Reed v. State

• Decision Date: 18 January 1906
• Docket Number: 14,206
• Citation: 106 N.W. 649,75 Neb. 509
• Parties: JAMES J. REED v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

106 N.W. 649

75 Neb. 509

JAMES J. REED v. STATE OF NEBRASKA

No. 14,206

Supreme Court of Nebraska

January 18, 1906

ERROR to the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Cunningham R. Scott and E. H. Scott, for plaintiff in error.

Norris Brown, Attorney General, and W. T. Thompson, contra.

BARNES J. SEDGWICK, C. J., dissenting.

OPINION

BARNES, J.

James J. Reed, on a trial in the district court for Douglas county, was convicted of the crime of murder in the first degree for the killing of one Glenna Hynes, and was sentenced to the penitentiary for life. From that judgment and sentence he prosecutes error to this court, and will hereafter be called the accused.

His first contention is that the trial court erred in admitting the evidence of Darwin P. Baldwin, a witness for the state, because the name of said witness was not indorsed on the information. It appears that the real name of the witness was Darwin P. Baldwin instead of Daniel P. Baldwin, the name by which he was designated on the information. It further appears that this witness had been a police officer in the city of Omaha for something like 14 years before the information herein was filed; that he was known among his brother police officers, and his associates and acquaintances, as "Dan. P. Baldwin," and this was the reason why his name was thus indorsed on the information. There was no mistake as to the identity of the witness, and the accused in speaking of him during the trial invariably called him "Dan Baldwin." It is apparent that the mistake in the name of the witness did not mislead the accused, or prevent him from knowing who the witness was that would testify against him. Section 579 of the criminal code provides that the prosecuting attorney shall indorse on the information 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. The reason for the rule requiring the names of the witnesses to be indorsed on the information in a criminal action is to advise the accused of the identity of the witnesses who will be called to testify against him, and to enable him to intelligently prepare for his defense. It is apparent from the record that the accused was not misled in any way by the indorsement of the name "Daniel P. Baldwin" on the information, in lieu of the name of "Darwin P. Baldwin." In the case of Carrall v. State, 53 Neb. 431, 73 N.W. 939, the name "Mrs. Fred Steinburg" was indorsed on the information. It appeared that the name of her husband was not "Fred Steinburg," but was in fact "Paul Fred Steenburg." It was objected that the true name of the witness was not indorsed on the information. The court said:

"The evidence disclosed that the husband was known as 'Fred Steenburg' and the wife, in her testimony, when being interrogated directly on this point, stated that her name was 'Mrs. Fred Steenburg,' from which it appears that the indorsement on the information was of her a sufficient identification, one which met the purpose of the statute, notwithstanding the law does not recognize a second or other than first christian name. This appellation 'Fred' was that by which the husband was known and identified, and it indicated the wife when applied to her in the manner of its indorsement with the other name and term on the information."

So we conclude that, where the name indorsed on the information fairly identifies the witness, and the accused is not misled or taken by surprise on account of a mistake in the christian name, it is not error to receive the evidence of such witness.

Counsel for the accused also contends that the court erred in sustaining the objection to a question put to witness Oliver Cowing. It appears from the record that this witness was being examined by counsel as a nonexpert witness on the question of insanity. The question asked was as follows: "How was it about his conversation being connected or otherwise?" This question was objected to by the state on the ground that it was leading, and the objection was sustained. If this ruling was incorrect, the error was cured by the question and answer which followed. The witness was next asked: "Now, I will ask you to go on in your own way and state everything that you ever saw about the man during the time you knew him before the homicide and up to the homicide that attracted your attention, and tell why it attracted your attention." This question was answered at length by the witness without objection. We quote a part of the answer as follows: "He generally talked with some of the employees of the shop that boarded there, and he always appeared to me like he was irritated and quick, and gave quick answers, and his brow would contract, and have a peculiar expression on his face, and would probably leave off the conversation abruptly and turn round and walk out of doors. I noticed that several times." It thus appears that counsel obtained the evidence he sought to elicit by the question objected to. Therefore the ruling in no way prejudiced the rights of the accused.

It is next urged that the court erred in sustaining the objection to the following question which was propounded to the witness Peter Goos: "Now, I will ask you to state what you know, if anything, about the subject of his derangement being the subject of common conversation among the people at the hotel." We think the objection was properly sustained. This witness was also called by the defendant as a nonexpert on the question of insanity. By the question asked counsel attempted to prove insanity by hearsay, or reputation. Insanity cannot be proved in this manner. "Hearsay or reputation of being insane is not admissible." 2 Bishop, New Criminal Procedure (4th ed.), sec. 687a; Ashcraft v. De Armond, 44 Iowa 229; Yanke v. State, 51 Wis. 464, 8 N.W. 276.

The accused further contends that the court erred in sustaining the state's objection to the evidence of the witness W. H. Anderson. This assignment presents the question just discussed in relation to the testimony of Peter Goos, and therefore will receive no further consideration. It is claimed that the witness B. B. Smalley should have been permitted to answer the following question: "Now, then, I will repeat my question: Taking that into account, and his manner, and what you have seen of other insane persons, what would be your opinion as to his condition as to his being able, of his own will, and his own mind, to determine right from wrong?" This question was before this court in Shults v. State, 37 Neb. 481, 55 N.W. 1080, where the rule was stated as follows:

"The rule permitting a nonexpert witness to testify as to the sanity or insanity of a party whose legal accountability is the sole matter in issue does not allow such witness to testify that at a certain date such party knew the difference between the right and wrong of an act at that time committed by him."

So it would seem that the court correctly excluded the testimony sought to be elicited by the question quoted above.

The foregoing necessarily disposes of all of the other assignments of error relating to the admission and exclusion of evidence, and therefore they will be given no further attention.

This brings us to the assignments of error relating to the giving of instructions. The sixth paragraph of the instructions given by the court on his own motion, reads as follows: "To constitute murder in the first degree there must have been an unlawful killing done, purposely and with deliberate and premeditated malice. If the person has actually formed the purpose maliciously to kill, and has deliberated and premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree, however short the time may have been between the purpose and its execution. It is not time that constitutes the distinctive difference between murder in the first degree and murder in the second degree. An unlawful killing with malice, deliberation and premeditation, constitutes the crime of murder in the first degree. It matters not how short the time, if the party has turned it over in his mind and weighed and deliberated upon it." This instruction is vigorously assailed by counsel for the accused, who claims that it contains an incorrect definition of murder in the first degree. At first blush it would seem as though the point was well taken; but after a careful reading of the whole thereof, in connection with the other parts of the court's charge to the jury, we are constrained to hold the instruction good. Counsel, in order to establish his contention, segregates a part of the paragraph complained of, and, reading it without reference to the rest of the instruction, claims that it is erroneous. It is not the true method of construing instructions to select detached portions thereof and consider them as independent of the whole of the charge to the jury. The correct rule of construction, and the one universally followed by this court, is that all that is said in the entire charge upon any one question shall be construed together, and if, when so construed, it is not inconsistent as a whole, and states the law correctly, no valid assignment of error can be predicated thereon. St. Louis v. State, 8 Neb. 405, 1 N.W. 371; Parrish v. State, 14 Neb. 60, 15 N.W. 357; Murphy v. State, 15 Neb. 383, 19 N.W. 489; Carleton v. State, 43 Neb. 373, 61 N.W. 699. In the case last above cited, in one of the paragraphs of the instructions, the court said: "It is sufficient if there was such design and determination to kill distinctly formed in the...