Murphy v. State

• Decision Date: 28 May 1884
• Parties: MURPHY v. STATE.
• Court: Nebraska Supreme Court

15 Neb. 383

19 N.W. 489

MURPHY

v.STATE.

Supreme Court of Nebraska.

Filed May 28, 1884.

Error from Lancaster county.

Lamb, Ricketts & Wilson, for plaintiff.

The Attorney General and Ryan Bros., for defendant.

REESE, J.

The plaintiff in error was indicted and tried in the district court of Lancaster county upon the charge of having committed the crime of rape upon the person of Mrs. Julia Abbott. The trial resulted in a conviction, and he brings the case into this court by petition in error.

The first question presented by him is whether the district court erred in overruling his challenge of the juror J. B. Taylor. The testimony of this juror, on his voir dire examination, was, in substance, that he had heard of the case, and if what he had heard of the case was true he had formed an opinion; that the source of his information was what the neighbors of a family by the name of Abbott had said to his wife, and she had told him; that the parties with whom his wife had talked were none of them witnesses in the case, and that he thought what he had heard would influence his mind a little; that it would take evidence to remove his opinion. To the inquiry of the court the juror stated that what he had heard was rumor, and not by conversation with any person purporting to know the facts in the case; that it came to him in a roundabout way; and that he had no opinion except upon the hypothesis that what he had heard was true, and that he thought he would be able to render a fair and impartial verdict upon the evidence that should be adduced on the trial, and the law as given by the court, notwithstanding any opinion he might have formed. In Fillion v. State, 5 Neb. 352, it is said that “to render a juror incompetent it must appear that the opinion formed or expressed by him was in reference to the innocence or guilt of the accused.” The juror stated that he had heard of this case, and that if what he had heard was true he had formed an opinion; but there is no intimation in all the examination that the opinion of which he testified was in reference to the guilt or innocence of the plaintiff in error. The rule laid down in the case above referred to is decisive of this question.

But, to pursue the question further, section 468 of the Criminal Code provides, as the second cause for challenge, “that he has formed or expressed an opinion as to the guilt or innocence of the accused: provided, that if a juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine on oath such juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and the juror shall say upon oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that such juror is impartial, and will render such verdict, may, in its discretion, admit such juror as competent to serve in such case.” In accordance with the provisions of this section the trial court examined the proposed juror, and found correctly, as we think, that he was a competent juror. “It often happens that a juror may suppose that his belief in the existence of a certain fact will constitute an opinion, when, in truth, it may be necessary to establish a great many other facts before the guilt or innocence of the party could be established.” Curry v. State, 5 Neb. 416. Such was evidently the condition of this juror. He had an impression, but such a one as any intelligent person will have who hears, however remotely, a statement of the supposed facts of a case, and if, upon the trial, or upon a direct examination of any kind, the facts should differ from those at first presented, the mind is at once freed from its first impressions, and adopts that which is the result of a careful investigation. It should be further remembered that all the opinion entertained by this juror was hypothetical.

In Curry v. State, supra, 415, it is said, quoting from McCausland v. Crawford, 1 Yates, 378: “Prejudging and giving an opinion on a statement of certain facts are very different things. The first implies a strong disposition to favor one side or the other; a determination to find one way, let the evidence be what it may. The last involves the truth of certain facts and propositions in the sentiments delivered; and impressions thus made may be effaced by the production of other evidence. The first renders the person incompetent as a juror; the second is an opinion only binding or influencing the juror provided the case should turn out as represented; and this is an hypothetical opinion.” Such an opinion does not disqualify a juror. The evidence does not tend to show that the juror had any fixed and definite opinion as to the guilt or innocence of the plaintiff in error. Such an opinion is necessary to sustain a challenge. 2 Yates, 417. Upon inquiry by the court, the juror showed himself competent, under the statute, to sit in the case.

The next objection made by the plaintiff in error is that the verdict is not supported by sufficient evidence; that the testimony of the prosecutrix, if true, does not establish the commission of the crime of rape; and that her testimony is not corroborated sufficiently to justify the finding of the verdict returned by the jury. The evidence is conflicting, and somewhat voluminous. A critical review of it cannot be made in this opinion, but we think it is sufficient to sustain the verdict. The testimony of the prosecutrix appears to have been candidly and carefully given. Her statement of the case was, substantially, that she was at work in her room, packing her trunk, preparatory to her trip to her...