Russell v. State

• Decision Date: 03 December 1902
• Citation: 66 Neb. 497,92 N.W. 751
• Parties: RUSSELL v. STATE.
• Court: Nebraska Supreme Court

66 Neb. 497

92 N.W. 751

RUSSELL

v.STATE.

Supreme Court of Nebraska.

Dec. 3, 1902.

Syllabus by the Court.

1. Upon the trial of an information charging an offense consisting of different degrees, the jury may acquit the defendant of the degree charged, and convict him of any of the inferior degrees.

2. By section 489 of the Criminal Code the jury are required, in trials for murder, to declare in their verdict whether the accused, if they find him guilty, is guilty of murder in the first or second degree or manslaughter.

3. The fact that the jury on the trial of an information charging murder in the first degree capriciously, or without sufficient cause, reject the evidence showing deliberation and premeditation, is no reason why their finding of an intentional and malicious killing should be set aside.

4. A nonexpert witness may give his opinion in regard to a matter which men in general are capable of comprehending, when, from the nature of the case, it is impossible for him to lay before the jury all the pertinent facts, so as to enable them to see the thing he is describing just as he saw it.

5. It is not reversible error to permit a witness to testify in regard to the means which he employed to identify property which he had been instructed to seize for the purpose of being used as evidence in a criminal case.

6. Any evidence tending to sustain a hypothesis which implies guilt is relevant to the issue in a criminal case, and cannot be excluded on the ground that it impeaches defendant's general character.

7. Evidence showing that a pair of old shoes worn by defendant at the time he was arrested was taken from the jail in his absence, and without his consent, does not establish a violation of his constitutional right to be secure against unreasonable searches and seizures.

8. There is no rule of law that limits counsel in debate to mere articulation. He may use any appropriate vehicle of thought to carry his conceptions of truth to the jury.

9. The modern practice, both in civil and criminal cases, is to send to the jury room all instruments, articles, and documents, except depositions, which have been received in evidence, and which will, in the opinion of the trial judge, aid the jury in their deliberations.

10. The ancient practice of keeping the jury out, while deliberating, without food, drink, fire, light, or opportunity for sleep, was never in vogue in this state. The rule is that a verdict cannot stand which is the result of any species of coercion.

11. The length of time a jury shall be kept together in consultation is a matter over which the trial court has a large discretionary power, but the verdict must in every case represent intellectual conviction, and not mere lack of physical endurance.

12. The fact that a jury has been kept together an unusually long time without reasonable opportunity for sleep will not vitiate the verdict if it is shown that the agreement was deliberate and voluntary, and not due to fatigue or exhaustion.

13. The discussion by the jury of irrelevant matters upon which counsel for defendant based an appeal for acquittal does not constitute misconduct within the meaning of section 490 of the Criminal Code.

14. On the hearing of the motion for a new trial in a criminal case the decision of the trial judge upon an issue of fact will be permitted to stand if the evidence upon which it rests is fairly conflicting.

15. Evidence examined, and found sufficient to sustain the verdict.

Error to district court, Dawes county; Westover, Judge.

Charles Russell was convicted of murder, and brings error. Affirmed.

Albert W. Crites and W. H. Fanning, for plaintiff in error.

Frank N. Prout, Atty. Gen., Norris Brown, W. B. Rose, M. J. O'Connell, and M. F. Harrington, for the State.

SULLIVAN, C. J.

The information upon which this case was tried charged Charles Russell with having killed Alois F. Staudenmaier purposely and of malice aforethought. The jury found the accused guilty of murder in the second degree, and the court sentenced him to imprisonment in the penitentiary for a term of 20 years.

There are a very unusual number of assignments in the petition in error, but only a few of them have been much discussed by counsel, either orally or in the briefs. The deceased, a Sioux county ranchman, was found dead on the range about three miles from his home and about six miles from the home of Russell. No one witnessed the tragedy, but from the wounds upon the body, marks upon the ground, and other circumstances, it is certain the killing was intentional, and highly probable that it was felonious. Both the slayer and his victim were on horseback. The latter went out, as he usually did, between 6 and 7 o'clock in the morning, to look after his cattle, and, according to the theory of the state, the former was lying in wait, and shot him. A peculiarly shaped horse track was found near the body, and was followed close to a point where Russell rode at about 8 o'clock on the morning of the day that Staudenmaier was killed. The track of Russell's horse was noted, and it was found to be strikingly similar to the other track. The probability that the same horse made both tracks brought Russell under suspicion, and led to his arrest and prosecution.

The first and principal ground upon which a reversal of the sentence is claimed is that the court erred in giving as part of the charge to the jury the law relating to the minor degrees of felonious homicide. Counsel on both sides seem to think that the defendant, if guilty at all, was guilty of murder in the first degree. We do not think this conclusion necessarily results from the evidence. In our view of the case, the trial judge acted with commendable prudence in charging as he did. But assuming that the defendant was either guilty of murder in the first degree or wholly innocent, it seems to us entirely clear that there is no error in the instructions of which he may justly complain. By section 487 of the Criminal Code it is provided that: “Upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and upon an indictment for an offense the jury may find the defendant not guilty of the offense, but guilty of an attempt to commit the same, where such an attempt is an offense.” And by section 489 the jury are required in all trials for murder, if they find the prisoner guilty, to “ascertain in their verdict whether it be murder in the first or second degree or manslaughter.” From these statutory provisions it is quite evident that on the trial of an information charging murder in the first degree the jury may, if the evidence warrants it, find the accused guilty of any of the lower grades of homicide. The fact that the jury rejected capriciously, or without sufficient cause, the evidence showing deliberation and premeditation, is no reason why their finding of an intentional and malicious killing should be set aside. Baker v. State, 4 Tex. App. 223;Parker v. State, 22 Tex. App. 105, 3 S. W. 100;State v. Hopper, 71 Mo. 425. This view is consistentwith Vollmer v. State, 24 Neb. 838, 40 N. W. 420;Botsch v. State, 43 Neb. 501, 61 N. W. 730;Fager v. State, 49 Neb. 439, 68 N. W. 611;Strong v. State (Neb.) 88 N. W. 772,--and is not in conflict with any of the cases cited by counsel for defendant. State v. Mahly, 68 Mo. 315, was not reversed because the law in relation to murder in the second degree had been given to the jury, but on account of misconduct of the prosecuting attorney. The ground of the decision is thus stated by Mr. Justice Henry: “The circuit court should have rebuked the prosecuting attorney, and told the jury that the law was not as the attorney declared it to be, and, for not having done so, the judgment should be reversed.” It was remarked in the course of the opinion that the court erred in giving an instruction defining murder in the second degree, because there was no evidence to support it, but it was not said or intimated that the giving of that instruction was prejudicial to the defendant. In this case there was evidence upon which there might have been a conviction of murder in the first degree, and, if there was error in instructing as to murder in the second degree, it was favorable to the defendant, and against the state. This is the meaning of the decision in the case of Kastner v. State, 58 Neb. 767, 79 N. W. 713.

It is also urged as error that the court permitted witnesses for the state, over objection, to testify in regard to tracks supposed to have been made by the horse which defendant rode on the day of the homicide. While it is earnestly insisted that the rulings upon this class of evidence were prejudicially erroneous, it is admitted that they do not go quite to the extent of violating the rule laid down in the opinion reversing the former conviction. This admission vindicates the action of the court. The decision in the case of Russell v. State, 62 Neb. 512, 87 N. W. 344, is based upon a dictum in Clough v. State, 7 Neb. 320, and goes to as great length in excluding opinion evidence as we are willing to go. It is frequently impossible for a witness to lay before the jury all the pertinent facts, so as to enable them to see the thing that he is describing just as he saw it. His conclusion, and the facts from which it is drawn, cannot always be separated. In such cases opinion evidence is competent, because a mere description, without an opinion, would convey a very imperfect and inadequate idea of the thing described. 1 Greenl. Ev. §§ 440, 440b; 2 Jones, Ev. §§ 362, 363; State v. Reitz, 83 N. C. 634;Com. v. Pope, 103 Mass. 440;Com. v. Choate, 105 Mass. 451;Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401. In the case last cited it is said that “common observers, having special opportunity for observation, may testify to their...