294 N.W. 384 | Neb. | 1940
In a prosecution by the state in the district court for Douglas county, Martin Chadek was convicted of murder In the second degree, and, after motion for a new trial was overruled, sentenced to serve a term of 25 years at hard labor in the state penitentiary. As plaintiff in error he brings to this court for review the record of his conviction.
Plaintiff in error (hereinafter referred to as defendant) attacks the supplemental and amended information in that it does not charge the crime of second degree murder, con
The supplemental information in substance alleges that on June 25, 1939, the defendant unlawfully, maliciously, feloniously and purposely, but without premeditation and deliberation, shot Emma Chadek with a shotgun, and as a result thereof she died on the 25th day of June, 1939. Defendant thus committed murder in the second degree.
Section 28-402, Comp. St. 1929, provides in part: “Whoever shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree.” Plaintiff in error contends that nowhere in the supplemental and amended information is it charged that the defendant shot Emma Chadek with intent to kill, or with intent to murder, citing as authority the case of Schaffer v. State, 22 Neb. 557, 35 N. W. 384, dealing with an indictmentthat is, that the plain and obvious meaning of the statute required an intent or purpose to kill at the time of the commission of the act, and the indictment containing no allegation of intent or purpose to kill constituted error, the court holding that the intent or purpose to kill is essential to constitute the crime of murder in the second degree, and that this intent must be specifically and directly averred as part of the description of the offense in every indictment.
The information in the instant case is, in all probability, taken froni the case of Bordeau v. State, 125 Neb. 133, 249 N. W. 291, wherein a short form of an information is set out in substantially the same language. The court concluded that the charge contained the essential elements of murder in the second degree, citing section 28-402, Comp. St. 1929,
“When an information alleges all the facts or elements necessary to constitute the offense described in the statute and intended to be punished, it is'sufficient.” McKenzie v. State, 113 Neb. 576, 204 N. W. 60.
With reference to the information being in violation of the state and federal Constitutions, the consensus of authority is that the sufficiency of the indictment, or, in this case, the information, is not a federal question. See Caldwell v. Texas, 137 U. S. 692, 11 S. Ct. 224; In re Robertson, 156 U. S. 183, 15 S. Ct. 324; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727.
While the defendant makes no serious contention that the information was insufficient in that it did not specifically allege the location of the wound, “the trend of modern authority is in favor of dispensing with any allegation whatsoever respecting the location of the wound or bruise.” See 13 R. C. L. 900, sec. 206, and cases cited under note 15. We deem it unnecessary to discuss the many decisions of like holding subsequent to Nichols v. State, supra, and conclude that any change with reference to the form of the informa
The foregoing analysis disposes of defendant’s objections to instructions 5 and 6, given by the trial court on its own motion.
Defendant predicates error on instructions 7 and 8, given by the court on its own motion, with reference to the crime of manslaughter, in that the instructions omitted the language, “either upon a sudden quarrel,” as provided in section 28-403, Comp. St. 1929, defining manslaughter. Defendant’s contention is founded upon the evidence that he and his wife were engaged in a sudden quarrel at the time of the shooting and not in the commission of an unlawful act. Instruction No. 8 omitted the word “unintentional.” Defendant contends that this word was of importance because he testified that he did not intend to shoot his wife. The record shows the defendant contended that he shot and killed his wife because, if he had not done so, she would have killed him or would have inflicted great bodily injury upoxi him; that he was in fear of his life and was defending himself. There was some evidence upon which the jury might have conceivably found that defendant committed homicide unintentionally while in the commission of an unlawful act. There is evidence that when he came home he and his wife did have some quarrelsome words, and the argument proceeded far enough that they scuffled, and in the process of scuffling she tore his shirt and he her dress, but there is nothing in the evidence which amounts to a sudden quarrel. After the argument, she went to the oppo
Defendant contends that the evidence is insufficient to sustain a conviction of murder in the second degree. We are, therefore, required to set forth the pertinent facts shown by the record.
Martin and Emma Chadek were married at Papillion, Nebraska, September 26, 1912, and lived together until the day of the tragedy, which occurred shortly after 5 o’clock p. m., Sunday, June 25, 1939. At the time, Martin was 49 years of age, five feet, seven inches tall, and weighed about 150 pounds. He was employed as a steam fitter at a packing plant. Emma Chadek, the deceased, was 50 years old, approximately five feet, one inch in height, and weighed 105 pounds. By their joint efforts they had accumulated some property during their married life. On the morning of the tragedy Martin and his brother John went to dig out an excavation at a property which Martin had purchased for rental purposes. They had remained all day at the property, and shortly before 5 o’clock left, going to a tavern where they had two pint bottles of beer, after which John went to his home, and Martin returned home.
The physical facts play an important part in this case. The tragedy occurred in the basement of the Chadek home, and the following physical facts are disclosed by the record: The stairway into the basement consists of nine steps, each two feet, eight inches wide, and seven feet in length from' the basement wall to the bottom of the steps. The basement proper is 24 feet, 8 inches from east to west, and 27 feet
Martin Chadek testified, in substance: When he returned home, he entered the back door, which was unlatched, and, for the purpose of changing his clothes, went to the north part of the basement, about six or eight feet from the steps. His wife was in the south part of the basement, and she commenced to scold him for taking off his clothes in the basement instead of in the garage, to which he replied that it was his place and he would take off his overalls in the basement if he wanted to. She went to the kitchen cabinet, opened the drawer, obtained a butcher knife, said she was
The coroner’s physician found a gun-shot wound which made its entrance into the right upper arm. The wound entrance measured two and one-fourth inches in its longitudinal or vertical direction and an inch and a half in its transverse direction, the gun-shot going completely through the humerus, the upper arm, and then from the chest wall into the chest, and some of the shot was lodged in the heart itself. There were no powder burns. The course of the shot was from right to left. The fact that no powder burns were found on the body would at least indicate that the shot was fired from a distance of more than five feet, possibly from a distance of eight or ten feet. The marks placed on the map as to the location of the body and from where Martin said the shot was fired clearly indicate a distance of possibly eight feet or more. The story told by defendant varied in some degree as to what occurred between himself and his wife; that is, whether the argument arose over the
From an analysis of the evidence, the jury found defendant guilty of murder in the second degree. It seems, from a careful reading of the record, that this analysis is correct. There is no reason why defendant could not have averted this shooting; he could have escaped by the stairway on at least one occasion and possibly two. He could have struck his wife with the gun. The obtaining by him of the gun and loading it would indicate that, under the circumstances, the wife lost some considerable time, if she had desired to assault defendant and kill him with a knife. The knife was found within a distance of five or six inches from the wife’s body. An explanation of its position is difficult. There were no fingerprints on it. Obviously, she had not grasped it with a degree of firmness. The description of the wound and its progress indicate clearly that the wife was shot from the side, and also that her arm was not upraised, and that she was not facing the defendant. Evidently, therefore, she was not pursuing or attempting to assault him. The state’s theory, based on the physical facts, is that the defendant did shoot his wife from a point near the couch; that his wife was not attacking him, but was attempting to
In a prosecution for murder in the second degree, when the fact of unlawful killing is proved and no evidence tends to show express malice on the one hand or any justification on the other, the law presumes malice. There is an inference that the killing was intentionally done. The crime of murder in the second degree is established, and the evidence requires submission of the case to the jury. See Preuit v. People, 5 Neb. 377; Davis v. State, 51 Neb. 301, 70 N. W. 984; Kastner v. State, 58 Neb. 767, 79 N. W. 713; Kennison v. State, 80 Neb. 688, 115 N. W. 289.
For the reasons given herein, the verdict of the jury and the sentence of the court are
Affirmed.