Ward v. State

• Decision Date: 21 June 1899
• Citation: 79 N.W. 725,58 Neb. 719
• Parties: WARD v. STATE.
• Court: Nebraska Supreme Court

58 Neb. 719

79 N.W. 725

WARD

v.STATE.

Supreme Court of Nebraska.

June 21, 1899.

Syllabus by the Court.

1. A challenge of a juror for cause raises a question which is to be decided by the trial judge from a consideration of all the facts developed during his examination, and any circumstances which tend to enlighten upon the matter; and of these are the appearance and actions of the juror while undergoing the examination.

2. An opinion or impression of a juror, formed from reading newspaper reports and hearing general rumors, of none of which he has a settled belief, but expresses rather disbelief or disregard, is hypothetical, and does not disqualify him if he also states that he can render a fair and impartial verdict, based solely upon the evidence, and wholly without the interference of such opinion or impression.

3. The determination of the trial judge in the decision of a challenge of a juror for cause will be sustained on review, if not clearly wrong.

4. A charge of an assault with intent to murder is of a crime of which the intent is an essential element, and its proof as indispensable as the proof of the act which it accompanies.

5. Where there is no bodily injury or result from the act or assault, the intent may not be presumed from the act; but, as the intent is a process of the mind, and necessarily hidden or secret, it may not be susceptible of proof by independent evidence. It may be gathered or drawn from all the evidence, facts and circumstances of the case inclusive of the act, and is a matter of fact for the consideration and decision of the jury.

6. If a finding of a jury is attacked as not sustained by sufficient evidence, it will not be disturbed by the appellate court unless manifestly wrong.

Error to district court, Jefferson county; Letton, Judge.

Frank Ward was convicted of assault with intent to kill, and he brings error. Affirmed.W. P. Freeman and Heasty & Clapp, for plaintiff in error.

C. J. Smyth, Atty. Gen., and C. H. Denney, Co. Atty., for the State.

HARRISON, C. J.

An information was filed in the district court of Jefferson county in which the plaintiff in error was charged with an assault upon one Gregg Long with a deadly weapon, “a large knife, sometimes called a ‘dirk knife,’ ” with the intent to kill and murder him. To this the plaintiff in error pleaded not guilty, and a trial resulted in his conviction, and sentence to a term of imprisonment in the penitentiary. In an error proceeding in his behalf to this court two questions are presented; one that the trial court erred in overruling a challenge for cause of one of the jurors, and another that the evidence was insufficient to sustain the verdict, especially of the intent elemental of the crime charged. In regard to causes for challenge to jurors, it is stated in section 468 of the Criminal Code: “The following shall be good causes for challenge to any person called as a juror on the trial of any indictment: * * * That he has formed or expressed an opinion as to the guilt or innocence of the accused: provided, that if a juror shall state that he has formed, or expressed, an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine, on oath, such juror as to the ground of such opinion, and if it shall appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumor, or hearsay, and not upon conversations with the witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and the juror shall say, on oath, that he feels able notwithstanding such opinion to render an impartial verdict upon the law and the evidence, the court, if satisfied that said juror is impartial, and will render such verdict, may, in its discretion, admit such juror as competent to serve in such case.” We do not deem it necessary to quote the statements of the juror who was challenged. His examination disclosed that if he had an impression or opinion relative to the subject of the trial it was formed from newspaper reports which he had read, or from rumors which he had heard repeated or discussed, and of the truth of either the newspaper reports or rumors he had no fixed belief,--rather disbelieved or discredited them. If the juror had an opinion, it was not unconditional, or fixed, but conditional, and hypothetical; and within the doctrine of the decision in the case of Basye v. State, 45 Neb. 261, 63 N. W. 811, it was not error to overrule the challenge for cause. See, also, Murphy v. State, 15 Neb. 383, 19 N. W. 489;Curry v. State, 5 Neb. 412.

It is urged in this connection that the constitution and our laws demand that care be taken that the defendant in a criminal action be given a fair trial. The record herein discloses, we think, a well-sustained, careful effort to afford the party charged with an impartial hearing, a trial fairly conducted. To a comprehension of the question of intent elemental of the charge against the accused a careful examination of the evidence which bears upon the subject is necessary. The record discloses that Henry Ward, the father of the prisoner, was the owner of a farm, on which the latter had resided for some time prior to the occurrences in which this prosecution had its origin; and, further, that lately he had cultivated a portion of the farm, and had planted and grown thereon a crop of corn, of which he testified he was entitled to a share. This was done during the crop season of 1898, prior to the time of the act which caused his arrest. In the fall of 1898 the farm was leased to Gregg Long for the year 1899, to be worked by him and one Frank Picha, Long's brother-in-law. They occupied the farm on or about December 1, 1898, and at some date during that month Henry Ward, who, it seems, was living with the renter, went to Kentucky and Illinois, with the intention of being absent for a considerable and indefinite time. It was of the evidence that he instructed the renter that if his son came to the farm after certain specifically designated property he was to be allowed to take it, but corn was not named. On this point there was a conflict in the evidence. There was some testimony to the effect that the directions to the renter were inclusive of corn. It also appeared that Henry Ward sold to Frank Picha a team of horses of which his son asserted ownership. On February 2, 1899, the accused, with a team and wagon, went to the farm, and drove to a crib in which there was some “snapped corn,” a portion of which he claimed, and took therefrom a wagon load of the corn. Gregg Long testified that he then had a conversation with the plaintiff in error. The testimony of Long on this point is as follows: “I told him that we had no right to let this corn go; that it was in my care. He said, ‘It don't make no difference;’ he was going to have it. I told him this corn was in my care, and I could not let it go. ‘Mr. Ward holds me responsible for it.’ And he says, ‘No, he wouldn't.’ I told him I didn't want to let it go. He took that load, and when he took that load along I told him not to come back and bother me any more. He said he was going to get that corn, and corn was in the ear in the crib right aside of it, and he said after that he was going to get the shelled corn. I told him, ‘No.’ I told him I wanted him to stay off the place. He said, ‘No;’ and I warned him to stay off the place, and not bother us any more.” Two days later, or on February 4, 1899, the accused returned to the farm, and proceeded with the team and wagon near to the crib, and with the intention to get another load of corn therefrom. The wagon had on “the top box,” or the “double” box. He was seen by Long and Picha, who then approached him, and stopped near the wagon; Long about the hindmost portion of the rim of one front wheel of the wagon as it stood, and Picha nearer the front end of the wagon, but close to Long. The plaintiff in error was standing in the wagon bed or box, near the center, probably a trifle towards the front. Gregg Long testified of what then occurred as follows: “And I told him we did'nt have no right to let no more of that corn go, and he said he was going to get it; it didn't make any difference; he was going to get that corn. After that he changed his subject, and he says, ‘Those cobs there, I am going to take them, too.’ I told him, ‘No.’ ...