Rhea v. State

• Decision Date: 08 January 1902
• Parties: RHEA v. STATE.
• Court: Nebraska Supreme Court

63 Neb. 461

88 N.W. 789

RHEA

v.STATE.

Supreme Court of Nebraska.

Jan. 8, 1902.

Syllabus by the Court.

1. The amendment of section 3 of the Criminal Code in 1893, authorizing a jury to determine whether, upon conviction, the accused should suffer the death penalty, or be imprisoned in the penitentiary during life, does not have the effect of repealing the law with reference to the qualifications of jurors in prosecutions for offenses where the penalty may be death. Hill v. State, 60 N. W. 916, 42 Neb. 503.

2. The entertaining of conscientious scruples against capital punishment is a ground for challenge for cause in the prosecution for murder in the first degree. Dinsmore v. State (Neb.) 85 N. W. 445.

3. In order to render a juror incompetent, it is not required that his opinions and scruples against the infliction of capital punishment should be such as to absolutely forbid him under any circumstances from rendering a verdict inflicting the death penalty.

4. When a juror entertains opinions or conscientious scruples against imposing the death penalty, such as will bias his judgment and influence him in the consideration of the evidence as applied to the law, or if his answers leave his qualifications on that point in doubt or uncertainty, it is not error for the trial court to excuse him on the state's challenge for cause.

5. In the determination of the qualifications of jurors in a criminal prosecution, a discretion or latitude is given the trial court which is greater when exercised in excusing jurors from serving where their qualifications are in doubt than in their retention.

6. The finding of the trial court in deciding a challenge for cause will not be set aside by the appellate court unless manifest error appears. Basye v. State, 63 N. W. 811, 45 Neb. 261.

7. Rulings of trial court in excusing certain jurors of the state's challenge for cause held not to be erroneous.

8. Homicide committed in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary is by section 3 of the Criminal Code declared murder in the first degree. The turpitude of the act is, in the exceptional cases mentioned in the statute, made to supply the place of deliberate and premeditated malice, while a purpose to kill is conclusively presumed from the intention which is the essence of the enumerated felonies. Morgan v. State, 71 N. W. 788, 51 Neb. 672, re-examined and adhered to.

9. The rule that, in adopting a statute from another state which has been judicially construed, the legislature also adopts the construction thus placed on the statute, is not absolute in all cases, amounting to a conclusive presumption. And where such adopted statute is not in all respects the same, and has been altered by amendment in respect of a matter and on a point regarding which the prior construction largely rested, and such construction is deemed unsatisfactory in reasoning and opposed to the great weight of authority, the court of the adopting state is not absolutely bound by such prior construction, but is warranted in refusing to adopt or follow the same.

10. It is not error to instruct the jury that it is sufficient to constitute murder in the first degree “if there was such design and determination to kill distinctly formed in the mind at any moment before or at the time the blow was struck,” where the remainder of the instruction properly defines “purpose,” “deliberation,” and “premeditation,” and states that the proposed act must have been deliberated and premeditated upon before it was committed, and it is evident that the language quoted referred to the existence of the purpose, and not the time of its formation. Carleton v. State, 61 N. W. 699, 43 Neb. 373, followed.

11. An instruction should be construed as a whole, and not by its division into fragmentary parts.

12. Where it is stated in an instruction that the act of killing, to constitute murder in the first degree, must be performed in furtherance of the design or purpose previously formed, the instruction is not rendered erroneous because further on in the same instruction it is said, “If a 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,” without reiterating that the act must have been done in pursuance of the previously formed design.

13. An instruction which has no foundation in the evidence upon which to base it is properly refused.

14. An instruction regarding a point which has been substantially covered and included in another instruction given may properly be refused.

15. An instruction submitting blank forms of verdicts to the jury, from which one is to be selected to return their finding, held not to submit to the consideration of the jury a count of the information which by a prior instruction was withdrawn from their consideration.

16. It is not error or prejudicial to the rights of a defendant in a prosecution for murder in the first degree, where the information contained different counts charging the homicide to have been committed with deliberation and premeditation, and also in the perpetration or attempted perpetration of a robbery, to submit to the jury, for their finding, blank forms of general verdicts of guilty or not guilty of the crime charged in the information, and without a form finding not guilty as to one only of the different counts of the information.

17. Record examined, and held, counsel for the state not guilty of misconduct prejudicial to the rights of the defendant in his argument to the jury.

18. Evidence examined, and held sufficient to support the verdict of the jury.

Error to district court, Dodge county; Grimison, Judge.

William Rhea was convicted of murder in the first degree, and brings error. Affirmed.

For dissenting opinion, see 97 N.W. 1070.E. F. Gray, Geo. L. Loomis, and H. C. Maynard, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

HOLCOMB, J.

The plaintiff in error, defendant in the trial court, was informed against, jointly with two others, for the killing of one Herman Zahn; the crime charged being murder in the first degree. On a plea of not guilty to the information, the defendant was separately tried before the court and a jury, which resulted in a verdict of murder in the first degree; the jury, in their verdict, finding and determining that the death penalty should be inflicted. On the verdict so returned the court duly pronounced the sentenceof death by hanging. The defendant prosecutes error proceedings for the purpose of having reviewed the proceedings had at the trial, and to obtain a reversal of such judgment.

Several alleged errors are assigned in the petition in error, and ably argued by defendant's counsel, to which we shall now direct our attention:

Complaint is made because of certain rulings made by the trial court while impaneling a jury, whereby several jurors, after their voir dire examination, were excused on the challenge of counsel for the state because of the opinions and scruples entertained by them as to the infliction of capital punishment in cases where murder in the first degree is charged. Our views of the law applicable to the alleged error will appear more clearly by a consideration of the examination of two of the jurors thus excused, although the objection applies to the court's ruling in excusing more than that number. One Milgrim was called in the jury box, and, in the examination which followed as to his qualifications to sit as a juror, was asked: “Have you got any such opinion upon the question of capital punishment which would or might preclude you from rendering a verdict of guilty where the punishment for the offense is death; that is, in a case where the evidence was strong and convincing in its character?” To which question he answered: “Yes, sir; I don't believe in capital punishment.” Whereupon he was challenged by the state for cause. Defendant's attorney then interrogated the juror, to which replies were made as follows: “Q. Mr. Milgrim, in case you did not understand the question that was just asked you by Attorney Stinson upon the question of capital punishment, which I don't believe you did, I therefore desire to inquire of you further on that point. Now, then, if you are finally selected as a juror in this case, and after hearing the instructions of the court laying down the law in the case, would you then have any such feeling, opinion, or prejudice against the death penalty, which would or might preclude you absolutely, and in any and every case, no matter how strong and convincing the evidence might be, from agreeing to a verdict where the penalty for the offense was death? A. If the evidence would show such, I would have to abide by the law. Q. Then, if the case was a strong one against the defendant, your opinion upon the question of capital punishment would not preclude you from agreeing to a verdict where the punishment for the offense was death? A. No, sir; it would not.” Defendant then objected to the state's challenge being sustained, which was overruled, and the juror excused, to which ruling exceptions were taken. Another proposed juror (Brazda) was interrogated regarding the same matter as follows: “Q. Have you any conscientious scruples, or are you conscious of any scruples, upon the question of capital punishment? A. Yes, sir; I am. Q. That is, you have such opinion upon the question of capital punishment that would preclude you from rendering a verdict of guilty where the punishment for the offense was death? A. Yes, sir; I have.” Whereupon a challenge was interposed on behalf of the state for cause. Defendant's counsel examined the juror as follows: “Q. Mr. Brazda, do I understand you that you have conscientious scruples in relation to inflicting the death penalty? On that point this is what I want to know: Take it in a case...