Pumphrey v. State
| Decision Date | 11 June 1909 |
| Docket Number | 15,734 |
| Citation | 122 N.W. 19,84 Neb. 636 |
| Parties | CHARLES PUMPHREY v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: ALEXANDER C. TROUP JUDGE. Affirmed.
AFFIRMED.
Carl E Herring and John O. Yeiser, for plaintiff in error.
William T. Thompson, Attorney General, and Grant G. Martin, contra.
Plaintiff in error was convicted of committing murder while in the perpetration of a robbery, and, from a sentence of imprisonment in the state penitentiary for life, has appealed to this court.
1. The first error argued is that the court should not have overruled defendant's challenges for cause to various veniremen because thereby he was compelled to exhaust his peremptory challenges. The bill of exceptions discloses the challenges and the court's rulings, but none of those veniremen were sworn or acted as jurors in the case. Whether they were eventually excluded by the court on its own motion, by agreement of the state and defendant, upon a subsequent challenge of the state, or peremptorily by defendant, does not appear. The record therefore does not support the contention of defendant, and the error assigned will be resolved against him. Shumway v. State, 82 Neb. 165, 119 N.W. 517; Kennison v. State, 83 Neb. 391, 119 N.W. 768.
2. Defendant also claims that the court should not have excused the veniremen London, Thomas, Schmidt and Winans. The first named individual was excused because his answers indicated that he did not possess sufficient intelligence to perform the duties of a juror. The answers were contradictory, and the court did not err in dismissing this man from the jury. Defendant was being tried for murdering a Chinaman, and the answers of Thomas, Schmidt and Winans indicated that because of the nationality of the deceased they would not be inclined to convict defendant. Other veniremen were excused because they had conscientious scruples against inflicting the death penalty. There is nothing in the record to indicate that 12 impartial men were not secured to act as jurors in the case, and the court ruled wisely and justly in excusing the men first referred to. Richards v. State, 36 Neb. 17, 53 N.W. 1027; State v. Miller, 29 Kan. 43. The veniremen whose voir dire examination disclosed that they were prejudiced against inflicting the death penalty were also properly excluded from the jury. Rhea v. State, 63 Neb. 461, 88 N.W. 789.
3. An assault is made upon the information and the statute under which it was drawn, but the questions presented, as we understand them, have been set at rest in Morgan v. State, 51 Neb. 672, 71 N.W. 788, and Rhea v. State, 63 Neb. 461, 88 N.W. 789, and will not be further considered.
4. After the jurors were sworn the county attorney made his opening statement of the case. Defendant's counsel thereupon requested permission to make a statement at the close of the state's evidence. To this the county attorney objected, and the court directed defendant's counsel to state the defense, although they desired to waive that statement. It has been held in other jurisdictions, in construing statutes as mandatory as section 478 of the criminal code, that the prosecution may introduce evidence without a preliminary opening statement. Holsey v. State, 24 Tex. Ct. App. 35, 5 S.W. 523; People v. Stoll, 143 Cal. 689, 77 P. 818; People v. Weber, 149 Cal. 325, 86 P. 671. Much stronger reasons exist for permitting a defendant to waive his statement of defense, and, if he is content to rest upon his plea of not guilty, the court ought to permit him to do so. On the other hand, there is nothing in the record to indicate what statements defendant's counsel made, nor that he was prejudiced thereby. The error was without prejudice.
5. One Jack Naoi was called as a witness by the prosecution, and upon the county attorney's statement that the witness was a citizen of Japan, and could not speak the English language, an interpreter was produced. Defendant's counsel objected to the witness being sworn for the alleged reason that Japan is a heathen country; that prima facie the witness was not qualified to take an oath, and that the state ought to remove that presumption before the oath was administered. The objection was overruled, the witness sworn, and his testimony given through the medium of an interpreter. Counsel for defendant cite Speer v. See Yup Co., 13 Cal. 73, but that case is not in point. The opinion therein was controlled by a statute absolutely disqualifying Indians as witnesses, and in People v. Hall, 4 Cal. 399, the same court had construed the word "Indian" as including the Mongolian race. Section 328 of the code provides that every human being, with certain named exceptions, of sufficient capacity to understand the obligations of an oath is a competent witness in all cases, civil and criminal. Among the exceptions are "Indians and negroes who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them intelligently and truly." We are not inclined to adopt the reasoning of the California court that the legislature intended to include the Japanese in the foregoing exception, but, if such were the case, the answers of the witness to the questions propounded through the interpreter clearly take him without the exception.
Section 365 of the code provides: It is urged that the witness was an idolater and would not be bound by an appeal to the "invisible God" of the Christians. In Priest v. v. State, 10 Neb. 393, 6 N.W. 468, we approved Bouvier's definition of an oath as "an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God." In that case an Indian was held to be incompetent to testify. The Japanese, however, are a civilized people, and have at...
To continue reading
Request your trial