Long v. State

• Decision Date: 06 January 1888
• Citation: 23 Neb. 33,36 N.W. 310
• Parties: LONG v. STATE.
• Court: Nebraska Supreme Court

23 Neb. 33

36 N.W. 310

LONG

v.STATE.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

While the confessions or statements of a third party, not made in the presence of the accused, are inadmissible in any form in a prosecution against a person charged with the offense of aiding and abetting such third party in the commission of a murder, yet it is competent to prove the statements of the accused, made against his own interest, in a conversation in which he is informed that a confession has been made by such third party, he being the principal indicted with the accused, but not in custody; and in such case the whole conversation between the witness and accused may be given in evidence.

A witness was called and examined by the prosecution. On his cross–examination, he was asked if he had ever been convicted of a felony and sentenced to prison. He answered that he had been convicted of the crime of forgery by the district court of Arapahoe county, Colorado, and that he served a part of the term for which he was sentenced, when he was pardoned by the governor of that state. The conviction was also proven by other testimony, to which the prosecution made no objection; the fact being virtually admitted. On the part of the defense, the record of the conviction was offered in evidence, to which, objection being made, it was excluded. Held no error, or, if erroneous, it was without prejudice, the fact having been already unquestionably established.

Impeachment is an attack upon the present credibility of a witness; and an impeaching witness who testifies that he knows the general reputation of the person attacked for truth and veracity will not be excluded from giving testimony as to such reputation at the time of the trial, and permitted only to testify to the reputation of the witness at a prior time. The true question is, what is his reputation at the time he testifies?

The indictment charged the murder to have been committed with “a bludgeon.” The testimony left it in doubt as to whether death was produced by a blow with a bolt or club. The court instructed the jury that, if death was produced with a blow with a bludgeon, bolt, or club, it would be sufficient as to the manner of producing death. Such instruction was held correct.

In criminal prosecutions the jury must be satisfied of defendant's guilt, beyond a reasonable doubt, from the evidence. They must not go outside of the evidence. Hence an instruction that the evidence “includes not only the sworn testimony of the witnesses who have testified, but all the circumstances surrounding the tragedy,” was erroneous.

While it is doubtless advisable, and perhaps better, to use the statutory language descriptive of a crime in an instruction, yet, where words are used which convey the same meaning and import, and which cannot be misconstrued by the jury, the instruction may not thereby be rendered erroneous.

It is the duty of a trial court to submit to the jury, by way of proper instructions, such principles of law as may be applicable to the case on trial, as it appears from the evidence; and also such principles as should be applied to witnesses who are interested in the result, or whose testimony should be weighed with special care and caution, as accomplices; but it is not proper to discuss the policy of using such witnesses. This should be left to counsel in the argument.

The jury alone are the judges of the weight of testimony; therefore an instruction that “evidence of good character is entitled to great weight where the evidence against the accused is weak or doubtful, but is entitled to very little weight when the proof is strong,” was held to be erroneous.

Instructions examined together, and found erroneous.

In the absence of evidence to the contrary, the law presumes every one innocent. And this legal presumption of innocence is a matter of evidence, to the benefit of which the party accused is entitled. Garrison v. People, 6 Neb. 275.

Error to district court, Lincoln county; HAMER, Judge.

Indictment against Jefferson Long for aiding and abetting a murder. Defendant was found guilty, and sentenced to be hanged. He brings error.J. M. Thurston, Hinman & Grimes, J. S. Hoagland, and Heist & Nesbitt, for plaintiff in error.

The Attorney General and J. W. Bireler, for defendant in error.

REESE, C. J.

Plaintiff in error was indicted by the grand jury of Lincoln county for the crime of aiding, abetting, counseling, inciting, and procuring one Ernest Meyers to murder Emily Boscombe, of said county, and the crime alleged as against Meyers consisted of murder in the first degree. Meyers seems not to have been apprehended, and the prosecution is against plaintiff in error, and, so far as the trial is concerned, was in the absence of Meyers, and without any proceeding as against him. The trial resulted in a verdict of guilty, and plaintiff in error was sentenced to be hanged. He presents the case to this court by petition in error, consisting of 48 assignments of error. It will not be our purpose to refer to all these assignments, for the reason that it is presumed that many of the questions presented by this record would not be raised or presented in a subsequent trial, and for the further reason that many of the assignments may be virtually disposed of without being referred to specifically.

The first objections to which our attention will be given are in reference to the proceedings of the court in the admission of testimony upon the trial. Two objections are presented by counsel for plaintiff in error, in both of which it is urged with much force that the court erred in admitting in evidence the confessions of Ernest Meyers of his guilt in the murder of the deceased. There is no doubt but that the proof of any such confession, made in the absence of plaintiff in error, would have been, and was, clearly inadmissible; and if any such testimony was admitted, over the objections of plaintiff in error, the action of the court in that behalf was erroneous. The bill of exceptions is very lengthy, is not indexed, and it is very difficult to give it that careful examination which we could give were it in a more convenient form. So far as we have been able to discover, there were no confessions of Ernest Meyers, the principal, admitted in evidence, over the objection of plaintiff in error. The witness Teideman was called to detail a conversation between himself and plaintiff in error, which was admitted, over objections of plaintiff in error. This conversation consisted in statements made to plaintiff in error by the witness while detailing what Ernest had said, which was, in substance, that Ernest Meyers had told him (witness) that he (Ernest Meyers) and Eugene Meyers had committed the murder, stating the manner in which Meyers said it was done. The witness then stated that plaintiff in error said to him that he (the witness) should have said that Eugene Meyers told him this. The evident purpose of this examination was to bring out the statements alleged to have been made by plaintiff in error to the witness; not for the purpose of proving substantially any confession made by Meyers to the witness. This was admissible. One Eugene Meyers was called as a witness, who, it appears, was under indictment in some form for this same offense; and in his testimony we find the following: “ Question. Did you find out, or try to find out, who were the perpetrators of the deed? Answer. Yes, sir. Q. State if you have found out. (Defendant objected, as incompetent, and calling for the conclusion of the witness. The objection is sustained.) Q. State if you know who did it. (To this question the same objection was made, but was overruled.) A. Yes, sir; I know who did it. I know my brother Ernest Meyers said he did it.” No objection was made to this answer. Judging by the ruling of the court upon similar questions during the trial, we doubt not, had the attention of the court been challenged to the latter part of this answer, it would have been excluded. The question itself was not particularly objectionable,as it did not call for an answer as to who was the guilty party; but the witness then volunteered the statement that his brother Ernest, the principal indicted with the plaintiff in error, said he did it. It is a well–established rule of criminal law that the confession of other persons, not made in the presence of accused, are incompetent in any form. Ogden v. State, 12 Wis. 593;Sharpe v. State, 29 Ohio St. 263;Dilcher v. State, 42 Ohio St. 173;Priest v. State, 10 Neb. 393. The statement, therefore, on the part of the witness, that he knew his brother Ernest said he did it, was incompetent, and, had objection been made, should have been stricken out. For this error the court was not in any sense to blame.

The next objection to which our attention will be given is the assignment that the court erred in refusing the plaintiff in error permission to put in evidence a record of the conviction of the witness Teideman of the crime of forgery. The witness, in his cross–examination, stated, clearly and distinctly, that he had been convicted of the crime of forgery by the district court of Arapahoe county, Colorado, and that he was sentenced to the penitentiary of that state, and served a part of the term for which he was sentenced, but was subsequently pardoned by the governor. The fact was clearly established, also, by the testimony of other witnesses who knew him. It is true that section 338, Civil Code, provides that the record of such conviction is competent evidence, and proof of the fact; yet it also provides that the witness himself may be interrogated as to his previous conviction. This was done, and the conviction unquestionably established and admitted. The record was competent evidence, and proved a fact, but, since it had already been established beyond any question, we can see no error in excluding the record, and at least no prejudice to pla...