Welsh v. State
| Decision Date | 04 April 1900 |
| Docket Number | 11,028 |
| Citation | 82 N.W. 368,60 Neb. 101 |
| Parties | PATRICK WELSH v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Holt county. Tried below before WESTOVER, J. Affirmed.
AFFIRMED.
N. D Jackson, for plaintiff in error, argued as to change of venue that the constitution guarantees to every person accused of crime an impartial trial, and our legislature has provided a way, when a community has become aroused and strong prejudice created against one so accused, for such a trial in an unprejudiced community. There is no rule better settled than the one that when the public sentiment of a whole community is aroused its effect upon a jury is to prevent a calm and dispassionate inquiry into the merits of the controversy such is the rule in this state. Richmond v. State, 16 Neb. 391.
As to special venire: To give effect to the provision of our law which permits the calling of a special term of court, and requires the judge to direct whether a jury shall be summoned, requires the order to be made at least fifteen days before the first day of the session, because a jury can only be drawn for the special term in the same manner as for the regular term. McElvoy v. State, 9 Neb. 157.
As to statements of prosecutrix, counsel cited Prince v. Samo, 7 Ad. & El. [Eng.], 627.
As to instructions, the court, in its charge, assumed absolutely that Mrs. Yonke had recently given birth to a child. It is true that Mrs. Yonke had testified to having given birth to a child about five weeks previous to the time of the alleged assault, but the jury were at liberty to disbelieve the witness, and to find that portion of the testimony untrue. The court can not assume, in the trial of a criminal case, any fact to have been proven, even where there is no conflict in the testimony. Heldt v. State, 20 Neb. 499.
The rule is well settled in this state that in charging a jury undue prominence should not be given to one branch or item of evidence by particular mention to the disparagement of the rest. Markel v. Moudy, 11 Neb. 213.
R. R. Dickson, also for plaintiff in error.
Constantine J. Smyth, Attorney General, and Willis D. Oldham, Deputy, for the state.
The case of McElvoy v. State, 9 Neb. 157, and Clark v. Saline County, 9 Neb. 516, are the leading cases relied upon by counsel for the prisoner in support of the alleged error in overruling the motion to quash the panel of jurors. The court by an examination of McElvoy v. State, supra, will notice that the language of the learned justice who rendered that opinion, both in the syllabus of the case and in the opinion itself, was pure dicta. That the question was not before the court for determination under the rules of the practice in the supreme court, and that the conclusion reached in that case was not based on that assignment of error at all, and, consequently the obiter thesis of the learned justice who wrote the opinion, which tended to transform this molehill of a technicality into a majestic mountain of statutory right, is not a binding precedent for this court to follow. Clark v. Saline County, supra, is but a repetition of these same obiter suggestions of the same jurist. In Barton v. State, 12 Neb. 260, 265, also relied upon by counsel for the prisoner, the decision was adverse to the state because the public prosecutor demurred to the plea in abatement, and thereby admitted the truth of the allegations contained in said plea. This plea was held by Judge COBB, who wrote the opinion, to "contain all of the necessary allegations of a good plea in abatement, under a reasonably liberal construction, but also that it sufficiently negatives the suggestion, that possibly the grand jury that found the indictment was procured under the provisions of section 664." And further on in that opinion the judge says, "If it were true that the grand jury in question was in fact summoned under the extraordinary provisions of section 664, then we think that it was the duty of the district attorney under the provisions of section 446, of chapter 42, of the Criminal Code, to have replied to the said plea setting up such fact, rather than to have demurred generally, as he did. thereby admitting the facts of the plea if well pleaded."
The cause was argued orally by N. D. Jackson, for the plaintiff, and by Willis D. Oldham, for the state.
Jackson, for the prisoner, argued that upon the record it was apparent that the prisoner could not have a fair trial in Holt county, citing Richmond v. State, 16 Neb. 391.
Oldham said that the case of Richmond v. State was a judicial maverick. No one could interpret its meaning. By and by some court would lariat it, and place a judicial brand upon it. God speed the day Some people thought that a change of venue was one of the inalienable rights guaranteed by Magna Charta. It was nothing of the kind. It was a part of the procedure in a criminal trial controlled by the nisi prius court. That court is only answerable for an abuse of discretion. Holt county was larger than the whole state of Rhode Island. The just indignation of a few settlers in the immediate neighborhood of the outrage argued nothing for a widespread prejudice. Oldham read from the affidavit of Frank Campbell, in the record.
The defendant, Patrick Welsh, was tried in the district court of Holt county on an information charging him with having, on the night of August 23, 1899, committed the crime of rape on one Katie Yonke; and from the judgment of conviction comes to this court on error. The crime was a most revolting one. We do not deem it necessary to enter into a detailed statement of the facts, but shall confine ourselves to the questions of law urged by defendant as grounds for reversal. No regular term of the district court was to be held in Holt county for some time after the offense was committed, so, at the request of numerous citizens of the county, the Hon. M. P. Kinkaid, one of the judges of the judicial district, called a special term of court for that county, to be held on the 5th day of September, 1899, for the trial of criminal cases in which felonies were charged, and for the hearing and disposition of ex parte matters in civil causes. By this order he also directed the clerk of the court to issue a venire to the sheriff requiring him to select and notify to appear and serve as petit jurors at said term, twenty-four men from the body of Holt county, having the qualifications of jurors, to appear on September 7th, 1899. No jury was drawn on this order, and no regular panel had been selected, so, when the court met, no jury was in existence or appeared. The court met pursuant to this order, whereupon defendant filed a motion for a change of venue, on the ground of local prejudice and bias, which motion was supported by affidavits. These were met by a counter showing of the state. This motion was overruled, and a trial was held in Holt county. After this motion was denied, the presiding judge was called away from the county on some urgency, and the Hon. W. H. Westover, another judge of the same judicial district, took his place upon the bench, and conducted the further proceedings in the case. There was submitted to the court an application of the defendant for a continuance of the cause until the next regular term of court to be held in the county, which motion was denied and an exception to the ruling entered. Thereupon, on September 13th Judge Westover issued an order to the sheriff, reciting, substantially, that the court was in session, that there was no jury present, none having been drawn or summoned; and directing the sheriff to summon twenty-four good and lawful men having the qualifications of jurors to appear before said court on September 19th, 1899, to serve as petit jurors at said special term. Pursuant to said order, the sheriff duly summoned twenty-four persons as jurors, who duly appeared, and from this panel was selected the jury which tried and convicted the defendant. Before trial, defendant filed his motion asking the court to quash the panel, upon the following grounds:
1, Because the jury was not selected and drawn in the manner provided by law;
2, Because the persons summoned to serve as jurors were not persons whose names were selected by the board of county supervisors of Holt county as required by law;
3, Because the persons summoned to serve as jurors were not persons whose names were drawn by lot by the clerk of the district court, or his deputy, by the sheriff or his deputy, or by the coroner or by either of such officers out of the box or receptacle as required by law;
4, Because the persons summoned to serve as such jurors have appeared solely at the request of the sheriff of said county and are not persons whose names are contained in any order issued by the clerk of the district court of said county commanding the sheriff to summon the persons therein named to serve as jurors;
5, Because no jury has been selected, drawn and summoned for attendance at this term of court;
6, Because the jury in attendance at this term of court is not drawn from the body of the county, nor does such jury contain a proportionate number from each precinct in the county.
This motion was overruled by the court, and an exception noted.
On the rulings of the court on the motions for change of venue, for continuance and to quash the panel, defendant predicates error, as also on rulings of the court in the introduction of evidence, in the giving of one instruction, and on alleged misconduct on the part of certain members of the jury while deliberating on the verdict. These alleged errors will be considered in their order, at such length as the court deems important.
Defendant in support of his motion for a change...
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