61 Neb. 688 | Neb. | 1901
Claud Clary was convicted of an assault with intent to wound one Charles Wright. The record is here for review without a bill of exceptions.
The instructions in the case are numerous and lengthy. Eleven were given on request of the state, twenty-three were submitted by defendant and four were given by the court on its own motion. It is not now suggested that any point in the case was not covered by the charge, but it is urged that certain paragraphs of the instructions are erroneous, among others, the following: “2. The credit of a witness depends largely upon two things, that is, first his ability to know what occurred and his disposition for telling the truth as to the occurrence. Statements by a witness having superior opportunities for knowing
In response to a question put to the court by a juror this instruction was given: “I have no right to instruct you as to what sentence might be in case the defendant, is found guilty on either of the three counts in the indictment. That is a question [with] which you have nothing in the world to do. The question that you have to determine is simply a question of fact. It is entirely out of place for you to consider what punishment might be inflicted upon the defendant in case he is found guilty of any offense, that is a question that comes later in the case. You are to consider the evidence adduced in this
At the request of the state the court informed the jury that “a deadly weapon is one likely to produce death, or great bodily injury, as a knife, an ax, or “a club.” It is urged that the instruction wa^ prejudicial, in that by naming a knife it emphasized that instrument as a deadly weapon. It did no such thing. The court designated a knife, an ax and a club as deadly weapons, and emphasized one of them no more than the others.
Lastly, it is urged that the fourth instruction given on the request of the state is erroneous. It reads: “The court instructs the jury that the intent with which an act is done is a mental process, and as such generally remains hidden within the mind where it is conceived, and is rarely, if ever, susceptible of proof by direct evidence, but must be inferred, or gathered from the outward manifestations, by the words or acts of the party entertaining them, and the facts or circumstances surrounding or attendant upon the assault with which it is charged to be connected.” The criticism is upon the use of the word “must.” The court, by employing that word, merely intended to convey to the jury that the intent of a person is deducible from his words and conduct only, and not that the jury were obliged to infer the unlawful intent in the case. The instruction was doubtless copied from the opinion in Botsch v. State, 43 Nebr., 501.
It follows that the judgment must be, and- it is,
Affirmed.