Goemann v. State , 100 Neb. 772 ( 1917 )

Morrissey, C. J.

Plaintiff prosecutes error from a conviction on an information charging him with selling liquor without a license. The. county attorney filed a request in writing for the appointment of A. R. Davis, a member of the Wayne county bar, to assist in the prosecution. Defendant filed objections alleging that Davis was employed by private parties to help conduct the prosecution, that he had theretofore been engaged in numerous cases against the defendant, and that by reason thereof he was prejudiced against the defendant, and would not conduct the prosecution in a fair and impartial manner. These objections were supported by an affidavit of the defendant in which he set out the cases wherein Mr. Davis had appeared as counsel against him. The county attorney filed a counter showing admitting that Davis had appeared as counsel in the cases mentioned, but specifically denying all other allegations. The statute does not forbid the employment .of counsel by private parties to assist in the prosecution of misdemeanor cases, but in the instant case it is conclusively shown that Mr. Davis was not employed by private parties. The mere fact that he had appeared as counsel in other lawsuits in which Mr. Goemann was a party does not raise a presumption of personal malice, and the showing is sufficient to justify the court in finding that he was a proper and suitable party to assist in the conduct of the state’s case. Furthermore, an examination of the entire record fails to show any improper conduct on his part.

The court gave the jury the following instruction: “The term ‘reasonable doubt’ used in these instructions is a term often used, probably pretty well understood, but not easily defined. It does not mean a mere possible doubt, because everything relating to human affairs and depending upon mortal evidence is open to some possible or imaginary doubt. It means some actual doubt having some reason for its basis.

“A reasonable doubt that entitles tbe defendant to an acquittal is a doubt reasonably arising from all tbe evidence, or tbe lack of evidence, or from a conflict in the evidence, in the case.

“The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress your reason and understanding as ordinarily prudent men and leave your minds in that condition that you can say you feel an abiding conviction to a moral certainty of the truth of the charge made against this defendant.”

The giving of this instruction is assigned as error. We fully agree with the trial judge that “the term ‘reasonable doubt' " is “pretty well understood, but not easily defined." This court has often been called upon to pass on instructions undertaking to define the term. In Cowan v. State, 22 Neb. 519, 525, an instruction which told the jury that a reasonable doubt is “a doubt for having which the jury can give a reason, based upon the testimony,” was held to be erroneous. The question was again before the court in Carr v. State, 23 Neb. 749, and the court said: “It is error to charge a jury that it is a doubt for the having of which the juror can give a reason derived from the testimony." In this opinion the holding in Cowan v. State is adhered to, but it is pointed out that the instruction in that case is not wholly without support. It is also said that the clause in the instruction requiring the reversal was one which required the jury to be able to give a reason for entertaining the doubt. An instruction in Childs v. State, 34 Neb. 236, differs in phraseology, but the holdings in Cowan v. State and Carr v. State were adhered to. In Whitney v. State, 53 Neb. 287, the court approved an instruction in the following language: “You are instructed that a reasonable doubt is an actual, substantial doubt arising from the evidence, or want of evidence, in the case. That by reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means some actual doubt having some reason for its basis. A reasonable doubt that entitles to an acquittal is a doubt reasonably arising from all the evidence, or want of evidence, in this case. The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the reason and understanding of ordinarily prudent men with a conviction on which they would act in the most important concerns or affairs of life.”

Some confusion has arisen owing to the decision in Burnett v. State, 86 Neb. 11. But this court has frequently refused to reverse a judgment of the district court solely on account of an instruction worded as in the case at bar. In so far as Burnett v. State is in conflict with this holding it is overruled.

There are a number of other assignments directed against the rulings of the court on the cross-examination of witnesses for the state. Fred Lerner was called as a witness, and testified that upon the date charged in the information he purchased a pint of whiskey from the defendant. On cross-examination defendant’s counsel asked him if he had not been arrested on a criminal charge the year before. Objection to this question was sustained, whereupon defendant’s counsel made the following offer: “We offer to prove by the witness that he was arrested on a criminal charge in county court of Wayne county, Nebraska, during the year 1915, and was tried for the same offense before the county judge of Wayne county, Nebraska.” Objection was sustained to this offer. It is argued that the evidence was offered for the purpose of testing the credibility of the witness. The offer does not undertake to show that the witness was convicted. An arrest and trial without a conviction could not discredit him before the jury or affect his credibility. Arthur O’Connell, another witness for the state, testified that he, together, with the witness Lerner, and two others, drove to defendant’s livery stable in an automobile; that Lerner went into the barn, but soon returned, and had with him a pint of whiskey, that he offered witness a drink from the bottle, which witness refused. On cross-examination defendant’s counsel undertook to show that Lerner at other times and places had offered O’Connell whiskey, and that Lerner kept whiskey in Goemann’s livery barn. To these questions objection was made and the evidence excluded.

The scope of the cross-examination of a witness rests largely within the discretion of the trial court. - Ordinarily it is better to permit considerable latitude. But the matters sought to be elicited on cross-examination were outside the scope of the witness’ testimony in chief, and if proper and material in behalf of defendant they might have been shown in defendant’s case in chief.

There is a further assignment that the court excluded evidence calculated to impeach the witness Lerner. This impeachment was directed to an immaterial matter that was drawn out on his cross:examination, and the evidence was properly excluded.

“The cross-examination of a witness should be restricted to the facts and circumstances drawn out on his direct examination. If it is desired to examine the witness upon other matters, the party desiring such examination must make the witness his own, and call him as such.” Davis v. Noligh, 7 Neb. 84.

Finally, it is insisted that the evidence does not sustain the verdict. We have read the entire record, but it would serve no useful purpose to set out the evidence at length. The story told by the state’s witnesses is sufficient to sustain the verdict, if true. It was denied by defendant, and he was corroborated in the main by another witness. All of these witnesses were residents of Wayne county. They were probably personally known to most of the jury. The jury heard them testify and saw fit to believe the witnesses for the state. The evidence would sustain a verdict either way. We cannot set our judgment up against that of the jury, and the judgment is

Affirmed.