Plaintiff in error was convicted of murder in the first degree in the district court of Douglas county. The information was filed December 24, 1895, and charged in appropriate language that the plaintiff in error, on December 13, 1895, had murdered Samuel Du Bois in said county. A plea in abatement was overruled December-26, 1895, and on the same day there was an arraignment and a plea of not guilty. On the day following the trial began, was continued on the 28th, and on the 29th there was a verdict as above indicated.- A motion for a new trial was overruled on December 30, and on January 3, 1896, sentence was pronounced that Claude H. Hoover, on April 17, 1896, suffer death by hanging. Just before his death the business of Samuel Du Bois was repairing elevators. In his employ were Kate Brophy and Claude-H. Hoover. In her testimony Miss Brophy described herself as a half-sister of Hoover and a half-sister of the widow of Samuel Du Bois. In the record the relationship of the parties is not stated with more fullness, and, indeed, no more definite information is necessary, for this enables us to understand why Hoover should feel authorized to talk as he did to Miss Brophy. Between the hours of 1 and 2 o’clock on the afternoon of December 13, 1895, Miss Brophy was in the office of Mr. Du Bois. Plaintiff in error came in and said to Miss Brophy, “I don’t want you to go with that girl any more, because she ain’t the kind of girl you ought to go with.” In the discussion of this suggestion there seems to have arisen considerable feeling, — so much so that when, very soon afterward, Mr. Du Bois came into the office, he observed there was some*191thing wrong. When the nature of the trouble had been explained to him, Mr. Du Bois said he knew Miss Brophy would not go with any one who wasn’t right, for she had always done right. To Mr. Hoover, Mr. Du Bois said that he should go out of the office, and at the same time he seems to have taken hold of Hoover and led him toward the door. While this was being done Hoover suggested that he would go out if Du Bois would pay him the wages due him. This was agreed to and very soon done, and Mr. Hoover, upon receiving his pay, said to Mr. Du Bois that he was obliged to him, and was told by Mr. Du Bois that he was welcome. The deceased and the accused seem not to have met again until just before the commission of the homicide hereinafter described. About fifteen minutes before 2 o’clock, Hoover, by telephone, arranged with Miss Brophy to meet him, and soon afterward, from across the street, beckoned her to come to him. Upon compliance he asked her the address of Mr. Colby at Kansas City, saying that he was that night going to. that city. In this interview he spoke of Du Bois and said that Du Bois had no business striking him, and that if he, Hoover, would do right he would shoot Du Bois. He was probably considerably intoxicated at this time, shed tears, and sent his farewells to other members of the farnity. It is not clear from the evidence whether this interview was before or after the purchase of the pistol with which he afterwards killed Du Bois. It was, at any rate, about the same time in the afternoon, that is to say, about 2 or 3 o’clock. About half past five o’clock Mr. Hoover went to the shop of Mr. Saalfield, a shoemaker. There were then in the shop some other persons, and Mr. Hoover sat down and talked with them, and among other things he remarked that he would give a quarter if Sam Du Bois would show up. His companions did not notice that he was much intoxicated, if indeed he was at all, at this time. Within fifteen minutes after Hoover had become an inmate of the shop, Samuel Du Bois entered, saying,, *192“Good evening, gentlemen,” and was instantly confronted by Hoover, who said, “I-’ve got you where I want you. You son-of-a-bitch.” The persons in the shop at the time were able to state in their testimony nothing that immediately followed this remark, except that they saw two flashes of a pistol in Hoover’s hand and heard Du Bois say, “I’m shot!” It seems, however, that Du Bois must instantly have closed with his assailant, for the earliest resumption of the narrative of any eye-witness begins with the description of the manner in which Du Bois was holding Hoover powerless to do him further harm. Finally Du Bois, unassisted, wrenched the pistol from Hoover’s grasp, and having turned from Hoover, said: “Somebody take this gun. He shot me, but I don’t want to shoot him.” Mr. Fenton took the pistol from Mr. Du Bois, who immediately took off his coat, and as soon as some garments could be spread upon the floor, lay down. Before Du Bois had lain down, Hoover said to him, “I always told you I would shoot you.” Afterward, however, he seemed sorry for what he had done. Du Bois within fifteen hours died of the wounds inflicted by Hoover. We are able thus confidently to state the above facts, for there was, in respect to them, no conflict in the evidence. The matters upon which the plaintiff in error relies for a reversal of the judgment of the district court will now be considered in their order of presentation in the brief of his counsel.
It is first urged that the application for a continuance should have been sustained, in view of the showing thereby of the excited condition of the people of Douglas county, and that there was prejudicial error in hastening the trial as was done in this case. A considerable discretion is necessarily lodged with the district courts with reference to applications for continuance in criminal cases. If the rule was otherwise it would be almost impossible to bring to trial persons accused of grave crimes. The court in this case was certainly very expeditious, having performed the last of its duties January 3,1896, — just *193ten days after the filing of tlie information, and three weeks after the commission of the homicide. There is no showing that there was sacrificed any right of the accused; neither does it appear that if more time had been given him to prepare for trial, he would have been able to procure evidence of any kind to his advantage; and, so far as the existence of excitement was concerned, it was only shown by affidavits of the accused and his counsel couched in very general terms. While haste, if it was shown to have attended the various proceedings, might predispose a reviewing court to a favorable consideration of the proofs indicating that thereby the accused had actually suffered prejudice, this predisposition should not entirely excuse the absence of such proof. By the information upon preliminary examination it was charged that Claude II. Hoover “did, unlawfully, feloniously, purposely, and of his deliberate and premeditated malice, lull and murder,” etc. This information was type-written, except that the word “purposely” was interlined with a pen. In the district court the information upon which the trial was had contained the word “purposely.” It is not shown that the word “purposely” was not in the information before the preliminary examination was had, except by an affidavit submitted in this court to procure an order requiring that such original information should be certified to this court for inspection. Upon this unsatisfactory showing, in this court made for the first time, we would not be justified in assuming that at an improper time an amendment of the information before the examining magistrate had been made, and this was the sole question presented by the plea in abatement. Whether or not this information would have been sufficient without the word “purposely” we do not consider, much less decide.
The next criticism of the action of the court is because there was excluded evidence which, it is claimed, would have shown that the accused was insane when he killed Du Bois. Miss Brophy testified that Hoover had been *194drinking, but was not drunk while be was in the office;, that at the interview across the street from the office he was drunk, she thought. “At times,” she said, “he didn’t talk right,” “he talked strange,” she always thought. In her cross-examination, Miss Brophy said she was seventeen years old and had lived in the family with the accused for two years and had seen him every day during this time, and that on the 18th of December, 1895, he was-acting very strangely. The following proceedings during the cross-examination of Miss Brophy are shown, by the-bill of exceptions, to have taken place:
Q. You had seen him act queer on other occasions?
A. Yes, sir.
Motion by the state to strike the answer as incompetent, irrelevant, immaterial, and not proper cross-examination. Sustained. Defendant excepts.
Q. Prom all that you saw of Claude this day, and all that you know of him, and the manner in which he acted on that day, — what was said and done, — did you consider him at the time sane or insane?
Objection by the state as incompetent, immaterial, irrelevant, and not proper cross-examination. Sustained. Defendant excepts.
It must be conceded that the objection that this was not proper cross-examination was well taken, and yet aside from this there is left undetermined the competency, materiality, and relevancy of the evidence excluded and of that offered on this branch of the case. The interrogative sentence, “You have seen him act queer on other occasions?” called simply for a conclusion of the witness. The inquiry should have been with reference to the facts and circumstances themselves, and not merely, in effect, whether the witness regarded the conduct of the accused on other occasions as queer. There was, therefore, no error in excluding this evidence. The next question, as to whether the witness,, from what she saw of the accused on the day of the homicide, and from what she knew of him, regarded *195him as sane or insane, was premature. Tbe rule is that before a non-expert can give his opinion as to the sanity or insanity of a person, he must state the facts and circumstances upon which he bases his conclusion. In Schlencker v. State, 9 Neb., 241, it was held that the opinion of a witness not an expert is competent evidence upon the question of the prisoner’s sanity where such opinion is formed upon facts within the personal knowledge of the witness and sworn to by him before the jury. In the later cases in this court there has been no direct statement of the requirement that a non-expert witness, before giving his opinion as to the mental condition of a person at a certain time, must state the facts and circumstances upon which that opinion rests, yet the case above cited has been repeatedly approved in a general way. (Polin v. State, 14 Neb., 540; Shults v. State, 37 Neb., 481.) We are indebted to the brief of the attorney general for citations of the holdings of twenty-one different states in support of this rule, and the cases cited in behalf of the plaintiff in error are not in conflict with it. Since the argument in this case the principle has been enforced in Hay v. Miller, 48 Neb., 156. We cannot examine the errors alleged with reference to the exclusion of the evidence of Mrs. Du Bois as to the sanity of Hoover for a reason additional to that given above, which is that there was no statement as to what the proffered testimony would disclose, if admitted.
By affidavit it was shown, without contradiction, that while one of the attorneys for the prisoner was addressing the jury there were seated near the accused, Mrs. Du Bois and Miss Brophy; that the presiding judge, Hon. Cunningham R. Scott, came directly from his private room to them and, in the presence and the hearing of the jury, said: “Go right away from here. You cannot sit there.” Counsel for the prisoner then said: “Your Honor: These are our witnesses;” to which the reply was simply, “Yes, sir.” It is insisted that this was prejudicial to the rights of the accused and must have had an influence upon the jury. It is possible that too much display was *196made in obtaining the removal of these ladies, and probably it would have been much better if the presiding judge had conveyed his wish to them through the medium of a bailiff, or some other person. It was a strange situation, however, and there may have been such misconduct that the presiding judge was justifiable in putting a stop to it in a very summary manner. The fact that the ladies Avere witnesses on behalf of The accused conferred upon them no right in a special manner to manifest to the jury their wish for his acquittal, and if anything of this kind was transpiring it was certainly the duty of the court to see that it ceased. It. is true there is no evidence in the record of any misconduct, and yet this conduct of the judge, while not altogether dignified, cannot be assumed to haAre been without justification.
The fifth and last point urged in the brief is that there was misconduct on the part of the county attorney in making use of the following language in his argument to the jury, to-wit: “Samuel Du Bois was a man who rose* by his own merit from humble walks of life, and was a man of large, generous heart. He was called upon to make the laws of this city, and these facts, with other circumstances, make this one of the most heinous crimes ewer committed in this community.” In the affidavit by which was shown the use of the above language it was disclosed that the county attorney further said to the jury: “For fourteen hours he suffered all the tortures of the damned.” Following this quotation the affidavit contained these words: “That said Powers [an attorney for th*e prisoner] called the attention of the court to this language and insisted that it was unwarranted by the evidence, and thereupon the court instructed the jury not to consider it in arriving at their verdict, and further affiant saith not.” It appears clearly from these quotations that the sole objection made to the language of the county attorney was that it was unwarranted by the evidence, and that, thereupon, the court by an instruction directed the jury not to consider it. This was all that counsel by his *197objection seems to have required. Prosecuting attorneys cannot be too careful to confine themselves strictly within the evidence. It is not required of them that in asserting the majesty of the law they shall resort to questionable means. They are the representatives' of the state and should never forget to maintain its authority by fair, open methods. In this case, whatever lapse occurred was instantly counteracted by the court as far as required by counsel for the prisoner, and, therefore, he has no ground for complaint. This record has been very carefully examined with a view to ascertaining whether or not any prejudicial error was committed, and we can find none. The statement of the facts, established by un-contradicted evidence which has hereinbefore been given, leaves no room for doubt that the defendant was properly convicted of the crime with which he was charged. The judgment of the district court is
Affirmed.
Sentence to be executed August 7, 1896.