45 Neb. 856 | Neb. | 1895
An information was filed by the county attorney in the district court of Nance county, charging the plaintiff in error, Andrew Debney, with murder in the first degree. The prisoner was found guilty as charged, and was by the court sentenced to be hanged, which judgment he seeks to reverse by this proceeding.
It appears from the record before us that the plaintiff in error and his wife, Catherine Debney, being unable to live háppily together, a separation took place. Subsequently, a reconciliation was brought about, and, after a time, a second separation occurred. Afterwards, on the 4th day of July, 1893, the accused went to the place where his wife was staying in Nance county and asked her if she would go home with him, and she replied she would not. lie then inquired if she never intended to go with him, and upon receiving a negative answer he drew his revolver and shot at his wife five times, three of the balls penetrating her body. After she fell to the ground he jumped upon her and stamped her head and breast. From the wounds thus inflicted Mrs. Debney died in Platte county on the 9th day of the same month. The verdict of the jury found the prisoner guilty of murder in the first degree, but did not fix the penalty.
The first question argued by counsel is whether the accused was entitled to the benefit of the amendment to section 3 of the Criminal Code adopted by the legislature of 1893, fixing the punishment for murder in the first degree at death or imprisonment in the penitentiary for life, in the discretion of the jury. The act of the legislature contain
In Riley v. State, 28 Tenn., 645, it was held that the venue is proved in a murder case by establishing that the mortal blow was inflicted in the county in which the prosecution is brought, without proving the county where the deceased died. Green, J., in delivering the opinion of the court, says: “For although at common law it was said the offense was not complete until the death, yet it would be doing violence to language to say that the offense was committed in the county where the death happened, although the strokes were given in another county. * * * East says the common opinion was that he might be indicted where the stroke was given. That alone is the act of the party. He commits this act and the death is only a consequence.”
United States v. Guiteau, 1 Mackey [D. C.], 498, was a prosecution for the murder of President Garfield. In that case the fatal shot was fired in Washington, in the District, of Columbia, from which the president died three months later at Elberon, in the state of New Jersey. Guiteau was indicted and tried for the crime in the District of Colum
State v. Kelly, 76 Me., 331, was a prosecution for murder. The wound which produced the death was inflicted within the limits of Fort Papham, a fort of the United States, from the effects of which wound death ensued at Phippsburg outside the limits of the fort. It was held the crime was committed where the mortal blow was given, and not where the person died. The court, in the opinion, observe: “But it is said that, although a mortal wound may be inflicted within a fort, still, if the person wounded dies elsewhere, the crime must not be regarded as having been committed in the fort, but at the place where the person dies, and that in such a case the courts of the latter place have jurisdiction. It is undoubtedly true that the courts of the latter place do sometimes have jurisdiction; but we are satisfied that when this is so, it is not because the crime is regarded as having been committed there, but because some rule of law, statutory or otherwise, expressly confers such jurisdiction. The modern and more rational view is that the crime is committed where the unlawful act is done, and that the subsequent death, while it may be sufficient to confer jurisdiction, cannot change the locality of the crime.”
State v. Carter, 3 Dutch. [N. J.], 499, was an indictment for murder. The blows were struck in Hudson county, New York, from which the injured party died in New Jersey, where the prosecution was brought. Vredenburgh, J., in speaking for the court upon the question of jurisdiction, uses this language: “The only fact connected with the offense alleged to have taken place within
In the case of State v. Bowen, 16 Kan., 475, Brewer, J., after reviewing the authorities bearing upon the question, says: “It seems to us, without pursuing the authori
In State v. Gessert, 21 Minn., 369, it appeared that the defendant was indicted for murder in Washington county, in that state, by feloniously stabbing and wounding one Savazyo, in said county, from which he died in the county of Pierce, in the state of Wisconsin. The indictment was demurred to on the ground that it did not charge the commission of an offense in Washington county. The court sustained the indictment. Berry, J., in passing upon the question of jurisdiction, said: “It is for his acts that defendant is responsible. They constitute his offense. The place where they are committed must be the place where his offense is committed, and, therefore, the place where he should be indicted and tried. In this instance, the acts with which defendant is charged, to-wit, the stabbing and wounding, were committed in Washington county. The death which ensued in Pierce county, though it went to characterize the acts committed in Washington county, was not an act of defendant committed in Wisconsin, but the consequence of his acts committed in Washington county.”
If the crime was deemed committed in the county where the fatal wounds were given, as the authorities hold, it follows that the offense was committed when such wounds were inflicted. True, the death occurred at a subsequent date, but it relates back to the time the mortal injury
Complaint is made of the giving of the twelfth instruction, which reads as follows:
“12. You would in this case be warranted in convicting the defendant of murder in the first degree, and it would' be your duty to do so, if you find the following facts from the evidence and beyond a reasonable doubt: First — That Catherine Debney is dead, and that she died in the county of Platte and state of Nebraska on the 9th day of July, A. D. 1893, or at some time prior to the 21st day of No*865 vember, 1893, which is the date of filing the information in this case. Second — That said Catherine Debney died from the effects of wounds and injuries inflicted on her by the defendant in the manner and by the means specified in the information. Third — That the defendant inflicted said wounds and injuries upon the said Catherine Debney unlawfully and with the purpose and intent to thereby kill her; and that the said wounds and injuries were so inflicted by the defendant of his deliberate and premeditated malice. Fourth — that the said wounds and injuries were so inflicted by the defendant upon the said Catherine Debney in the county of Nance and state of Nebraska on the 4th day of July, A. D. 1893, or at some time prior to her death.”
The criticism, and the only one, suggested upon the foregoing instruction, — that it assumes the death occurred within a year and a day from the time the mortal blow was inflicted, — is without merit. It is firmly settled by our own decisions that the court has no right in its instructions to assume that any essential element of a crime has been established. It is for the jury alone to pass upon the facts and the credibility of the witnesses. (Heldt v. State, 20 Neb., 492; Long v. State, 23 Neb., 33.) But the rule stated above has not been violated or infringed by the instruction already quoted. It does not assume that the death occurred within a year and a day after the injury was received, but it was left for the jury- to determine from the evidence whether or not, beyond a reasonable doubt, Mrs. Debney died after the wounds were given, and before the filing of the indictment.
Exception was taken to the eighth paragraph of the court’s charge, as follows:
“8. ‘Deliberation’ means the act of deliberating or weighing and considering the reasons for and against a ■choice or measure. In the sense which the word is here used, an act is done deliberately, or with deliberation, when*866 it is done in cool blood and not under the influence of violent passion, suddenly aroused by some real or supposed grievance. A person who does an act, not in the heat of sudden passion, but after having coolly weighed or considered the mode and means of its accomplishment, does it deliberately.”
The foregoing definition of “deliberation” is substantially within the rule announced in Craft v. State, 3 Kan., 450. It is true this court in Simmerman v. State, 14 Neb., 570, criticised the definition given in the Kansas case in so far as it held it was necessary for the accused to have considered the different means for the accomplishment of the killing, and in the case at bar the instruction informed the jury that the weighing of the mode and means of the accomplishment of the act was essential to deliberation. Whether this was correct or not it is unnecessary to determine, for if it was erroneous, it was more favorable to the accused than he was entitled. Error cannot be predicated upon the giving of an instruction where it could not have prejudiced the complaining party. (Converse v. Meyer, 14 Neb., 190; O'Hara v. Wells, 14 Neb., 403; Labaree v. Klosterman, 33 Neb., 150; Roggenkamp v. Hargreaves, 39 Neb., 544; Hurlbut v. Hall, 39 Neb., 890; Jolly v. State, 43 Neb., 857.)
The twenty-fourth instruction given by the court on its own motion reads thus :
“24. While it is a general rule of law that voluntary intoxication is no excuse for the commission of crime, still, in cases of this kind, drunkenness, if proved, may be considered by the jury for the purpose of determining whether the accused at the time of the alleged killing was capable of forming a willful, deliberate and premeditated purpose to take life; and if in this case, although you believe from the evidence, beyond a reasonable doubt, that the defendant killed the deceased in manner and form as charged in the information, still, if you further believe from the evi*867 dence that at the time he inflicted the fatal injuries he was so deeply intoxicated as to be incapable of forming in his mind a design, déliberately and premeditatedly, to do the killing, then such killing would only be murder in the second degree. If, however, the defendant took intoxicants to steady his nerves for the commission of the crime with which he is charged, then his intoxication would neither excuse the crime, nor reduce it from murder in the first degree to the second degree.”
The criticism directed against the foregoing is twofold: First, that it imposes the burden of proving intoxication upon the defendant; and second, that the last clause of the instruction is not based upon the evidence. As to the first objection, we remark that counsel for the prisoner are correct when they say that the law does not cast the burden of proving intoxication upon the defense, but that it was sufficient if the jury from the evidence entertained a reasonable, doubt upon that point. It must be borne in mind that intoxication is not a justification or an excuse for crime, but evidence of intoxication is admissible in some cases for the purpose of showing no crime has been committed, or to show the degree or grade of the offense, where the crime-charged — e. g., murder — consists of different degrees. In a prosecution for murder it is competent for the jury to consider evidence of intoxication as tending to show that the-act was not premeditated, and that there was not such deliberation as was necessary to constitute murder in the first degree. (Smith v. State, 4 Neb., 278.) By at least four instructions the jury were informed that the accused should be acquitted, unless from the evidence they found that every element of the crime was established beyond a reasonable doubt. The fifteenth paragraph of the charge is in this language:
“15. By the law of the land, every person is presumed to be innocent of crime, and the defendant in this case is entitled to the benefit of this presumption as evidence in.*868 his favor, and in order to convict him of the crime alleged in the information, every fact necessary to constitute such crime must be established by the evidence beyond a reasonable doubt. If, after a full and fair consideration of all the evidence in the case, you entertain any reasonable doubt upon any single fact or element necessary to constitute the crime of murder in the first degree, it is your duty to give him the benefit of such doubt and acquit him of that crime; and if upon a like consideration of the evidence you entertain a reasonable doubt as to the existence of any single fact or element necessary to constitute the crime of murder in the second degree, you should give him the benefit of such doubt, and also acquit him of that charge. You should likewise acquit him of the charge of manslaughter, if upon a full and fair consideration of the evidence you entertain a reasonable doubt of the existence of any fact necessary to constitute that offense.”
The foregoing was a full and clear statement of the law upon the question, and put, and properly, the burden upon the state to make out its case, at every point, beyond á reasonable doubt, although it would have been more appropriate to have used the word “degree” instead of “crime.” To convict of murder in the first degree it was necessary that the act be done with deliberation and premeditation, and if the evidence left ány reasonable doubt upon the minds of the jury as to whether there was any deliberation or premeditation, they knew from the charge that they could not convict him of the highestdegree of murder, and they knew, too, that it was not incumbent upon the accused to prove his intoxication at the time the mortal wounds were given, since they were told that the state was required to establish every fact or element necessary to constitute the crime by the evidence beyond a reasonable doubt. This is not a case of conflicting instructions, nor does the instruction criticised undertake to impose the burden of showing intoxication upon the defendant, but the rule upon that point was cov
It is also urged that the evidence is insufficient to sustain the verdict. The evidence is uncontradicted that the defendant purchased a revolver a short time before the homicide, and that he inflicted the wounds from which his wife died. The accused relies upon the defense of insanity. After a second reading of the record we are fully satisfied that the defendant at the time fully comprehended what he was doing; that his mind was clear, and that with deliberation and premeditation he committed one of the most atrocious murders that has come under our observation. The evidence bearing upon the defense of insanity was fairly submitted to the jury under proper instructions, and the verdict has settled that point against the defendant. The assignment that the verdict is unsupported by the evidence must be overruled.
Finally, it is insisted that the defendant did not have a fair and impartial trial on account of alleged misconduct
Affirmed.
January 10, 1896, fixed for the execution of the sentence imposed by the trial court.