78 Neb. 454 | Neb. | 1907
Upon a former trial of this case the defendant was convicted of the crime of murder in the first degree. Upon petition in error to this court the judgment of the district court was reversed and the cause remanded. The reason of this reversal was that the court considered that the evidence was not sufficient to justify the conviction of murder in the first degree. In the opinion then written an attempt was made to analyze the evidence given upon that trial, and to show fully the reasons for the conclusion that the evidence was not sufficient to justify the conviction. Upon the trial now being reviewed the defendant was convicted of murder in the second degree. It is contended by the defendant’s counsel that the evidence upon this second trial is essentially the same as upon the former trial. The state, on the other hand, contends that there is some additional substantial evidence bearing upon the question of malice. It appears to be substantially ad
1. There are several important questions presented upon the record which we deem it our duty to consider, which have been thoroughly and ably presented by the respective parties, but we will first call attention to an error in the instructions of the court which has not been much discussed on the part of the state, but which seems beyond question to require a reversal of the judgment. The tenth instruction given by the court upon its own motion was as follows: “In a case of homicide, the law presumes malice from the unlawful use of a deadly weapon upon a fatal part, and when the fact of unlawful shooting or killing, causing death, is proved, and no evidence tends to show express malice on the one hand, or any justification, mitigation or excuse on the other, the law implies malice, and the offense is then murder in the second degree. You are instructed that in law a loaded gun is a deadly weapon, and if you believe from the evidence, beyond a reasonable doubt, that the defendant, John R. Lucas, wantonly, cruelly, and without justification or excuse, shot and caused the death of Clyde Lester, or that he unlawfully caused the death of said Clyde Lester, with a deadly weapon, then the law presumes that such shooting was done maliciously, unless you believe from the evidence that it was done without malice.” It will be remembered that there were several witnesses present at the time the homicide was committed. These witnesses were examined upon the trial, and it appears to be admitted that they were generally disinterested and honest witnesses, so that “all of the circumstances connected with the killing” were shown by the testimony of eye-witnesses. The question is whether in
This question is by no means a new one. It has been considered by many courts, and this court is fully committed thereon. In Vollmer v. State, 24 Neb. 838, the first paragraph of the syllabus disposes of this question finally as follows: “On a trial.for murder in the second degree, malice can be implied only in cases where the kill
“The doctrine contained in the instructions, when applied, to a case in which nothing further than the killing is shown, is recognized by this court in the case cited, and in some others, but we think it can have no application to cases like the one at bar. All the circumstances of the killing are shown by those who were eye-witnesses.” The presumption as to the motive of the homicide which the law derives from the mere act of killing arises from the necessity of the case. It is a presumption of fact. If the fact of the killing is proved, and none of the circumstances surrounding the act are shown, the existence of a motive and purpose to kill unlawfully is presumed, until the contrary appears; but, if the circumstances of killing are shown, then no presumption obtains. The motives actuating the defendant are to be derived by the jury from the circumstances surrounding his act. The rule established in Vollmer v. State, supra, is well supported by reason and authority, and under that rule this c'onviction cannot stand.
2. On the question of justifiable self-defense, the state has furnished us with an able and convincing argument. We are entirely convinced that upon the evidence in this record, this question should have been submitted to the jury with proper instructions. There is much evidence tending to show that the defendant acted hastily. As pointed out in the former opinion, the defendant saw the deceased, when at a considerable distance, coming toward the defendant’s place in company with another man. The defendant thereupon Went into his house and procured the gun, which he had loaded with heavy buckshot, and
3. It is insisted by the state that the evidence upon this last trial is sufficient to justify the conviction of murder either in the first or second degree. A necessary element common to both of those grades of murder is a malicious motive; that is, a purpose and intention to take the life of the deceased unlawfully. That element
The new evidence produced upon the last hearing is very meagre and relates principally to matters of nonessential details. It is insisted in the brief that there is additional evidence tending to show malice; that the defendant was actuated by a purpose and intent to unlawfully kill the deceased. The coroner testifies that he held an inquest upon the body, and that he heard some conversation of the defendant at the time; that in the course of that conversation some one standing there called out to the defendant and asked him: “Now haven’t you some
The judgment of the district court is reversed and the cause remanded.
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