85 Neb. 98 | Neb. | 1909
Plaintiff in error was convicted of assault with intent to inflict a great bodily injury, and from a sentence of two years’ confinement in the state penitentiary appeals to this court.
1. It is argued that the court erred in its charge to the jury. The assignment in-the motion for a new trial, with relation to the instructions, is joint, and under the well-settled law in this state, if one of the instructions given is correct, the assignment is bad. Thompson v. State, 44 Neb. 366. Speaking for himself alone the Avriter views the decision with disfaA'or, but it was announced 14 years ago, the legislature did not thereafter amend the statute concerning motions for a new trial in criminal cases, and the rule probably must be adhered to. In the instant case the charge taken altogether is fair. While some paragraphs thereof may be s. jecfc to criticism, AAre do not think that the jurors were misled thereby, and ' judgment ought not to be reversed because of the alleged errors in said instructions. Some of the instructions referred to in the motion for a neAV trial unquestionably state the law clearly and succinctly, and for that reason, upon the authority of Thompson v. State, supra, the assignment considered must be overruled.
2. It is urged that a neAV trial should have been granted because of newly discoArered evidence. The complaining Avitness and defendant were in a saloon in the village of McLean on the afternoon of December 14, 1907. They engaged in a card game, worked a slot machine, and pulled “square holds.” Some ill feeling Avas engendered, but their relations seemed harmonious at midnight when the resort was closed. Synder started home in his buggy, and defendant rode with him out of the village. While on the highway Snyder was beaten, as defendant testified, in a mutual combat growing out of a remark made by Snyder at the saloon that he had a boy at home that could whip the defendant. Snyder testified that he avus assaulted and
The record warrants the belief that Snyder and Liniger were intoxicated during the night of December 14, 1907, to such an extent as to render their testimony concerning their conduct that night of doubtful value in many particulars, but defendant admits that he assaulted and subdued Snyder. The jury has said that the assault was made with the intent to inflict a great bodily injury. The wounds penetrated through hair and scalp to Snyder’s skull, and furnished convincing proof of the savage character of that attack. The penalty is severe, but it was within the province of the jury to find and the court to sentence, and upon the record we do not find just cause for interference.
The judgment is therefore
Affirmed.