Ossenkop v. State
| Court | Supreme Court of Nebraska |
| Citation | 126 N.W. 72,86 Neb. 539 |
| Docket Number | No. 16,138.,16,138. |
| Parties | OSSENKOP v. STATE. |
| Decision Date | 09 April 1910 |
OSSENKOP
v.
STATE.
No. 16,138.
Supreme Court of Nebraska.
April 9, 1910.
In requiring the names of the state's witnesses to be indorsed on an information charging a criminal offense, the main purpose of the law is to give accused notice of the identity of the witnesses who are to testify against him.
In a criminal prosecution, rebuttal testimony on behalf of the state may be given by witnesses whose names were not indorsed on the information.
Record for review held not to show that the trial court abused its discretion in refusing a postponement, sought by defendant on the ground that the state indorsed names of additional witnesses on the information against him, where the last indorsement of the names of witnesses who testified in chief was made nine days before the trial, though defendant's motion was supported by an affidavit stating that his counsel was too busy in the trial of other cases to investigate the character of the additional witnesses.
After the state had made its case in chief in a criminal prosecution, an order postponing the trial until four of defendant's witnesses were released from quarantine, or for a period of 21 days, held not erroneous, where the order was made on motion of defendant for a continuance until the next term of court, or for a postponement until the release of the quarantine; there being nothing in the record to show that the trial was resumed when the quarantine was in force.
An order overruling a motion by defendant for a continuance in a criminal case will not be reversed on a record which fails to show that he was prejudiced by the order, or that in making it the trial court abused its discretion.
Where there has been no abuse of discretion on part of the trial court in denying a change of venue, its ruling will not be disturbed.
In the opening statement of counsel for the state in a criminal prosecution, the narration in good faith of facts which are not subsequently proved, or which are inadmissible under the rules of evidence, is not reversible error, where the record shows defendant is in no wise prejudiced.
After the state had made its case in chief in a prosecution for murder in the second degree, an order permitting the jury, upon being
[126 N.W. 73]
admonished, to separate for the period of 21 days, during a postponement allowed on the ground that four of defendant's witnesses had been quarantined on account of smallpox, held not an abuse of discretion or reversible error, where the record failed to show misconduct on the part of any juror or prejudice to defendant.
The purpose of section 333 of the Code, in providing that a physician shall not be allowed to testify to confidential communications, is to prevent the improper disclosure of secrets or facts learned by means of the confidential relation between physician and patient.
Where defendant in a prosecution for murder employs a physician to examine the body of his victim and report conditions, the physician, by reason of such employment, is not excused from testifying to the results of his investigation, when called as a witness on behalf of the state.
Where it was not shown in a prosecution for murder that the victim of the homicide had been under the influence of liquor, there was no error in sustaining an objection to the following question propounded to a witness for defendant: “When under the influence of liquor, what was his disposition as to being quarrelsome or otherwise?”
In reviewing the proceedings in a criminal prosecution, a conviction will not be set aside for nonprejudicial rulings in admitting or in rejecting evidence.
Instruction relating to declarations made by defendant after an assault resulting in a homicide held not erroneous.
In a murder case, where accused testified on direct examination that he struck decedent two or three times when decedent was on the ground, the admission of accused's brother's directions to accused, after decedent had been knocked down, “Now give it to him!” was not prejudicial.
Error to District Court, Cass County; Travis, Judge.
Fred Ossenkop was convicted of manslaughter, on a charge of murder, and brings error. Affirmed.
Matthew Gering, for plaintiff in error.
W. T. Thompson, Grant G. Martin, and Geo. W. Ayres, for the State.
ROSE, J.
In a prosecution by the state, in the district court of Cass county, Fred Ossenkop, defendant, was convicted of manslaughter, and sentenced to serve a term of 10 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, 5; January 25, 1909, 6; February 2, 1909, 3. 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 endorse thereon the names of such other witnesses as shall then be known to him.” Cr. Code, § 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
[126 N.W. 74]
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 continue 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 10 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.
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