, and because of errors in the prosecution against her which prevented a proper investigation of the charge.

1. It is contended that the jury was incompetent; that two of its members, before the jury was impaneled, had formed and expressed opinions as to the guilt of the defendant. In the brief for the defendant, it is said: “The court will grant a new trial because of the prejudgment of a juror, when its attention is challenged to it after verdict, in the same way that it excuses a juror on his voir dire examination when the thing was known.” In Murphey v. State, 43 Neb. 35, 61 N. W. 491, this court said: “Where the evidence by which it is sought to impeach a verdict on account of the prejudice of a single juror, subsequently discovered, is conflicting, an order denying a new trial will not, as a rule, be disturbed on appeal.” Substantially the same rule was announced in Clough v. State, 7 Neb. 347;Carleton v. State, 43 Neb. 373, 61 N. W. 699;Hill v. State, 42 Neb. 503, 60 N. W. 916; and in other cases. In Bliss v. State (Wis.) 94 N. W. 328, the court said: “The question whether the juryman was disqualified was one of fact for the determination of the trial court, and, as such decision does not appear to have been against the weight of the evidence, it will not be determined by this court.” When may the evidence be said to be conflicting, within the meaning of the decisions of this court? The conflict, of course, must be a substantial one. The evidence must be of such a nature that the presumption of the correctness of the ruling of the trial court is not overcome. The law affords the defendant in criminal prosecution great latitude in the examination of jurors to ascertain whether there are just grounds for challenge. The trial court hears this examination, and will suggest or propound further questions, if necessary, to ascertain whether the juror is fair and impartial, or may possibly be prejudiced for or against the accused, or may have formed or expressed an opinion upon the merits of the questions that are to be tried. The trial court observes the conduct and demeanor of the juror during this examination, and will not hesitate to exercise its discretion and excuse the juror if there is substantial ground to believe that he is, for any reason, unfit for the service. The rulings of the trial court in the exercise of this discretion will not be disturbed simply because there may seem to be some preponderance of evidence against it. There must be such substantial evidence as to make it appear that in view of all of the evidence bearing upon the matter, and the circumstances surrounding the examination of the juror, the trial court has abused its discretion in refusing a new trial upon this ground. In this case the examination of the juror Carlisle is not preserved in full. It is shown by affidavits that upon that examination the juror stated that he had not formed or expressed an opinion as to the guilt or innocence of the accused. It is not shown in what connection that statement was made by the juror, nor whether it was qualified or explained by him. It does not appear that the defendant might not have discovered the truth as to the qualifications of this juror by a proper voir dire examination. The evidence as to conflicting statements made by the juror out of court is somewhat indefinite. It is unqualifiedly contradicted by affidavits of other witnesses. The whole evidence is not sufficient to show that the trial court abused its discretion in overruling this objection. Two witnesses testified by affidavit that the juror Joseph Hilger made statements in their hearing some time before the trial which would show...