South v. State
| Decision Date | 31 December 1923 |
| Docket Number | 23385 |
| Citation | 196 N.W. 684,111 Neb. 383 |
| Parties | FRANCIS SOUTH v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county: LEONARD W. COLBY JUDGE. Affirmed.
AFFIRMED.
Lloyd Crocker, for plaintiff in error.
O. S Spillman, Attorney General, Lloyd Dort and H. F. Mattoon contra.
Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY and GOOD, JJ.
In a prosecution by the state in the district court for Gage county, Francis South, defendant, was accused of murder in the first degree. It was charged in the information that defendant, in attempting in Beatrice to rob Charles Wolf of $ 63, struck him on the head with a blunt instrument November 29, 1922, and that as a result of the assault he died December 2, 1922. Defendant pleaded not guilty and upon a trial of the case he was convicted of murder in the first degree, the jury fixing his punishment at imprisonment for life. The district court pronounced sentence on the verdict. Defendant, as plaintiff in error, presents for review the record of his conviction.
Invalidity of the proceedings resulting in the calling of the jury, failure to quash the panel and disqualification of jurors were propositions argued in the brief of defendant and presented orally at the bar. In these respects the record does not disclose error. The showing upon which the trial court acted in ruling against defendant on preliminary questions was not preserved in the manner required by statute. The affidavits upon which defendant relies are not in the bill of exceptions. The preliminary examination of jurors and the rulings relating to their qualifications do not appear in the record. There is no complaint of misconduct by any juror during the trial. Through mercy of the jury defendant escaped the penalty of death. When the evidence is considered with the verdict there is no reasonable inference that any juror was prejudiced or disqualified. The presumption of regularity in calling, selecting and impaneling jurors prevails in absence of an affirmative showing to the contrary.
Defendant challenges as error the overruling of a motion for a change of venue, but there is nothing to indicate an abuse of discretion in this respect, the showing in support of the motion not appearing in the record in a form to be considered.
Some of the assignments of error are directed to the conduct of the trial judge in interrupting counsel by interrogating the witness on the stand, by limiting the examination of witnesses and by directing witnesses not to answer questions to which no objections were made. An examination of a group of assignments relating to these subjects fails to show any error. The criticised questions, rulings and remarks of the trial judge were confined to orderly procedure, to the proper ascertainment of issuable facts, to the exclusion of testimony having no bearing on the issues, to the unnecessary repetition of details already stated, and to the observance by counsel of recognized rules of evidence. In these particulars the rights of defendant were carefully protected. There was no general examination by the trial judge of any witness. No ruling has been found which deprived defendant of the benefit of any admissible proofs tending to throw light on his defense. It is equally clear that the evidence adduced by the state to prove the charge was confined to proper bounds. Untenable assignments of error relating to rulings on evidence were multiplied to an extent precluding a separate discussion of each, but all have been considered without finding a prejudicial error.
An assignment of error argued at considerable length presents for review extraneous remarks from the bench during the trial. After the state had made its case in chief by evidence tending to prove that defendant had participated in a shocking homicide while attempting to rob his victim of a roll of currency, the trial judge, in the presence of the jury, addressed the sheriff of Gage county and the chief of police of Beatrice as follows:
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