Priest v. State
| Decision Date | 31 August 1880 |
| Parties | PRIEST AND ANOTHER v. THE STATE OF NEBRASKA. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error to the district court for Dakota county.
C. J. Dilworth, Attorney General, for the State.
At the March term, 1880, of the district court of Dakota county the plaintiffs were tried for the murder of a white man on the Winnebago reservation, and convicted of murder in the first degree and sentenced to death. They prosecute a writ of error to this court. It is claimed that the court erred in sustaining the demurrer to the plea in abatement to the indictment. The plea, after setting out certain matters alleged to be prejudicial to the accused, which we deem unneccessary to notice, states “that the grand jury that found said indictment were not legally chosen and empanelled.” It is said on the argument that the demurrer admits that such was the case. A plea in abatement should state facts, and not mere legal conclusions. State v. Brooks, 9 Ala. 10; Burley v. The State, 1 Neb. 395. The plea should have pointed out wherein the grand jury were not legally chosen and impanelled, and as it failed to do so presented no issue, and the demurrer was properly sustained.
It is alleged that the court erred in admitting the testimony of Holly Scott. It appears from the bill of exceptions that Scott and the plaintiffs are Indians, and that Scott was convicted of the murder of a white man in the year 1879, and is now in the penitentiary, and that the plaintiffs were convicted on his testimony alone, he having testified that Thomas Walker, in the absence of Priest, confessed to him that he and Priest killed a white man on the reservation in the spring of 1879, and showed him where they had buried the body; and that he dug into the ground, which he states was a place in a ravine washed out by the water, and found the breast of a white man; that he afterwards told him that they had cut off the head.
Section 328 of the Code provides that Gen. St. 581.
The preliminary examination of Scott, through an interpreter, was as follows:
Question. By Mr. Powers: Ask him (Scott) if he understands the obligation of an oath. Answer. Yes, sir.
Q. Well, ask him what the consequences would be if he should testify to a falsehood; what he understands the consequences would be. A. He says he can tell you something--that there has been murder.
Q. I am asking what the consequences would be for swearing falsely--telling a lie in this matter; not what he knows about the case. A. He don't understand that about the swearing.
Q. He don't understand that? A. Yes, sir.
Q. By the court: Ask him if he knows what would be done with him if he swears to a lie. A. He says he swore that he was going to tell the truth--he was not going to tell lies.
Q. By Mr. Marks, (prosecuting attorney:) State whether or not you understand, if you tell a lie in this case, that God, the Great Spirit, would be displeased with you. A. I will tell the truth; I don't want to tell any lies.
Q. State whether or not you understand that when you are called as a witness in this case you must tell the truth, the whole truth, and nothing but the truth.
By Mr. Marks: We ask the court to instruct the witness as to what are the legal consequences of his telling a lie in this case. Defendant's counsel object.
Q. By Mr. Powers: Ask the witness if he understands what the consequences would be if he should swear to a falsehood. A. He don't know none. He don't know anything.
Q. By the court: You may ask the witness if the Indians have anything in their affairs which answers or is like the oaths that we use. A. He says that they had some kind of a way to have that, but still he was going to tell the truth; and he thought that he was going to ask a question right away; so he was waiting for you to ask the questions of him.
Q. By the court: Do you know that it is wrong to swear to a lie? A. He don't know that. He says if you want him to testify he wants to know so; he wants to tell his evidence--that is all he is waiting for.
Q. By Mr. Marks: State whether or not you know that God, the Great Spirit, would be displeased if you should tell a lie. A. He says he don't know that. He says he is sworn to tell the truth, and thought that he was going to tell his questions. That is about all that he was waiting for, he says. He says if God was going to dislike him, or anything of that kind, he didn't know it.
Q. Is it a fact the witness understands that which he is going to tell us is the truth, and that he must not tell anything that is not the truth? A. He don't want to tell a lie. He says he wants to tell the truth and what he knows.
An oath is defined to be ...
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