State v. Barker

• Decision Date: 12 July 1907
• Docket Number: 15,257
• Citation: 113 N.W. 197,79 Neb. 361
• Parties: STATE OF NEBRASKA, APPELLANT, v. FRANK BARKER, APPELLEE
• Court: Nebraska Supreme Court

113 N.W. 197

79 Neb. 361

STATE OF NEBRASKA, APPELLANT, v. FRANK BARKER, APPELLEE

NO. 15,257

Supreme Court of Nebraska

July 12, 1907

OPINION

SEDGWICK, C. J.

The defendant Barker is confined in the penitentiary under sentence of death for a capital offense. The reprieve granted by the governor being about to expire, the defendant's attorney applied to one of the judges of the district court for Lancaster county for an investigation as to defendant's sanity. The judge ordered an investigation and that a jury be called for that purpose, and therefore on the application of defendant's attorney continued the hearing to a day beyond the day fixed for execution, and ordered the execution to be stayed until further order. Upon the hearing in this court the jurisdiction and power of the judge to stay the execution was the principal question discussed, and the action of the judge in that regard was sustained. We will confine this discussion to a statement of the ground of this holding, without considering the method by which the proceedings were brought to this court, or other questions of practice which may be supposed to be presented by this record.

In a former appeal to this court by the defendant (Barker v State, 75 Neb. 289), it was said that "the judge should, upon proper information of that fact, and a prima facie showing that the convict is insane, investigate the matter for himself so far as to determine whether the convict appears to be insane, and, if he finds that he does so appear, then it would be his duty to impanel a jury to try the question of insanity." The rule of the common law was quoted as stated by Mr. Chitty. This rule has been substantially enacted in section 454 of our criminal code which was cited in Walker v. State, 46 Neb. 25, 64 N.W. 357. In that case it was pointed out that these proceedings are not applicable when "the alleged insanity or lunacy is claimed to have been in existence before trial upon information is begun." Upon the former appeal herein it was said that, when the application is made without the concurrence of the warden of the penitentiary, the judge to whom the application is made is not required to order a jury for the investigation of the matter, unless he finds that there are sufficient appearances of insanity to warrant him in so doing. The matter is left to the discretion of the judge to whom the application is made. If the application is manifestly made...