Morgan v. State

• Decision Date: 03 June 1897
• Parties: MORGAN v. STATE.
• Court: Nebraska Supreme Court

51 Neb. 672

71 N.W. 788

MORGAN

v.STATE.

Supreme Court of Nebraska.

June 3, 1897.

Syllabus by the Court.

1. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude, to a moral certainty, every rational hypothesis except that of his guilt.

2. It is the province of the jury to determine the circumstances surrounding, and which shed light upon, the alleged crime; and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot, as a matter of law, be said to have failed. Casey v. State, 29 N. W. 264, 20 Neb. 138.

3. The body of deceased, a girl 11 years of age, who was last seen alive about 7 o'clock p. m., was about 1 o'clock the next morning found in an uninhabited building, with unmistakable evidence of violence upon her person, including well-defined finger marks on the larynx; also, below the left ear and under the chin. The face was swollen and discolored, 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. Her underclothing was torn from her person, and there was blood on her thighs and private parts. There was also found in the vaginal passage a quantity of fluid which an experienced and apparently capable chemist pronounced semen of a male person, and medical witnesses concurred in the opinion that death resulted from strangulation. Held to warrant the conclusion that the deceased was killed in the perpetration of a rape upon her person.

4. Evidence examined, and held to point with such certainty to accused as the perpetrator of the crime charged as to warrant the verdict of murder complained of in this proceeding.

5. The legislature of this state, in the enactment in 1873 of the Ohio Criminal Code, is presumed to have adopted the settled construction thereof by the courts of that state.

6. But a construction of that statute by the courts of Ohio is entitled to no greater consideration than previous decisions of this court, and will be rejected for reasons which would require the overruling thereof had it been first adopted in this state.

7. Homicide, committed in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, is by section 3, Cr. Code, declared murder in the first degree. The turpitude of the act is, in the exceptional cases mentioned in the statute, made to supply the place of deliberate and premeditated malice, while a purpose to kill is conclusively presumed from the intention which is the essence of the enumerated felonies. Henry v. State, 70 N. W. 924, 50 Neb. ___.

8. An information for murder contained two counts, by the first of which the accused was charged with the killing of deceased purposely and of his deliberate and premeditated malice, and by the second count the killing was alleged to have been done in the perpetration of a rape upon the person of deceased. Held proper to instruct that murder in the second degree and manslaughter are not included in the second count, and that, in case the accused is found guilty as therein charged, the verdict should be for murder in the first degree.

9. It is not, in a criminal prosecution, error for the trial court to assume the existence of facts asserted by the accused on the trial, or treated by him as proved. Hill v. State, 60 N. W. 916, 42 Neb. 503.

10. Objection to an instruction on the ground that it contains two or more distinct propositions will not be noticed when made for the first time in this court. Smith v. State, 4 Neb. 277.

11. It is, in a criminal prosecution, permissible for the state to introduce evidence of any number of facts and circumstances tending to connect the accused with the crime charged; and, if the facts actually proved are sufficient to establish guilt beyond a reasonable doubt, he is not entitled to an acquittal because of a failure of proof with respect to one or more of the facts relied upon for a conviction.

12. A party by failing to exercise his right of peremptory challenge will be held to have waived any objection on account of the disqualification of a juror then known to exist. Palmer v. People, 4 Neb. 68.

13. It is a rule applicable to all appellate proceedings that the record of the trial court, when properly authenticated, imports absolute verity. If such record is partial or incorrect, the remedy is by means of an appropriate proceeding to secure a correction thereof in the lower court. Trust Co. v. Hogeboom, 66 N. W. 14, 47 Neb. 7.

14. It is within the discretion of the district court to place a reasonable limit upon the time for the production of evidence, and the exercise of such discretion is not, except in case of an abuse of power, the subject of review.

15. A new trial will not be allowed on account of the absence of a witness who on a subsequent day of the trial attends and testifies for the complaining party.

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

George Morgan was convicted of murder in the first degree, and brings error. Affirmed.W. R. Patrick and W. S. Summers, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

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 18 years of age, to wit, of the age of 11 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 proceedingmay, 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 11 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 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. Detwiler, 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 meal 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 assistance of Officers Hudson and McGroth, of the police force,...