109 Neb. 412 | Neb. | 1922
Defendant prosecutes error from a conviction of murder in the second degree under which he was sentenced to the penitentiary for the term of his natural life.
Defendant then departed from his house. He was next seen about daylight when he called at the home of a neighbor living midway between defendant’s home and the pasture. Defendant told this neighbor the same story he had related to his father-in-law, with the ad
As other neighbors assembled the ¿search for the body covered the entire pasture, and at 8 o’clock in the. morning her dead body was found on the top of a sandy hill almost devoid of vegetation close to the southern line,of the pasture. Defendant had complained early in the morning of sickness and after the body was found, the neighbors suggested that- he return to his home. They procured a conveyance and took the body to the home', where it was washed by a number of neighbor women. A messenger was sent to notify the coroner, and in the afternoon defendant and- a neighbor went to town and arranged with an undertaker for the burial and sent word of the death to relatives and friends.
Suspicion of uxorcide does not appear to have arisen until after the funeral when neighbors went to the pasture and examined the trail over which the body had been dragged. It was found that the trail did not cross the road which runs across the pasture, but, on the contrary, the horse seemed to have started at the straw stack and remained on the southern half of the pasture. The tracks also indicated that the horse had walked practically all the time while dragging the body, and, although the trail led for the greater part over sandy land scantily covered with vegetation, no human tracks along the trail were visible. The suspicions aroused resulted in the calling of two surgeons to make a post-mortem examination of the body. The testimony of these doctors shows that the body was mutilated and worn away on the front of the abdomen, the front of the left thigh, the
Numerous assignments of error are made, but the one which to us appears most substantial will be dealt with first, although it is not first in the order of the assignments made. It is earnestly urged that the proof on behalf of the state is insufficient to prove the corpus delicti.
The term means the body of the offense, the substance of the crime. In the instant case it has two component elements — the fact of death, and the criminal agency of defendant as to the cause of death. The fact of death is shown beyond question. Was the death occasioned by the criminal act of deféndant? The last time this woman was seen alive she was apparently in vigorous health and was in the company of defendant. This was shortly before sundown on the evening of April 10, 1921. The following morning her dead body was found upon the prairie. Prior to the finding of the body defendant had stated to a number of persons that he saw her in this pasture clinging to the neck of her horse and later being dragged behind her horse by a rope which was entangled about one of her legs; that she called to him to cut the rope; that he endeavored to rescue her and in his efforts in that behalf followed her and the horse which was dragging her, on foot, from about sundown until nearly midnight. The trail over which the body was dragged, when examined.soon thereafter by disinterested witnesses, fulled to disclose any human tracks, although the surface of the earth was not entirely covered with vegetation. The soil was sandy and in all human prob
It is doubtful if this body, either in life or in death, could be dragged at a high rate of speed, over the rough, undulating prairie that is' described, without turning over, yet the evidence seems to be conclusive that at no time was this body upon its back or upon either side. The conduct of defendant upon the night of the tragedy is at least peculiar. He is shown to have been an experienced horseman accustomed to the work in which he and his
As a possible motive for the commission of the crime charged, the state showed that in 1918, while defendant
By other testimony it is shown that upon several occasions he had made statements seriously reflecting upon the character of his wife and charging her with having wasted his substance. About ten days before the tragedy defendant was in the city of Ogallala and sought a loan from a friend for the avowed purpose of procuring a divorce; the friend advised him to go home and take care of his children, whereupon defendant, in the roughest of language, accused his wife of intimacy with another man. There is other testimony indicating that defendant was jealous of his wife. Whether with, or without, reason is immaterial, but, so far as the record discloses, his jealously was the creature of his own imagination. The
The information charged the crime to have been committed by the use of instruments and other means unknown to the county attorney; and that the wounds were inflicted “in and upon the parts of the body” unknown to the county attorney. Defendant filed a motion to quash the information. The motion was overruled, and this ruling is here urged as error. Defendant’s contention is that, when the information states, as in this case, that defendant with instruments or weapons and other means unknown to the prosecuting attorney did strike, penetrate and wound the deceased, he could as positively state the parts of the body thus struck, penetrated and wounded. This. is generally true, but it is not always so. “And the trend of modern authority is in favor of dispensing with any allegation whatsoever respecting the location of the wound or bruise.” 13 R. C. L. 900, sec. 206.
Wharton on Homicide (3d ed.) 859, states the rule to be that it is not necessary to specify the portion of the body on which a wound is inflicted, the words “upon the body” being a sufficient averment of their location.
The technical rules of the common law as to informations are relaxed under the provisions of section 10074, Comp. St. 1922. Nichols v. State, ante, p. 335.
Complaint is also made that the county attorney in his opening statement failed to comply with the provisions of section 10144 Comp. St. 1922, in that he did not fully disclose the evidence upon which the state relied for a conviction. The statute contemplates only a ■brief and general statement of the state’s case. The statement of the county attorney is preserved in the bill of exceptions and we are convinced that it fully meets the requirements of the statute.
Criticisms’ are made of the rulings of the court on its failure to give instructions requested by defendant and for the giving of certain instructions on the court’s own motion. These criticisms have been carefully examined, but the court finds that whenever an instruction requested correctly stated the law applicable to the facts its substance was given by the court. And the instructions given on the court’s own motion are found to be free from error.
The record shows that the case was carefully tried; that defendant was ably defended; and that there is no prejudicial error in the record. The judgment of the trial court is .
Affirmed.