86 Neb. 210 | Neb. | 1910
An information was filed in the district court for Cass county charging plaintiff in error with the crime of murder in the first degree in killing John P. Thacker, in said county on the 15th day of January, 1909, hy shooting him with a pistol, or revolver, then held by plaintiff , in error.
A jury trial was had, beginning June 2, 1909, which resulted in a verdict finding plaintiff in error guilty of murder in the second degree. A motion for a new trial was filed, which was overruled, and plaintiff in error was sentenced to imprisonment in the state penitentiary for the term of 14 years, and that he pay the costs of prosecution. The cause is removed to this court by proceedings in error for review. The bill of exceptions is very voluminous and the testimony of the witnesses quite conflicting. In view of the fact that there will probably be another trial, it is not deemed proper that we should review the facts, except so far as it may be necessary to present the questions to be here passed upon.
It is shown by the evidence that plaintiff in error was a young man of about the age of 29 years at the time of the tragedy, five feet six inches in height, weight 160 pounds, and is, and has been for a number of years, so crippled in his left leg as to render it practically useless,
The trouble occurred on the 15th day of January, 1909. The trial Avas commenced on the 2d day of June following. Upon the trial the state disputed the testimony of the witnesses who claimed to have seen and heard the difficulty from their position in the crib, and, the better to enable them to do so, as Avas supposed, caused persons to go to the crib in question, either immediately before or during the trial, and inspect the place for the purpose of ascertaining Avliether persons so situated could have observed what was done. The teams, wagons and sheller had all been removed, as well as the boards which formed the cracks through which it was’ claimed the witnesses had looked. A team and wagon was placed where it Avas said a team and wagon had stood, and boards were nailed on the studding where it was said some of the boards had been before being removed. We are unable to find any proof in the bill of exceptions by any one present at the time of the tragedy that the original condition AAas in any Avay restored. The witnesses Avho made the inspection
As a part of the ninth instruction given by the court to the jury, the court said: “The jury are instructed that the rule of law on the subject of self-defense is this: Where a man, in the lawful pursuit of his business, is attacked, and when, from the nature of the attack, there is reasonable ground to believe there is a design to take his life, or to do him great bodily harm, and the party attacked does so believe, then the killing of his assailant under such circumstances will be excusable or justifiable homicide, although it should afterward appear that no injury was intended and no reasonable danger existed.” We do not copy the whole of the instruction on account of its length. It must be enough to say that, in the main, with the exception of the portion quoted, the law of self-defense is correctly stated. But, as must appear to any one reading it, the whole is in effect made to depend upon whether the accused was “in the lawful pursuit of his business.” This portion of the instruction is condemned in Hans v. State, 72 Neb. 288. In the syllabus it is said: “When, in a trial for murder, the defendant produces evidence tending to justify the killing on the ground of self-defense, an instruction which limits the right of self-defense to one in the lawful pursuit of his business, is erroneous.” There can be no doubt but that, considering
Objection is made to the eighth instruction, given upon the request of the state. It is as follows: “The jury are instructed that a malicious killing, although done upon a sudden quarrel and in the heat of passion, is, at least, murder in the second degree.” Were the words “at least” eliminated, the instruction might not be objectionable, although the statement of abstract principles of law in an instruction is not to be encouraged, but rather condemned. It requires but little reflection for one to see that the instruction as formed might be to the prejudice of a person on trial. The use of the words “at least” would naturally suggest to the mind of a juror that it might also be something greater. If so, the crime of murder in the first degree would be suggested, for that is the next step upward in the grade of the crime. In the seventh and eighth instructions given by the court upon its own motion the law of manslaughter is fully explained, and a return to the subject in the language of the instruction above quoted was not necessary or in any way demanded. Under the circumstances we cannot approve of the instruction.
An error was committed in giving the twenty-second instruction, given upon the court’s own motion. It is as follows: “You are instructed that the testimony of George Cole shows that the defendant stated to him That if Thacker came into the field where he was and threatened to kill him, he would kill him (meaning Thacker, the deceased)’, also that he stated That if Thacker had done that way with him he wouldn’t only have drawn a gun but he would have used it.’ You are instructed that the foregoing language of the defendant does not constitute a threat, but is admitted as showing the condition of mind of the defendant which he entertained toward Thacker at that time, and is to be weighed by you in determining
It is strenuously objected that the evidence is not sufficient to support the verdict. As we have hereinbefore stated, it is not deemed necessary to discuss this question as another trial may not present the same facts and circumstances.
For the errors referred to, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.