Russell v. State
| Decision Date | 18 September 1901 |
| Citation | 62 Neb. 512,87 N.W. 344 |
| Parties | RUSSELL v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Rulings not argued are deemed waived.
2. An assignment of error for the overruling of an application for a continuance is unavailing, where such application is not included in the transcript.
3. It is not error to overrule an application of a defendant in a criminal case for a continuance, on the ground that a witness is absent, where the state admits the witness, if present, would testify as stated in the affidavit in support of the motion, and that the statement of the affidavit might be used in evidence on the trial.
4. To constitute one a competent juryman, he must have resided in the state 6 months, in the county 40 days, and in the precinct, township, or ward 10 days, and be 21 years of age or more.
5. Ordinarily an infant in incapable of changinghis domicile. An emancipated minor may acquire a domicile or residence of his own.
6. An objection that a venireman is not a qualified juryman is unavailing, unless specifically raised in the trial court.
7. An opinion formed by a juror does not affect his competency, or afford ground for a challenge for cause, unless the opinion is unqualified as to the merits of the cause, and such as will interfere with rendering a fair and impartial verdict upon the evidence under the instructions. Basye v. State, 63 N. W. 811, 45 Neb. 261.
8. In a prosecution for murder, it is competent for the county attorney, before the introduction of testimony, to outline to the jury the evidence which the state expects to produce to sustain a conviction.
9. It is incompetent for a witness to testify to a comparison made between one of the feet of a horse which the prisoner was known to have ridden on the day of the homicide, and tracks of a horse found near the place where the crime was committed, and leading in the direction of the defendant's home, or to give his opinion or belief as to whether the tracks were made by such horse.
Error to district court, Sioux county; Westover, Judge.
Charles Russell was convicted of murder, and brings error. Reversed.
A. W. Crites and W. H. Fanning, for plaintiff in error.
F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.
In the district court of Sioux county Charles Russell was prosecuted for the murder of one Alois L. Staudenmaier. From a verdict of guilty, and from a sentence for life imprisonment entered thereon, the accused has prosecuted this proceeding, assigning 185 errors. Only those especially argued will be considered; the others being deemed waived.
The court below denied an application made by defendant before trial for a continuance of the cause, which ruling is the first one assailed. A short answer to this assignment of error is that the motion or application for a continuance is not contained in the record brought here. Therefore this assignment is unavailing. Lean v. Andrews, 38 Neb. 656, 57 N. W. 401;Jandt v. Deranlieu, 43 Neb. 422, 61 N. W. 632;Ball v. Nelson, 45 Neb. 205, 63 N. W. 361.
But the assignment should be overruled for a ground less technical. It may be inferred from the transcript that the application for a postponement of the trial was based upon the absence of witnesses deemed material for the defense. Pending the hearing of the motion counsel for the state made the following concession and offer, which were entered upon the court journal: “The state here admits that the witnesses named in the application for a continuance, if present, would testify to the facts which it is stated in the application they would testify to, and the state consents that the application, in so far as it sets forth the facts to which these witnesses will testify, may be read at the trial, except the testimony of such of the witnesses as may be present at the trial; the state expecting that two of these witnesses will be present.” The defendant objected to the offer and admission on the ground that the prosecution was for murder in the first degree, and the concession ought to be of the absolute truth of the facts stated in the application, being the facts to which it stated the witnesses would testify. The court below ruled the concession sufficient, and denied the continuance. This decision is in line with the rule announced by this court in two felony cases, to the effect that a motion made by a defendant in a criminal case for a continuance on the ground of the absence of a witness may be overruled when the state admits that the witness, if present, would testify as stated in the affidavit in support of the motion. Fanton v. State, 50 Neb. 351, 69 N. W. 953, 36 L. R. A. 158;Catron v. State, 52 Neb. 389, 72 N. W. 354. The question here raised was fully considered in the cases just cited, and we are entirely satisfied with the conclusion therein reached. A different rule cannot be established in a prosecution for murder than obtains in other felony cases. The constitution guaranties that one prosecuted for a crime shall be confronted with the witnesses against him; but the fundamental law does not make it necessary that the defendant's witnesses shall be present in the court. One charged with murder is no more entitled to the presence in court of his witnesses than one prosecuted for grand larceny, and in such case we have decided that the prisoner has no such right.
The defendant challenged a juryman, Albert Estler, on the ground that he had not been a resident of the state a sufficient length of time to entitle him to serve as a juror. It is disclosed beyond dispute that Estler became 21 years of age on August 21, 1900, a month preceding the trial; that he formerly lived and made his home with his parents in the state of New York; that he came to Nebraska about 8 months before the trial, and has resided here ever since, working by the month. By section 657 of the Code of Civil Procedure male persons over the age of 21 years and having the qualifications of electors are made competent jurymen. To constitute one a qualified voter he must be of the age of 21 years or upward, and reside in the state 6 months, in the county 40 days, and in the precinct, township, or ward 10 days. Comp. St. c. 26, § 3. The defendant...
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