43 Neb. 163 | Neb. | 1895
The facts of this case must have appealed strongly to the sympathies of the jury, as they certainly do to ours. On the day of the homicide the prisoner, a small and feeble man, weighing less than 135 pounds, and a cripple, his left leg having been amputated above the knee, was three times assaulted by the deceased, a man weighing nearly 200 pounds. On each occasion the prisoner was thrown to the ground and violently choked by the deceased, who was at the time intoxicated, and who during one of such assaults is shown to have threatened the prisoner’s life. The only apparent provocation for said assaults, or any of them, was the fact that the prisoner had denounced the action of the deceased in striking and otherwise abusing Ernest Staples, a boy sixteen years of age, who at the time in question had business at the livery stable where the altercation occurred, and who had, by some means not disclosed, excited the enmity of the deceased. On releasing the prisoner after the last assault, the deceased followed the boy above named to where the latter was in the act of unhitching his horse, about forty feet from the stable. After punishing the boy to his satisfaction he started to return to the stable along the sidewalk at a right angle therewith, pushing and kicking the boy before him. When he reached the stable door the prisoner, who was standing just inside the threshold, struck him a blow in the neck with a knife, completely severing the jugular vein, and from which death resulted almost instantly. The theory of the state is that the prisoner, incensed by the wrongs he had suffered, followed the deceased to the door and, waiting for his return, struck the fatal blow without warning and without sufficient provocation. On the other hand the prisoner contends that in tak
2. Exception is taken to paragraph No. 5 of the instructions given by the court on its own motion, as follows: “In a prosecution for murder in the first degree, if the evidence fails to sustain such charge, the jury may, if the evidence warrants, find the defendant guilty of murder in the second degree, or manslaughter, as the case may be.” The particular criticism of this instruction is that it is incomplete, since the jury were thereby allowed no alternative but to convict either of murder or manslaughter and not permitted to render a verdict of acquittal. The criticism is, however, not merited, as the jury were in other paragraphs instructed fully and accurately upon the subject, and in explicit terms directed to acquit unless satisfied beyond a reasonable doubt that the killing was not justifiable on the ground of self-defense.
3. The next exception is directed to instruction No. 11, viz: “‘Malice/in its legal sense, differs from the meaning which it bears in common speech. In common acceptation it signifies ill-will, hatred, or revenge toward a particular individual. Such a condition of mind would, of course, constitute malice in the eye of the law, but such is not necessarily its legal sense. ‘ Malice,’ in its legal sense, denotes that condition of mind which is manifested by the intentionally doing of a wrongful act without just cause or
4. The next assignment involves the following instruction : “ You are instructed as a matter of law that when a person is assaulted by another, and from the nature of the attack, viewed in the light of any previous threat or hostile declaration made by the assailant and of his known character for violence, the party assaulted has reasonable grounds to believe and does believe that the assailant intends presently to take his life or do him some bodily injury, he will be justified in killing his assailant, providing the circumstances are such that such extreme measure would seem to the comprehension of a reasonable man necessary in such situation to prevent the threatened injury. Whether the appearances of danger are sufficient to convince a reasonable man in the situation of the accused that death or the infliction of great bodily harm upon the person of the accused was intended by the deceased is a question of fact for the jury.” The criticism of the foregoing proposition is slated with great force and precision in the brief submitted by counsel for the prisoner, from which we quote as follows: “It [the instruction] requires the jury to measure the defendant’s mental responsibility, not by his own standard, but by that of some ideal or imaginary man, * * * whereas the true inquiry is, did the defendant believe, at the time the fatal blow was struck, that the deceased intended to kill him or do him great bodily harm?” The view thus stated has, it is admitted, the sanction of eminent authority (see Wharton, Criminal Law [9th ed.], 488, 489),
5. Exception was taken to the following paragraph of the instructions: “Under the law of this state the accused is a competent witness in his own behalf and you are bound to consider his testimony; but in determining what weight to give to his testimony you may weigh it as you would the testimony of any other witness, and you may take into
8. It is next contended that the court erred in not further defining manslaughter. The only definition of that offense is found in instruction No. 8, wdiich is practically in the language of the statute; but the jury were properly instructed respecting the crime charged, and advised that malice is an essential element of murder, both in the first and second degree. They were also advised that they might, if the evidence warranted, find the defendant guilty of manslaughter. In other words, the court charged that if the killing was unlawful and malicious, it was murder; but if it was unlawful and without malice, the offense was manslaughter. That, we think, a sufficient direction when assailed for the first time after verdict, particularly in view of the fact that the only reliance of the prisoner was justification on the ground of self-defense. The killing, according to the verdict, was not justifiable, hence it was unlawful, ■ and was, therefore, murder or manslaughter; and as the conviction was for the last named offense, there is no apparent ground for complaint on his part. No definition of manslaughter has been suggested in the argument, nor can we conceive of one which adds anything to the precise definition of the statute, viz., the unlawful killing of another
7. Finally, it is claimed that the motion for a new trial should have been sustained on account of newly-discovered evidence. According to the affidavit of the prisoner, he had, subsequent to the trial, discovered that he could prove by one Roan that the latter had witnessed the killing from the middle of the street in front of the stable and distinctly saw the deceased raise his right hand as if about to strike the affiant with a knife which he then held. On the hearing of the motion the witness above named was produced by the state and upon his examination contradicted the prisoner in every particular. He not only denied witnessing the homicide, but swore that he was in the city of Norfolk at the time in question. From other evidence taken at the time we are led to believe that said witness had deliberately imposed upon the prisoner by falsely stating that he, witness, was present and could give material evidence in his favor. But that fact merely proves how base and entirely unworthy of belief is the witness by whose evidence it is sought to change the result of the trial, — an additional reason for the refusal to disturb the verdict. We find no error in the record, hence the judgment is
Affirmed.