50 Neb. 274 | Neb. | 1897
The plaintiff in error was informed against for murder in the second degree. He was convicted of man
In Campbell v. Holland, 22 Neb., 587, the action involved the issue as to whether a certain conveyance had been, made to defraud creditors, and the court held that in, such a case it is competent to inquire of the vendor whether, in making the transfer, he intended to delay or defraud creditors. Jonasen v. Kennedy, 39 Neb., 313, was. an action for malicious prosecution, and it was held that it was competent to ask the defendant whether, in making the complaint, he acted with any malice toward the plaintiff. These cases were followed in Laing v. Nelson, 40 Neb., 252. If in a civil case where the intent of a party is material, it is competent to inquire directly of him as a witness in regard to such intent, we cannot see why it is not proper in a criminal prosecution. The defense-here interposed was self-defense, and the intent and purpose of the plaintiff in error were material inquiries,
The court gave the following instruction: “The facts necessary for the state to prove beyond a reasonable doubt to warrant a conviction of the crime charged, are, that led Vance once lived; that he is now dead; that at and within the county of Douglas and state of Nebraska, and at some time prior to the commencement of this prosecution, the defendant purposely, maliciously, and feloniously caused the deatli of the said Jed Vance by striking him on the head with a billiard cue; and that at sometime within a year and a day thereafter said Jed Vance died from the effect of such blow. If these facts have been proven beyond a reasonable doubt you should acquit the defendant of the crime charged. If these facts have not been established by the evidence beyond a reasonable doubt, you should convict him of the crime charged.” By this instruction the jury was told that it should acquit if the crime was proved and convict if it was not proved beyond a reasonable doubt. It is quite clear to us that the court, in giving this instruction, committed
For the errors indicated the judgment must be reversed.
Reversed And remanded.