78 Neb. 645 | Neb. | 1907
August H. Miller, hereafter called the defendant, was tried in the district court for Stanton county on an in
So it appears that there is no objection in point of law to the joinder of distinct offenses growing out of different transactions in one indictment, but, if this is done, the court should exercise its discretion to compel the prosecution to elect, and, if such joinder tends to embarrass the prisoner and confound him in his defense, the court ought to require an election. Engleman v. State, 2 Ind. 91; State v. Abrahams, 6 Ia. 117; State v. McPherson, 9 Ia. 53; State v. Cazeau, 8 La. 109; State v. Porter, 26 Mo. 201; State v. Lincoln, 49 N. H. 464; Kane v. People, supra. The
Again, an examination of the record discloses that the jury promptly acquitted the defendant on all of the charges except the one accusing him of shooting his wife, Mary Miller, and there Avas sufficient evidence in support of this charge to sustain the verdict. So we are of the opinion that the district court was not guilty of an abuse of discretion in refusing to require the prosecutor to elect upon which charge of the information he would rely for conviction. State v. Shores, 31 W. Va. 491; State v. Fitzsimon, 18 R. I. 236, 49 Am. St. Rep. 766; Andrews v. People, 117 Ill. 195; Pointer v. United States, 151 U. S. 396.
The defendant also contends that the court erred in allowing Mary Miller, who was his wife at the time the alleged shooting occurred, to testify against him and several cases are cited to support this contention. By
Defendant has presented several other assignments of error, but we are satisfied that none of such exceptions are well taken, and the judgment of the district court should be affirmed. A careful perusal of the evidence satisfies us that there are many mitigating circumstances in this case, and we believe the sentence to be grossly excessive, The injury inflicted was slight, and, although, as stated, there is sufficient evidence in the record to sustain a conviction, yet the jury might well have found that the shot which caused such injury was not directed at the Avife. Again, the evidence shoAVS that defendant had no quarrel with or enmity against his wife, and had no desire to injure her; that the shooting occurred during a quarrel Avith her parents and in the heat of such conflict. While we are unable to set aside the verdict without violating our well-established rules, yet we are of opinion that the sentence should be materially reduced. It is therefore ordered that the sentence be reduced to the period of three years, and the judgment as thus modified is
Affirmed.