Flege v. State

<p>1. Criminal law: Appointment oe Assistant Pkosecutok. Where, in a criminal prosecution, an application is made to the district court for the appointment of an assistant prosecutor, if the court finds that such an appointment should be made, no attorney should be appointed who is known to be a partisan as against the accused, and who has theretofore been employed and paid by another suspected person, and for whom he has appeared in the preliminary examination and in a former trial of the accused in the district court, taking an active part in both trials for the purpose of protecting his suspected client. Under such an appointment, a fair and impartial trial of the accused person could not be reasonably expected.</p> <p>2.--: Impaneling Juey: Challenge for Cause. The statute (criminal code, sec. 468) provides that, where a proposed juror in a criminal prosecution has read the testimony of the witnesses, and upon which he has formed or expressed an opinion as to the guilt or innocence of the accused, he is incompetent as a juror. Where that fact is made clearly to appear, and that the opinion is still retained, it is manifest error to overrule a challenge for cause. Upon this subject there is no discretion lodged in the court. The statute is mandatory, and no court has the right to ignore it.</p> <p>3. -: — : Evidence: Admissibility. “An accused in a criminal prosecution is entitled to a trial upon competent, relevant evidence; evidence which at least tends to establish his guilt or innocence; and evidence which has no such tendency, but which, if effective at all, could only serve to excite the minds and inflame the passions of the jury, should not be admitted.” McKay v. State, 90 Neb. 63. Therefore, when material evidence, such as the bloody and soiled clothing of a decedent, is admitted in evidence in a .prosecution for murder, it should appear during the trial that the 'evidence would tend to throw light upon some material inquiry in the case. If not, it should be rejected.</p> <p>4. -: -: Expert Evidence. “Expert evidence in cases where the subject of discussion is on the border line between general and expert knowledge, as in questions of value, is not conclusive upon court or jury, but the latter may draw their own inferences from the facts, and accept or reject the statements of experts; but' upon questions involving a highly specialized art, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence.” Ewing v. Goode, 78 Fed. 442.</p> <p>5.--: Instructions: Homicide. An instruction, which informs the jury that if they “believe the defendant not guilty, and that he did not shoot and kill” the decedent, they should acquit, ought not to be given, although in the same instruction they are informed that they must find the accused guilty beyond a reasonable doubt before they could convict him. It is not necessary that the jury should believe the act was not committed by him. It devolved upon the state to prove he did commit the crime charged beyond a reasonable doubt.</p>