Howard v. State

113 Neb. 67 | Neb. | 1925

Morrissey, C. J.

Defendant prosecutes error from a conviction for manslaughter.

The charge was that defendant, on October 17, 1928, shot and wounded one Chester Porter, who, as result of such wound, died three days later. The state was permitted to prove statements made by Porter a few hours before his death, which statements charged defendant with having fired the fatal shot. It was claimed by the state that these statements were dying declarations. Defendant assigns as error the admission of this testimony and asserts that the record fails to show that the statements, if made, were made by Porter with a knowledge of impending death, etc. We do not deem it necessary to review at length the foundation for this testimony. Were we limited solely to the testimony of the witnesses who testified as to the substance of Porter’s statement, there might be merit in defendant’s contention; but the testimony of these witnesses, so far as the foundation for the introduction of a dying declaration is concerned, is supplemented by the testimony of the nurse who was in attendance upon the- wounded man. Porter died at 2 o’clock in the afternoon. The declarations admitted in evidence were made at 11:30 a. m. The nurse testified that, when Porter was denied a hypodermic injection at about 10 o’clock a. m., he said: “What is the difference whether I die now or six hours from now ? I am going to die anyway.” She testified that he talked about dying only a short time before the statements in evidence were made and that he was, during the forenoon, conscious of the fact that he was about to depart this life. This testimony is not disputed. The foundation for the admission of the testimony was sufficient.

Defendant makes a general assignment that the verdict is not sustained by sufficient evidence. Porter, the victim of the unfortunate affair, was a farmer residing with his family some distance from North Platte. Defendant was his friend and had visited the Porter home from year to year. Before the shooting, defendant had been staying at Porter’s home, whether merely making a visit or there for the purpose of hunting game does not clearly appear. The fatal shooting occurred on the road between Porter’s home arid the city of North Platte. There was no person present but Porter and defendant. The statements of the occurrence made by Porter are incomplete and in some respects conflicting. Defendant did not testify and the record does not make a clear presentation of all that occurred between the two men. However, the testimony of those who saw them immediately before the shooting shows that they had with them a bottle of liquor and that they were more or less under the influence of liquor. They were friends; there was no cause for a quarrel between them; and were it not for their indulgence in liquor, the tragedy would never have occurred, but the evidence makes it clear that defendant fired the fatal shot. The evidence sustains the verdict.

We are asked to enter sentence under section 10186, Comp. St. 1922, and we accordingly fix the term of penal servitude at three years in the state penitentiary on the same terms and conditions as fixed in the judgment of the district court, the term to run from date of that judgment. With the term thus fixed, the judgment of the district court is

Affirmed.

Note—See Criminal Law, 17 C. J. sec. 3744; Homicide, 30 C. J. secs. 504, 561.