Willis v. State, 7155

CourtSupreme Court of Nebraska
Writing for the CourtRAGAN, C.
Citation61 N.W. 254,43 Neb. 102
Docket Number7155
Decision Date05 December 1894

61 N.W. 254

43 Neb. 102


No. 7155

Supreme Court of Nebraska

December 5, 1894

ERROR to the district court for Dakota county. Tried below before NORRIS, J.


Jay & Beck and W. P. Warner, for plaintiff in error:

The fourteenth instruction, given by the court on its own motion, was erroneous. (Leonard v. Territory, 7 P. [Wash.], 873; Commonwealth v. Miller, 139 Pa. St., 77.)

The court erred in giving the fifteenth instruction on its own motion. It is erroneous to give an instruction which is more in the nature of an argument than a statement of the law. (Dunn v. People, 109 Ill. 635; Ludwig v. Sager, 84 Ill. 99; State v. Orr, 64 Mo. 339; Morris v. Lachman, 8 P. [Cal.], 799.)

The sixteenth instruction was erroneous in omitting the question of malice. (People v. Sweeney, 55 Mich. 586; McClaine v. Territory, 25 P. [Wash.], 453.)

The seventeenth instruction was not a correct statement of the law. (Long v. State, 23 Neb. 34.)

The eighteenth instruction, given by the court on its motion, was erroneous. (Brinkley v. State, 8 So. Rep. [Ala.], 22; Jones v. State, 76 Ala. 8; Cary v. State, 76 Ala. 78; Perkins v. State, 47 N.W. [Wis.], 827; Pond v. People, 8 Mich. 150; Burgess v. Territory, 19 P. [Mo.], 558; Stoneham v. Commonwealth, 10 S.E. [Va.], 238; Erwin v. State, 29 Ohio St. 186; State v. Evans, 10 S.E. [W. Va.], 792; United States v. Wiltberger, 3 Wash. [U. S.], 515; Vollmer v. State, 24 Neb. 838; Runyan v. State, 57 Ind. 84; People v. Hull, 49 N.W. [Mich.], 288; People v. Kuehn, 53 N.W. [Mich.], 721; Hurd v. People, 25 Mich. 405; People v. Lilly, 38 Mich. 270; People v. Lennon, 71 Mich. 298; Jones v. State, 17 Tex. App., 602; Bell v. State, 20 Tex. App., 445; Spearman v. State, 23 Tex. App., 224; Brumley v. State, 21 Tex. App., 222; Patillo v. State, 3 S.W. [Tex.], 766; Horbach v. State, 43 Tex. 242.)

Instructions twenty and twenty-one, given by the court on its own motion, were erroneous. (Lang v. State, 1 S.W. [Tenn.], 319; State v. Banks, 73 Mo. 592.)

The verdict was a privy verdict, and void, and should not have been received by the judge. (Young v. Seymour, 4 Neb. 86; Longfellow v. State, 10 Neb. 105; Hobart v. Hobart, 45 Iowa 503; Wightman v. Karsner, 20 Ala. 446; Brumley v. State, 20 Ark. 77.)

The motion filed by plaintiff in error in arrest of judgment should have been sustained. (Schaffer v. State, 22 Neb. 557; Fouts v. State, 8 Ohio St. 98; Robbins v. State, 8 Ohio St. 131; Kain v. State, 8 Ohio St. 306; Hagan v. State, 10 Ohio St. 459; State v. Brown, 21 Kan. 38; Leonard v. Territory, 7 P. [Wash.], 872; State v. McCormick, 27 Iowa 402.)

George H. Hastings, Attorney General, for the state:

The motion to strike out the testimony of the witness Schmied was properly overruled. (Anderson v. State, 25 Neb. 550; Clough v. State, 7 Neb. 322.)

The fourteenth paragraph of the instructions given by the court upon its own motion was a correct statement of the law pertaining to reasonable doubt. (Miller v. People, 39 Ill. 457; Commonwealth v. Webster, 5 Cush. [Mass.], 295; State v. Ostrander, 18 Iowa 458; Arnold v. State, 23 Ind. 170; May v. People, 60 Ill. 119.)

The fifteenth instruction is sustained by St. Louis v. State, 8 Neb. 416.

The sixteenth instruction correctly stated the law of the subject to which it pertained. (Preuit v. People, 5 Neb. 384; State v. Turner, Wright [O.], 20; Hill v. Commonwealth, 2 Gratt. [Va.], 595.)

The seventeenth instruction was without error. (Bartling v. Behrends, 20 Neb. 215; Campbell v. Holland, 22 Neb. 607.)

The following cases are cited to sustain the eighteenth instruction: Parrish v. State, 14 Neb. 67; Harrison v. Harrison, 43 Vt. 417; State v. Sloan, 47 Mo. 604; State v. Collins, 32 Iowa 36; State v. Goodrich, 19 Vt. 116; Commonwealth v. Crawford, 8 Phila. [Pa.], 490; State v. Wood, 53 Vt. 560; Kendall v. State, 8 Tex. App., 569; State v. Dixon, 75 N. Car., 275; Presser v. State, 77 Ind. 274; People v. Coughlin, 65 Mich. 704; State v. Matthews, 78 N. Car., 523; Duncan v. State, 49 Ark. 543; Runyan v. State, 57 Ind. 80; People v. Gonzales, 71 Cal. 569; Fortenberry v. State, 55 Miss. 403; Steinmeyer v. People, 95 Ill. 383; State v. Parker, 96 Mo. 382; State v. Donnelly, 69 Iowa 705; Panton v. People, 114 Ill. 505; State v. Partlow, 90 Mo. 608; Gallagher v. State, 3 Minn. 185; People v. Williams, 32 Cal. 280; People v. Campbell, 30 Cal. 312; Stewart v. State, 1 Ohio St. 66; People v. Anderson, 44 Cal. 65; State v. Quin, 3 Brev. [S. Car.], 515; People v. Doe, 1 Mich. 451; Patten v. People, 18 Mich. 314; Cotton v. State, 31 Miss. 504; Oliver v. State, 17 Ala. 587; Dupree v. State, 33 Ala. 380; State v. Benham, 23 Iowa 154; State v. Burke, 30 Iowa 331; Noles v. State, 26 Ala. 31; Dill v. State, 25 Ala. 15.

The nineteenth instruction is not erroneous. (Vollmer v. State, 24 Neb. 844; Panton v. People, 5 Am. Crim. Rep. [Ill.], 425, note, and cases; Barnards v. State, 88 Tenn. 229; White v. Territory, 3 Wash. Ter., 397.)

Words and epithets, however irritating they may be, are no excuse for making a felonious assault. (Wharton, Homicide, sec. 393, and cases.)

If a party to the cause have knowledge of any circumstances tending to disqualify certain jurors from serving in a particular case, he cannot hold back these facts until after the rendition of a verdict, and then produce them in support of a motion for a new trial. (Tomer v. Densmore, 8 Neb. 384; Palmer v. People, 4 Neb. 75; Thompson & Merriam, Juries, sec. 275.)

The information was sufficient. (Fonte v. State, 8 Ohio St. 98; Shaffer v. State, 22 Neb. 557.)

J. J. McAllister, also for the state.

OPINION [61 N.W. 255]

[43 Neb. 104] Statements of facts and proceedings appear in the opinion of the commissioner.

[43 Neb. 107] RAGAN, C.

James T. Willis in the district court of Dakota county was found guilty by a jury of the crime of manslaughter for the killing of one Amberry Bates, and he brings the judgment pronounced against him on such finding here for review, assigning the following errors:

1. That the court erred in overruling plaintiff in error's motion to strike out the testimony of one Schmied, a witness who testified on the trial of the case on behalf of the state. Schmied, without any objection on the part of plaintiff in error, had testified that he resided in Dakota [43 Neb. 108] City, where the killing of Bates occurred; that he was engaged in the publishing of a newspaper at that place, and acquainted with the plaintiff in error and had been for some years; that on the day of the killing of Bates, and very soon thereafter, he went to the saloon of the plaintiff in error, where Bates was killed, and there had a conversation with the plaintiff in error in reference to the homicide. He then testified that on the same evening between 7 and 8 o'clock, in the sheriff's office, he had another conversation with the plaintiff in error, and thereupon he was asked by counsel for the state this question: "Q. What, if anything, did Mr. Willis say in that conversation? A. Why, we were down there, and I says, 'Would you like to make a statement for publication,' and he says 'No.' 'Well,' I says, 'I didn't know but what maybe you wanted to state the facts.' I says, 'It would be better to give the facts than the rumored report any time.'" Counsel for plaintiff in error then moved the court to strike out the above testimony, for the reason that the expression used by the witness, "It would be better to give the facts than the rumored report any time," was an inducement held out to the plaintiff in error to make a statement. No objection was made to the question propounded to Schmied, nor did counsel cross-examine nor seek to cross-examine him before he answered, as to whether any threats were made or inducements held out to induce the plaintiff in error to make the statement he did. In the trial of a criminal case, where the state calls a [61 N.W. 256] witness for the purpose of proving a confession made by the prisoner, before the witness is allowed to detail such information it is the privilege of defendant's counsel--and the better practice--to cross-examine the witness as to the circumstances under which the confession proposed to be detailed was made. Counsel cannot wait until the witness has answered and then move to strike the statement from the record, if the answer is responsive to the inquiry. The assignment of error, however, is [43 Neb. 109] without merit, for the reason that the witness in the testimony which it was moved to strike out made no statement of any confession made to him by the plaintiff in error as to whether he committed the crime with which he was charged. He declined to make a statement, saying that he would tell his story before a coroner's jury.

2. That the court erred in overruling objections made by plaintiff in error to the evidence of one Rathbun. One Brown was a witness for the state, and testified that he was present at the homicide; saw Willis shoot Bates, and that after he had shot him and he fell Willis walked up to where Bates was lying and shot him again. One Endersby was called as a witness for Willis and testified that he was present at the homicide and also testified that said Brown was not present. On rebuttal the state called the witness Rathbun, and he testified that he saw the witness Endersby within five minutes after the shooting of Bates occurred. He was then asked by the state this question: "Did you notice his condition as to whether he was intoxicated or not?" To this the counsel for plaintiff in error objected, on the ground that the evidence was incompetent, irrelevant, immaterial, and not rebuttal. The objection was overruled and the plaintiff in error excepted. In Hill v. State, 42 Neb. 503, 60 N.W. 916, Hill was being tried for murder and called a witness who testified in his behalf. The state, on cross-examination of this...

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