Welsh v. State

• Citation: 60 Neb. 101,82 N.W. 368
• Parties: WELSH v. STATE.
• Decision Date: 04 April 1900
• Court: Supreme Court of Nebraska

60 Neb. 101

82 N.W. 368

WELSH

v.STATE.

Supreme Court of Nebraska.

April 4, 1900.

Syllabus by the Court.

1. Application for change of venue or a continuance is addressed to the sound discretion of the court, and its ruling thereon will not be disturbed, where no abuse of discretion is disclosed.

2. Whenever, at any general or special term of the district court, for any cause, there is no panel of petit jurors, the court may, under section 664 of the Code of Civil Procedure, direct the sheriff to summon persons having the qualifications of jurors to appear and serve as petit jurors.

3. In a prosecution for rape, it is competent for the state to prove that the prosecutrix made complaint of the injury to others recently after the commission of the alleged offense.

4. The allowing of leading questions to be put to a witness rests in the sound discretion of the court.

5. It is not error to assume in an instruction the existence of a collateral fact established by uncontroverted evidence, and which tends to prove one of the constituent elements of a crime.

6. In a prosecution for rape, it is not reversible error to inform the jury that they are at liberty to take into consideration the physical condition of the prosecutrix at the time of the alleged assault, in arriving at their verdict.

7. The affidavit of jurors relating to the arguments or statements made by them while deliberating upon their verdict may not be received to impeach the verdict.

Error to district court, Holt county; Westover, Judge.

Patrick Welsh was convicted of crime, and brings error. Affirmed.R. R. Dickson and N. D. Jackson, for plaintiff in error.

C. J. Smyth, Atty. Gen., and W. D. Oldham, Dep. Atty. Gen., for the State.

NORVAL, C. J.

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 the 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 Honorable M. P. Kinkaid, one of the judges of the judicial district, called a special term of the court of 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 cases. 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 to serve as petit jurors at said term, 24 men, from the body of Holt county, having the qualifications of jurors, to appear on September 7, 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, which 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 Honorable 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, and that there was no jury present, none having been drawn or summoned, and directed the sheriff to summon 24 good and lawful men, having the qualifications of jurors, to appear before said court on September 19, 1899, to serve as petit jurors at said special term. Pursuant to said order, the sheriff duly summoned 24 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 this 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 those 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 those 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, 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 of venue, filed numerous affidavits of persons residing in the town of O'Neill and in various other parts of the county; also, copies of the different newspapers published in said county. From these affidavits it would appear that a considerable degree of excitement over the alleged crime existed in the county, particularly in the vicinity of the county seat,--O'Neill. Many of the affiants testified that they had heard threats of personal violence to the defendant on the part of the residents of O'Neill, and also expressions of opinion that defendant was guilty of the crime charged against him, and a desire that he be convicted for it and punished to the full extent of the law; that there was an extreme degree of bias, hatred, and prejudice against defendant by many of the residents of the county, and particularly in O'Neill and vicinity. The articles introduced from the newspapers generally condemned the crime very strongly; some of them stating very pointedly the belief on the part of the writers that the defendant was guilty of the crime, and should be punished with severity. This evidence was traversed by the state, as will hereinafter more fully appear. It is insisted by defendant's counsel that this case falls within the rule established by this court in Richmond v. State, 16 Neb. 388, 20 N. W. 282, wherein, on affidavits filed by defendant, it was held that the trial court abused its discretion in refusing defendant's motion for a change of venue. In that case numerous affidavits were filed, from which it appeared that there was an intense feeling or bias against the accused in the town, which contained about one-fourth of the population of the county wherein the alleged crime was committed, and that by reason of such intensity of bias he could not obtain a fair and impartial trial in that county. In that case the state also made a counter showing, on affidavits; none of its witnesses, however, denying that there was a strong prejudice against the defendant, although many of them gave their opinion that there was not such a feeling against him as to preclude a fair trial being had. Neither could it be inferred that many of the affiants testifying for the state had as favorable opportunities to form correct estimates of public opinion as had those who made the affidavits filed on behalf of the defendant. On such showing this court held that there was an abuse of discretion by the trial court, and awarded a new trial. In the case at bar the state introduced affidavits of numerous persons, who seem to have had ample opportunities to ascertain, and to have investigated and ascertained the public feeling both in O'Neill and in Holt county generally, relative to defendant and the crime charged against him. From them it appears that Holt county contains an area greater than that of the state of Rhode Island, and that the population thereof is near 20,000, while that of O'Neill is about 1,200, and the total population of the towns in said county is only 3,500 (the remainder of the population of the county being an agricultural one, widely scattered); that very few persons who resided outside of the towns were acquainted with the case, or seemed to have any feeling in regard to the matter, such as would result in prejudice to the defendant. While many of these affiants admit that a few people in and about O'Neill may have been prejudiced against defendant, they deny that this feeling could be attributable to any large portion of the populace of the town or its vicinity, or of the county, but allege that the feeling of the people generally was, at the time the motion was heard, that the law should take its due course, and he be accorded a fair and impartial trial. It was also...