72 Neb. 288 | Neb. | 1904
Lead Opinion
The defendant was tried in the district court for Brown county upon an indictment of the grand jury which charged him with the crime of murder in the second degree. In support of the charge, which contained the usual words, “but without premeditation and deliberation,” the trial court, over the objection of the defendant, permitted evidence tending to show a conspiracy on the part of the defendant, with other persons, to murder the deceased, and also evidence of the doings and sayings, in the absence of the defendant, of his supposed conspirators; in other words he permitted the prosecution to try the case in all respects as though the defendant had been charged with deliberation and premeditation in committing the crime, and had entered into a conspiracy with divers other persons, the result of which was the murder for which he was being prosecuted.
The court also in instructing' the jury stated to them the charge against the defendant upon which he Avas being tried, which charge purported to give the language of the indictment. It Avas first written upon a typeAvriter and contained the words “without deliberation and premeditation,” found in the indictment. The court erased those Avords, thus expressly telling the jury that the defendant was charged'with the crime of murder in the first degree, and Avithdrawing from the jury the information that the state had admitted in the most solemn form that the defendant had not used deliberation and premeditation, and therefore could not have conspired Avith others to commit the crime. Of course, such a conviction cannot be sustained. The defendant Avas entitled to have the jury plainly and correctly told the nature and legal effect of the charge that had been made against him upon which he Avas being tried, and this is especially true when the nature of the charge itself precluded the possibility of the existence of conditions peculiarly pre
Ordinarily competent evidence that tends to prove a material fact in issue is not rendered incompetent by the fact that it tends to prove more than is necessary to support the indictment, but this rule has no application in a case like this. The error in this proceeding is not predicated upon the proposition that, although the evidence tended to prove the malicious killing of the deceased, it was rendered incompetent simply because it tended likewise to prove deliberation and premeditation. In this case, the state solemnly admitted that there was no deliberation and premeditation, and this fact was not only purposely withdrawn from the jury, but the case was in all respects tried as though no such admission had been made.
In State v. Boyle, 28 Ia. 522, the indictment failed to charge deliberation. For that reason it was held insufficient as a charge of murder in the first degree. The trial court, however, considered it sufficient for that purpose, and tried the defendant upon that theory. The jury found the defendant guilty of murder in the second degree, which was sufficiently charged in the indictment. It was held that to try the defendant as though he were charged with murder in the first degree, when the indictment was insufficient for that purpose, was prejudicial to the defendant, and although he was convicted of murder in the second degree only, which was sufficiently charged, the judgment could not be sustained.
In so ruling the court followed and approved the case of State v. Tweedy, 11 Ia. 350. In that case the defendant was put upon trial.for a crime of which he had been acquitted upon a former trial, and was convicted of a lesser crime, and the court held that the conviction could not stand, because of the fact that he was erroneously tried for the greater offense. These cases are not precisely in point here, but, for similar reasons, the error in
It is said that this instruction is approved in the case of Coil v. State, 62 Neb. 15. It is true that a similar instruction was given in that case and that the conviction was affirmed. Whether the rule announced in that case should be approved, or should be repudiated, is not now the question, as this case is clearly distinguishable. There was no question raised, in the case referred to, as to whether the defendant was or was not in the lawful pursuit of his business at the time of the homicide, and there was possibly no danger that the jury might suppose
3. Many other errors are assigned in the petition in error in this case, but as there must be a new trial, it is not thought advisable to discuss them.
For the reasons above given, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Dissenting Opinion
dissenting.
I am of the opinion that the charge of the court fairly stated the material elements of the offense, for the commission, of which the accused was indicted, and that the jury could not possibly have been misled, nor the defendant prejudiced by reason of its failure in its first instruction to reiterate the words found in the indictment, wherein after charging an unlawful and malicious killing there is added: “but without premeditation and deliberation.” There is nothing in the transcript indicating any erasures in the instruction, although defendant’s counsel in their briefs say such is the fact. I do not, however, regard this as in anywise material nor as affecting the question under consideration. If instructions are to be condemned because of erasures or interlineations, then
The question, as it seems to me, resolves itself into one of whether, when one crime is distinctly and legally charged and the person is being prosecuted for it, evidence may be introduced which, while tending to prove the crime charged or some essential ingredient thereof, may also tend to prove another crime of which he is not charged, and the authorities, so far as my examination extended, are unanimous that such may be done. Hope v. People, 83 N. Y. 418, 427; State v. Folwell, 14 Kan. 105, 109; State v. Adams, 20 Kan. 311, 319. Any evidence tending
In the first paragraph of the instructions given the jury, it is said the indictment charges in substance that the accused did unlawfully, purposely, feloniously and maliciously kill the deceased. In the second paragraph, section 4 of the criminal code is quoted wherein it is declared: “If any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree.” In instruction 4 the jury were told that the indictment charges the defendant with the crime of murder in the second degree, which is a violation of section 4 of the criminal code which has been set out in paragraph 2 of the instructions. By paragraph 6 the jury were told that the following material facts were necessary in order to constitute the crime of murder in the second degree: First, the time and place as charged; and second, that the killing was done purposely, unlawfully, feloniously and maliciously. With these instructions before the jury, I cannot conceive how the defendant could have been prejudiced, how the jury could have been confused, or how it can be said that material elements of the offense charged are omitted in the instructions. The failure to use the statutory phrase “but without deliberation and premeditation” is not, as I view it, an omission of an essential element necessary to constitute murder in the second degree. The words are used in the statute for the purpose only of differentiating between the lesser and greater crime. If deliberation and premeditation is charged, it constitutes murder in the first degree; and if omitted, the
The instruction regarding the law of self-defense is of approved form and has been in general use in the trial courts of this state for many years. It is, I think, undoubtedly the law, and rests upon sound principles in criminal jurisprudence. Of course, the instruction when given must be applicable to the evidence in the particular case. It is approved in Hoy v. State, 69 Neb. 516; Coil v. State, 62 Neb. 15; Carleton v. State, 43 Neb. 373. The principle to be deduced from the instruction is recognized and given expression in West v. State, 59 Ind. 113; Parker v. State, 55 Miss. 414, and Kennedy v. Commonwealth, 14 Bush (Ky.), 340. The rule is stated in Bishop, Criminal Law, sec. 865, thus:
“If one who is assaulted, * * * being himself without fault in bringing on the difficulty, reasonably apprehends death or great bodily harm to himself unless he kills the assailant, the killing is justifiable.” And in 1 McClain, Criminal Law, sec. 311, it is said:
“One who is not in fault, and is in a place where he has a right to be, may, Avithout retreating, resist an attack Avhieh reasonably appears to imperil his life or threaten him grievous bodily harm, and take the life of the aggressor if necessary.”
It seems to me manifestly an unsound doctrine to hold that a trespasser, or one avIio by his own fault and Avrongdoing invites resistance to his unlaAvful acts, may avail
“But you are further instructed that if you find that the defendant had no authority to arrest the deceased, David O. Luse, nevertheless, if you find that he did in truth and in fact arrest the deceased, and that said deceased submitted to such arrest, and subsequently took hold of a gun and turned it upon the defendant in a threatening manner, and in such a way as to make the defendant honestly believe that he was in imminent danger of losing his life, or of receiving great bodily harm, then the defendant under the laAV Avould have the right to even take the life of the said David O. Luse, if he honestly believed that the taking of the life of the said David O. Luse Avas necessary in order to save his OAvn life or to prevent himself' from receiving great bodily harm.” It is, therefore, apparent that the authority of the defendant to make the arrest, if he did undertake to