Marion v. State

• Decision Date: 27 October 1886
• Citation: 29 N.W. 911,20 Neb. 233
• Parties: JACKSON MARION, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

29 N.W. 911

20 Neb. 233

JACKSON MARION, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 27, 1886

ERROR to the district court for Gage county. Tried below before BROADY, J.

AFFIRMED.

L. W Colby and Hazlett & Bates, for plaintiff in error.

William Leese, attorney general, for the state.

OPINION

REESE, J.

Plaintiff in error was indicted at the March term, 1883, of the district court for Gage county, for the crime of murder committed on the 15th day of May, 1872. Upon trial he was convicted of murder in the first degree, and sentenced to be hanged. Upon a review of that judgment by this court, a new trial was granted. The case is reported in 16 Neb. 349. A re-trial resulted in the same judgment, and the case is again before us by proceedings in error.

We will notice the questions presented substantially in the order in which they occur in the brief of plaintiff in error.

A large number of men were examined on their voir dire before a sufficient number of competent jurors could be found, and it is alleged that the court erred in its rulings as to the competency of persons called to sit in the case as such jurors.

Mr. Dobbs, of the regular panel, was called. Upon enquiry by the district attorney, he stated that he had heard a part of the testimony on the previous trial, and from that he had formed an opinion as to the guilt or innocence of the accused, which he still had. He was challenged by the state and excused by the court, to which plaintiff excepted.

As the case stood at the time of the ruling of the court, there was no error in the decision. So far as the examination had gone, and assuming that plaintiff was satisfied with it, there being no examination on his part, the juror was properly excluded. As we shall hereafter notice, the "manner of procedure" in the prosecution of criminal cases is to conform to the law now in force, even though the crime was committed while the former criminal code was in force. Sec. 255, Crim. Code. By section 468 of the present code, it is enacted, that if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, he shall be examined on oath as to the ground of his opinion, and if the opinion is not founded "upon conversations of witnesses of the transactions, or reading reports of their testimony, or hearing them testify," and the juror shall declare his ability to sit and decide impartially, he may be retained. The juror had heard the testimony (in part) on the previous trial, and upon that his opinion was founded. This was enough to justify the trial court in excusing him.

Mr. Mitchell was examined as to his competency. He stated that he had formed an opinion as to the guilt or innocence of plaintiff, which it would take evidence to remove. Plaintiff made no examination. Upon challenge by the state he was properly excused. Olive v. The State, 11 Neb. 1, 7 N.W. 444.

Mr. Wymore was called, and stated that he was a "first cousin" to plaintiff, and when asked by the court if he "could be a fair and impartial juryman to sit in the trial of the cause," his answer was, "I don't know; I don't think I would." This would seem to be sufficient. He was a relative within the fourth degree. The statute excludes all within the fifth. Sec. 468, Crim. Code.

Mr. Allsworth being called as a talesman, claimed his exemption, having served on the regular panel of jurymen at the June term of court of the same year. He was excused. While a verdict rendered by such a juror would be legal, yet the juror was entitled to the exemption, and it was not error to allow it. Civil Code, sec. 665, Title Juries.

As to the jurors Reed, Morrison, and Jillett, the same rule would apply as to the juror Mitchell, above referred to. As to Mr. Moore, the same as to Mr. Dobbs, and as to Mr. Cain, the same as to Mr. Allsworth.

The peremptory challenges having been made, the jury were sworn to try the cause. Immediately after the administration of the oath, plaintiff in error challenged a member of the jury, Mr. Mathews, and the juror was excused. It matters not whether this ruling was right or wrong, as it was upon plaintiff's motion. Mr. Smith was then called as a talesman and examined as to his competency, both by the state and plaintiff in error. No objection having been made to him, the court ordered the jury to be re-sworn. Plaintiff in error then "objected to further proceedings in the case with the present jury; the jury having already been sworn and one juror excused." The objection was overruled and the jury re-sworn. We see no prejudicial error in this. While it may be that plaintiff could not, as a matter of right, have insisted upon the exclusion of Mr. Mathews, yet having done so successfully, and having waived all challenge of the new juror, and the trial not having been commenced, nor the statements made to the jury, we cannot see that he was in any degree prejudiced.

On the trial one Jacob Worley was called as a witness for the state. He testified that in 1872 he saw plaintiff in error and the deceased together in Kansas, and that they left that state, saying they were coming to Nebraska. That prior to their departure the deceased boarded with plaintiff in error. That plaintiff in error desired to purchase a team and harness owned by deceased, and finally did so, for $ 225, paying $ 30 in cash; and that on the day before their departure, plaintiff in error purchased a wagon of the deceased, agreeing to pay $ 90 therefor, the witness having heard a conversation between them to that effect. That he was present at the time the contract was made with reference to the team and harness, and both parties stated the terms of the whole transaction to him. On the cross-examination it was shown that the contract for the sale of the team--and perhaps the wagon--was reduced to writing, whereupon plaintiff in error moved to strike out all the testimony of the witness in regard to the trade, as immaterial, irrelevant, and not the best evidence. The motion was overruled, and this ruling is assigned for error. Upon re-direct examination it was shown that the writing was delivered to the deceased, and by him put in his pocket; and that they left there the next morning, and the witness had never since seen the written instrument, and knew nothing more concerning it. We think the ruling of the court was correct. Not so much upon the theory that the paper was shown to be lost--yet that was sufficient, perhaps, under the circumstances--but upon the ground that the testimony was competent without showing such loss.

Soon after the parties left Kansas, they appeared together in Gage county, this state, and from there they "went west," to be gone, as stated by plaintiff in error, four or five weeks; the possession of the team and wagon being retained by deceased until they should be paid for Soon after their departure from the house of the parents of the wife of plaintiff in error to go west, and within a few days, plaintiff in error returned without the deceased, saying he had gone to Clay county, Kansas, but having in his possession the team and wagon, and wearing a part of the clothing of deceased.

This will be sufficient to show the relevancy of the conversation between the parties so shortly before the alleged killing, and also show a motive on the part of plaintiff in error in taking the life of deceased--the evidence of the killing, and of plaintiff's guilt being circumstantial--not for the purpose of proving the terms of the contract of purchase, but to show the relations sustained by the parties, and the circumstances under which they left Kansas. It was competent to show, as a circumstance in the case, the desire on the part of the plaintiff in error to possess himself of the property, if for no other purpose. Maxwell Pl. and Pr., 519. 1 Greenleaf, § 89.

A general objection is made that on the trial the district attorney propounded to the witnesses a great many leading questions, and objections are also made specially to particular questions. It must be sufficient for us to say upon these objections, that upon examination of the bill of exceptions we find that in some instances leading questions were propounded to witnesses, but in nearly every instance objection was promptly made, and sustained by the court. So far as the general view of the case goes, the witnesses were reasonably fairly examined. We have also examined the questions to which our attention is specially called, and find no room for complaint.

The next question presented is, that the court erred in admitting "in evidence the photograph of John Cameron over the objection of counsel for defendant." This photograph does not accompany the bill of exceptions, but we find from the record that it was a likeness of the deceased, taken before his death. While it is true it might be of little or no service in the matter of the identification of the remains, yet it might be of importance in the matter of the identification of John Cameron, the person in the company of plaintiff in error immediately before his return to the home of the Warrens, and as a means of identifying Cameron, as the person testified to by the various witnesses in his lifetime. For this purpose it was admissible, though of no great importance. The same may be said of the hair found where the remains were first discovered; and though of but little importance, it would be a matter to submit to the jury as a circumstance tending to aid in the identification of the remains as those of John Cameron.

The next objection to the testimony is to the cross-examination of the witness J. D. Marion, who was a witness on behalf of plaintiff in error. This witness testified that he resided in Kansas,...