Reed v. State

• Citation: 106 N.W. 649,75 Neb. 509
• Parties: REED v. STATE.
• Decision Date: 18 January 1906
• Court: Supreme Court of Nebraska

75 Neb. 509

106 N.W. 649

REED

v.STATE.

Supreme Court of Nebraska.

Jan. 18, 1906.

Syllabus by the Court.

The main purpose of the requirement that the names of the witnesses be indorsed on the information in a criminal action is to convey to the accused the information or knowledge of the identity of the witnesses to be produced on behalf of the state; and, although a witness is designated on the information by the wrong Christian name, if the accused is not misled thereby, and is aware of the identity of the witness, such mistake affords no ground for the exclusion of his evidence.

Where an objection to a question propounded to a witness is sustained, and the testimony sought to be elicited by such question is brought out by the one succeeding it, such ruling, if erroneous, is error without prejudice.

Insanity cannot be proved by hearsay or reputation, and it is proper to exclude such evidence.

The rule permitting nonexpert witnesses to testify as to the sanity or insanity of one whose legal accountability is the sole matter in issue does not allow such witnesses to testify that at a certain date such party knew the difference between the right and wrong of the act at that time committed by him. Schults v. State, 55 N. W. 1080, 37 Neb. 481.

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 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.

Self-defense is extended to the defense of the person and of the domicile, and an instruction which correctly defines the elements of such defense is a sufficient charge on that subject.

The opinions of nonexpert witnesses on the question of the insanity of one charged with a criminal offense are entitled to little or no regard, unless supported by good reasons founded on facts which warrant them. From such opinions and the facts stated to support them, it is the province of the jury to draw their conclusions as to the sanity or insanity of the defendant.

An instruction in this case, by which the jury were told that if they believed from the evidence that the deceased and the accused were engaged in a scuffle, and while so engaged the revolver was accidently discharged and thus inflicted the wounds which caused her death, they should find the defendant not guilty, held to be as favorable to the defendant on that question as the evidence warranted.

Where the court, on his own motion, has correctly instructed the jury on all the issues presented by the record and evidence in a criminal case, it is not error to refuse to give the instructions requested by the defendant.

Where, by a supplemental motion for a new trial, the competency of a juror, on account of an alleged bodily infirmity amounting to a disability, is put in issue, and is determined as a matter of fact upon competent evidence introduced before the trial court, the finding of the fact on that question will not be set aside by a court of review, unless it is unsupported by the evidence and is clearly wrong.

In a criminal action, where, after trial and conviction, the competency of a juror is challenged for the first time on the ground that he has been convicted of a felony and served a term in the state penitentiary, the fact that counsel for the accused failed to examine the juror and ascertain his incompetency in that respect, full opportunity therefor having been accorded him, will amount to a waiver of such objection.

Error to District Court, Douglas County; Day, Judge.

James J. Reed was convicted of murder, and brings error. Affirmed.

Sedgwick, C. J., dissenting.

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

Norris Brown, Atty. Gen., and W. T. Thompson, Deputy Atty. Gen., for the State.

BARNES, J.

James J. Reed, on a trial in the district court of 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 2722, Cobbey's Ann. St. 1903, 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 of “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 that 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: “Q. 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 employés 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 around 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: “Q. 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 can not be proved in this manner. “Hearsay or reputation of being insane is not admissible.” Bishop's New Criminal Procedure, vol. 2, § 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...