109 Neb. 311 | Neb. | 1922
The evidence is conclusive that the teachgr made no hostile demonstration toward the defendant, and that he offered no resistance. He was completely knocked out, lost a good deal of blood, fainted at the end of his surgical treatment, and was carried to his home, where he was. laid up for nearly ten days. For some additional time he experienced a difficulty of locomotion, due to dizziness. There was medical testimony to the effect that permanent partial' disability might result from his rough-handling.
But the question raised here, as well as in the court below, is this: Did the defendant do what he did with intent to inflict .great bodily injury, that is to say, with intent to inflict an injury of graver and more serious character than an ordinary battery? He swears positively that he had no such intent. Was the evidence sufficient to enable the jury to properly find therefrom that he had? If this question be answered in the negative, the verdict ought not to stand, however aggravated the assault.
Without much doubt, defendant bore the superintendent some ill will, as prominent in the denial of school privileges to his daughter. The school board had made a ruling that the latter was not entitled to schooling in Lynch until tuition should be paid for her, and Mr. Penn, as superintendent, was attempting to enforce such ruling by refusing to permit her to recite with the other pupils. Defendant contended that he had returned to
Though his irritation Avas ever so real, it cannot, of course, afford the defendant any justification for his violence. His daughter may have been humiliated. She probably was. The ostracisms of the school-room, so often inflicted for the purpose of compelling parents, are frequently peculiarly distressing to the child. But, even if she had been insulted or abused, her father would have been without any valid excuse for his resort to the code of the club, claw apd fist. His provocation, if any he had, is important mainly as disclosing a' motive that might beget the intent charged. In other words, it only helps to prove that he had in contemplation all that he accomplished in his brutal assault. Without a fixed purpose to beat his victim beyond the bounds of mere battery, it would seem that the success of his first paralyzing blow would have appeased his anger. But he struck him again, and perhaps again, as he struggled, knocked-out and bleeding, upon the walk, striking so hard in one instance that his fist, missing or glancing and landing on the walk, was badly broken. Moreover, the teacher was undersized, five feet five and one-half inches in height, and a cripple.' Further than this, there was testimony, denied and not at all conclusive, it is true, that defendant had been looking and waiting for Mr. Penn in the vicinity of the schoolhouse.
These considerations lead us to the opinion that the case was for- the jury, and that the verdict and judgment cannot be disturbed if the trial was fair and if the issue was properly submitted.
The contention of the- defendant that the court erred in permitting Dr. Kirz to testify, his name being indorsed on the information as Dr. Kirz merely, and not by given name or initial, is not well taken. The object -of the statute is that the accused may be apprised of the identity of those who -are''to testify against him. Doctors are better known by their ■ title than by their Christian names in a country town. Dr: Kirz was well known to the defendant by his professional designation. He had treated his hand at the time'it was hurt. The statute will be considered as a protection to the defendant, but not as a weapon against the state. Ossenlcop v. State, 86 Neb. 539. No'prejudice was done to the defendant’s rights. No substantial harm was done. No miscarriage of justice resulted. Comp. St. 1922, sec. 10186.
' A careful' examination of the record discloses no reversible error in the rulings of the court in the reception or rejection of evidence.
We are unable to discover aiiy error in instruction No.
Likewise’ instruction No. 9 is an approved one, telling the jury that the proof of intent on the part of the defendant is indispensable to a conviction. It properly directs that this may be inferred from words and acts and surrounding facts and circumstances. Taken in connection with instruction No. 12 (and all the instructions must be considered together), it correctly stated the law and abundantly safeguarded the defendant.
Instruction No. 10 is somewhat involved in its language, but it is not susceptible of a construction under which it might be said to misstate the law, or to be injurious to the defendant. The first part, in which it is stated that it is not essential to a conviction that the accused should have intended the precise injury that followed the assault, is in the familiar language of the Murphey case, while the latter part says, in substance, that it is enough if it be shown beyond reasonable doubt' by the 'circumstances that great bodily, injury was contemplated. Taken with the preceding instruction, which directed that all the evidence bearing on intent should be considered, it is not objectionable, and could not have been misleading.' • : ' • '
The same may be' said of instruction No. 11, which is assailed as telling the jury that thep assault was deliberate-and inexcusable. That this is-not the' case is obvious from a reading of the instruction. ■ The"instruction is as follows: “No wrong, however "serious to'the person of another, will' alone warrant "a conviction for an assault
The case was well tried and submitted, and the judgment of the district court should stand.
Affirmed.