74 Neb. 340 | Neb. | 1905
On the 15th day of March, 1904, the plaintiff in error, James Connolly, shot and killed one Henry H. Miller, in Sioux county, in this state. He was tried for the crime on an information charging him with murder in the first degree, and was found guilty of manslaughter. From a judgment sentencing him to imprisonment in the state penitentiary for a term of eight years he prosecutes error. On the trial it was admitted by the accused that he shot and killed the deceased, and he defended himself against such action on the ground of justifiable homicide. There are seventeen assignments of error in his petition, but in Ms brief and on the oral argument only three of them were relied on for a reversal of the judgment of the trial court. The record discloses that the accused introduced some evidence tending to show that the deceased was a man of violent temper and quarrelsome disposition; that he had made some threats against the accused, both com-municated and uncommunicated; that the accused had been well and intimately acquainted with the deceased for
It is contended that the court erred in refusing to give the jury an instruction, tendered by the accused, submitting his theory of self-defense. The instruction tendered specifically directed the attention of the jury to the evidence tending to show the bad character and violent temper of the deceased. This instruction was refused for the reason, as stated by the trial court, that he had already instructed the jury on his own motion in relation to that matter. The record discloses that paragraphs fifteen and sixteen of the court’s instructions properly submitted the question of self-defense as applied to the evidence above mentioned. In the latter part of paragraph sixteen the court said: “The rule in such cases is this: What would a reasonable person, a person of ordinary caution, judgment and observation, in the position of the defendant, seeing what he saw, and knowing what he knew, suppose from this situation and these surroundings? If such reasonable person, so placed, would have been justified in believing himself in immediate danger, then the defendant would be justified in believing himself in such peril, and in acting upon such appearance.” Having given the instruction above quoted, the court properly refused to give the instruction tendered by the accused. Where the substance of an instruction asked for has been given by the court on his own motion, the party tendering the instruction cannot complain of its rejection by the court. Bush v. State, 47 Neb. 642; Oarrall v. State, 53 Neb. 431.
The accused further contends that he had the right to shoot and kill the deceased in order to prevent the commission of a felony, and that the court erred in refusing to give an instruction tendered by him presenting that theory of his defense to the jury. In order to determine this question, it is necessary for us to give at least a summary statement of what was shown by the evidence
The foregoing facts are not disputed, except in so far as the evidence of the accused differs from the evidence of the state as to what took place at the time the tragedy occurred. Connolly testified in his own behalf, in substance, as follows: “I looked up. I had taken off my shoes to take some cactus out, or my boot, rather, and I looked and saw Mr. Miller in about 50 or 60 feet of me. He said: ‘What are you doing there?’ And I said: ‘I am here attending to my business. What are you doing here?’ He said: ‘I am here after that steer (pointing to where
It is apparent from the foregoing evidence, given by the accused himself, that at the time he fired the fatal shot the deceased was neither in the act of committing, nor was he about to commit, a felony. He was not attempting to take possession of the steer in question, and even if he had made such an attempt, openly and under a claim of ownership, he would not have been guilty of a felony. Nay, more than that, even if he had succeeded in taking forcible possession of the steer under a bona fide claim of ownership (and it is not shown or contended that his claim was not made in good faith), he would not have been guilty of a felony. His offense, at most, would have been no more than a trespass. So the evidence of the accused did not even tend to support his claim that he fired the fatal shot to prevent the commission of a felony. It is true that the defendant in a criminal case is entitled to have his theory of his defense submitted to the jury by proper instructions. But there must be at least some evidence to support such a theory before it can be submitted. There was no evidence in this case which would support the instruction tendered, and it was, for that reason, properly refused.
Lastly, it is contended that a new trial should be granted for misconduct of the prosecuting attorney. We find attached to the transcript a couple of affidavits made by counsel for the accused, in which are set forth certain statements alleged to have been made by the county at
From an examination of the whole record we are satisfied that the accused was given a fair and impartial trial. Indeed, every doubtful proposition seems to have been resolved in his favor. He was allowed to introduce evidence of the character and disposition of thé deceased, without regard to its competency, and we are impressed with the idea that the evidence in this case would have sustained a conviction for a higher degree of crime than manslaughter. In fact, it is apparent that the accused ought to be well satisfied with the verdict of the jury and the judgment and sentence of the court.
There being no reversible error in the record, the judgment of the district court is hereby
Affirmed.