56 Neb. 363 | Neb. | 1898
John W. Argabright was prosecuted by indictment in the district court of Nemaha county for the murder of William Smelser. A trial resulted in the conviction of the accused of the crime of manslaughter, and the sentence imposed upon him was reversed by this court at the September, 1896, term, for the giving of an erroneous instruction, and the cause was remanded to the court below for further proceedings. (49 Ne'b. 760.) The defendant was a second time placed upon trial, which terminated in a verdict of murder in the first degree, the jury fixing the punishment at imprisonment in the penitentiary for life, and this was the sentence imposed by the court. The record is again before us for review.
While the motion for a new trial and petition in error contain more than fifty assignments of error, the questions discussed in argument, and relied upon to secure a reversal, are confined to very narrow limits. The first point urged upon our attention is that the verdict is not sustained by sufficient evidence. The record shows without controversy that the accused was a son-in-law of the deceased, William Smelser, and for more than a year prior to the tragedy resided in South Omaha, and a portion of the time was on the police force of said city. His wife and two children lived with him until the fall of 1893, when, owing to domestic trouble between the accused and his wife, a separation took place. The wife returned to Nemaha county with the children, and made their home with her father. In November, 1893, the accused went to said county to visit his Children, and on the road from the railroad station to Snuelser’s he met the latter, who informed him he could not see the children, and warned him to keep off the premises of the deceased. On this visit Argabright was permitted to see the baby alone, but not the older child. On February 7, 1894, the accused made a second trip by rail to Nemaha county, riding out from Howe with a Mr. Dressier. On the way
The killing is admitted, but it is asserted that there is no evidence to establish premeditation, deliberation, and malice. A careful perusal of the bill of exceptions con-vinces us that this contention is without foundation. It was established that defendant, a short time before the tragedy, purchased the revolver rvith which the fatal shot was fired, also bought a long-caped mackintosh, under which the revolver was concealed the night of the tragedy; that before leaving South Omaha he was advised by a. friend not to take the fire-arm with him on his trip to Nemaha county, else he might get into trouble; that the defendant related his family difficulties to W. H. Beckett, and in that conversation with reference to his children and his father-in-law stated to Beckett “'that
Complaint is made of the fourth and thirteenth instructions given at the request of the state. They are as follows:
“4. The court instructs the jury that the father of an infant child has no such vested right in the custody of his infant child as to authorize him to take it from its mother by force and against her will; and in this case, if you find from the evidence that ,at the time of the tragedy the mother of the defendant’s infant child was living with her parents, the deceased, and his wife, and they together had the custody of this child, defendant would 'have no right to attempt to take such child from the arms of Mrs. Smelser, the wife of the deceased, by force and against her will.”
“13. The court instructs the jury that if you find from the evidence that when the deceased made the first assault upon the defendant he honestly believed, from the conduct and actions of the defendant,' that he was attempting by force to take the child from the arms of the*367 wife of the deceased; and if he had reasonable grounds to apprehend such contemplated design on the part of the defendant, he had the right to use such force as was reasonably necessary to defend the possession of said child and to protect himself and family as they passed to the door on the way home.”
The vice imputed to these instructions is that they .had no application to the evidence adduced on the trial. The bill of exceptions records ampie testimony tending to establish that the accused, as the Smelser family were passing towards the door of the schoolhouse, reached for the child, and that it was his purpose forcibly to take it from the possession of the grandmother, and that when the deceased sought to prevent the accused from doing so, the latter drew- his revolver, and while he did not succeed in obtaining the child, he did kill William Smelser. The instructions assailed are predicated upon the testimony, and the criticism brought against them is unfounded.
The defendant, while a witness in his own behalf, gave testimony tending to show that at the time the fatal shot was fired he was being assaulted by the deceased and James Sparks; that during the altercation he was struck by the latter and they were both following the defendant as he retreated towards the door of the schoolhouse. On rebuttal the state placed James Sparks upon the witness stand, who testified that he did not strike the defendant on the occasion in question, nor did he attempt to do so. After the state had finally rested, the defense applied to the court for permission to impeach the witness James Sparks by proving that he had stated the day following the tragedy, and at other times, to Amos Hughs, J. S. Thomson, William Hughs, and Levi Hughs, that he struck the accused, and had it not been a glancing blow it would have knocked him down. The court refused to allow isuch impeaching testimony to be given, although the proper foundation for its reception had been laid. Counsel for the state attempt to justify this
Reversed and remanded.