¶1The following dissent to an order overruling a motion for rehearing was filed September 15, 1919.
¶2dissenting.
¶3Even if defendant was absolutely innocent of planning or designing the death of Mrs. Vogt, his conduct when he heard of her death was unusual and unnatural. When he found that Cole, his comrade and associate, had murdered his wife’s mother, instead of delivering the murderer up to justice, he helped to. prevent his apprehension and punishment. This looks bad for Grammer, and is entirely consistent with his being guilty as charged. I suppose we would not admit that these facts alone would justify his conviction. In order to support his conviction, reliance must be had upon his confession. The state did not put Cole upon the witness-stand. His statements are not sworn to. The only evidence of Grammer’s guilt, then, is Grammer’s confession. The record doesn’t show that Cole now makes a more reasonable statement than the statements in any of his former confessions. It is said that the statements that he now makes exonerate Grammer entirely. I suppose a court cannot consider it in examining this record, and, if we could consider it, I do not know wThat effect the fact that he now does make such statements would have to counteract his former unverified statements.
¶4There are a few important questions presented by this record:
¶51. Several of the jurors who sat upon the case were objected to on the ground that they had formed and expressed an opinion of the defendant’s guilt, based upon reading his purported confession. In answer to that the state quotes the statute and leaves out the *335vital point. Rev. St. 1913, sec. 9109, says it shall he a ground for challenge for cause that the proposed juror “has .formed or expressed an opinion as to the guilt or innocence of the accused.” This is a direct statement, and ordinarily a man who has formed an opinion that the accused is guilty should not sit as a juror; hut, under the proviso of the statute, he may still he allowed to sit under certain circumstances. If he states that he has formed an opinion “upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions or reading reports of their testimony” (the statute does not provide that if the juror has formed his opinion upon reading the testimony of witnesses), he may still be allowed to sit as a juror if he swears that he can render an impartial: verdict upon the law and the evidence, and if the court is satisfied from all the circumstances that the juror is impartial. These witnesses had read the purported confession of Grammer, which was all the evidence that there was against him; and, if the' statute is applied as it reads, after forming an opinion that he was guilty upon this testimony of the defendant himself, upon which they afterwards convicted him, they were not competent to sit as jurors. The defendant used all his peremptory challenges but one. With this one' he might have excluded one of these six or seven jurors hut that would not have helped matters any.
¶62. This alleged confession of Grammer’s, upon which alone he is convicted, is very much discussed in the brief upon the motion for rehearing. The officers arrested Cole, told him that Grammer had given him away, and Cole then placed the burden of the crime upon Grammer himself. Cole, under the conditions, was compelled to confess that he had murdered the woman, and he got even with Grammer by his confession. The officers then took Cole in custody in another state, and started to Lincoln, and wired the officers at St. Paul, *336Nebraska, to bring- Grammer to Lincoln. A detective had been placed in the next cell to Grammer in the jail to work Grammer up if he could, and the officers brought this detective, Garrett, and Grammer, and with the help of a couple of Pinkerton detectives they took Grammer, in irons, to a room in the Lincoln Hotel. They locked the door, and the officers there labored with him, according to their statements, from 2% to 3% hours. Grammer then signed a detailed typewritten statement covering- six or seven pages. I suppose the law is that a confession cannot be offered in evidence until it is proved to have been voluntary. This can ordinarily be done if it is voluntary, and the circumstances surrounding it are so simple and natural that the witnesses can tell all that was said and done before the alleged confession is made. These detectives had already discussed the division they would make of the reward that was offered, and while they had Grammer in this room and he was standing in the center of the room, they stood around him, but it was impossible for them to tell, and they make no attempt to tell, in a general way all that took place during those hours. Under those circumstances, was it competent for them to say in general terms that they did not use any duress, neither did they offer any reward or any hope of reward? Some of them testified that they told him it would be better for him to confess; others said what they told him was that it would be better for him to tell the truth. Of course Grammer, while these officers were surrounding him, knew what they considered to be the truth, and that the only way for him to tell the truth, in their estimation, was to tell it the way they wanted it. If there was other evidence of Grammer’s guilt, if Cole had faced the jury and testified under oath to any facts incriminating Grammer, so that we had some evidence outside of this supposed confession of Grammer’s that he was guilty, the case would be different. But now we have him convicted *337and ordered to be executed on no other evidence than that contained in his supposed confession, which clearly is not his language, but is the language of these detectives.
¶73. The syllabus of our opinion says: “Failure to instruct the jury specifically to disregard opinions expressed by rejected talesmen on their voir dire examination will not require a reversal, where the instructions as a whol^ direct the jury to base their verdict alone, on evidence adduced at the trial.” When the jury heard this general instruction that they must base their verdict alone on evidence adduced at the trial, would they suppose that the trial was the matter that took place in court, including the formalities of impaneling the jury and all? If they did, then the statements of these “rejected talesmen” would be, in their thought, a part of the trial. It would be better, if the court had specially warned them against being influenced by the sworn statements of men that were called as jurors, as to their having read the confession and their conclusions of the defendant’s guilt.
¶84. Instruction No. 21, given by the court, is a new thing in the criminal jurisprudence. The jury were told plainly that they would “be warranted in convicting the defendant,” and then are told further that it would be their duty to convict the defendant if they found certain things. The jury should be instructed that they cannot find the defendant guilty unless they find certain things. But they are told that it would be their duty to convict him if they do find so and so, and are also told that, without regard to such findings, they are warranted in finding the defendant guilty. Unless we felt confident beforehand that the defendant must be guilty, would we justify the giving of such an instruction? If there is any duty that devolves upon a jury in the trial of a capital charge, it is to acquit unless all of the facts necessary to a conviction are proved beyond a reasonable doubt.
¶9*3385. It is pointed ont in the brief that in Thompson v. People, 4 Neb. 524, this court decided that “no man’s life should be forfeited because of the omission of his counsel to take exception.” In this case we have said: “Failure of the trial judge, on his own motion, to require separate trials held not error.” When the court knew that the evidence in the case was to be exclusively a realistic and extensive recital of details prepared by the detectives and in their language, purporting to be the confession of Cole, and the court also knew that there was no doubt of Cole’s conviction, and the most important question that could ever devolve upon the court was to find out whether the defendant Grammer had procured Cole to commit this crime, should he have allowed the defendants to be tried together? The authorities cited in the brief seem to be to the effect that he should not.
¶106. Under these circumstances, when Cole, in the midst of the trial, withdrew his plea and entered a plea of guilty, the' brief cites authorities to the effect that that works a separation of the defendants. If it was necessary that Cole’s confession should be put in evidence for the purpose of showing the degree of his guilt, and the nature of his punishment, that matter should have been heard by itself, and should not have been allowed to have gone before the jury that were to determine the question of Grammer’s guilt. When Cole’s confession was offered in evidence the court sustained an objection' to it as evidence against Grammer, and gallantly informed the jury that this document prepared by the detectives should not be considered as evidence against Grammer, but only as evidence against Cole. The question is seriously discussed as to whether it was necessary for the jury to hear any evidence against Cole at all, and whether it was not the duty of the court to determine the degree of his punishment. However, that may be, the reading of this so-called confession of Cole was very prejudicial *339in tlie minds of the jury to the interests of G-rammer.
¶11A good many other questions are discussed in the brief that I will not take time to examine. I suggested the foregoing, and hoped that the judges would give them consideration.