Lambert v. State

80 Neb. 562 | Neb. | 1908

Barnes, C. J.

Logan Lambert, defendant in the court below, was convicted of the crime of assault with intent to commit great bodily injury upon one Joseph Schell, and from a judgment of the district court for Dakota county sentencing him to imprisonment in the penitentiary for the term of one year he has prosecuted error to this court.

Defendant’s first contention is that the verdict and judgment are not sustained by the evidence; and the rule that the words “great bodily injury” imply an injury of a graver and more serious character than an ordinary battery is invoked by him in support of his contention. It appears that the prosecuting witness Avas a Roman Catholic priest, who had charge, under the authority of the bishop of his diocese, of the Indians at the Winnebago reservation in Thurston county, and was living on the reservation at the time the assault in question Avas committed; that on the 13th day of April, 1905, the prosecuting witness, who for convenience will be hereafter called the priest, went to Dakota City, Nebraska, in company with an Indian, to attend a trial before the county judge of Dakota county, wherein one Ed Luikhart Avas being-prosecuted for having assaulted an Indian of the name of St. Cyr. Luikhart was a brother-in-law of the defendant. The priest attended the trial, but was not a witness, After the trial Avas over, and about the hour of 2 o’clock in the afternoon, he went to Easton’s livery barn, where he had left his team, and requested the man in charge to hitch it up for him. While waiting, he walked leisurely back and forth in front of the buggies in the barn. OAving to the inclemency of the weather, he had on a heavy fur overcoat and cap. While he was thus waiting, the defendant came into the barn, walked back to where the priest was, and said: “Father Schell, could I see you for a moment privately?” The priest said: “Certainly.” The defendant suggested that they step back, and they walked back to the second stall on the north side of the barn, and stepped into that stall. The defendant then asked the priest: “What do you think I should do about that trouble I am in, in Omaha?” While the priest was looking down, thinking what he should say in answer to the question, he was struck by the defendant, and knocked down. When he tried to raise his head, he saw the defendant had something in his hand two or three inches long. At this instant he felt a kick in the face, and. became unconscious. When he regained his consciousness, he found that his face was bleeding copiously, and his jaw was broken in three places. He was assisted to a private house, and was then taken to a hospital in Sioux City, where he was treated for several weeks. At the time of the trial he had not recovered from his injury; his face being paralyzed on one side from his jaw to his chin.

It is disclosed by the record that the priest had been looking after the welfare of the Indians, and had been active in trying to prevent the unlawful sale of intoxicating liquors to them. The defendant and several of his associates had been engaged in such unlawful sales, commonly called “bootlegging,” and the priest had therefore incurred their bitter enmity. According to the testimony, the defendant was an exsaloon-keeper, and had served a short term in the federal penitentiary at Sioux Falls, South Dakota, for introducing intoxicating liquors on the reservation, and the priest had been somewhat active in assisting the prosecution of such offenses. It appears that the defendant assaulted him without warning; that while'he was in an attitude of listening to an inquiry he Avas knocked down, and rendered unconscious, and while in the act of trying to rise from the ground the defendant kicked him in the face. This clearly shows a disposition on the part of- the defendant to inflict on his victim more than an ordinary battery. In any event, the injury inflicted Avas a very severe one. The priest’s jaAv was broken in three places, and as a result thereof he was confined to a hospital for several weeks. It also appears that the injury Avas of a permanent character; that one side of his face, from the jaAV to the chin, Avas ' paralyzed. This, in connection Avith the fact that the defendant’s brother-in-laAV had just been charged Avith assaulting an Indian, that the priest was attending the trial looking after the interest of his charge, that he had been active in bringing the defendant and others Avho were introducing intoxicating liquors upon the reservation, to justice, shows the motive which prompted the vicious and carefully planned assault. EAddently the jury took the view that the assault Avas made for the purpose of chastising the priest for the real or imaginary grievance which the defendant and his friends had against him, and with the intention of inflicting upon him great bodily injury. The evidence of the state as to the nature and manner of the assault, if believed by the jury, and the extent of the injury inflicted thereby, was amply sufficient to show an intent on the part of the defendant to inflict great bodily injury upon his victim. The facts of this case are very similar to those in Murphey v. State, 43 Neb. 34, where a verdict finding the defendant guilty of assault with intent to inflict great bodily injury was sustained. There the victim of the assault Avas an aged man, Avho Avas knocked doAvn and kicked by the defendant, and the resulting injury was a broken leg; while in the case at bar the victim of the unlawful assault was a nonresistant, a minister of the gospel, whose mission Avas to teach the doctrine of “peace on earth, good will to men,” and whose only fault seems to have been his zeal in trying to prevent the defendant and others from debauching the Indians, whose temporal and spiritual welfare had been committed to his charge. In Murphey v. State, supra, it was said: “But, where the injury proved is the natural and necessary consequence of the deliberate and inexcusable act of the accused, the inference is that it Avas the result contemplated by him AAdien the assault Avas committed, and may be sufficient evidence of the specific intent Avliich is essential to a conviction.” That the defendant intended to inflict great bodily injury upon the priest may reasonably be inferred from the facts of this case, and the jury Avere warranted in finding the defendant guilty of the crime charged against him.

Defendant’s second contention is that the court erred in giving paragraph 15 of his instructions. It is said tliat this instruction has been tAvice condemned by this court. By it the jury Avere told, in substance, that, if they should find and believe from all of the evidence, beyond a reasonable doubt, that the defendant assaulted Joseph Schell, at a time AAdien he had no reasonable apprehension of immediate and impending injury to himself, and to ' accomplish some unlaAvful purpose, or from a spirit of retaliation or revenge, then the defendant could not avail himself of the laAv of self-defense. We conclude, from an examination of the record, that this instruction Avas given because the defendant had testified that, Avhen he knocked the priest doAAm, he thought that he Avas about to be assaulted by him, and believed that it Avas necessary for him to strike in self-defense. It is true Ave condemned a like instruction in Blair v. State, 72 Neb. 368; not because the instruction aauis incorrect as a proposition of laAv, but because there Avas no evidence in that case upon Avhich to predicate it. In the case at bar, hoAvever, it sufficiently appears from the evidence contained in the record that the defendant'might have been actuated in his assault upon the priest by hatred, ill Avill of revenge, and therefore sought the opportunity presented at that time to gratify his feelings by inflicting upon him great bodily injury. So Ave conclude that the giving of the instruction complained of Avas proper, in this case, and the judgment of the trial court should not be reversed therefor.

Having thus disposed of the only contentions presented for our consideration by the brief and argument of the defendant, it follows that the judgment of the district court should he, and is,

Affirmed.