112 Neb. 530 | Neb. | 1924
In a prosecution by the state in the district court for Dodge county, Andrew Johnson, defendant, was charged with murder in the first degree. He pleaded not guilty and upon trial was convicted of manslaughter. For that felony he was sentenced to serve a term of not less than 12 nor more than 14 months in the penitentiary. As plaintiff in error defendant presents for review the record of his conviction.
The principal argument is directed to the assignment that the trial court erred in admitting in evidence proof of statements or declarations by the victim of the homicide after he had been fatally wounded. This and other assignments of error require a consideration of the evidential facts.
William Jurging died October 31, 1922, from a gunshot wound inflicted in North Bend, October 26, 1922, between 5:30 and 7 o’clock in the afternoon. Andrew Johnson, defendant, was accused of firing the fatal shot. Disregarding for the moment all objections to evidence admitted at the trial, there is testimony tending to prove the following facts: Defendant, a dipsomaniac, was 64 years of age. He was a painter and lived alone. He met Jurging and James Herbert in a barber shop in North Bend about 5:30 in the afternoon, October 26, 1922. Jurging said he had a bottle, and defendant replied that he had one too, at home. Jurging then suggested going to the home of the defendant. The three, Jurging, Herbert, and defendant, left the barber shop together and departed in the latter’s automobile. A little later, defendant driving, they arrived at his home a few blocks from the barber shop. Jurging and defendant, and
Over the objections of defendant, the state was permitted to adduce proof of a statement by Jurging, while at Haasch’s, before he was taken to Widener’s, that defendant shot him in the latter’s home after the three had been drinking there. There were also objections to other testimony of a similar nature.
Were the rulings prejudicially erroneous? The admissibility of the statements to which objections were made was a question of law for the court, determinable under the circumstances disclosed. Johnson v. State, 88 Neb. 328. If the statements were admissible as having been made under a sense of impending death, their inadmissibility as res gestae is immaterial. Fitzgerald v. State, 11 Neb. 577. If the statements were dying declarations, the time elapsing between their utterance and dissolution is not a determining factor. Rakes v. People, 2 Neb. 157.
Jurging had been shot in the breast. He was found practically helpless. Though conscious, he spoke with difficulty. He knew he was being attended by a physician who had warned him of his critical condition. He expressed the conviction that his injury was fatal. He manifested no ill will or malice toward defendant. What occurred at the spree was reluctantly told by him. Had he survived, he would have been a competent witness to the circumstances attending the shooting. It may fairly be inferred that the taking of an oath as a witness in the presence of defendant would not have been a more effective means of eliciting the truth than the solemn impression of impending death. While the statements were made in response to questions, this did not
It is also insisted that the evidence is insufficient to sustain the conviction. The principal theory of the defense was that defendant was a dipsomaniac and that he was drunk and incapable of a criminal act. His testimony on this issue was given with apparent candor. It makes a strong appeal to reason and judgment and is strengthened by the opinion of an expert that, defendant was a dipsomaniac who lost control of his mental faculties when intoxicated. Science, however, does not settle this question in favor of defendant as a matter of law, for the reason there is evidence tending to show that defendant, a few minutes before and a few minutes after the shooting, performed acts which seemed to be directed by rational operations of the mind. The issue, therefore, was one for the jury and there is sufficient evidence to sustain the verdict.
Complaint is also made because the district court overruled objections to statements made by Jurging while at the Widener home. The jury were instructed to disregard this testimony, but it is argued that defendant, nevertheless, was prejudiced by it. Other testimony of a similar nature was properly admitted and consequently the error, if any, was not prejudicial.
The giving of an instruction, defining the term “res gestae” and permitting the jury to consider as such the statement that defendant shot Jurging, is assigned as error,
No error prejudicial to defendant has been found in the record.
Affirmed.
Note — See Criminal Law, 17 C. J. secs. 3557, 3688; Homicide, 30 C. J. secs. 493, 497, 504, 507, 585.