Sweet v. State
| Decision Date | 20 December 1905 |
| Citation | 75 Neb. 263,106 N.W. 31 |
| Parties | SWEET v. STATE. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A motion for a change of venue in a criminal prosecution is addressed to the sound discretion of the trial court, and, unless there has been an abuse thereof, its ruling on the motion cannot be disturbed. Goldsberry v. State, 92 N. W. 906, 66 Neb. 312.
(a) If from the showing made in support of and against the motion for a change of venue in a criminal case there is no reasonable ground shown on which to found a belief that the accused cannot have a fair and impartial trial in the county where the offense is alleged to have been committed, it is not error to deny such motion. Id.
An objection to a question on the ground that it is leading and calling for a conclusion of the witness does not properly raise the question of the competency of the evidence sought to be elicited by such question.
(a) The admission of incompetent evidence may be error without prejudice where the fact to which such evidence relates is otherwise established by competent evidence.
It is not error to refuse an instruction concerning evidence of the previous good character of the accused, when the instruction calls attention especially to such evidence and to no other, and tells the jury that it may be relied on to raise a doubt of the guilt of the accused sufficient to acquit him, which, without such proof, would not have existed.
(a) Evidence of good character is always admissible as a circumstance favorable to the accused, to be considered by the jury in connection with the other evidence bearing upon the question of guilt or innocence, and given such weight as the jury believe it fairly entitled to, and when so considered it may be sufficient to create a reasonable doubt, when, without it, none would exist, but the conclusion of the jury is to be drawn from the whole of the evidence; and when, after giving evidence of good character due weight, the proof still shows the accused to be guilty beyond a reasonable doubt, such evidence of good character is unavailing.
(b) Noninstruction alone on the question of evidence of good character, in the absence of a proffered instruction correctly stating the law, is not reversible error.
Certain requested instructions examined, and the refusal to give the same held not prejudicial error.
Errors assigned but not argued will be considered as waived.
Error to District Court, Holt County; Mor gan and Harrington, Judges.
Clarence A. Sweet was convicted of assault with intent to rape, and brings error. Affirmed.J. C. Cook, W. S. Cook, and F. Dolezal, for plaintiff in error.
Norris Brown, Atty. Gen., and W. T. Thompson, Dep. Atty. Gen., for the State.
The defendant was tried and convicted of the crime of an assault upon a female child five years old with the intent to commit a rape, and by error proceeding brings the record of his trial here for review:
1. His counsel complain of the action of the trial court in overruling his application for a change of venue. We are satisfied from an examination of the record that no error was committed in this regard. There is no showing of any considerable strength that the people of Holt county, outside of the immediate locality where the crime was alleged to have been committed, were unusually excited, or that the public feeling was greatly aroused, or that there existed a deepseated prejudice against the accused. The showing of bias and prejudice was limited to but a few, and then only to those who, by reason of relationship or acquaintanceship with the alleged victim, would naturally be expected to be incensed and exhibit strong feeling against the accused. Some newspaper articles published in local papers of a somewhat inflammatory character were introduced in support of the application. A counter showing of equal or greater weight was made, tending to prove that a fair and impartial trial could be had by a jury wholly free from bias or prejudice against the defendant. Holt county is one of the large counties of the state, and has from 3,300 to 3,500 voters, a large percentage of which are possessed of the qualifications of jurors. The county is not densely populated. The circulation of the local newspapers was limited, and we can find no sufficient basis in the record for holding that there existed reasonable grounds on which to found a belief that the accused could not have a fair and impartial trial in that county. On the authority of Goldsberry v. State, 66 Neb. 312, 92 N. W. 906, this alleged erroneous ruling is held to be not well taken.
2. During the examination of the mother of the child on whom the alleged assault was committed, she was asked: “Now, then, you need not state what your child said to you, but may state the fact whether at that time, on the 14th day of May, your daughter, Maudie, complained to you that she had been assaulted, indecently, assaulted by the defendant here?” The record shows that: The witness answered: “She did.” Error is sought to be predicated on the above ruling. While the question may be answered “Yes” or “No,” it is not for that reason alone leading. The question was preliminary, and for that reason permissible in the form asked. The trial court possessed a large discretion in permitting questions of a leading character to be propounded and answered, and we perceive no prejudicial error in its ruling in that regard in the case at bar. The question does not call for a conclusion of the witness. Whether complaint was made of an indecent assault is a fact, rather than a conclusion. It does not appear that prejudicial error was committed in permitting the question to be answered notwithstanding this objection. The competency of the evidence sought to be elicited is argued in brief of counsel, but we do not regard the objection interposed as covering this question, or that such question is properly raised and presented for review by the objections interposed. The question propounded, we think, was objectionable in the form it was put. It in substance called for a statement made by the child and connected the defendant with the alleged statement. This, of course, if proper objections had been made and exceptions preserved, might have resulted in prejudicial error. We are of the opinion, however, waiving for the time being the form of objection, that no serious consequences to the prejudice of the defendant resulted. But a few moments before this question was asked this same witness, in an answer to a proper question, stated something the child had said, and it was moved by defendant's counsel to strike out what the child said as incompetent. The state consented to its being stricken out, and the court sustained the motion. The jury was thus clearly advised that statements made by the child were not to be considered; and the question objected to especially disclaimed intention to have the witness testify to anything the child said to her. There is also in the record undisputed testimony of a credible character of admissions made by the defendant concerning his relations with the child which proved much more than was implied in the objectionable question, or that possibly could be inferred therefrom when answered in the affirmative. Upon full consideration of the matter, we are disposed to the view that the judgment ought not to be reversed because of this alleged erroneous ruling of the trial court. See, in this connection, State v. Crawford (Minn.) 104 N. W. 822.
3. Evidence of the previous good character of the accused was submitted to the jury for its consideration, and the court was requested to instruct the jury on this point as follows: The...
To continue reading
Request your trial