Ossenkop v. State
| Decision Date | 09 April 1910 |
| Docket Number | 16,138 |
| Citation | 126 N.W. 72,86 Neb. 539 |
| Parties | FRED OSSENKOP v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass County: HARVEY D. TRAVIS JUDGE. Affirmed.
AFFIRMED.
Matthew Gering, for plaintiff in error.
William T. Thompson, Attorney General, and George W. Ayres, contra.
In a prosecution by the state in the district court for Cass county, Fred Ossenkop, defendant, was convicted of manslaughter and sentenced to serve a term of ten years in the penitentiary. As plaintiff in error he now presents for review the record of his conviction.
1. The first ruling challenged as erroneous permitted the county attorney to indorse on the information the names of a number of witnesses without granting a continuance. The information was filed November 23, 1908, and at the time bore the names of 19 witnesses for the state. With permission of the court the names of additional witnesses were indorsed on the information as follows: January 19, 1909, five; January 25, 1909, six; February 2, 1909, three. The case was called for trial February 4, 1909. Defendant does not seriously complain because the state was permitted to indorse on the information the names of the additional witnesses, but insists the time to investigate their character and their knowledge of the facts was wholly insufficient. He contends further that he did not have time enough to prepare for the trial or to meet their proofs with testimony in his own behalf, and that his sole counsel was too busy in other cases to make the necessary investigation or to inquire into the antecedents of the state's witnesses. The statute requiring names of witnesses to be indorsed on the information is as follows: "All informations shall be filed during term, in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him." Criminal code, sec. 579.
In the manner stated in this law, defendant is entitled to know the names of the witnesses who are to testify against him, and the giving of this information is the main purpose of the statute. Reed v. State, 75 Neb. 509, 106 N.W. 649. Of course, a trial court cannot deprive accused of the benefit of this statutory right by an abuse of discretion which prevents a reasonable postponement to enable him to meet material testimony of witnesses whose names were indorsed on the information immediately preceding the trial. Rauschkolb v. State, 46 Neb. 658, 65 N.W. 776. In the present case, was there an abuse of discretion in refusing to grant a continuance? The witnesses whose names were indorsed on the information February 2, 1909, did not testify when the state was making its case in chief, nor until the trial had been postponed for 21 days. Rebuttal testimony on behalf of the state may be given by witnesses whose names were not indorsed on the information. Clements v. State, 80 Neb. 313, 114 N.W. 271. Whether they testified in rebuttal is therefore not material to this inquiry. For these reasons, the indorsement of three names two days before the time set for trial did not make the order denying the continuance prejudicially erroneous. It appears from facts already stated that after the indorsement of six names, January 25, 1909, defendant had until February 4, 1909, for investigation and preparation. It is not affirmatively shown that the time was too short, or that the court in refusing to grant an extension or to postpone the trial abused its discretion. The skill and vigor of the defense, when considered with the entire record, refute defendant's argument on this point. That counsel was too busy in other cases to investigate the character of the state's witnesses and the nature of their testimony, under the circumstances disclosed, does not require a different conclusion. Dunn v. People, 109 Ill. 635.
2. Complaint is also made because the district court, four days after the commencement of the trial, refused to continuance the case until the next term of court. The motion for the continuance was based on the ground that four of defendant's witnesses, on account of smallpox, were quarantined at the time by the state board of health. Defendant's motion was in the alternative form, and contained a request for a continuance until the next term of court or for a postponement until the release of the quarantine. The court denied the continuance until the next term of court, but formally sustained the motion to postpone the case until the release of the quarantine, or until March 2, 1909, a period of 21 days. This order was not made, however, until a physician, under authority of the court, had reported the existence of smallpox and expressed the opinion it would be unsafe to release the quarantine in less than ten days. The record does not show when the quarantine was released, but does show that the trial proceeded at the appointed time, and that three of the quarantined witnesses testified on behalf of defendant. For the purpose of showing error, it will not be presumed that the court forced defendant into the trial when his witnesses were detained by quarantine, or proceeded when the quarantine was in force. Error must affirmatively appear on the face of the record. Presumptions are in favor of the regularity of judicial proceedings. The postponement having been granted in substantial compliance with the terms of the motion made by defendant, he cannot make the order the basis of a reversal on a record which fails to show that the trial was resumed before the quarantine was released, or that there was reason for further postponement.
3. In response to a subpoena, Wesley Knight appeared as a witness for defendant February 8, 1909, but did not testify. During the intermission he went to Cuba, and on account of his absence defendant asked for a continuance, which was denied March 2, 1909. This ruling is also assigned as error. The motion was supported by an affidavit, in which defendant undertook to state the nature of the testimony Knight would give, if present. It does not appear from the affidavit that he witnessed the homicide, or that he was present at the time, or that he knew any fact immediately connected with that event. The facts recited in the affidavit relate principally to the friendly relations between defendant and Byrnes, the victim of the homicide; to their having jointly rented a hall for a dance at Walton; to their never having quarreled; and to the reputation of defendant as a peaceable and law-abiding citizen. As to these matters, other witnesses testified on behalf of defendant; and, while it was stated in the affidavit that all of the facts mentioned therein could only be proved by the absent witness, Knight, the following is the only enumerated fact of which defendant offered no proof at the trial: "Byrnes was a man of ungovernable temper, and when under the influence of liquor was quite quarrelsome." The record contains no proof that Byrnes was under the influence of liquor, and the affidavit does not state that Knight alone could testify Byrnes had an ungovernable temper. It will not be presumed, on review, that this fact could only be shown by the absent witness, especially since many of the witnesses in testifying stated they had known Byrnes during the greater part of his life. It does not affirmatively appear, therefore, that there was an abuse of discretion in overruling the motion. Burgo v. State, 26 Neb. 639, 42 N.W. 701; Dunn v. People, 109 Ill. 635.
4. The next assignment is: A motion by defendant for a change of venue was erroneously overruled. He argues that it was impossible to have a fair and impartial trial in Cass county for the following reasons: Four murders had been committed therein within a period of four months prior to the trial. These crimes were subjects of universal conversation, and the details were published in the newspapers. The public mind was inflamed. The excitement was intense. There was undue haste in the prosecution. Affidavits presenting these grounds for a change of venue were filed by defendant in support of the motion, but the state resisted the application by a greater number of affidavits denying the existence of the passion and prejudice on which the motion was based. The application was directed to the trial court's discretion, and only an abuse thereof would justify an interference with the ruling below. Sweet v. State, 75 Neb. 263, 106 N.W. 31; Jahnke v. State, 68 Neb. 154, 94 N.W. 158; Goldsberry v. State, 66 Neb. 312, 92 N.W. 906; Argabright v. State, 62 Neb. 402, 87 N.W. 146; Welsh v. State, 60 Neb. 101, 82 N.W. 368; Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382; Olive v. State, 11 Neb. 1, 7 N.W. 444. On the face of the affidavits, an abuse of discretion on part of the trial court in denying a change of venue is not shown. Furthermore, passion and prejudice against defendant are not reflected in the verdict, when it is considered in the light of the record. Defendant was charged with murder in the second degree. The testimony on behalf of the state would sustain a verdict of guilty as thus charged. Under the instructions of the court, the jury were at liberty to find defendant guilty of murder in the second degree or of manslaughter. The penalties for each felony were explained to the jury by the trial court. Knowing the instructions permitted a verdict which might result in a life sentence, they returned a verdict under which the trial court could...
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