Owens v. State

• Decision Date: 30 June 1891
• Citation: 49 N.W. 226,32 Neb. 167
• Parties: OWENS v. STATE.
• Court: Nebraska Supreme Court

32 Neb. 167

49 N.W. 226

OWENS

v.STATE.

Supreme Court of Nebraska.

June 30, 1891.

Syllabus by the Court.

1. A juror in a criminal prosecution disclosing on his voir dire that he has an opinion as to the guilt or innocence of the accused, based on rumor and what he has heard in the court-room, which will require evidence to remove, is incompetent, though he may state that he can render an impartial verdict under the law and evidence. Miller v. State, (Neb.) 45 N. W. Rep. 451;Curry v. State, 4 Neb. 548;Cowan v. State, 22 Neb. 523, 35 N. W. Rep. 405;Olive v. State, 11 Neb. 1, 7 N. W. Rep. 444.

2. The evidence examined, and held not to sustain the verdict.

Error to district court, Gage county; BROADY, Judge.Rickards & Prout, for plaintiff in error.

Wm. Leese, Atty. Gen., for the State.

COBB, C. J.

At the February term, 1890, the grand jury for said county presented an indictment against Owen R. Owens for incest, charging that on April 15, 1889, he feloniously, rudely, and licentiously cohabited with one Sarah Ann Owens, his daughter, as he then well knew. On the 24th of February the defendant pleaded not guilty. On the 5th of March there was a trial, and the jury found the defendant guilty as charged. A motion in arrest of judgment and for new trial having been heard and overruled, the defendant was sentenced to the penitentiary of this state for the term of seven years. On the trial various exceptions were taken to the admission of testimony by the state, the exclusion of evidence for the defense, and to instructions, and the refusal of instructions, by the court to the jury. That the verdict and sentence are contrary to the evidence, and are not supported by it, together with 18 other specified errors of the trial, are assigned, to be considered in the petition of the plaintiff in error.

The first error presented is that of impaneling the juror Joseph Ramsey, who was examined on his voir dire, and replied to the question, “Do you know anything about this case? Answer. Nothing, only what I have heard since I came into the court-room. Question. Have you heard the facts stated, on which the case is founded? A. Nothing more than rumor. Q. What you heard, did it make any impression on your mind? A. If it was proved, it has; if not, it has not. Q. Then you have an impression now, have you not? A. To a certain extent, if they prove the facts I have heard. Q. And it is such an impression or opinion as would require evidence to remove, would it not? A. Well, yes; of course. By the Court. You think, notwithstanding what you have heard, you could give the man a fair trial, do you? A. Yes, certainly.” The challenge of the juror for cause was overruled by the court, and he was sworn, and sat with the panel. On April 30, 1890, there was heard here, and decided on error to the district court of Gage county, the case of Miller, under sentence to be hung for murder. On that trial the juror Garrison, having formed an opinion based on rumor and from reading newspaper accounts, answered on his voir dire to the question, “Will it not require some testimony to remove that opinion from your mind? Answer. Yes, it will take some evidence. Question. You could not sit in this jury-box, and commence at the beginning of the trial of the case, without having some testimony to remove the bias and prejudice against the defendant, or in his favor; is that not so? A. Yes; I would have to have some testimony. By the Court. Notwithstanding any opinion you have formed, could you give this defendant a fair and impartial trial upon the law and evidence? A. I can. Q. Would you consider the testimony, the same as if you had not heard anything about it? A. Oh, yes; I would consider the testimony the same.” As to the error of impaneling this juror, the court said: “It is obvious that, under the rule laid down by this court in numerous cases, Garrison was not a competent juror. While he doubtless believed he could hear the testimony and render an impartial verdict, his private opinion, that would have to be overcome with testimony, would prevent him from doing so. The defendant was required to excuse the juror peremptorily, which exhausted his last challenge, and was prejudicial error.” Miller v. State, (Neb.) 45 N. W. Rep. 453;Curry v. State, 4 Neb. 548;Cowan v. State, 22 Neb. 523, 35 N. W. Rep 405;Olive v. State, 11 Neb. 1, 7 N. W. Rep. 444. This example sufficiently demonstrates the error, directly parallel with it, in the present case.

On the trial the court gave to the jury 5 instructions requested by the prosecuting attorney and refused 2; gave 6 instructions requested by the defense, with additions and modifications, which are assigned as errors, and refused 20. Of its own motion the court instructed as follows: “The indictment is based upon the section of the statute that, ‘If a father shall rudely or licentiously cohabit with his own daughter, the father shall, upon conviction, be punished by imprisonment in the penitentiary.’ There cannot be a cohabitation, within the meaning of this law, without carnal knowledge, otherwise called ‘sexual intercourse.’ This charge may consist of a single act of carnal knowledge, or a continuous series of such acts,--for a day, or less time; or, if continuous, it may be for a week, a month, or year, or a number of years. All the essential elements of the crime are contained in the allegations of the indictment, to which you are referred, but which is not evidence. (2) It is not incumbent on the defendant to prove his innocence. Not as a mere form, but by a substantial part of the law, he is presumed to be innocent, and not guilty, until his guilt is proven to the satisfaction of each and every one of you, beyond a reasonable doubt; and this presumption is a matter of evidence, to the benefit of which the defendant is entitled. Mere suspicion, or reason to suspect, however strong, a probability on the doctrine of chances, or simply a preponderance of evidence, is not sufficient to overcome the presumption of innocence, but it continues as long as there is a reasonable doubt of any fact necessary to convict; and it matters not whether the ingenuity of counsel has been instrumental in bringing about the doubt, provided it arises from the whole evidence in the case. (3) The evidence, to justify a conviction, must be, beyond all reasonable doubt, consistent with the hypothesis of guilt, and inconsistent with any hypothesis of innocence that can reasonably be drawn from the evidence. (4)...