15 Neb. 138 | Neb. | 1883
'The plaintiff in error was indicted for murder in the ■second degree in thé district court of Lancaster county, and •convicted of manslaughter and sentenced to imprisonment ■in the penitentiary for nine years. He now prosecutes ■error to this court. The errors assigned are: First, duplicity in the indictment. Second, the exclusion of testimony showing the friendly relations between Denman and the ■deceased. Third, error in giving and refusing certain instructions.
Duplicity in an indictment is the joinder of two or more ■distinct offenses in one count. 1 Bish. Cr. Proc. (3-Ed.), § 432. Whart. Cr. Proc. (8th Ed.), § 243. The general rule is, that two distinct crimes cannot properly be joined 'in the same count of an indictment, and if so joined a motion to quash or demurrer will lie. Wharton Cr. Proc., § '243. But there are exceptions to the rule, as where the crime charged includes one of an inferior degree — as in murder which includes manslaughter. In such case the jury may acquit of the high crime and convict the accused of the less ■atrocious one. Id., § 246.
Second. Friendly relations between Denman and the deceased. Denman was a witness in his own behalf, and was asked by his attorneys, “What incident ever occurred between you and Mr. Coakley of a friendly nature?” Objection was made and no answer given. He was then asked if he had been on such friendly relations to the deceased that he (Coakley) had extended any material favors or acquaintance to him? Objection was again made, and no answer given. There was no offer to prove any fact,, consequently no question is presented for determination.
Third. It appears from the testimony that one Coakley was keeping the St. Charles House, in the city of Lincoln, and that the plaintiff was boarding there; that on the fourth of July, 1881, Denman, while at dinner, made some-disturbance, which resulted in Coakley ordering him to leave,, and finally in putting him out of the house; that while on the sidewalk, whether at the door or a few steps from it, is-not entirely clear, the plaintiff struck Coakley with a knife on the arm making a wound which extended to the bone.. Erysipelas set in, and in two days afterwards Coakley died.. The testimony is uncoirtradicted that the erysipelas resulted from the wound, and that the wound was the cause o£ death. The court gave the following instruction on behalf' of the state, which is objected to: “If you find from the-
This is equivalent to saying, that if the wound was the mediate cause of death — that is, if but for the wound death would not have ensued, it is no defense that because of the wound fever or erysipelas set in and was the immediate cause of death. No objection is pointed out to this instruction, and there was no error in giving it. McAllister v. The State, 17 Ala., 434. U. S. v. Warner, 4 McLean, 464. Com. v. Hackett, 2 Allen, 137. Com. v. McPike, 3 Cush., 181. Parsons v. The State, 21 Ala., 300. 2 Wharton Cr. Law, § 941.
The following instruction was asked and refused: “ If the jury find from the testimony that the defendant inflicted on the deceased a slight wound, in itself not dangerous, which wound by improper treatment of a physician became mortal, you will acquit the defendant.” There is not a particle of testimony in the record tending to show that the physicians improperly treated the wound. The instruction
Judgment affirmed.