Morgan v. State

• Court: Nebraska Supreme Court
• Writing for the Court: POST, C. J.
• Citation: Morgan v. State, 51 Neb. 672, 71 N.W. 788 (Neb. 1897)
• Decision Date: 03 June 1897
• Docket Number: 8413
• Parties: GEORGE MORGAN v. STATE OF NEBRASKA

71 N.W. 788

51 Neb. 672

GEORGE MORGAN v. STATE OF NEBRASKA

No. 8413

Supreme Court of Nebraska

June 3, 1897

ERROR to the district court for Douglas county. Tried below before SCOTT, J. Affirmed.

AFFIRMED.

W. R Patrick and W. S. Summers, for plaintiff in error.

References to sustain the contention that there was error in the orders overruling challenges to jurors having opinions as to the guilt of the accused: Olive v. State, 11 Neb. 1; Curry v. State, 4 Neb. 545; Carroll v State, 5 Neb. 31; Cowan v. State, 22 Neb. 523; Miller v. State, 29 Neb. 445; Owens v. State, 32 Neb. 167.

Where the evidence is circumstantial, the circumstances established must, to warrant a conviction, be such as to exclude every reasonable hypothesis, except that of the defendant's guilt. It is not sufficient that the circumstances create a probability, however strong. (Botsch v. State, 43 Neb. 501; Dreessen v. State, 38 Neb. 375; Eliot v State, 34 Neb. 49.)

The trial judge should use the statutory language descriptive of a crime in giving instructions, and no change from the statute can be made that may mislead or deceive the jury. (Long v. State, 23 Neb. 33.)

Instruction 13 was erroneous as invading the province of the jury. (State v. Lee, 60 N.W. [Ia.], 119; Parrish v. State, 14 Neb. 60; Olive v. State, 11 Neb. 1; Young v. Hibbs, 5 Neb. 433.)

The trial court is not permitted to indicate his opinion and thereby influence the jury by discussing the evidence or to give instructions which are commentaries on the testimony introduced. (Omaha Fair & Exposition Ass'n. v. Missouri P. R. Co., 42 Neb. 111; State v. Hudson, 58 Mo. 138; Smith v. State, 43 Tex. 103.)

A charge that the law does not require the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt, is erroneous. (State v. Gleim, 17 Mont. 17; Marion v. State, 16 Neb. 349; Kollock v. State, 60 N.W. [Wis.], 817; People v. Phipps, 39 Cal. 333; Commonwealth v. Webster, 52 Am. Dec. [Mass.], 711.)

If any member of the jury entertained a reasonable doubt as to the sufficiency of the proof to establish any one material averment in the information against the accused he should have been free under the instructions to have given the accused the benefit of the doubt. (Castle v. State, 75 Ind. 146; State v. Wilt, 34 Kan. 488; State v. Stewart, 52 Iowa 284; State v. Sloan, 55 Iowa 217.)

Instruction 18 is erroneous because it states two propositions, and invades the province of the jury. (Williams v. State, 51 Neb. 711; Long v. State, 23 Neb. 33; People v. Clarke, 62 N.W. [Mich.], 1117; Prime v. State, 19 So. Rep. [Miss.], 711.)

The court in giving instructions cannot go outside of the theories advanced and the testimony given by the parties. (People v. Wallin, 55 Mich. 497; Ingalls v. State, 48 Wis. 647.)

The court should not single out, and give undue prominence to, certain features of the state's case. (Williams v. State, 13 So. Rep. [Ala.], 333; Hodgkins v. State, 15 S.E. [Ga.], 695.)

An erroneous instruction is reversible error though a correct exposition of the law on the same point has been given to the jury. (Barr v. State, 45 Neb. 458; Metz v. State, 46 Neb. 547; Raker v. State, 50 Neb. 202.)

C. J. Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state:

The mere fact that a juror has formed an opinion from what he has heard or read does not disqualify him from acting, or make him incompetent to serve. (Bayse v. State, 45 Neb. 261; Bohanan v. State, 18 Neb. 57; Curry v. State, 5 Neb. 412.)

If there was error in overruling challenges to jurors, it was without prejudice to defendant, as it does not appear in the record that he exhausted his peremptory challenges. (Bohanan v. State, 15 Neb. 209; Palmer v. State, 4 Neb. 68; Nowotny v. Blair, 32 Neb. 175; Burnett v. Burlington & M. R. R. Co., 16 Neb. 332.)

The transcript of the proceedings imports verity and cannot be altered, amended, or impeached by affidavits. (Dryfus v. Moline, 43 Neb. 233; Sullivan v. Benedict, 36 Neb. 409; Hagerty v. Walker, 21 Neb. 596; State v. Hopewell, 35 Neb. 822.)

All that was necessary for the jury to find in order to convict accused of murder in the first degree under section 3 of the Criminal Code was that the killing was done while he was perpetrating, or attempting to perpetrate, the crime of rape. Deliberate and premeditated malice, if elements of the crime charged, is conclusively presumed when it is shown that the killing was done while perpetrating the crime of rape. (Moynihan v. State, 70 Ind. 126; Titus v. State, 9 Crim. Law Magazine [N. J.], 353; Graves v. State, 45 N.J.L. 204; Commonwealth v. Manfredi, 162 Pa. 144; Buell v. People, 78 N.Y. 492; State v. Gray, 19 Nev. 212; State v. Miller, 13 S.W. [Mo.], 832; State v. Hopkirk, 84 Mo. 278.)

The statement in instruction 20, that the law does not require the jury to be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish defendant's guilt, is not ground for reversal when considered in connection with the entire charge. (State v. Hayden, 45 Iowa 11; Bressler v. People, 117 Ill. 422; People v. Phipps, 39 Cal. 326; People v. Anthony, 56 Cal. 397; Koerner v. State, 98 Ind. 7.)

OPINION

The opinion contains a statement of the case.

POST, C. J.

The plaintiff in error was, at the September, 1895, term of the district court for Douglas county, convicted of murder in the first degree, and from the judgment imposing the extreme penalty therefor he prosecutes error to this court. The information which was the basis of the prosecution below contained two counts, in the first of which the accused was in substance charged with fatally assaulting the deceased Ida Gaskill, with intent her, the said deceased, feloniously and of his deliberate and premeditated malice, to kill and murder; and by the second count thereof it was charged that the accused feloniously killed and murdered the said Ida Gaskill in the perpetration of a rape then and there committed upon her, the said Ida Gaskill, a female child under eighteen years of age, to-wit, of the age of eleven years. A verdict was returned finding the accused not guilty as charged in the first count of the information and guilty in manner and form as charged in the second count thereof. A motion for a new trial was interposed, in which were alleged numerous grounds for the setting aside of the verdict, and which are made the basis of separate assignments of the petition in error.

The questions to be determined in this proceeding may, it is believed, be greatly simplified by the preliminary observation that there exists no controversy respecting the corpus delicti. Indeed, the fact was conceded by counsel for the accused on the argument of the cause, and cannot, upon the record, be disputed, that the body of the deceased, a girl eleven years of age, who was last seen alive about 7 o'clock P. M. of Sunday, November 3, 1895, was, about the hour of 1:30 in the morning following, found in an uninhabited building in the city of Omaha, with unmistakable evidence of violence before death, including well-defined finger marks on the neck and larynx; also below the ear and under the chin. The face was blue and swollen, the eyes and tongue were swollen and protruding, while contusions were apparent upon the head and lower limbs. Blood was oozing from the vagina, and the vaginal passage was torn and lacerated from the opening so far as explored. The underclothing of the deceased had been torn from the person, and there was blood on her thighs and private parts. There was also found in the vaginal passage a considerable quantity of fluid, which Dr. Detwiller, an experienced and apparently capable chemist, from a careful analysis, pronounced semen of a male person; and medical witnesses, of whom a number were examined, concurred in the opinion that death resulted from strangulation subsequent to the violation of the person of deceased in manner as charged. It is thus apparent that the important inquiry relates to the connection, if any, of the accused with the homicide proved, and to that subject our attention will now be directed.

For a month or six weeks previous to the tragedy above noted Mrs Gaskill, mother of the deceased, with her family, consisting of the said Ida and her son Willie, aged nine years, had occupied rooms on the third floor of a building described in the record as No. 1814 Half-Howard street, in the city of Omaha, on the first floor of which was a suite of two rooms occupied by the accused and one Sanford, to whom further reference will hereafter be made. Among the acquaintances of the Gaskill family was Martin Booker, a single man, engaged on his own account as a teamster, and who resided at No. 1806 St. Mary's avenue, in the neighborhood of a half block distant. On the fatal Sunday, Ida and her brother, with their mother's permission, dined with Booker, going to his rooms a little before noon, and returning home between 3 and 4 o'clock P. M. Ida, after the dinner with Booker, washed and put away the dishes of their host, and scrubbed the floor of his room, receiving therefor some trifling compensation tendered her. From the time of her return home until about 5:30 P. M. she was engaged alternately in assisting with the household duties and in play with companions of her own age in the neighborhood. Mrs. Gaskill, about the hour last named, in return of the hospitality shown her children, permitted Ida to go out for the purpose of inviting Booker to supper with her. After delaying the mean for an hour or more, and becoming alarmed on account of the prolonged absence of the child, search was instituted by the mother, which, with the...