108 Neb. 809 | Neb. | 1922
In a prosecution by the state in the district court for Thurston county, William Maddox, defendant, was charged with murder in the first degree. He pleaded not guilty, and was convicted of murder in the second degree and for that felony was sentenced to the penitentiary for life. As plaintiff in error he presents for review the record of his conviction.
Defendant was a farm-hand 37 years of age. He shot and killed his employer, John G. Schnier, on the latter’s farm in Thurston county, June 20, 1921, where he had been employed for three months. He had made his home with his employer. Schnier’s family consisted of himself, Marie Schnier, his wife, and his son, a boy 8 years of age. Defendant occupied a room on the second floor of the family home. He went fishing Saturday afternoon June 18, 1921, and returned Sunday June 19, 1921. He arose Monday morning June 20, 1921, about 10 o’clock and declined breakfast. The same day Schnier left his work in a field and Avent home for his noon meal. EiA^e guests had just arrived in an automobile. They were George -Korn, Lena Korn, Lillie Krohn, Arnold Krohn, and Charles Kirchner, relatives of Marie Schnier. Between noon and 1 o’clock the Schnier family, the guests and defendant ate dinner together. Shortly thereafter Schnier went in his automobile to Pender, three and one-half miles, taking Avith him George Korn, Charles Kirchner and defendant. Within an hour, perhaps, Schnier returned to his home Avith the same passengers, and in addition James H.
That the homicide occurred in the manner outlined is not disputed. The defense is insanity or a lapse of memory during which defendant, according to his testimony, remembers nothing in connection with the homicidal act or with his attempt to escape.
Insufficiency of the evidence to sustain a conviction for murder in the second degree is urged as a ground of reversal. It is insisted that manslaughter is the highest degree of homicide of which defendant could have been found guilty under any view of the evidence. This position is untenable. The homicide was not the result of a sudden quarrel or the recent exchange of harsh words. Defendant's
Defendant criticises testimony relating to Schnier’s son, to Schnier’s wife, to the guests, and to the dinner party, insisting that the issues were sanity and the degree of crime, if any crime was committed. All of these persons were witnesses to some incident connected with the homicide Their names were indorsed on the information. They all testified and their relationship to or interest in Schnier were proper subjects of inquiry. Some of the testimony was given in response to preliminary inquiries about the incidents and circumstances leading up to the shooting. Other proofs supported the charge. The state of defendant’s mind, as indicated by his conduct, appearance, and
Another assignment of error is directed to the conduct of the trial judge in interrupting the examination of a witness for the state to suggest:
“I think the witness could testify as to whether the defendant appeared rational or irrational.”
This was followed by testimony of the nature suggested by the trial judge, to which objections are also interposed. Though the defense was insanity, no expert testified as a result of a personal examination that defendant was insane or that his mind was affected by any particular form of insanity. In answer to a hypothetical question, however, one physician testified to the opinion that defendant was insane at the time of the shooting and another that he was then sane. Defendant was a witness in his own behalf and the nature of his testimony as to insanity is indicated by the following summary: He had a brother who was insane. He had worked in mines; had permanently suffered from pneumonia; had symptoms of tuberculosis; had stomach and bowel trouble; had poor health and constantly took medicine; had distressing family troubles and brooded over them. He testified in effect that he had no recollection of any incident connnected with the homicide and that his lapse of memory continued until he recovered his mental faculties while in prison. He did not testify to any former lapse of memory or to any previous mental disturbance which unbalanced his mind or suspended its natural functions. He did, however, testify to years of industry requiring the use of his mental faculties. Any insanity in
“When a layman is examined as to facts, within his own knowledge and obseiwation, tending to show the soundness or unsoundness of the testator’s mind, he may characterize, as rational or irrational, the acts and declarations to which he testifies. It is legitimate to give them such additional weight as may be derived from the conviction they produced at the time. The party calling him may require it, to fortify the force of the facts, and the adverse party may de*815 maud it as a mode of probing the truth and good faith of the narration. But to render his opinion admissible, even to this extent, it must be limited to his conclusions from the specific facts he discloses. His position is that of an observer and not of a professional expert. He may testify to the impression produced by what he witnessed; but he is not legally competent to express an opinion on the general question, whether the mind of the testator was sound or unsound.” Clapp v. Fullerton, 34 N. Y. 190.
The conduct of the trial court in suggesting this rule of evidence and the rulings admitting testimony under it do not seem to be erroneous or prejudicial to defendant.
One of the assignments is in this form:
“The court erred in permitting the witness, S. M. Young, to take the witness-stand, carrying a shotgun, in admitting the shotgun and shells in eAddence, and in permitting the bloody hat of the deceased to be exhibited in the courtroom before the jury.”
The burden Avas on the state to prove beyond a reasonable doubt every element of the felony charged. For that purpose the shotgun and shell used by defendant in committing the homicidal act were admissible in evidence. It is not shoAvn that the Avitness Young was not a proper person to exhibit this eAddence in court or that he made any unnecessary or objectionable display in doing so. The hat Avas not admitted and the record does not show it was bloody or that it was offered in bad faith. An eye-witness Avho saw the hat on Schnier’s head said in effect that it Avas knocked off by the fatal shot while the person of the Adctim was almost concealed from view. There was no prejudice in the rejected offer.
The brief of defendant contains a number of criticisms relating to rulings on eAddence or to isolated parts of the instructions. All of these rulings have been examined with a complete understanding of the record. They do not contain a prejudicial error. Defendant had an impartial trial. The issues were fairly submitted to the jury. The evidence sustains the conviction. The sentence is authorized by law
Affirmed.