80 Neb. 688 | Neb. | 1908
An information was filed in tbe district court for Scott’s Bluff county, in which plaintiff in error was accused of murder in the first degree in killing Samuel D. Cox by shooting him with a pistol held by plaintiff in error. A jury trial was had, which resulted in a verdict of guilty of murder in the second degree, with recommendation that
The defendant complains of the giving of the ninth instruction, given by the court upon its own motion. That part of the instruction complained of is as follows: “In cases of homicide, the law presumes malice from the unlawful use of a deadly weapon upon a vital part, and when the fact of unlawful killing or shooting causing death is proved, and no evidence tends to show or express malice on the one hand, or any justification, mitigation or excuse on the other hand, the law implies malice, and the offense is murder in the second degree. In law, a loaded gun or pistol is a deadly weapon, and if you believe from the evidence beyond a reasonable doubt that the defendant, Ernest S. Kennison, wantonly, cruelly and without justification or excuse shot Samuel D. Cox, and thereby caused his death, then the law presumes that such shooting was done maliciously, unless you are satisfied by the evidence
It Avill thus be seen that it has been the settled laAv of this state, since the question was first presented to this court for consideration, that in a case of homicide, Avliere all the circumstances surrounding the transaction are ifi evidence before the jury, the fact of the killing gives rise to no presumption that it Avas done with malice, but it is for the jury to determine the motive or intent or lack of intent with which the act was done. In Good and Corcoran, Instructions to Juries, p. 309, this instruction is
In this case the tragedy occurred about dusk on the principal street of the village of Minatare in the immediate presence of a large number of eye-witnesses. The evidence is to the effect that the shooting took place at the termination of a fight with fists between Kennison and Cox, in which Kennison had received the worst of the encounter. Kennison had been struck by Cox and knocked against the wall of a building. He recovered himself, drew a pistol and shot at Cox who, as a number of witnesses testify, was then standing still, six or eight feet away from him. This shot missed Cox. Cox then rushed toward Kennison, evidently to'try to get the pistol, when a second shot struck his left arm. The shot which killed him followed during the struggle between them for the possession of the revolver. According to some of the witnesses for the state, the last shot was fired deliberately. The witness Pierpont, who was called on behalf of the state, testified as follows: “Q. As he pulled the gun, you saj^ the first shot went wild? A. I think so. Q. Then what did Cox do ? A. He clinched or reached for Kennison’s arm. Q. Did you notice whether he got it or not? A. Yes, he got him by the wrist. Cross-examination: Q. You say Cox caught him either by the gun or the wrist? A. By the wrist, I think. Q. Might Cox have had hold of the gun at. any timé? A. He might have had, but I don’t think he had.” Other witnesses for the state told of Cox having'hold of Kennison’s arm or wrist in the struggle. Kennison testifies that Cox rushed at him before he fired the first shot, that this did not stop him, that Cox grabbed him, took hold of his arm and pushed his hand up, and that the gun was discharged accidentally. The witness- Snell, who testified for the
With all these facts before the jury, the use of the weapon or the fact of killing raised no presumption of malice, and the question of its absence or existence was one for the jury to determine from the evidence under proper instructions.
The defendant complains also of the tenth instruction, given by the court upon its own motion. The portion of that instruction which is claimed to be erroneous is as follows: “And in this case, if the jury believe from the evidence that the defendant unlawfully and feloniously shot deceased, Samuel T). Cox, and that said shot caused the death of the said Cox, then, to reduce the killing from murder to manslaughter, the jury must believe beyond a reasonable doubt that the provocation for such shooting arose at the time of the shooting, and that the passion therefor was not the result of a former provocation; that such passion was either rage, anger, sudden resentment, or terror, which rendered the defendant incapable of cool reflection upon the character and result of his act, and that the act or shooting was directly caused by passion arising out of the provocation at the time of the shooting, if there was any provocation therefor shown by the evidence.” This instruction in effect tells the jury that, if they believe that the defendant unlawfully and feloniously killed Cox, the killing is murder, and in order to reduce the killing from murder to manslaughter the jury must believe beyond a reasonable doubt that the mitigating circumstances detailed in the instruction existed, thus placing the burden upon the defendant to prove the existence of circumstances which would lower the degree of the crime. If the unlawful killing is shown, by the instruction the degree of the .crime is assumed to be murder, unless the existence of provocation at the time, and passion caused thereby, was proved beyond a reasonable doubt,
It is contended also by the state that, as other instructions were given in which the different degrees of the crime of felonious killing were well and fully defined, the vice of this instruction, was fully corrected. But this could not be. An instruction that is clearly wrong, and which is inconsistent with the correct rule, is not cured
In the sixth instruction, the jury were told that the burden of proof rests upon the state to prove the charge beyond a reasonable doubt, and that this burden never shifts from the state to the defendant; but this is inconsistent with an instruction which tells the jury that, in order to reduce the crime from murder to manslaughter, certain elements must be proved beyond a reasonable doubt. The eleventh instruction also is inconsistent with this one, and the necessary result of the two instructions, taken together, -would be to confuse the jury, and leave them in doubt whether merely a reasonable doubt as to his guilt of murder in the second degree would be ■ sufficient to warrant them in fixing the degree of the crime at manslaughter, or whether it would require them to be convinced beyond a reasonable doubt that mitigating facts existed, before they would be justified in reducing the degree, and finding him gui lty o'f the lesser offense, instead of the greater.
The .ninth instruction complained of sets against the defendant the presumption of malice, and of murder in the second degree; the tenth assumes the existence of that degree of murder, and requires proof of a lower to be made by the defendant beyond a reasonable doubt before the jury will be justified in reducing the degree. Under the testimony in the case, these instructions were prejudicially erroneous.
The constitution guarantees a fair-and impartial trial to every citizen of this state, and this demands that in the consideration of the evidence the jury must be guided in their deliberations by a correct statement of the law. It was one of the constitutional rights of the defendant that no instructions should be given the jury which would impose upon him a burden to which he was not legally subject, and the effect of Avhich would be to prevent him from having a fair and impartial trial under the law of the land.
Reversed.