78 Neb. 466 | Neb. | 1907
William Craig and William Rash, hereafter called the defendants, were convicted in the district court for Cherry county of murder in the second degree for the killing of one Elijah Custard. Craig was sentenced to life imprisonment, Rash was sentenced to serve ten years in the state penitentiary, and they have brought the case
1. It is contended that the evidence was insufficient to sustain the verdict, and to the determination of that question we will first address ourselves. It appears from the record that nine persons (including the defendants) witnessed the killing, which is not denied, and of these persons five, who were wholly disinterested, were called as witnesses, and testified for the state. They agreed practically in their statements, which were, in substance, that Craig was the keeper of a vile resort, known as the “Hog Ranch,” near Valentine in said county, and that Rash was one of his bartenders at the time the murder was committed; that on the 17th day of September, 1905, the deceased, with others, were at the resort above mentioned, and Craig ordered the girls to come out into the dance hall, which was a room about 40 feet long by 30 feet wide, with a bar extending nearly across its east end; that Craig and the deceased had some words at or near the west end of the dance hall, and Craig called the deceased a vile name, and told him that he did not care anything for him, after which remark Craig started toward the bar, with Custard and one or two others following him. When he came near the east end of the hall Craig started on a run, went behind the bar and seized a revolver, called the “big white gun.” By that time Custard had reached a point at the south end of the bar where Rash was sitting at a table. Rash arose, seized Custard around the waist with one arm, and drew a revolver, called the “blue steel gun,” with his other hand. While they were struggling with each other, Craig reached over Rash and struck Custard a severe blow on the head with the “big white revolver.” This partly stunned the deceased, and thereupon the witness Hunter grabbed hold
Opposed to this evidence was the testimony of William Pettitt, who corroborated the witnesses for the state in many particulars, but stated that Custard followed Craig, forced his way in behind the bar, and struck or was strik-. ing at him at the time Craig hit him with the “big white revolver”; that Rash was standing behind the bar with his arms on the counter, and took no part whatever in the affray. His testimony, however, wms somewhat discredited by the evidence of other persons, to whom he had made a different statement of the transaction before he gave.his testimony in court. One Winston, who was in the employ of the defendant Craig, as barkeeper, also testified for the defendants, and corroborated the evidence of Pettitt to some extent, although he did not claim to have been present when the affray first commenced. The defendant Craig testified, in substance, that the deceased followed him across the room and in behind the bar; that he assaulted him, struck him, and was striking at him when he struck the deceased with the “big white gun”; that the witness Hunter and the deceased wrested the “big white revolver” from him, and in order to protect his own life he reached under the counter, got the revolver called the “blue steel gun,” and shot the deceased wdth it; that Rash took no part in the transaction whatever. Rash’s evidence was practically the same as that of the defendant Craig.
With the evidence in this condition, it w-as for the jury
2. It is next contended that the court erred in receiving the testimony of the witness Hunter on the question of the character of the defendant Craig. It is said in the defendants’• brief that the state was permitted to show, over the objections of the defendants, that the defendant Craig on other occasions had made “gun plays”; that he had struck one fellow shortly before this, and that the men, with one or two exceptions, that run that sort of a place were in the habit of making “gun plays.” It is claimed that this was prejudicial error, because the defendant had not elected to put his character in issue, and, therefore the state was not entitled to introducé evidence of that kind. If the state had offered this evidence in chief it is probable that its reception would have been prejudicial error. But an examination of the record discloses that this evidence was brought out on the redirect
3. The remaining assignment of error is that the court erred in giving paragraph No. 16 of the instructions. The alleged fault of this paragraph is that the court told the jury that the “defendants” set up the plea of necessary self-defense. It is claimed that this is a misstatement of the defense interposed by defendant Rash, since he absolutely denied having any connection with the killing. While it was not the contention of the state that Rash fired the fatal shot, but that his complicity in the murder was that of an aider and abbetter therein, yet, if Ms codefendant Craig was justified in killing the deceased on the ground of necessary self-defense, such justification would inure to the benefit of Rash and constitute'in his behalf a perfect defense. So the statement complained of could not have been prejudicial to his interests. We find, however, that by certain other paragraphs of the instructions the jury were told that it was necessary that they should find from the evidence, beyond a reasonable doubt, that the defendant Rash unlawfully, feloniously, wilfully and purposely aided, abetted, comforted, procured, assisted and maintained Craig in the killing of the deceased, before they could find him guilty of any of the degrees of homicide with which his codefendant stood charged.
In conclusion, it appears that the defendants were accorded a fair trial: that upon conflicting evidence the jury passed upon the facts, and in so doing have found and said that they were satisfied beyond a reasonable doubt of the guilt of both of the defendants, and we know of no rule which would authorize us to set aside their verdict.
For the foregoing reasons, the judgment of the district court is in all things
Affirmed.