116 Neb. 600 | Neb. | 1928
The plaintiff in error, hereafter called defendant, was charged, convicted and sentenced under section 9553, Comp. St. 1922. That section reads as follows:
“Whoever shall maliciously shoot, stab, cut or shoot at, any other person with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary, not more than twenty years nor less than one year.”
The defendant was- charged with cutting and stabbing Julius Bevins with a knife with intent to wound him. This is one of the several substantive crimes defined by this statute, each a distinct, independent offense of equal rank. Tasich v. State, 110 Neb. 709.
Bevins resided at Seneca, in Thomas county. He was the village, blacksmith, operated a livery stable, was a deputy sheriff, and was village marshal. On April 14, 1926, between 8 and 9 o'clock in the evening, he went to investigate a report that a brick had been thrown through a restaurant window. In front of the restaurant was a
The defendant challenged the verdict and judgment on various grounds of alleged error; the chief of these is that the court failed to instruct the jury that assault and' assault and battery were lesser crimes included in the charge described in the information. The defendant did not request any instruction on these minor offenses; indeed, he requested no instructions whatever. Even if we should assume that there was sufficient evidence of a simple assault or of assault and battery, the failure to request instructions to the jury on these lesser offenses waived error. While this court, speaking through the late Judge Sullivan, questioned whether it is “the duty of a trial court, in other than homicide cases, to instruct the jury upon every crime, or upon the different degrees of a crime, embraced within the facts stated in the information” (Strong v. State, 63 Neb. 440) ; yet this court held, in a mayhem case (Barr v. State, 45 Neb. 458), in a robbery case (Curtis v. State,
In Dolan v. State, 44 Neb. 643, relied upon by defendant, the opinion states that the information charged “the crime of assault with intent to murder,” and that “the court excluded from the consideration of the jury the question of the defendant's guilt of a lower grade of assault.” In the course of the opinion, the court said: “The information included a charge of the lower degrees of assault, as well as assault with intent to murder, and it was the right of the accused to have all of the issues properly submitted to the jury.” The judgment was reversed. We do not find that it has ever been cited in our reports. The effect of the language quoted, if strictly interpreted according to its literal meaning, is to suggest that, under a charge of assault with intent to commit murder, it is necessary for the court, on its own initiative, to instruct on assault with intent to inflict great bodily injury and assault and assault and battery, all of which now are in nearby sections grouped in the same article and chapter of our Compiled Statutes. Comp. St. 1922, secs. 9552, 9554, 9556. We do not think the learned judge who wrote it, nor the court adopting the opinion, intended to apply it so definitely. We'think that portion of the body of the opinion which we have discussed ought to be, and it is hereby, ‘disapproved
The defendant assigns and argues that the court failed to instruct the jury that the intent charged could not be presumed but had to be proved by the evidence beyond a reasonable doubt. The court instructed the jury what were the allegations of the information and told them these had to be proved by the evidence beyond a reasonable doubt. One of these elements was intent. If the defendant desired more specific ihstructions on intent he should have re-, quested it. He requested none on any subject.
We have examined other complaints of the defendant, relating to the extent to which cross-examination of a witness for defendant was permitted, to the limitation of cross-examination by defendant of witnesses for the state, to misconduct of the special prosecutor in his argument to the jury. We find no error in these matters.
The judgment of the district court is
Affirmed.